(Please note that this is in GQ, not GD)
The State Department has blocked Sondland from testifying. Isn’t that a violation of his first amendment rights?
First Amendment rights are not absolute, especially in a workplace setting.
I don’t think that could be the explanation here. Sondland would not be speaking in his workplace.
He was instructed by his boss to not testify. He obeyed the instruction. There’s no legal argument involved there. His appearance was to have been voluntary, no subpoena. That has changed now, he’s been sent a subpoena.
He has the constitutional right to talk about things, and the president has the constitutional right to fire political appointees at will.
whoops, wrong forum
OK, but all reporting I’ve read on the incident states that he’s been “blocked”, which implies he’s not allowed to do it. Maybe I’m going out on a limb here, but I’m reading it as more than being threatened with termination.
I may be wrong, but I think the legal argument from Trump’s team for people to ignore subpoenas is that the unanimous decision in United States v. Nixon, 418 U.S. 683 (1974) was wrong, wrong WRONG, and Nixon should have been allowed to ignore the subpoena and should have been allowed to hide the evidence against him.
I think this is where they’re going.
He would be speaking about his workplace, which is the important thing here.
Then that would be a civil issue, not a legal issue, correct?
I am not a lawyer, a fact I should have made clear, but yes, I believe it would come down to employment law, which is a civil matter.
I don’t know if there is any First Amendment case law with regards to speaking about one’s employment. Maybe a real lawyer can weigh in.
As a general matter, government agencies may regulate how and whether their employees (and former employees) testify about matters related to their employment. I think the statutory authority comes from 5 U.S.C. 301, but most (all?) agencies have regulations (known as “Touhy regulations”) which (broadly) require a employee to seek permission from the agency before testifying; allows the agency to limit or prohibit the testimony; and requires the employee to follow instructions. I don’t know what the penalty is for violating it, but it probably jeopardizes your job and pension, etc.
It usually comes up in civil litigation, but I don’t know why the regulations wouldn’t apply to statements before Congress. I’m not familiar with the State Department regulations, but the department regulations that I’ve read are fairly consistent with each other. Generally speaking, any sanction would be against the department that refused to allow the testimony.
From personal experience, I can tell you all that the State Department regulations (like most government regs) are labyrinthine and often contradictory. You can find a cite for almost any action taken and another cite that refutes the first one.
If said employee is subpoenaed, how is that reconciled?
It depends. As a general matter, in U.S. ex rel. Touhy v. Ragen (1951), the Supreme Court found that a subordinate official of a department (there, DOJ) could refuse to comply with a document subpoena (directed to him personally) because of a DOJ regulation. (This is why such regulations became known as “Touhy regulations”). The basic conclusion was that you can’t hold the subordinate official in contempt for failing to produce documents when he wasn’t legally required to do so (because of the department’s right to regulate such production).
Touhy dealt with documents, but is routinely applied to testimonial subpoenas. The modern view is, generally, that you may not directly subpoena an agency employee (at least without going to the process set forth in the regulation), but that you can probably subpoena the agency itself. That works for documents (subject, of course, to any privilege) and “corporate representative” testimony.
But the Touhy regulations (at least that I’m familiar with) contemplate subpoenas and instruct the witness to appear and refuse to answer questions and refer to the regulations. See, e.g., 28 C.F.R. 16.28 (DOJ Reg: “the employee or former employee upon whom the demand has been made shall, if so directed by the responsible Department official, respectfully decline to comply with the demand.”); 6 C.F.R. 5.47 (DHS Reg: “the employee upon whom the demand has been made shall respectfully decline to comply with the demand, citing this subpart and United States ex rel. Touhy v. Ragen,340 U.S. 462 (1951).”).
OK, so, remembering that this post is in GQ, is there a legal way for the House inquiry to deal with this?
I don’t think I’ve done anything to run afoul of GQ?
But, I think a Touhy decision is reviewable in federal court under the Administrative Procedure Act. You may also be able to refer the subpoena to a federal court for “enforcement” (which will raise the same issues). The agency regulations set forth a number of criteria that an agency is supposed to consider before prohibiting testimony; I think a court could review those. It may depend on why the agency refused to let the employee testify, but general recalcitrance isn’t going to suffice
It’s also possible that there is a different rule for Congressional subpoenas (but I haven’t seen any real argument one way or another on this). The oversight role of Congress implicates somewhat different equities than private litigation.
Edit: Congress could also change the law.
Nope, just being preemptive 
Thanks for your responses, they’ve been very informative.
Some of the other commentary on the recent spate of subpoenas and such flying around, I recall some mention that the Office of Legal Counsel (?) had issued and opinion that certain requests and subpoenas were not valid due to issues like executive privilege - and that anyone in the executive branch was obliged to follow these legal opinions.