FROM CONSTITUTIONAL LAW PROFESSOR
“It
Felt Really Good”: DOJ Employee Among Socialists Harassing Homeland Secretary
Kirstjen Nielson At Restaurant
Two days ago, Homeland
Security Secretary Kirstjen Nielsen was effectively chased from a restaurant by
protesters screaming at her and her companion. The scene at MXDC
Cocina Mexicana was shocking to most of us who have decried the loss of
civility in today’s political discourse. One person clearly not shocked
was Rep. Jackie Speier (D., Cal.) who defended the protesters and blamed it on
Trump’s divisive political rhetoric. While the protest seemed
clearly organized, Speier portrayed it as a spontaneous expression of anger by
citizens in her interview on
CNN. The scene was very
disturbing as was the apparent impunity exercised by the protesters
in shutting down a restaurant. It now appears that it was a protest by
the Democratic Socialists of America and one of those
participating was a DOJ employee, Allison Hrabar. Hrabar
is reportedly a
paralegal specialist and her participation could raise again our
long-standing debate over the punishment of employees for comments or actions
taken outside of the workplace.
We have followed cases
where people have been fired after boorish or insulting conduct once their
names and employers are made known. (here and
here).
This includes YouTube videos and drunken scenes.
Hrabar is quoted in aWashington Examiner report saying “It feels really good
to confront people who are actually responsible, which is what we have a unique
opportunity to do in D.C.” That “unique opportunity” could cost Hrabar
her job. This was not just a protest but arguably disturbing the peace
and trespass.
The legality of the
protest is key. Before addressing the more difficult issues speech
content, there is the threshold question of the legality of the protest.
There are some concerns
on the participation itself. A federal employee is allowed to participate
in protests or advocate for changes. They are not allowed to support or
oppose a political party or candidate for a partisan political office or
partisan political group while at work or wearing a uniform. This
includes postings on social media during work hours. If she advocated for
the Socialist party or made social media protests during work hours, she could
have serious ramifications.
The
Hatch Act allows “less restricted” employee to participate in partisan
political campaigns while off-duty. She is presumed not a “further
restricted” DOJ employee as someone who is SES or an ALJ judges or employee of
the criminal division, FBI etc.
A different issue will
arise after police find the
intern who screamed profanities to President Trump in the Capitol.
This was presumably during the course of her duties since she used her intern
badge to gain access to the Capitol.
Hrabar dismissed her
status as a DOJ employee and encouraged others to engage is such
confrontations: “If you see these people in public, you should remind them that
they shouldn’t have peace. We aren’t the only ones who can do this. Anyone who
sees Kirstjen Nielsen at dinner, anyone who sees anyone who works at DHS and
ICE at dinner can confront them like this, and that’s what we hope this will
inspire people to do.”
She previously posted
anti-Trump comments on social media, though her account has now been made
private.
Now
that Hrabar has self-identified, the question is whether MXDC will press
charges. It is not clear if the restaurant ever notified police despite two of
its patrons being abused inside the restaurant. The restaurant serves many
politicians and officials who assume that the establishment will act to protect
its patrons from such harassment. If charges are brought, Hrabar may find
the First Amendment is less protective than she assumed.
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