Donald Trump’s latest executive order could give him the power to mount a scorched-earth campaign which would cripple a future Biden administration.
In the event the incumbent president loses his re-election bid, this order could give him largely unfettered authority to fire experts like Dr Anthony Fauci while leaving behind a corps of embedded loyalists to undermine his successor, according to federal employment law experts.
The order, which the White House released late Wednesday evening, would strip civil service protections from a broad swath of career civil servants if it is decided that they are in “confidential, policy-determining, policy-making, or policy-advocating positions” — a description previously reserved for the political appointees who come and go with each change in administration. It does that by creating a new category for such positions that do not turn over from administration to administration and reclassifying them as part of that category. The Office of Personnel Management — essentially the executive branch’s human resources department — has been charged with implementing the order by publishing a “preliminary” list of positions to be moved into the new category on what could President Donald Trump’s last full day in office: January 19, 2021.
The range of workers who could be stripped of protections and placed in this new category is vast, experts say, and could include most of the non-partisan experts — scientists, doctors, lawyers, economists — whose work to advise and inform policymakers is supposed to be done in a way that is fact-driven and devoid of politics. Trump has repeatedly clashed with such career workers on a variety of settings, ranging from his desire to present the Covid-19 pandemic as largely over, to his attempts to enable his allies to escape punishment for federal crimes, to his quixotic insistence that National Weather Service scientists back up his erroneous claim that the state of Alabama was threatened by a hurricane which was not heading in its direction.
Creating the new category — known as “Schedule F” — and moving current civil servants into it could allow a lame-duck President Trump to cripple his successor’s administration by firing any career federal employees who’ve been included on the list. It also could allow Trump administration officials to skirt prohibitions against “burrowing in” — the heavily restricted practice of converting political appointees (known as “Schedule C” employees) into career civil servants — by hiring them under the new category for positions which would not end with Trump’s term. Another provision orders agencies to take steps to prohibit removing “Schedule F” appointees from their jobs on the grounds of “political affiliation,” which could potentially prevent a future administration from firing unqualified appointees because of their association with President Trump.
“It's a two-pronged attack — a Hail Mary pass to enable them to do some burrowing in if they lose the election,” said Walter Shaub, who ran the US Office of Government Ethics during the last four years of the Obama administration and first six months of the Trump administration. “But if they win the election, then anything goes for the destruction of the civil service… [This could] take us back to the spoils system and all the corruption that comes with it.”
Shaub explained that at the core of it, a non-partisan civil service is one of the most basic anti-corruption measures that any government can implement “because they free federal employees to disobey illegal orders, be ethical, and resist fraud, waste, and abuse”.
“Taking those away creates a cadre of people who are either too intimidated by or loyal to a politician instead of the rule of law and the Constitution,” he said. “That’s the goal here.”
The head of the largest federal employee union, American Federation of Government Employees National President Everett Kelley, decried the move in a statement on Thursday, calling it “the most profound undermining of the civil service in our lifetimes”.
“Through this order, President Trump has declared war on the professional civil service by giving himself the authority to fill the government with his political cronies who will pledge their unwavering loyalty to him, not to America,” Kelley added. “By targeting federal workers whose jobs involve government policies, the real-world implications of this order will be disastrous for public health, the environment, the defense of our nation, and virtually every facet of our lives.”
Virginia Democratic Representative Gerry Connolly, who chairs the House of Representatives subcommittee overseeing civil service issues, called the order “yet another attack on federal employees that addresses absolutely none of the issues that can hinder effective federal recruitment and hiring”. He added that he saw it as “a cheap ploy to let the Trump administration replace talent and acumen with fealty and self-dealing.” And Max Stier, president and CEO of the nonpartisan Partnership for Public Service, called the order “deeply troubling” and warned that it “has the potential to impact wide swathes of federal employees over the next few months without engagement from Congress, civil servants and other key stakeholders”.
“Being able to place any number of existing career positions into this new Schedule F not only blurs the line between politics and the neutral competency of the career civil service, it obliterates it,” he added.
A Republican source who served as a top federal personnel executive under previous Republican administrations offered a far more succinct review of Trump’s latest executive action: “It's just bad no matter how you view it.”
Administration sources say this latest directive is largely the brainchild of James Sherk, a top Trump aide whose work on the Domestic Policy Council has been largely focused on devising methods by which the Trump administration can undermine government employee unions and render toothless the civil service system. Such endeavors are longstanding goals of the American conservative movement, which has for years viewed the largely unionized, highly educated, racially diverse federal workforce as a hostile occupying army loyal to the more reliably pro-union Democratic Party.
But while past Republican presidents were willing to at least pay lip service to the advantages of having a skilled, professionalized and non-political federal workforce, advocates of gutting the civil service have found a willing ally in Trump, who has regularly attacked the federal workforce as a Democrat-aligned “deep state” that has worked to undermine his presidency.
Earlier this year, then-White House Deputy Press Secretary Hogan Gidley said the White House planned on taking steps to remove what he said were “people in the bowels of the federal government working against this president” and pursuing “their own selfish political agenda” rather than showing loyalty to Trump.
“It’s not a secret that we want people in positions that work with this president, not against him, and too often we have people in this government — I mean the federal government is massive, with millions of people — and there are a lot people out there taking action against this president and when we find them we will take appropriate action,” said Gidley, who left the White House in July and is now the national press secretary for Trump’s re-election campaign.
The administration’s disdain for career civil servants has only hardened under the pressure of running for a second term bid amid Covid-19.
Trump has reserved a special level of rage for scientists like Dr Fauci, the nation’s leading infectious disease expert. On a call with campaign staffers last week, the president reportedly complained that he could not fire Fauci because doing so would be a PR “bomb”.
But should he lose his re-election bid in just under two weeks, New Jersey Chief Innovation Officer Beth Noveck — an NYU professor who served as the first US Deputy Chief Technology Officer — said the order appears to be designed to enable him to exact revenge on Fauci and any other federal officials he blames for his loss.
“It's the twin danger of both firing Fauci and replacing him with Eric Trump's wedding planner permanently,” said Noveck. She compared the order to the fictional “infinity gauntlet” weapon made famous by the Avengers films, citing the way it could enable Trump to get rid of countless tenured federal workers with the stroke of a pen.
“There's definitely a ‘snap your fingers and get rid of half the civil service’ quality to this,” she added, noting that the order lays out vague and subjective criteria for determining whether an employee reclassified under “Schedule F” can be fired for “poor performance”.
Noveck added that such vagueness made it possible that Trump could use the “preliminary” list he has ordered OPM to prepare to cripple a Biden administration’s Covid plans by targeting Fauci and other scientists or the administration as a whole by removing large numbers of experienced workers.
“It's unclear whether this becomes… a blunt instrument in order to do some surgical removal of people they don't like, or whether they're going to actually attempt some sort of bloodletting or purge,” she explained.
As for the possibility that Trump could use the order to install scores of cronies to sabotage Biden, a former top Department of Health and Human Services official says it is already happening.
Dr Rick Bright — the former Director of the Biomedical Advanced Research and Development Authority and Deputy Assistant Secretary for Preparedness and Response who left government service after Trump officials demoted him for contradicting the President’s attempts to downplay the Covid-19 pandemic — said the Trump administration has already been seeding the government with unqualified loyalists.
“With an administration change, there are rules in place that say you really don't embed any people, especially in the last period of time, whether it’s a year or six months or so,” he said. “But what we've seen over the last three years is them embedding people all along. So when the [Trump administration] Schedule C's and their other political appointees all go away, there will still be this base of [Trump] people that are in the federal service.”
“Many of those who were brought in,” Bright said, are “friends and family” of Trump administration officials who initially showed up as contractors: “And then the next thing you know, they’ve changed their business card and their email address and they’re federal employees.”
Although Trump and his advisors have often struggled with a steep learning curve when it comes to the arcane rules and regulations which govern the federal bureaucracy, both Noveck and Shaub said the order’s dense language was meant to deliberately obscure the purpose of it. They believe it is a sign that Trumpworld is finally getting the hang of manipulating the government it leads to its own ends.
And while Connolly and other critics of the move presented the harm it would do as “potential,” Shaub said the 90-day clock appeared deliberately timed to give Trump a way to fire a parting shot at his successor should he lose next month. He also suggested that, given the White House’s stated intent to purge disloyal civil servants, there might already be a list of people to fire waiting for use.
“I think there's a very realistic chance that they could have everything ready to go and cause harm,” he said, “and in the case of a new administration standing up, their actions may not be noticed by the people who can fix it until the harm has really taken effect.”