S2 E3: The Authoritarian’s Fist

Walt Shaub: This podcast is sponsored by the Project On Government Oversight, a nonpartisan independent government watchdog.   

Virginia Heffernan: Welcome to The Continuous Action. I’m Virginia Heffernan.   

Walt Shaub: And I’m Walt Shaub. Today we’re talking about the mythical deep state, sort of.   

Virginia Heffernan: Donald Trump’s phantasmagorical boogeyman, the deep state, the same bureaucracy that he claims is so incompetent, is also the flawlessly executed conspiracy of millions. 

I don’t understand it.   

Walt Shaub: To be honest, we’re not really talking about the deep state. Not exactly, but we are talking about an attempt to politicize the civil service by people who like to pretend there’s a deep state.   

Virginia Heffernan: All right, well, let’s back up and explain what you mean when you say “politicize.”   

Walt Shaub: For context, we need to go all the way back to the 19th century. Back then, presidents would come in and fire everyone in the government so they can install party loyalists at every level of the government.   

Virginia Heffernan: I remember some multiple choice tests when I was, I think in seventh grade, all I remember is the answer was, “C. party hacks.” and I think it was something about the spoils and the political patronage system. It actually was really called the spoils system, after the old saw about the spoils of war going to the victor.   

Walt Shaub: Right? And the problem is that when you prioritize party loyalty as the chief qualification for hiring federal officials, you don’t get the best and the brightest. Under the spoils system, you get entitled political operatives who put party over country.   

Virginia Heffernan: That started to change after the shooting of President James Garfield, as we both remember clearly when it was on the news.   

Walt Shaub: Reformers were already trying to change things by then, but that shock to the system was the impetus for a law that began the shift away from the spoils system to the merit system. Two years after Garfield’s shooting, Congress passed the Pendleton Act, which reserved about 10% of federal positions for merit-based hiring, meaning people were hired based on their qualifications, their experience, their skills, rather than their party loyalty. The government now had to hire the most qualified candidates for those jobs, and over the next hundred-plus years, that system expanded.   

Virginia Heffernan: Can you imagine? Qualified candidates? It seems deranged to me that anyone would’ve wanted a government full of political operatives instead of people with knowledge, skills, and abilities to serve their country. This is where you and I get into real Jimmy Stewart territory, like, “Why would they ever want party hacks?” You’re not going to get effective government services that way, and if you’re going to pay taxes or give people power over your lives, don’t you want people who know what they’re doing? You want public servants who serve the public, not politicians, right?   

Walt Shaub: That’s right. When I said the merit system continued to spread over the next century, we now have a government with about 2.1 million civilian federal employees, and only about 4,000 of them are political appointees. Only 4,000 are chosen based on their political loyalty, and the other 2.1 million have to be hired, promoted, fired, based on their knowledge, skills, and abilities — their merit.   

Virginia Heffernan: It’s not just that they’re chosen by merit. They’re protected by laws designed to keep them loyal to us, the public, instead of to political masters and overlords. There’s a legally protected right to refuse unlawful orders, and most of them can file an appeal with an independent board if they get fired, which prevents political bosses from retaliating against them for blowing the whistle on corruption.

Walt Shaub: It was, after all, a civil servant who blew the whistle when the last president tried to extort Ukraine into investigating his political rival and interfering in our elections by withholding military aid that Ukraine needed to defend against a Russian invasion. Now that Russian forces have invaded and are murdering Ukrainians, the danger of that extortion is painfully clear.   

Virginia Heffernan: Well, that’s an interesting example. I mean, do you think that has anything to do with efforts to politicize the civil service?   

Walt Shaub: I think that has everything to do with it. I have a sound clip for you, Virginia. This clip was found by one of my colleagues in the government watchdog community, Brendan Fischer, at a group called Documented. This audio’s from February, 2020, and the voice you’re about to hear is Rachel Bovard, who at the time worked for one of the think tanks pushing the politicization of the civil service, called the Conservative Partnership Institute.   

Rachel Bovard: A huge area for a lot of movement conservatives in D.C. is the staffing in President Trump’s administration. We have a ton of conservatives serving there, but we need more, and we work very closely, CAP does, and then we at CPI also with the Office of Presidential Personnel at the White House, to try and get good conservatives in these positions because we see what happens when we don’t vet these people. That’s how we got Lieutenant Colonel Vindman. Okay? That’s how we got Marie Yovanovitch. All these people that led the impeachment against President Trump shouldn’t have been there in the first place. We want to prevent that from happening.   

Virginia Heffernan: All right, she says they shouldn’t have been there in the first place, about Alexander Vindman and Marie Yovanovitch. He was a lieutenant colonel, and she was a State Department official, an extremely experienced area expert. They were career federal employees, not Trump political appointees, and their offense here is that they complied with a lawful congressional subpoena and told the truth.   

Walt Shaub: That’s the thing she says she wants to prevent. She’s essentially saying she wants to base hiring decisions on political beliefs. That’s the spoils system, and if you think about it, Vindman was a career military officer, so she’s talking about rooting in deeply enough into the uniformed ranks of the military services to predict people’s political allegiances.   

Virginia Heffernan: Trump must have grasped this intuitively, and if he didn’t, maybe his first impeachment, based on this illegal withholding of aid to Ukraine that you mentioned, taught him that lesson. I want to play another audio clip of Trump railing against what he dubbed the “deep state” at a political rally in 2020.

[Audio from campaign rally in Gastonia, North Carolina] President Donald Trump: And on top of everything else, we’ve had a soundly defeat; we’re in the process of doing it; it’s much deeper than I thought. The deep staters, right? We have to beat ’em; it’s much deeper. The swamp and the swamp creatures are much deeper and much worse than we ever thought, and there is such a thing as the deep state, who went there? 

Virginia Heffernan: There’s something interesting about the audio clip we just played, if you can bear to listen to it. We chose it for a reason: The clip is from a Trump rally on the 21st of October in 2020. That was the same day that Trump signed an executive order that could have politicized the civil service. Tell listeners what the executive order did.

Walt Shaub: It created a new category of federal employee called Schedule F.

Virginia Heffernan: As I understand it, federal employees who got moved into Schedule F would’ve lost the right to appeal their firing to an independent board, and they would’ve lost some protections like coverage by a law that explicitly says they can’t be fired for refusing unlawful orders and can’t be fired, believe it or not, based on their political affiliation.

Walt Shaub: It would’ve left them vulnerable to political masters who could take away their livelihood if they didn’t shut up and go along with any corruption or illegal thing the administration cooked up. The real beneficiary of civil service laws is the American people, because those laws protect us against a massive federal workforce becoming loyal to a rogue politician instead of the rule of law.

Virginia Heffernan: Explain how an executive order could overrule civil service laws. Between an executive order and a law, the law should win in most cases. It’s the higher authority, right?

Walt Shaub: In this case, there’s an argument that the executive order wasn’t actually inconsistent with the law. It would definitely have been challenged in court, and depending on how the government implemented the executive order, the employees might have won. But the administration’s argument would’ve been that a loophole in the law says that the president can pull any number of positions out of the coverage of the civil service laws, and there is such a loophole.

Virginia Heffernan: I feel like we all should have this kind of emblazoned on our bathroom mirrors. Why have laws, if you’re just going to say the president can ignore them?

Walt Shaub: This was another case of norms and expectations falling apart when they met Trump. In the past, presidents were always restrained in their use of this loophole. I did some research and was only able to find about 1,500 positions in the Obama administration that President Obama had exempted from the civil service laws; these were typically confidential assistants to political appointees. But the way Trump set up the new Schedule F category of employment, he could have tried to exempt tens of thousands, or hundreds of thousands, of positions. This could be a matter of turning a 2.1 million federal employee workforce into a fist of an authoritarian-leaning president.

Virginia Heffernan: As it happened, he ran out of time. He lost the 2020 election, and the next president rescinded the executive order that created Schedule F, so that was a close call.

Walt Shaub: Close is right, but we’re not out of the woods, because the loophole still exists.

Virginia Heffernan: I saw the report in Axios by Jonathan Swan, who said, there’s a whole movement afoot to bring Schedule Effed — I mean Schedule F — back next time someone who is hostile to the merit system is in the White House.

Walt Shaub: The threat is real, and it’s operating right out there in the open. I honestly think this is one of the biggest threats democracy faces in the United States right now.

Virginia Heffernan: It has a lot of competition, but I’m beginning to think you’re right. If a future president can politicize the civil service, there might be no one left to stop the government from engaging in all kinds of nefarious illegality.

We’ve brought in an expert to talk more about this today. Rudy Mehrbani is a senior director for governance at the Democracy Fund. He’s a former director of the White House Office of Presidential Personnel, so he was personally involved in political appointments. Here’s the interview.

Rudy Mehrbani: There is a legitimate case to be made that the president deserves to have their own team, they deserve to field their own team, so to speak, and that in order for them to successfully achieve the agenda that they’ve laid out, that they need to make sure that they have people whose priorities and policies align with their vision, with their agenda. Recognizing that, however, there are a host of jobs where we, as Americans, don’t really care about the president’s agenda. Or at least we shouldn’t, and we don’t really care about their political priorities when we think about these jobs. We really want people who are going to give the leaders of the agencies the best advice, and whose advice will dictate the direction of a program. When you think about, “How do we keep our air and water clean?” Or, “How we administer our social security system?” Or, “How do we conduct the census process? Or prepare for a future pandemic?”

These are all complicated, tough jobs where we want the best people hired for them. And the people who do those jobs, they really need to have specific backgrounds and expertise. That is actually the basis for how our federal government first moved away from the spoils system under which we had grown accustomed to in the mid-19th century, when government became more complicated as the country was industrializing.

Walt Shaub: It’s interesting, because I think one of the key concerns about politicizing the career positions, as you’ve emphasized, is that you really need the highest quality people. You need a merit-based system to make sure that the people preparing for a pandemic, or responding to a hurricane, or a nuclear power plant meltdown, have the capabilities to do what they need to do. I think there’s also a second concern, and that’s that there are some functions of government that really need to be carried out objectively. It would seem ludicrous to think of a Democratic air traffic controller or a Republican air traffic controller: This is somebody who should be guiding planes down safely, not giving priority to the airline company whose CEO supported the current president. Or it chills my bones to think about a Republican or Democratic criminal investigator. We want our criminal investigations carried out objectively. Do you think that idea of a neutral federal workforce could seem threatening to a president with authoritarian leanings or political appointees who want to misbehave?

Rudy Mehrbani: Yeah, the short answer is absolutely. But before I expand on that, I just want to agree with your point that most of what the government does is not at all influenced by which political party is sitting in the White House — or at least it shouldn’t be, if government is operating the right way. When you talk to average folks about those different functions in government, whether it’s making sure that planes are taking off and flying across the country and landing safely, or that your drinking water is safe for you, or that your Social Security check goes out in time, or that Medicare is handling your claims responsibly and appropriately, almost everyone agrees those are good things and that government should be supported to do all of those things effectively. It’s only when you focus on these divisive issues where you have political appointees getting themselves involved in them, where you get some of the polarization and the division that our media spends most of the time talking about, unfortunately.

But you’re absolutely right. A federal workforce, they serve to effectuate government policy and implement programs, but they also serve as a guardrail against abuse. Now, I think to you and me that seems obvious, because we’ve been inside federal agencies, we’ve worked with career officials, we understand what their incentives are. And the president’s own team, they don’t have the same incentives to hold the president, or their fellow political appointees, accountable. That’s why you need these quasi-independent actors to provide a check against abuse.

Now that could be the career officials, it could be ethics attorneys, it could be inspectors general. Those internal checks provide certain accountability that I think the American people expect and want. They exist, similarly, if you’re running a public company, you bring in accountants to make sure that things are operating appropriately, you don’t just count on the leaders of those organizations to rubber stamp what it is that they’re doing. Now, we saw the significant role that career officials can play as a check on executive branch abuses during the Trump administration. President Trump’s first impeachment would not have happened had it not been for career officials blowing the whistle and then willingly testifying before Congress about the wrongdoing they witnessed.

Walt Shaub: There were at least some people in the Trump administration who wanted to unfetter the president, and they came up with something called Schedule F. Can you tell us what that was and what it was intended to do?

Rudy Mehrbani: Sure. This was an executive order that President Trump signed in the closing months of his administration. Now, the overarching goal was to exempt policy-oriented roles from the competitive hiring rules and protections that we previously talked about. It was intended, essentially, the way it was billed publicly, it was for the president to root out these deep state actors, quote-unquote “deep state actors,” who are working to thwart his agenda and his policy priorities. Now, the way the executive order was written, it referred to positions of a policy determining and policymaking character that were not subject to change as a result of presidential transitions, and it essentially excepted those positions from any sort of adverse action procedures, meaning that there would be no due process for disciplinary actions, making all of those employees essentially at-will. Under the executive order, agencies had a certain amount of time to determine which employees would fall under this new designation, and then the Office of Personnel Management would review that and approve it.

Now, we only got a glimpse of what this could look like. There was some reporting that the Office of Management and Budget, which is the agency within the Executive Office of the President that is designated with doing all of the analysis around the president’s policies and making recommendations about the most effective ways to implement those policies and providing advice and guidance to the other Executive Branch agencies, so it’s just incredibly important agency, the Office of Management and Budget. Under their analysis, they determined that 88% of their workforce would fall under this new schedule, which is just mind-boggling to think that, though — 88% of the folks who are experts in budget and management and implementation, would be subject to termination at the will of the president or his political appointees. It was very concerning. Thankfully, the clock expired on President Trump’s ability to implement the executive order, and one of the first things that President Biden wisely did once he was sworn in was to revoke it.

Walt Shaub: One of the other groups that we know, only from reporting, that they were targeting was attorneys in various federal agencies. The scary thing about that is the attorneys are the ones who are supposed to tell management officials when something’s illegal — “You can do this;” “Oh, the law prohibits you from doing that.” If you pull all the referees out, then the game becomes just a free-for-all, and it’s an important constraint that’s lifted off the agency.

It was also sort of gallows humor, grimly amused at this sense of the White House that they had to replace these career officials at OMB, because the Office of Management and Budget, as you say, runs this unbelievably complex budgeting system, and I can’t even imagine how hapless a bunch of political appointees who’d never done this before would be. Their brains would melt.

Rudy Mehrbani: Yeah, you’re highlighting one of the ironies about this approach, which is that, if a president were to implement it, it would actually make it harder for them to achieve their objectives.

You’re more likely to get bad policy, you are less likely to successfully get things through the regulatory legislative process. If you are able to do that, you’re likely to stumble and to have your regulation enjoined or rolled back by the courts, because if you haven’t checked all the right boxes, if you haven’t gone through the right process, and you’ve removed all the attorneys who are telling you how to satisfy the requirements of the Administrative Procedure Act, and to make sure that you’re satisfying all the notice and comment requirements, you’re not going to get these rules finalized. It makes no sense for a slew of reasons, but that is one of them.

The other thing about it is that, you’re absolutely right: If officials are operating with this threat hanging over their shoulders, it’s going to create a chilling effect. They’re going to be less prone to give honest and unbiased advice if they are fearing the retaliation for their doing so. That will have a lot of downstream effects too, not just on the way the current employees operate, but also on a government’s ability to recruit and hire the best people. I don’t know many people, lawyers or otherwise, who are going to be willing to work under those circumstances, where they will always have to filter their advice through a political lens. You increase the likelihood of corruption when you have a system that allows the president to essentially give out spoils to their supporters.

I think that that is significantly concerning. You’re talking about real world consequences both to the country’s national security, but also to the public health and the lives of Americans across the board, in a number of different scenarios. You’re also going to further erode the trust that I think Americans have in our political system generally. We already know that Americans believe there is too much corruption in our politics. At the end of the day, I would argue that really, we need to have fewer political positions, not more, and I think Schedule F really is the opposite of what we need right now in our federal government and in the Executive Branch.

Virginia Heffernan: I’m glad we got to talk to Rudy Mehrbani about this issue. The bureaucratic sounding name, Schedule F, belies the magnitude of this threat.

Walt Shaub: Honestly, I think that’s why so many people outside of Washington don’t know about it. The whole thing sounds so arcane, but it’s incredibly dangerous stuff. Its supporters have a marketing advantage too, because they package it up as an effort to make the government more effective and more accountable. In reality, it’s the opposite. This is about unleashing political operatives, giving them a free hand to ignore legal constraints and attack the very foundations of the Republic.

Virginia Heffernan: People need to be aware of what’s really going on here. I hope we’ve illuminated some of it for you in this episode.

Well, we’ve come to the end; we’ve got to leave it there. The Continuous Action is hosted by me, Virginia Heffernan and Walter Shaub. It’s produced by Myron Kaplan and as always, sponsored by the Project on Government Oversight. See you next week.