This piece originally appeared on the Daily Beast.
In a previously undisclosed conference call last year, a senior Justice Department official rejected key aspects of the Trump White House plan to dismantle the Office of Personnel Management (OPM), saying moves to abolish the crucial, little-known agency were unlawful. Those steps and others to undercut OPM could pave the way for installing political cronies throughout the ranks of the nation’s two million federal civil servants and weaken their protections.
In April 2019, Steve Engel, the head of the Justice Department’s powerful Office of Legal Counsel, told senior administration lawyers that it would be illegal to carry out a White House blueprint to dismember OPM, according to notes of the conference call obtained by the Project On Government Oversight (POGO), a nonpartisan watchdog. That legal “opinion,” as the notes call it, was never shared with a House oversight panel that held two subsequent hearings last year on the White House proposal, according to a congressional source.
President Donald Trump’s firing last weekend of Geoffrey Berman, the U.S. Attorney for the Southern District of New York, shows why civil service protections for career employees are important in shielding them from White House anger. Berman’s office has been investigating Rudy Giuliani, the president’s personal attorney. Unlike civil servants, Berman and political appointees lack these protections.
Or take Anthony Fauci, head of the National Institute of Allergy and Infectious Diseases. He told CNN that an earlier, more timely government response to combat the coronavirus could “obviously” have saved lives. That night, Trump retweeted a post with the hashtag “#FireFauci.“
Yet unlike Berman, even if Trump wanted to fire Fauci, Trump “can’t just fire him. He’s a career employee,” Max Stier, who leads the non-profit Partnership for Public Service, told the Los Angeles Times.
Some within the Trump administration have espoused giving the president near-absolute control over the federal workforce, a step that could backfire anytime the White House is held by the opposing political party. According to an internal 2017 White House to-do list, first mentioned by the New York Times and obtained by POGO, one Trump appointee proposed exploring legal theories that the “president [has] inherent authority to dismiss any federal employee,” unconstrained by whistleblower and other statutory protections passed by Congress. That would mark a break with the way America’s system of government has functioned for over a century.
So far, the administration is deploying a less dramatic strategy, undermining OPM by putting it increasingly under the thumb of the White House. That’s not how it’s supposed to work. In fact, according to Linda Springer—a former Republican head of OPM, who served on the Trump transition team and later as a White House adviser—when Congress created OPM in the wake of Watergate, it was designed to be independent of the president’s direct control. The law creating OPM “could have placed OPM in the Executive Office of the President,” but didn’t, Springer testified before Congress last year. Instead it was intended to function as a separate agency “more easily overseen by Congress and accountable to the public,” she said.
The Office of Legal Counsel “opinion” and the contentious departure of two Senate-confirmed Trump appointees who briefly ran OPM underscore disagreement inside the administration over what critics say is Trump’s crackdown on the so-called “deep state.” Earlier this year following the President’s impeachment, federal officials who testified during the House investigation were pushed out of their jobs or transferred to new assignments. A recent Axios report of a White House-directed purge of Defense and Homeland Security appointees also mentioned attempts by the White House personnel office to gain control over OPM.
But political appointees amount to only a tiny fraction of the executive branch workforce—less than 1%—and the White House has broad authority to do what it wants with them. In contrast, laws dating back nearly 140 years safeguard career civil servants from political influence with the aim of running government on the basis of merit.
“Spoils and Patronage System”
To many critics, another serious problem with Trump’s plan for OPM, “is that it puts a White House office in the position of setting personnel policy in areas that are directly tied to merit system protection,” Springer, the former Republican OPM director, told Congress. Warning against a federal “spoils and patronage system” from the 1800s, where swaths of the government workforce were hired and fired with every new administration, Springer asked, “Why create a situation that retreats from the statutory safeguard of having personnel policy set in an independent agency?”
OPM sets a number of government-wide rules, such as the regulations implementing the Hatch Act, a law meant to keep partisan politics like campaign fundraising out of the federal workplace. OPM can authorize more spots for political appointees at agencies, and reviews when appointees try to “burrow” into the civil service. It also audits agencies to ensure they evaluate federal employees for their performance, not partisan affiliation.
After the departure of two of Trump’s own Senate-confirmed nominees running OPM, the Trump White House has twice installed officials to serve as acting heads of OPM—who simultaneously act as leaders of the Office of Management and Budget, which is within the Executive Office of the President. Dual-hatting White House officials to run OPM is unprecedented, government insiders told POGO, dramatically curtailing the agency’s independence from the president.
Trump’s first Senate-confirmed OPM leader, Jeff Pon, an experienced federal human resources official, was pushed out in October 2018 soon after he sought an Office of Legal Counsel opinion on the administration proposal to dismantle OPM, insiders told POGO.
The Office of Legal Counsel’s boss Steve Engel would weigh in with his own agency’s undisclosed legal “opinion” on the conference call a half-year later.
According to notes of that April 3, 2019 conference call, an exchange took place between Engel and top lawyers at other agencies including the White House’s Office of Management and Budget, the General Services Administration, and OPM itself.
The notes cite Engel arguing that the administration “could not lawfully direct” the transfer of OPM functions to the General Services Administration, an agency that OPM insiders say is a “puppet” of the White House Office of Management and Budget. “Engel’s presentation of OLC’s view was rather emphatic,” the notes state. The Office of Legal Counsel’s opinions are often treated as binding inside the executive branch and known for a strong pro-White House tilt.
When OPM’s deputy chief of staff testified before Congress in June 2019—two months after the conference call where the legal “opinion” was discussed—he made no mention of it, saying instead: “The legal analysis is ongoing and at this time we don't have a final analysis to share.”
“My first take on it, having looked at some of the legal authorities, is that the [OPM] proposal is likely illegal,” Representative Jamie Raskin (D-MD) countered at the time, apparently unaware that an Office of Legal Counsel “opinion” already existed and had reached a similar conclusion.
But the administration continues to chip away at OPM.
In a series of unusual bureaucratic maneuvers, the General Services Administration has, with the Office of Management and Budget’s blessing, taken over OPM’s funding requests to Congress and is planning to take away OPM’s ability to manage its own buildings, including its Washington headquarters. A few months ago, four members of Congress, including Raskin and Representative Gerry Connolly (D-VA), who chairs a House oversight subcommittee on federal operations, wrote that the latter move is “directly tied to the Trump Administration’s plan to abolish OPM.” Their letter to the General Services Administration said they had yet to receive any legal analysis on the proposal to get rid of OPM.
The General Services Administration told POGO that it was within its legal rights to remove OPM's authority to manage its buildings and that it was doing so "at the request of the then-OPM Acting Director Margaret Weichert," who was also a deputy director of the White House's Office of Management and Budget at the time.
The White House, the Office of Management and Budget, the Justice Department, and OPM did not respond to POGO’s detailed queries.
Critics contend that dismembering OPM makes no sense on cost grounds, because the same work would still need to be accomplished, even if transferred elsewhere.
During a May 2019 hearing, then-Representative Mark Meadows (R-NC), who is currently White House chief of staff, described Government Accountability Office testimony questioning the plan for eliminating OPM as “very concerning,” and asked OPM for more information. Even Trump himself “soured” on the idea in December, according to the Washington Post.
Given the considerable headwinds to eliminating OPM, Trump administration officials bent on quashing its independence have run a parallel strategy: a de facto takeover of the agency by other means.
After Pon left OPM in October 2018, he was replaced by an acting head, Margaret Weichert.
Weichert, an architect of the White House plan to eliminate OPM, ran the agency until the Senate confirmed Dale Cabaniss in September 2019.
During her short tenure, Cabaniss reportedly had conflicts with John McEntee, the White House personnel director, who was brought back into the administration in January. To expand White House control of personnel in federal agencies, McEntee, who reports directly to Trump, ordered abrupt staffing changes at OPM.
McEntee replaced OPM’s White House liaison with Paul Dans in February over Cabaniss’s objection. Then, Dans and McEntee put pressure on Cabaniss to replace OPM’s chief of staff, Jonathan Blyth, who had opposed McEntee’s plan to increase so-called “direct hiring” authority throughout the executive branch, first reported by the Independent. That authority evades government rules, including a law that gives veterans preference in obtaining federal employment.
Cabaniss pushed back and resigned in March. She declined to comment.
With Cabaniss gone, Michael Rigas, the acting deputy director of the Office of Management and Budget, is now serving as OPM’s acting head. According to Politico, Rigas told colleagues he believes civil service laws dating back to the Pendleton Act of 1883 may be unconstitutional and that all government workers should serve at the pleasure of the president. On the news show Government Matters, Rigas denied saying that.
As OPM is slowly crushed, Trump has inaugurated a new phase of the purge that followed his impeachment, notably taking aim at and firing inspectors general involved in work that has generated negative headlines for Trump and administration appointees. Until now, the Oval Office has largely avoided interference with inspectors general, even ones nominated by past presidents, given the non-partisan character of their oversight mission.
Yet the Trump White House has made little secret of its goal to make all of the federal government’s workforce bend in loyalty to the president. Gutting OPM’s independence has emerged as an important milestone toward achieving that end.
A long-time Republican insider with extensive experience at OPM told POGO: “At this point, the White House doesn’t need their plan to dismember OPM anymore. They’ve achieved what they wanted because the White House is now in charge.”