 Sponsored by Hawthornden Foundation The Trump administration’s clear-cutting of the civil service has been accompanied by an effort to undermine the agencies tasked with ensuring ethical conduct by federal employees and preventing the politicization of government services. As Walter M. Shaub Jr. writes in the NYR Online, the president’s attacks on government integrity have been comprehensive:
And to lead the agency that is supposed to prevent attempts to remake the civil service with party loyalists, the Office of Special Counsel (OSC), Trump has nominated Paul Ingrassia, a thirty-year-old “legal sproutling” with scant professional experience and a social media history filled with bigotry. As Shaub argues, “The whole point of Trump putting Ingrassia in the special counsel position is to neutralize that office—or, better yet, to weaponize it.”  Walter M. Shaub Jr. After many years as a government lawyer, in 2013 Shaub was appointed director of the Office of Government Ethics (OGE) by President Obama. He resigned several months into Trump’s first term, telling NPR that “the current situation has made it clear that the ethics program needs to be stronger than it is.” He has since worked for the Campaign Legal Center and the Project on Government Oversight, and he was a visiting fellow at the University of Pennsylvania Carey Law School from 2024–2025. Last month I wrote to Shaub to ask him about what if any safeguards are left to check Trump’s abuses of power, the office culture at the OGE, and Han Solo.  Advertisement Daniel Drake: A central argument in your essay is that Trump isn’t just dismantling the federal bureaucracy, he is weaponizing certain departments to retaliate against whistleblowers or punish employees who don’t pass loyalty tests, or who refuse to obey unlawful orders. The possible ramifications of that kind of politicization of the civil service—denial of benefits and services to non-Republicans, the empowerment of secret police—are severe. What protections or safeguards remain at this point to resist this abuse of executive authority? Walter M. Shaub Jr.: The only things separating Donald Trump from the twentieth century’s fascist leaders are time and opportunity. We’re running out of the former, and his administration is working hard to create the latter. He has torn out almost all of the executive branch’s guardrails, leaving only the patriotism of whichever remaining career federal employees are willing to refuse unlawful orders at the risk of their livelihoods and, if their names make it into the alt-right social media cesspool, their families’ safety. The legislative branch, meanwhile, is run by Trump’s vassals, who refuse to conduct any oversight of his administration or enact laws to curb his abuses. The judiciary is the last edifice standing, and its crumbling foundation won’t long hold. The lower courts in some federal circuits are holding up fairly well, but all legal roads lead to the Supreme Court’s supermajority of conservative justices. There, politicians in robes increasingly appear to have given up even the pretense of practicing law, shifting interpretive approaches from case to case as needed in order to achieve their desired outcomes. In one dissent, Justice Elena Kagan charged that the “majority’s opinion mostly inhabits a law-free zone.” All anyone really needs to know, however, is that the right has abandoned its purportedly devout fidelity to the Constitution’s text by inventing, in Trump v. United States, a new form of presidential immunity that is nowhere to be found in the “framers’ intent.” Justice Sonia Sotomayor’s dissent explained that the ruling—which held that the president “may not be prosecuted for exercising [core constitutional powers]”—would insulate presidents from accountability for any number of crimes: “Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.” And this sense of immunity—of impunity—is already playing out in Trump’s relationship with the law. When trial courts and some appellate courts have ruled against the president, the administration has responded by skirting or defying court orders, refusing to supply information demanded by the courts, filing a complaint against a federal judge, encouraging mass outrage at judges, and pursuing a bizarre lawsuit against a federal district court itself. Courts traditionally apply a “presumption of regularity” to statements by DOJ attorneys, meaning the courts assume their statements are true unless the opposing side demonstrates otherwise. But at a July 11 hearing the US District Court judge Paula Xinis reportedly told the government’s lawyers, “You have taken the presumption of regularity and you’ve destroyed it.” This week a US magistrate judge, Zia Faruqui, rebuked federal prosecutors for thinly justified detentions and charges during the surge of arrests in Washington, D.C.: “It’s not fair to say [the US Attorney’s office is] losing credibility. There’s no credibility left.” Any judge who continues to apply a presumption of regularity during this irregular administration is either naive or complicit or both.  Advertisement As has been the case with autocratic leaders around the world, Trump has coopted the institutions of democracy to increase his power. Like his fellow enemies of democracy Viktor Orbán in Hungary and Recep Erdoğan in Turkey, Trump has misused government power for his own benefit at the public’s expense. He has turned the state’s criminal law apparatus against perceived opponents while doling out pardons to friends, supporters, and donors. He has leveraged the government’s regulatory approval, access to important officials, and grant-making functions to coerce businesses into paying the government a share of their profits—or allowing the government to buy billions of dollars of their stock, in one case a controlling share. He has forced major law firms to provide about a billion dollars’ worth of free services to causes Trump supports. He has pressed universities and their leaders into paying fines and making troubling concessions on First Amendment issues and personnel decisions. Like any diligent autocrat, Trump has also tried to manipulate artistic production, architecture, and history (or, as he calls it, our “unmatched record of advancing liberty, prosperity, and human flourishing”). He has deployed the National Guard, the Marines, and federal law enforcement agents to two cities and has announced that he will send them to a third. The Border Patrol regularly descends on localities far from the country’s borders to terrorize immigrants and citizens alike, including a raid on firefighters while they battled the largest wildfire in Washington state. All of this is nothing compared to what’s coming once Trump fully solidifies his control of the executive branch’s arsenal. Thus far, for instance, he has not yet ordered the military to conduct law enforcement arrests; attempted to adjourn Congress; withheld disaster relief from states he lost in the 2024 election; arrested members of Congress, federal judges, or governors; used an emergency power to shut down or seize control of a “facility or station for wire communication,” which arguably includes Internet servers; preemptively promised pardons to federal officials or militias willing to carry out violent crimes for him; openly violated laws prohibiting military involvement in elections; or used his newfound immunity to “disappear” political opponents. But these kinds of totalitarian exercises of power are dangerously within his grasp. Just this week, on the president’s orders, the US military bombed a boat full of people in the Caribbean. Trump claims that they were drug smugglers—“Narco terrorists,” in his words—but has so far offered no evidence to support that claim. Nor has the administration explained which legal authority authorizes the summary execution of suspected smugglers in international waters. The killings are reminiscent of the bloody war on drugs waged by the former president of the Philippines Rodrigo Duterte, who once said, by way of explaining his method of fighting what he considered criminality and corruption, “If I have to kill you, I will kill you personally.” You mention that Trump is already using the OSC to investigate his political enemies—in this case Special Counsel Jack Smith—and in an exchange we had that didn’t make the final essay, you pointed out that in April Trump’s OSC announced that it would “refrain from filing any new complaints against former employees,” pending litigation regarding its authority. Does this mean that they are now acting outside of their remit? What kind of effect could this investigation have on Smith, and on internal ethics investigations? The US Office of Special Counsel is an independent federal agency in large part so it can guard against the politicization of government functions. Among the laws that OSC enforces is the Hatch Act, which prohibits the misuse of government authority to influence elections. By launching its investigation into Jack Smith, OSC is engaging in the very sort of politicization it exists to prevent by discouraging any official from launching an investigation into Trump. OSC may or may not have the authority to pursue former officials, but it doesn’t know for certain, and this administration decided in April to wait until it had that answer from either the Merit Systems Protection Board or the courts. All it took for the administration to abandon that decision was Republican senator Tom Cotton asking the OSC to investigate Smith. With Jamieson Greer, Trump’s US trade representative, leading the office in the capacity of acting special counsel, the OSC quickly obliged. This isn’t the first time that OSC’s use of its Hatch Act enforcement authority has been decidedly pro-Republican. During the Obama administration, the head of the Hatch Act Unit declared that federal employees could openly engage in “Tea Party” activity while on duty in federal offices, because (despite the notable lack of Democratic Tea Partiers) the Tea Party wasn’t a distinct political party. Then, during the first Trump administration, the OSC declared that a federal employee would violate the Hatch Act by posting the word “resist” on a personal social media account, using a personal cellphone, during lunch in an employee break room. In response, Representative Elijah Cummings warned the office in a letter that its conduct “raises concerns about whether OSC itself is engaging in inappropriate political activity.” The consequences to Smith if OSC trumps up a charge of violating the Hatch Act would be mostly reputational, but it could indirectly expose him to more serious retaliation by the Department of Justice. The primary penalty would be termination from federal employment, but Smith no longer works for the government. OSC could file a complaint with the Merit Systems Protection Board requesting Smith’s debarment from federal employment for up to five years and a civil penalty of up to $1,365 per violation. The bigger concern, however, is that OSC has the power to issue subpoenas for in-person interviews. If Smith were to submit to an interview, OSC could try to fish for anything that might help Attorney General Pam Bondi launch her own, more serious, investigation. The very idea that a prosecutor like Smith could violate the Hatch Act by prosecuting the subject of his investigation is ludicrous. But fascist abuses of power don’t hamper themselves with niceties like logic. What might a future administration be able to do to address the damage that Trump has done? What kind of political will would it take to rebuild entire departments and rehire hundreds of thousands of people? The damage is already extensive and will be much worse before Trump’s blitz ends. Many if not most of the fired employees will be understandably reluctant to return to a government that could change hands again in another four years. Agencies that get dismantled or gutted will be hard to restore to full strength; they will need new procedures, workflow processes, policies, chains of command, standards, regulations, and Congressional funding. What hasn’t been quantified yet are the transaction costs of dismantling each agency, which will be magnified exponentially during any future reconstruction effort. News reports have described food, medicine, and other vital forms of foreign aid expiring as they languish in overseas ports. At home, tangible costs may include the destruction or sale of office equipment, the termination of building leases, and the loss of records and other items necessary to the essential functions of a department. The intangible costs are even higher as expertise literally walks out the door. The costs of canceling grants and then one day (hopefully) restarting legitimate scientific research will magnify the overall expense of reaching actionable results. Intelligence failures due to the purge of intelligence employees and the hiring of loyalists may produce catastrophic losses to national security. What was your experience like in the Office of Government Ethics, both before and after the transition to the first Trump administration? What’s your sense of how the office’s culture changed, and of how Trump’s, shall we say, management style was felt in the halls of the executive branch? One sometimes pictures a hoard of Stephen Millers swooping in and taking everything that isn’t nailed down, but I wonder what the actual experience was, and how it contrasted with the Obama administration, or with your experiences in government under George W. Bush. To understand how things have changed you have to know what the Office of Government Ethics was meant to be. People sometimes have a fantasy that the director of that office sits in judgment of the government, empowered to, say, prevent a war by telling a president that invading Iraq is wrong. What the OGE does instead is mundane, though important all the same: it administers financial-disclosure requirements, conflict-of-interest laws, and employee-conduct regulations, but has no hard power to enforce them. Its function is mostly to advise, report, and apply any leverage it can find. The director has to be a good tap dancer, capable of coaxing, cajoling, menacing, and pleading with administration leaders to get them to comply with technical rules. In days that now seem eons ago, the threat of the OGE’s going public or notifying Congress of problems was enough to deter most violations. Much of what the OGE did was push for compliance with norms—most importantly the norm of presidents resolving their conflicts of interest. With Trump having blown right through so many norms, people are understandably cynical about the power of norms compared to the power of laws. But what good are laws when you have only Pam Bondi to enforce them? With the Supreme Court saying Trump can break laws and the president’s long-established, Constitutional power to pardon anyone for federal offenses for any reason, laws no longer inspire much confidence. If anything, the breach of a norm is a clearer sign of trouble, or at least an earlier warning, than the breach of a law; a law is broken one crime at a time, but a norm’s breach alters the government’s culture. If we want to be citizens led, rather than subjects ruled, by a president, norms are what preserve that compact when all three federal branches forsake the rule of law. And it is norms, not laws, that can move the public to action. The OGE’s origin story speaks to a certain kind of faith in these claims. Congress responded to Richard Nixon’s abuses of power by enacting a wave of reforms before the 1970s ended. They included passing the Ethics in Government Act, which among other things created the OGE; the Inspector General Act; the Civil Service Reform Act; and the Presidential Records Act. None of these laws would have stopped Nixon if they had been in place during his presidency. But the reforms reflected an effort by Congress to change the government’s culture, to create new expectations for government accountability—in a word: norms. The system worked well enough at holding career officials accountable (as evidenced by the fact that nobody has ever had to pay a bribe to renew a passport), but the OGE only ever had three kinds of leverage over political appointees. The first was its disproportionate access to the White House counsel’s office, which the OGE could enlist to get wayward administration officials in line. The second was the threat of publicizing its concerns. The third was that it certified the financial disclosure reports and ethics agreements of presidential nominees for Senate-confirmed positions. Senate committees traditionally demanded that nominees obtain the OGE’s certification before they would schedule confirmation hearings, so withholding the certification was an effective way for the OGE to pressure a nominee to sign an ethics agreement that required divestiture of assets, recusals, or other measures to avoid conflicts of interest. I can attest from firsthand experience that these methods were largely effective in the Bush and Obama administrations, both of which generally cared about the ethics rules and wanted to avoid compounding any other political problems with ethics scandals. Things changed with Trump. In 1983 the OGE issued an opinion advising that presidents should act as though the primary criminal conflict-of-interest law applied to them. That normative declaration led Presidents Carter, Reagan, Bush, Clinton, G.W. Bush, Obama, and Biden to arrange their finances so as to avoid conflicts of interest. Trump’s breach of that norm set the tone for his entire first administration, making ethics problems commonplace. Trump’s firing of the OGE’s Senate-confirmed director without cause in February was unprecedented, though fully anticipated. In his second term, others have already written in depth about Trump’s ever-expanding conflicts of interest, his acceptance of gifts, and the receipt of donations by various entities with business or other interests before the government, not to mention the problems that some of his appointees have. I’ll offer one telling example: in August The New York Times reported that the secretary of the treasury, Scott Bessent, had not complied with the ethics agreement that he signed as a nominee, when he ran the gauntlet of the OGE’s financial disclosure certification process. According to the report, Bessent has since told the OGE that he will not divest assets he had previously agreed to divest because they were too hard to sell. As someone who has reviewed the financial disclosures of thousands of presidential nominees, I can say with confidence that little in this world is truly hard to sell if you set the price low enough. I can also attest that the OGE’s nominee team normally asks about a nominee’s ability to divest assets when negotiating an ethics agreement. But, under Trump, the government let Bessent take the rare step of amending his ethics agreement to relieve himself of the burden of divestiture. It then let him take the even rarer step of amending the agreement a second time. A letter to the OGE from a Treasury Department’s ethics official, who works under Bessent, declared that the assets Bessent decided to retain posed no conflicts of interest. Never you mind that his original ethics agreement pledged that he would divest the assets “to avoid any actual or apparent conflict of interest.” One Monday in August, an OGE official dutifully notified the Senate that Bessent had “failed to timely comply with certain terms of the ethics agreement he signed.” Two days later, a more conciliatory letter followed. We have no way of knowing if the administration ordered the OGE to smooth things over, but that second letter sure came soon after the first one. Fans of the original Star Wars movie may recall Han Solo telling a suspicious imperial official over an intercom: “Uh, everything’s under control, situation normal…. Uh, had a slight weapons malfunction. But, uh, everything’s perfectly alright now. We’re fine. We’re all fine here now, thank you. How are you?”  Advertisement More by Walter M. Shaub Jr. at nybooks.com Weaponizing the WatchdogBy choosing an unqualified far-right appointee to lead a federal agency tasked with protecting government integrity, Trump is showing just how far his efforts to remake the civil service will go.  ‘Acts of Submission’“In the first Trump administration, one ethics official, terrified of the president’s nominee to lead his agency, suggested that I approve a dubious ethics waiver: he wanted to exempt everything the nominee owned from the criminal conflict of interest law. After all, he noted, the nominee was too wealthy to be corrupted. I cleared the room before reminding the official that this was not how wealth worked, and that his job was to serve the American people, not Trump. You will encounter similar acts of submission.”  The Corruption PlaybookDonald Trump’s plan to destroy civil service protections if reelected is more than an employees’ rights issue. What’s at stake is democracy itself. For everything else we’ve been publishing, visit the Review’s website. And let us know what you think: send your comments to editor@nybooks.com; we do write back.   You are receiving this message because you signed up Update your address or preferencesView this newsletter onlineThe New York Review of Books |
sábado, 6 de septiembre de 2025
Situation Normal
Suscribirse a:
Enviar comentarios (Atom)
No hay comentarios:
Publicar un comentario