Going to Court for Civil Servants

Today we filed suit against two federal agencies and we are appealing the decision of a third in order to force the Trump Administration to come clean about its treatment of civil servants. We’re going to court because the integrity of the civil service is vital to our democracy and because the Trump Administration has already demonstrated a troubling pattern of bullying civil servants and trying to silence dissent.

When we formed Protect Democracy, we worked with experts on what keeps democracies healthy – and what leads to their decline – to identify several mission-critical principles to defend. One of those is protecting the civil service from purges, intimidation, or politicization.

The United States adopted a civil service system in the early 20th Century as a response to widespread corruption, in which political parties would dole out government jobs as partisan spoils. The prior system often resulted in appointees performing tasks for which they were not qualified and being subject to doing whatever the local “boss” demanded, even if doing so was not in the public interest. Today, civil servants – nonpartisan experts who do not serve at the pleasure of the President – provide continuity, expertise, and institutional knowledge across Presidential transitions. They take an oath to uphold the Constitution and are protected by various laws from being made to do things in violation of that oath. For that reason, as David Frum, former speechwriter to President George W. Bush, has written, “The traditions of independence and professionalism that prevail within … the civil service … will tend to restrain a president’s power.”

That’s also why autocrats choose to target the civil service. As Aziz Huq and Tom Ginsburg of the University of Chicago write, the civil service is identified by scholars “as a bulwark against autocracy,” and “[w]eakening civil service tenure protections is an underappreciated way for an executive to aggrandize power.”

Recent events in Turkey provide a powerful and chilling example. One of the first steps that Turkish President Recep Tayyip Erdoğan took to consolidate power and move towards autocracy was to fire tens of thousands of civil servants. Civil service purges have also been a feature of recent democratic decline in Thailand, Poland, Hungary, and elsewhere. Experience shows that attacks on the civil service are a red flag for the health of a democracy.

So it’s disconcerting that aides to President Trump – who congratulated Erdoğan on his most recent power grab – have flirted with ideological tests for U.S. civil servants. In December, the Washington Post reported that the Trump transition team was working to identify civil servants at the Department of Energy (DOE) who had worked on climate change issues under the Obama Administration. As we recently reminded Attorney General Sessions, making personnel decisions based on political affiliation or ideology is prohibited by federal laws that exist to protect the civil service, including the Civil Service Reform Act (CSRA).

A month later, White House Press Secretary Sean Spicer suggested that hundreds of State Department employees who had signed a dissent cable opposing the Administration’s travel ban on majority-Muslim nations should “either get with the program or go.” That ultimatum came even though the State Department has legally sanctioned the use of such cables as the proper means for employees to register disagreement. Threatening personnel action based on an expression of dissent through proper channels might have been a violation of the CSRA. More recently, the State Department re-assigned an official whose fealty to President Trump was questioned by conservative media outlets.

We responded to these repeated attacks on civil servants by filing Freedom of Information Act (or FOIA) requests for communications between and within the White House (or Transition Team) and the relevant agencies to determine if illegal retribution has been planned or taken against any employees. We also filed a similar request with the Department of Health and Human Services (HHS) to ensure that no that similar acts of intimidation have been made against civil servants at HHS regarding their views or work on the Affordable Care Act or reproductive rights.

By law, those agencies have 20 business days to respond. DOE and HHS haven’t. Meanwhile the State Department has reserved the right to charge us potentially exorbitant fees to fulfil our request, even though the law requires them to waive fees if the information requested is in the public interest, which it is.

These issues are too important to wait around, so we’ve filed complaints against DOE and HHS in the U.S. District Court for the District of Columbia. And we’re appealing the State Department’s decision. Our goal is not only to discover if illegal acts are being planned or have taken place, but also for these complaints themselves to serve as a check against anyone within the Administration who might be considering illegal acts against civil servants. The Administration and the civil servants who need protection should know that the public will be watching.

Ben Berwick is Counsel at United to Protect Democracy and the Protect Democracy Project and a former civil servant attorney at the U.S. Department of Justice