History has repeatedly shown that those bent on subverting the law are not deterred by the law. An unethical chief executive tends to surround himself with equally unethical minions willing to help him carry out his unconstitutional power grabs or other unlawful designs. Trump, as president, habitually did so. However, he appointed enough men and women with prior Justice Department civil service experience and a modicum of integrity to rebuff him when he made his outrageous demands to steal the elections. He—or the next Trump wannabe—won’t make that mistake again.
Trump: A Stress Test of the American System
Consider what happened with Trump:
After the elections, then-Attorney General William Barr, no slouch when it came to indulging Trump’s overweening ambition till then, tried but failed to talk Trump out of the notion that the election was fraudulent. As Trump escalated his cries of a “stolen election,” Barr tendered his resignation, effective Dec. 24, 2020. In the two weeks between Christmas after Barr’s departure and the attack on the Capitol, Trump attempted to browbeat, threaten or otherwise intimidate the remaining senior Justice Department officials into giving him the false win he craved.
When that failed, he decided to promote Assistant Attorney General Jeff Clark to the position of attorney general so that Clark could help execute some version of the now infamous “Eastman plan,” an unconstitutional attempt to decertify the 2020 election results. Acting Attorney General Jeff Rosen and Acting Deputy Attorney General Richard Donoghue went to the White House on Jan. 3, three days before the attempted insurrection, for what became an extremely tense meeting over Trump’s scheme to make Clark the head of the Justice Department.
As Donoghue subsequently told the Select Committee, he laid out the potential consequences for Trump should the president proceed with his plan:
You should understand that your entire Department leadership will resign. Every AAG [Assistant Attorney General] will resign.… Mr. President, these aren’t bureaucratic leftovers from another administration. You picked them. This is your leadership team. You sent every one of them to the Senate; you got them confirmed. What is that going to say about you, when we all walk out at the same time? And I don’t even know what that’s going to do to the U.S. attorney community. You could have mass resignations amongst your U.S. attorneys. And then it will trickle down from there; you could have resignations across the Department. And what happens if, within 48 hours, we have hundreds of resignations from your Justice Department because of your actions? What does that say about your leadership? (Donoghue transcript, p. 125)
The lesson the next Trump might draw from the brave stance of Rosen, Donoghue and other assistant attorneys general is that given these sub-Cabinet-level positions are political appointments that the president can control, he should fill them with loyalists and sycophants just like many of his Cabinet appointments. That would mean that the job of holding the fort against such presidential usurpations would fall on career civil servants in the Senior Executive Service (SES), who act as a buffer between political appointees at the top and civil service employees at the bottom of the bureaucratic food chain.
Eroding Defenses Against Presidential Illegality
But that line of defense won’t hold up either. That’s because the Office of Personnel Management, an agency within the federal government that manages the civil work force, currently stipulates: “Each agency has the right to decide what positions are abolished, whether a RIF (Reduction in Force) is necessary, and when the RIF will take place.”
This means the White House—through its Office of Personnel Management—could direct political loyalists in the Cabinet and sub-Cabinet positions it has appointed to eliminate—i.e. reorganize out of existence— key SES positions in the name of reducing the size of government. Should that happen, the lower-level civil servants would then be under direct pressure from the top to choose between their integrity and their jobs when a president wants to engage in an unconstitutional power grab or implement some illegal scheme. No civilized country that believes in the rule of law should ever put government employees in this position.
George W. Bush’s administration provides an illustration of what can happen when a sitting president and his key political appointees decide to flout, if not outright ignore, the plain language of the law when such civil service safeguards are weak. The Fourth Amendment prohibits warrantless surveillance. Yet, under the advice of Deputy Assistant Attorney General John Yoo—a Bush appointee—the Justice Department’s Office of Legal Counsel gave its legal blessing for exactly such a program: the so-called Stellarwind program.
Yoo also provided the legal cover for the CIA’s infamous torture program. Had Yoo’s office been in the hands of a civil servant, Bush would likely have had a much harder time doing such an end run around the Constitution.
The Bush and Trump administrations’ actions suggest the solution to preventing legal subversion by sitting presidents is to diminish the number of political appointees in at least the Departments of Justice, Defense and Homeland Security—the three executive agencies that can be particularly injurious to a constitutional republic when they are in the wrong hands—and expand the buffer between political appointees and lower-level civil bureaucracy. Indeed, the president should be able to appoint only the top Cabinet official in these agencies. Everyone below, including sub-Cabinet appointments, should be filled with nonpartisan career professionals.
Dangers of a Politicized Bureaucracy
This is not a preposterous suggestion. This is how the CIA has always operated. The president appoints the director—the agency head—and all the other positions down the food chain consist of career civil servants. That approach has also worked quite satisfactorily in the United Kingdom’s parliamentary system for centuries.
Ending political appointments in these three departments would go some way toward reversing the nearly 60% jump in the number of Senate-confirmed political appointee positions—from 779 to 1,237—between 1960 and 2016, according to the Partnership for Public Service. That, incidentally, doesn’t count the roughly 3,700 other political appointees slots at the lower levels that don’t require Senate confirmation.
The obvious objection to increasing the presence of civil—over political—appointees would be that this would insulate executive agencies from democratic accountability by undermining the authority of a duly elected president. In other words, the “deep state” would deepen and become more subversive of a president if it doesn’t agree with his agenda even though that’s what the American people want. But limiting political appointments wouldn’t prevent a president from implementing his or her agenda so long as that agenda is lawful, given that federal civil servants are required by law and regulation to carry out lawful orders and directives.
Trump was a stress test for the American system in that he exposed that the dangers of a president going rogue are much greater than the dangers of an entrenched bureaucracy. It was not the “deep state” after all that tried to overthrow the republic on Jan. 6, 2021—it was Trump-inspired political hucksters and opportunists along with militias and white supremacists who stormed the Capitol. Moreover, there are other cures for a recalcitrant bureaucracy, including rewriting the Federal Vacancies Reform Act to weed out civil servants genuinely unqualified or unfit for service at a senior level in the executive branch, as my Cato Institute colleague Thomas Berry has noted.
Next Time We Might Not Be So “Lucky”
An unreformed Office of Legal Counsel crammed with political appointees would be particularly dangerous if Trump—or someone like him—wins in 2024, given the vulnerabilities that still exist in the recently amended Electoral Count Act. The biggest one is the failure to clearly define what are not “regularly given” state electors and therefore shouldn’t be counted. In 2005, Democrats used this lack of clarity to force a vote on Bush’s victory over John Kerry in Ohio based on some rather zany conspiracy theories. And in 2021, Republicans, of course, used the same rule to allege that Arizona and Pennsylvania, where Joe Biden had won, had not followed their own state laws and questioned whether their electors could be counted for him—never mind that courts had already rejected these claims.
A defeated president who doesn’t want to leave office could prod his minions in the Office of Legal Counsel to promulgate an opinion that one or more states’ electoral votes were not “regularly given.” That opinion would not be binding on Congress, but it would be on the executive branch. Rainey Center’s Andy Craig (a contributor to The UnPopulist) notes this means that come Jan. 20, all executive branch agencies would then be forced to recognize the incumbent as the president instead of the true winner of the election, regardless of what Congress said.
This wouldn’t ultimately work because courts would likely step in. But it would create political chaos, generate a constitutional crisis, and possibly trigger riots as supporters of the defeated president and his opponent took to the streets.
“If you play out the hypothetical scenario where Trump didn’t quasi-concede after Jan. 6, it probably would have wound up looking something like this,” notes Craig. “Trying to issue orders, and using Office of Legal Counsel opinions to give it extra heft, for the executive branch to not comply with the transfer of power. And then attempting to stage a fake inauguration for himself on Jan. 20.”
The country was lucky that Trump, who had no previous governing experience or knowledge of how the government works, did not realize the implication of picking prior civil servants like Rosen and Donoghue for sub-Cabinet positions. But he—or his successor—will be smarter about it next time. Ronald Reagan’s director of personnel Scot Faulkner observed, “personnel is policy.” It would be good policy for this country to have professional civil servants in executive agencies who can resist a renegade president.
Building such points of resistance in an all-powerful branch of government is essential for ensuring the peaceful transfer of power in future elections and preserving the rule of law.
