Bulletin Number Five: Sinister and Stupid

Trump continues to move rapidly, giving us barely enough time to register alarm before he jumps to the next outlandish nominee or policy. But in last week’s rush, one standout suggestion turned the blood cold of anyone with experience in the Department of Justice, myself included.

A story in Friday’s Washington Post, sourced to individuals close to the transition, detailed some grotesque plans for the DOJ. The Post reported that Trump plans to fire the entire team that worked with Special Counsel Jack Smith and also form investigative teams to hunt for evidence of fraud in the 2020 election.

The reason I started this Substack last week was to apply my background and experience to analyzing the Trump maneuvers that might seem benign or unremarkable but are in fact harbingers of a democratic backslide toward authoritarian government. Friday’s announcement is one of those. As I tweeted at the time, it’s a five-alarm fire for democracy. If Trump, acting through Pam Bondi and the senior set of nominees—most of whom are drawn from his personal cadre of criminal defense lawyers—can implement these plans, it would warp and subvert the DOJ’s mission in ways that could prove very difficult to reverse.

Start with the plan to fire not just Smith—who will already have walked before they make him run—but the entire staff of mostly career appointees who worked on his cases.

You might ask—though Trump will not—what is the misconduct that provides cause for firing these bogeymen? They did their jobs, full stop, and they did them impeccably. But in doing so, they enraged the now President-elect.

We may see Trump, Bondi, Gaetz, and an amen chorus led by Marjorie Taylor Greene proclaim that the prosecutions were political or otherwise illegal. The basis for that claim seems to begin and end with the identity of the defendant, who, under this review, can do no wrong. It’s ridiculous, of course. The truth is just the opposite: Trump is escaping long sentences in federal prison only because of the wild concatenation of circumstances that returned him to the presidency.

Even if it were otherwise, there would be no valid claim by the government against Smith’s team. No one has ever suggested that working on a case that department leadership wrongfully greenlighted constitutes misconduct, much less grounds for discharge.

Democratic groups are already banding together in preparation to defend career DOJ attorneys against this sort of legal railroading. Depending on the breadth of Trump’s revenge tour, there may not be enough free legal help to go around. Whatever help exists will go, in the first instance, to the besieged Smith legal team.

The whole reprisal agenda is sinister and a giant step toward authoritarianism. But there is an additional element of lawlessness and viciousness in the case of the career attorneys on Smith’s team whom Trump has now targeted for decapitation. Moreover, the project is irresponsible to the point of idiocy: it will wind up costing taxpayers millions of dollars.

To fully appreciate both points, it’s essential to understand the operational importance of the career staff at the DOJ.

“Career” employment has a special meaning in the federal workforce. The designation contrasts with “political employees,” the small cadre of usually senior appointees whom the president can fire at will. Career attorneys are the lifeblood of the DOJ. They are the prosecutors who stand up in court, the investigative staff (the department’s 100,000+ employees encompass the FBI, DEA, ATF, and other agencies), and the worker bees who make cases happen. They earn a lot less than they could in the private sector, but they gladly trade that for pride in their mission and the charge to do the right thing.

As part of this overall deal, career attorneys have strong job protections, backed by an elaborate system of regulations that prevent arbitrary or political discharge. In general, they can only be fired for cause, a defined legal term connoting demonstrable misconduct. Moreover, the Department has to navigate an extensive labyrinth of procedural requirements to terminate the employee. The employee’s core guarantees include knowing the charges against them, being able to respond, and having a final judgment by a neutral decision-maker. And that’s just the beginning. From there, career attorneys have the right to appeal to the Merit Systems Protection Board, or, if discrimination or retaliation is involved, to the Equal Employment Opportunity Commission. Potentially, aggrieved civil servants may also have recourse to federal court.

Career attorneys also often have whistleblower protections if they are aware of and report misconduct. That’s been my primary area of practice since I left government. If you know folks who discovered misconduct and got s--tcanned by their employer as a result, send them my way.

There are two important counterpoints to these elaborate protections. First, these protections apply to terminations but not to other agency actions. There are ways to make a disfavored employee’s life miserable short of termination, such as a reassignment to a tedious back-office role, not to mention continued harassment by hostile supervisors. Second, while the system doesn’t provide appointed legal representation, prevailing attorneys who show unlawful agency action are generally entitled to attorney fees.

Given the precipice we currently occupy, it’s instructive to understand how this system, now practiced across the federal government, came into being. It originated in the late 19th century as an effort to eliminate the spoils system that awarded jobs based on political loyalty. Congress found that practice, besides being fundamentally unfair, led to inefficiency, corruption, and the appointment of unqualified individuals. These reforms have been hugely successful and are a key reason why the DOJ can boast of doing justice “without fear or favor.”

At a philosophical level, it is despicable for the head of the executive branch to seek to fire people for doing their jobs well and discharging their oaths to the Constitution. At a practical level, it’s likely to be feckless and wasteful.

To understand the legal buzzsaw that Trump and the DOJ will be running into, consider the closest analogue to the announced plan in Trump Administration 1.0: the petty and vengeful attack on Andy McCabe in 2018. McCabe, the former Deputy Director of the FBI, was involved in launching the investigation that grew into the Mueller Special Counsel appointment. For this reason, Trump became obsessed with McCabe and went after him with an arguably depraved ferocity. Most notoriously, he ordered McCabe’s firing just hours before McCabe’s pension—which carried substantial retirement benefits—would vest. He ignored the whole labyrinth of civil service protections, leaving the department without a leg to stand on.

McCabe filed an action under the Administrative Procedure Act, saying his firing was politically motivated and violated his employment rights. That fit McCabe’s firing to a T, just as it now fits the proposed firing of Smith’s team. With no tenable legal defense, the department was forced to settle with McCabe, capitulating to McCabe’s demands to restore his full pension, expunge his termination record, and pay legal fees and other damages in the hundreds of thousands of dollars.

There is no reason to expect any other result should Trump order Bondi to sack all of Smith’s team. Not only will it depress morale and engender resentment within the department, but it will also cost taxpayers millions of dollars.

Sinister and stupid.

The same is true, in a different fashion, of Trump’s other DOJ initiative: to assemble investigative teams to dig for 2020 election fraud. As a preliminary aside, there’s something poignant about his ongoing need, four years later, to justify his insistence that he couldn’t really have lost unless the election was rigged. But the initiative poses particular problems for attorneys. They can’t just go into court and say anything. If they make an argument without factual basis to a court, they can be severely sanctioned—not to mention getting a blistering tongue-lashing from the district court judge, a humiliating experience for a government attorney in particular, whom the court will be sure to lecture about their higher obligations.

Recall that Trump lost 60 of the 61 cases challenging the election in 2020. (He lost 60 outright, and to the extent he won the other, it was purely on procedural grounds.) At this point, there is no good-faith basis to believe any legitimate evidence to support his claims exists. Imagine being part of the newly assembled team forced to devote their days to this unicorn hunt—again, at a heavy cost to taxpayers.

At bottom, this effort represents another attempt to rewrite history by a would-be autocrat who is obsessed with whitewashing the record. It is purely Orwellian, in the “truth is fiction” respect. As with Winston Smith, whose job at the Ministry of Truth involved whitewashing history to serve Big Brother’s horrifying goals, Trump’s mulish attempt to leverage the DOJ to show he didn’t really lose the 2020 election or undertake crimes in its wake puts his attorneys and investigators in an impossible position and potentially exposes them to excoriation and sanctions.

Stupid and sinister.

Talk to you later.