In response to a Project On Government Oversight (POGO) investigation, two powerful members of the House of Representatives fired off a volley of letters seeking “transcribed interviews” with five senior administration officials, and requesting an inspector general review of a Justice Department legal analysis, the existence of which was withheld from Congress.
At issue is the fate of the Office of Personnel Management (OPM)—an executive branch agency Congress intended to be independent from the White House, and an agency that the Trump administration has proposed eliminating.
“Concealing these facts from the Subcommittee is both disingenuous and an abuse of the trust that public officials owe to Congress and the American people,” wrote Representative Carolyn Maloney (D-NY), chair of the House oversight committee, and Representative Gerry Connolly (D-VA), chair of the panel’s subcommittee on government operations.
The administration fired back. “Democrats are trying to hang their hats on accusing the Administration of wrongdoing, and they are doing so by impugning the character of public servants. It’s despicable,” according to comments provided by the Office of Personnel Management to POGO, attributed to an unnamed spokesperson. “In reality, the Administration never stopped trying to work in good faith with Congress and conduct due diligence.”
Connolly did not agree. “The only thing despicable is the deceptions and obfuscation coming out of the Administration that will jeopardize 2.1 million federal employees,” he told POGO.
Regarding the White House’s proposal to abolish the Office of Personnel Management, largely by transferring its functions to the General Services Administration (GSA), POGO’s investigation uncovered that the head of the Justice Department’s Office of Legal Counsel (OLC) offered legal analysis to senior officials in the Office of Personnel Management, the White House’s Office of Management and Budget, and the General Services Administration on April 3, 2019.
The legal analysis was provided over the phone by Assistant Attorney General Steve Engel, according to notes obtained by POGO, with Engel saying that the Trump administration “could not lawfully” transfer the Office of Personnel Management’s functions to the General Services Administration.
“Engel’s presentation of OLC’s view was rather emphatic,” the notes say, and specifically refer to the Office of Legal Counsel’s legal analysis as an “opinion.” Office of Legal Counsel opinions are normally treated as binding within the executive branch.
Experts on the federal workforce from both political parties have expressed concern that abolishing or weakening the Office of Personnel Management will threaten civil service protections for government employees—protections that help keep politics out of hiring, firing, and promotion decisions.
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Months after the Justice Department’s legal analysis was shared over the phone, political appointees at the Office of Personnel Management testifying at two House hearings led by Connolly last year failed to mention that the department had provided its legal views. The Office of Personnel Management’s political appointees were not forthcoming with this information despite requests from members of Congress for any legal analysis of the Trump administration’s proposal to abolish OPM.
The letters from Maloney and Connolly set a July 14 deadline for five senior administration officials to submit to interviews concerning “apparently false and misleading statements” made to Congress about the matter. The five officials are Michael Rigas, acting deputy director for management at the Office of Management and Budget and acting director of the Office of Personnel Management; his senior advisor, Stephen Billy; OPM’s general counsel, Mark Robbins; as well as Emily W. Murphy, administrator of the General Services Administration; and her general counsel, Jack St. John.
To bolster their demand for information, Maloney and Connolly cite statements by then-Representative Mark Meadows (R-NC), now White House chief of staff. In a rare moment of bipartisan agreement over the missing legal analysis, the letters quote a frustrated Meadows last year when he warned senior administration officials appearing before him: “If any of you are here today to say that it’s part of a deliberative process that somehow Congress can’t see the documents, I would urge you strongly not to go there.”
Connolly’s staff told POGO that the only legal information provided by the Office of Personnel Management to the subcommittee he chairs was on one page, almost entirely redacted, a day before the hearing where Meadows made his remarks in June 2019. The staff shared the document with POGO. This document led to bipartisan concern that there was no solid legal basis for the proposal, Connolly told POGO.
The notes POGO obtained analyzed the legal authorities the administration cited as the basis for largely dismantling the Office of Personnel Management, namely whether a section of law governing the General Services Administration allowed GSA to take on OPM functions. The General Services Administration and the Office of Personnel Management are governed by different parts of the U.S. Code. The notes cite Engel as saying there is a “lack of precedent for using that authority in the manner proposed”—a reference to a section of law governing the General Services Administration—and that “he also was concerned that such a broad reading of this statute would give GSA broad re-organization authority that Congress did not seem to have contemplated.”
After POGO’s story was published in June, the Office of Personnel Management’s press office, where Attorney General Bill Barr’s former speechwriter Jonathan Bronitsky recently took a senior job, issued a statement: “The Office of Legal Counsel never issued an opinion prohibiting the proposed reorganization of GSA and OPM.”
“This story is false,” an unnamed Office of Personnel Management press official told Government Executive, referring to POGO’s investigation.
Leaders of the House oversight committee criticized OPM’s statement.
“This carefully worded statement is just as misleading as the previous testimony of Administration officials before the Subcommittee,” Connolly and Maloney wrote. “If OLC in fact held a conference call with agency attorneys in which it delivered a legal ‘opinion’ that the White House plan to eliminate OPM was illegal—and if there are contemporaneous notes of this call—it does not matter if OLC never reduced this opinion to a final written report.”
The Office of Legal Counsel’s best-known work is contained in its formal written memos, often called “opinions.” But the office also provides “informal legal advice that does not result in a published opinion,” as former Office of Legal Counsel attorney Shalev Roisman wrote in a paper published in the Vanderbilt Law Review earlier this year. And an Office of Legal Counsel document states that “as part of our process, we may share an aspect of a draft opinion’s analysis with the requestor or others who will be affected by the opinion.”
Because the Office of Legal Counsel’s legal analysis put roadblocks in front of the White House proposal to dismember the Office of Personnel Management, “it does not surprise me at all that something like this would go into oral guidance” rather than a written document, attorney Kel McClanahan told Government Executive. Even if the Office of Legal Counsel produced a formal written opinion, “OLC opinions are themselves routinely withheld from Congress on grounds of national security, claims of privilege or both,” wrote Mort Rosenberg, a former Congressional Research Service legal analyst and a fellow with POGO’s Constitution Project.
After the letters by Connolly and Maloney were made public on July 1, the Office of Personnel Management twice avoided directly answering POGO’s questions asking whether the Office of Legal Counsel provided OPM with any legal analysis of the White House’s proposal over the phone or in writing even if that analysis is not considered a formal opinion.
“OLC never issued an opinion. Any accusation to the contrary is false and reeks of desperate politics,” the Office of Personnel Management told POGO.
In response to the Office of Personnel Management’s remark, Connolly told POGO, “All of this is a smokescreen because OPM does not know how to respond to this legitimate congressional inquiry.”