This week, Elizabeth Baxter, an intern with the department’s environmental division, became the second Justice Department employee to be fired by Attorney General Pam Bondi for abusive conduct toward federal officers. Baxter shouted profanities and flipped off a member of the National Guard in Washington, D.C., on her way to work. The termination raises legitimate free speech issues, but Baxter may have crossed the line by recounting the abuse at work.
We recently addressed the effort to charge Sean Charles Dunn, another DOJ paralegal, with a felony over assaulting a Customs and Border Protection agent with a sandwich. A D.C. grand jury refused to issue an indictment and he will now face a misdemeanor after being fired by the Justice Department.
Baxter is different in that she is not accused of any assault. According to the New York Post, after arriving at a DOJ building on the morning of August 18, Baxter bragged to a security guard about how she had just made the gesture at the Metro Center Metro Stop. She also recounted how she told the guardsman, “F–k the National Guard.”
The protest itself would seem protected speech. There is no indication that Baxter referenced her position at the Justice Department when she engaged in this profane protest. This was not done during work hours.
DOJ guidelines affirm that employees may:
– Express opinions on political subjects and candidates.
– Campaign for or against a referendum, constitutional amendment or ordinance.
– Participate in civic, professional and other similar activities.
– Sign a political petition.
– Display signs, stickers, badges or buttons for candidates for partisan political office except when on duty.
However, those same guidelines state that employees may not:
“Participate in political activities (to include wearing political buttons) while on duty; while wearing a uniform, badge or insignia of office; while in a government occupied office or building; or while using a government owned or leased vehicle.”
Baxter’s desire to repeat the protest to a security officer at the DOJ moved the matter into the workplace. Not only did security footage capture her flipping off the National Guardsman and exclaiming, “F–k you!” but she is also seen demonstrating to a department security guard how she held up her middle finger. She boasted to the security guard that she hated the National Guard and that she told them to “F–k off!”
The conduct inside the Justice Department could be cited as sufficient grounds for termination. The repetition of the protest to the DOJ security could be seen as disrespecting their positions and interjecting her political views into the workplace.
Baxter could, within 30 days, file with the Merit Systems Protection Board to challenge the action. I expect that she is likely to do so. She can claim that she was not insulting the security officer or making a political statement in the building’s lobby. However, she elected to repeat the political expression inside the federal building to at least one other federal employee during office hours. As such, she destroyed much of the constitutional protection afforded to her earlier statements and demonstration.
..there are so many sick people who have been gaslighed by the MSM, suffering from TDS, Being Abusive.. saying or writing stupid stuff… The National Guard just showing up has made DC a safer place.. I felt very uncomfortable walking around DCl the last couple years (and stopped altogether at night..) as I love doing in the warm weather, esp. around the Mall… with back to back Palestine protests up and down the whole area with bullhorns yelling and chanting all over the place.. their noise pollutin disturbing the majesty and peace there and blocking all the pathways.. like.. what about my rights to enjoy what the core of DC stands for..? ..and I sure as hell don’t understand why Wolf Blitzer would post a photo of the National Guard calmly hanging out at Union Station which was clear and free of American Flag Burning protests & monument trashing and spray painting for the first time since Oct 7… implying with his photo that this was like Nazi Germany when in fact it is just the opposite… peace and safety… which proves that the MSM believes its own BS…..
Knock it off. Absurd.
Even if she had not recounted it at work, I’m not sure she would be protected, for several reasons.
First of all, while she has every right to express her opinion of the National Guard, on or off the job, making an obscene gesture in public goes beyond that, and might justify firing her. The DOJ can simply say we don’t want people who behave like that working for us.
Also, there may be a difference between expressing hostility to a different government, and expressing it to the very same government that employs her. The most on-point case is probably Rankin v McPherson. Suppose Ardith McPherson, rather than expressing the desire that President Reagan be assassinated, had instead said she wished someone would shoot Walter Rankin, her boss. Would he really be prohibited from firing her for such a remark?! Likewise, had Baxter flipped off Ms Bondi, even off the job, would that not be enough for Ms Bondi to fire her?!
Actions have consequences….sometimes unexpected.
Quick observation: The fired employee said I hate the National Guard. She did not say that she hates their current deployment to DC (although that may ultimately be what she really hates). Her statement was broadly and unequivocally anti-government, not anti-policy and therefore arguably protected if she truly believed the policy itself was unconstitutional.
A vitally important issue for Professor Turley to debate:
What happens when both parties agree to simply ignore laws or intentionally violate laws and constitutional rights? Do us citizens have any rights when both parties choose to break the law?
Ronald Reagan’s Torture Treaty was the “supreme law of the United States” under Article VI of the U.S. Constitution.
Bush officials committed premeditated law breaking and rights violations (authority no American official has under their oath of office).
Then Obama simply ignored Bush’s law breaking like nothing ever happened. Americans have virtually been enslaved for 20+ years.
Do us (sic) citizens have any rights when both parties choose to break the law
The correct word is we not us.
It is torturous for an illegal immigrant wetback to be correcting the English of trolls but especially a troll who enslaves the host and his readers with asinine, imbecilic and fatuous English language mistakes.
De nada, pendejo
Orale! El es MS 13 o Tren de Aragua? Él es el enemigo extranjero seguro!
I have two points to make. The first is that every statement you presented is a lie.
The second is that this was an extremely stupid comment.
It is miserable having terminal TDS, isn’t it. You are miserable every day of your life.
Ross – this is not unusual for GBA (green-background anonymous). Pretty much everything she says is a lie.
Treaties made by the president with the senate’s consent are laws of the USA, just like statutes passed by Congress and signed by the president. But they are not self-executing unless they say so. If they don’t, they have no practical legal consequences unless Congress legislates to implement them.
Also, the president can abrogate a treaty whenever he likes, at which point it stops being a law. And of course, like any other law, Congress can pass a new law that overrides it. The Military Commissions Act of 2006 changed the definition of war crimes and barred prosecution of those making or implementing policy. That is now the supreme law of the land, so you can suck on it.
Re: “Baxter bragged to a security guard about how she had just made the gesture at the Metro Center Metro Stop. She also recounted how she told the guardsman, “F–k the National Guard.”
As a First Amendment near absolutist I would ask if the penalty fit the crime. If Baxter had boasted to the security guard that she flipped off Chuck Schumer as he walked by and also shouted “F–k the Democrats”, would she have been fired for that analogous offense? Baxter could have been reprimanded and perhaps suspended without pay for a short period. But firing her for an non-violent, one-time aside to a security guard?
The $500 Million judgment against Donald Trump was thrown out as being excessive. However the Republicans now have no problem being as ruthless as the Democrats against their political enemies regardless of due process and prudent proportionality of punishment.
“As a First Amendment near absolutist…”
Indeed, the Founders and Framers concluded the Constitution and Bill of Rights with the phrase “just kidding,” none of the aforementioned rights, freedoms, privileges, and immunities is absolute, and we weren’t serious in the least. This whole thing is a joke. (Sarc/On).
Basically the same as corporate policies. I worked for GE. If you did it on your own time no problem, If you did it at work or while wearing anything that ID’ed you as a GE employee, hat shirt, button, ID badge or anything else that could tie you to GE you were fired.
You could not post anything political or make political statement to other employees at work. If you did you would get fired.
Yeah, under communist rules. If you, by contrast, accept that the absolute 5th Amendment right to private property is self-qualified, subject to no further qualification, and immutable American fundamental law, you understand that GE is private property and only the owner may “claim and exercise” dominion, including hiring, firing, paying, and directing employees, in exclusion of every other individual. Private property is private property, and it is not public property.
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“[Private property is] that dominion which one man claims and exercises over the external things of the world, in exclusion of every other individual.”
– James Madison
The government has no authority to deprive its employee of free speech rights off-the-premises or off-the-clock, nor does it have a rational basis for defining ordinary personal speech at work as “political activism”.
Baxter’s desire to repeat the protest to a security officer at the DOJ moved the matter into the workplace. Not only did security footage capture her flipping off the National Guardsman and exclaiming, “F–k you!” but she is also seen demonstrating to a department security guard how she held up her middle finger. She boasted to the security guard that she hated the National Guard and that she told them to “F–k off!”
That it not ‘ off-the-premises or off-the-clock’.
It was caught on the company security camera. I am guessing the guard was offended and reported it, which is why they checked the security camera footage. That is the reason for such policies.
Read my next post, that is also corporate polices for many organizations.