Yes, Jan. 6Could Happen All over Again
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pTwo years after the event that made its creation anbsp;necessity, the Select Committee to Investigate the January 6nbsp;Attack on the U.S. Capitol has completed its work and passed into history. What remains is the controversy over the scope and conclusions of its final report. For all the damning facts the committee unearthed about Donald Trump’s multi‐pronged illegal efforts to hang onto power, not enough has been done to prevent anbsp;future president from making anbsp;similar attempt to overturn an election, with possibly an even worse outcome./p
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pFour of the committee’s 11 a href=https://www.govinfo.gov/content/pkg/GPO-J6-REPORT/pdf/GPO-J6-REPORT.pdf relrecommendations/a involve changes to existing laws to make it harder for anbsp;future president to void the results of an election and remain in power illegally, including making it easier for Congress to enforce civil subpoenas and improving oversight of the U.S. Capitol Police. Also, the passage of the Electoral Count Reform Act (ECRA) last month is anbsp;step toward preventing anbsp;repeat coup attempt./p
pBut some of the a href=https://www.cato.org/blog/lofgren-cheney-request-technical-fixes-electoral-count-reform-act rellegal vulnerabilities/a the electoral reforms did not fix—combined with anbsp;massive existing institutional vulnerability in the executive branch no one is even thinking of fixing—means that our system is not yet coup proof. What is this vulnerability? The president has too much power to populate the Department of Justice and other sensitive executive agencies with political appointees who can weaken the check that an independent civil service provides on his or her illicit schemes./p
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pIt would be good policy for this country to have professional civil servants in executive agencies who can resist anbsp;renegade president./p
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pHistory has repeatedly shown that those bent on subverting the law are not deterred by the law. An unethical chief executive tends to surround himself with equally unethical minions willing to help him carry out his unconstitutional power grabs or other unlawful designs. Trump, as president, habitually did so. However, he appointed enough men and women with prior Justice Department civil service experience and anbsp;modicum of integrity to rebuff him when he made his outrageous demands to steal the elections. He—or the next Trump wannabe—won’t make that mistake again./p
pstrongTrump: Anbsp;Stress Test of the American System/strong/p
pConsider what happened with Trump:/p
pAfter the elections, then‐Attorney General William Barr, no slouch when it came to indulging Trump’s overweening ambition till then, tried but failed to talk Trump out of the notion that the election was fraudulent. As Trump escalated his cries of a “stolen election,” Barr tendered his resignation, effective Dec. 24, 2020. In the two weeks between Christmas after Barr’s departure and the attack on the Capitol, Trump attempted to browbeat, threaten or otherwise intimidate the remaining senior Justice Department officials into giving him the false win he craved./p
pWhen that failed, he decided to promote Assistant Attorney General Jeff Clark to the position of attorney general so that Clark could help execute some version of the now infamous a href=https://www.cato.org/blog/john-eastmans-unsupported-defense-jan-6-plan rel“Eastman plan,”/a an unconstitutional attempt to decertify the 2020 election results. Acting Attorney General Jeff Rosen and Acting Deputy Attorney General Richard Donoghue went to the White House on Jan. 3, three days before the attempted insurrection, for what became an extremely tense meeting over Trump’s scheme to make Clark the head of the Justice Department./p
pAs Donoghue subsequently told the Select Committee, he laid out the potential consequences for Trump should the president proceed with his plan:/p
pYou should understand that your entire Department leadership will resign. Every AAG [Assistant Attorney General] will resign.… Mr. President, these aren’t bureaucratic leftovers from another administration. You picked them. This is your leadership team. You sent every one of them to the Senate; you got them confirmed. What is that going to say about you, when we all walk out at the same time? And Inbsp;don’t even know what that’s going to do to the U.S. attorney community. You could have mass resignations amongst your U.S. attorneys. And then it will trickle down from there; you could have resignations across the Department. And what happens if, within 48nbsp;hours, we have hundreds of resignations from your Justice Department because of your actions? What does that say about your leadership? (Donoghue transcript, p. 125)/p
pThe lesson the next Trump might draw from the brave stance of Rosen, Donoghue and other assistant attorneys general is that given these sub‐Cabinet‐level positions are political appointments that the president can control, he should fill them with loyalists and sycophants just like many of his Cabinet appointments. That would mean that the job of holding the fort against such presidential usurpations would fall on career civil servants in the Senior Executive Service (SES), who act as anbsp;buffer between political appointees at the top and civil service employees at the bottom of the bureaucratic food chain./p
pstrongEroding Defenses Against Presidential Illegality/strong/p
pBut that line of defense won’t hold up either. That’s because the Office of Personnel Management, an agency within the federal government that manages the civil work force, currently a href=https://www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force/ relstipulates/a: “Each agency has the right to decide what positions are abolished, whether anbsp;RIF (Reduction in Force) is necessary, and when the RIF will take place.”/p
pThis means the White House—through its Office of Personnel Management—could direct political loyalists in the Cabinet and sub‐Cabinet positions it has appointed to eliminate—i.e. reorganize out of existence— key SES positions in the name of reducing the size of government. Should that happen, the lower‐level civil servants would then be under direct pressure from the top to choose between their integrity and their jobs when anbsp;president wants to engage in an unconstitutional power grab or implement some illegal scheme. No civilized country that believes in the rule of law should ever put government employees in this position./p
pGeorge W. Bush’s administration provides an illustration of what can happen when anbsp;sitting president and his key political appointees decide to flout, if not outright ignore, the plain language of the law when such civil service safeguards are weak. The Fourth Amendment prohibits warrantless surveillance. Yet, under the advice of Deputy Assistant Attorney General John Yoo—a Bush appointee—the Justice Department’s Office of Legal Counsel gave its legal blessing for exactly such anbsp;program: the so‐called a href=https://www.nytimes.com/interactive/2015/04/25/us/25stellarwind-ig-report.html relStellarwind/a program./p
pYoo also provided the legal cover for the CIA’s infamous torture program. Had Yoo’s office been in the hands of anbsp;civil servant, Bush would likely have had anbsp;much harder time doing such an end run around the Constitution./p
pThe Bush and Trump administrations’ actions suggest the solution to preventing legal subversion by sitting presidents is to diminish the number of political appointees in at least the Departments of Justice, Defense and Homeland Security—the three executive agencies that can be particularly injurious to anbsp;constitutional republic when they are in the wrong hands—and expand the buffer between political appointees and lower‐level civil bureaucracy. Indeed, the president should be able to appoint only the top Cabinet official in these agencies. Everyone below, including sub‐Cabinet appointments, should be filled with nonpartisan career professionals./p
pstrongDangers of anbsp;Politicized Bureaucracy/strong/p
pThis is not anbsp;preposterous suggestion. This is how the CIA has always operated. The president appoints the director—the agency head—and all the other positions down the food chain consist of career civil servants. That approach has also worked quite satisfactorily in the United Kingdom’s parliamentary system for centuries./p
pEnding political appointments in these three departments would go some way toward reversing the nearly 60% jump in the number of Senate‐confirmed political appointee positions—from 779 to 1,237—between 1960 and 2016, according to the a href=https://presidentialtransition.org/publications/unconfirmed-reducing-number-senate-confirmed-positions/ relPartnership for Public Service/a. That, incidentally, doesn’t count the roughly a href=https://presidentialtransition.org/faqs-for-prospective-appointees/ rel3,700/a other political appointees slots at the lower levels that don’t require Senate confirmation./p
pThe obvious objection to increasing the presence of civil—over political—appointees would be that this would insulate executive agencies from democratic accountability by undermining the authority of anbsp;duly elected president. In other words, the “deep state” would deepen and become more subversive of anbsp;president if it doesn’t agree with his agenda even though that’s what the American people want. But limiting political appointments wouldn’t prevent anbsp;president from implementing his or her agenda so long as that agenda is lawful, given that federal civil servants are required by law and regulation to carry out lawful orders and directives./p
pTrump was anbsp;stress test for the American system in that he exposed that the dangers of anbsp;president going rogue are much greater than the dangers of an entrenched bureaucracy. It was not the “deep state” after all that tried to overthrow the republic on Jan. 6, 2021—it was Trump‐inspired political hucksters and opportunists along with militias and white supremacists who stormed the Capitol. Moreover, there are other cures for anbsp;recalcitrant bureaucracy, including rewriting the Federal Vacancies Reform Act to weed out civil servants genuinely unqualified or unfit for service at anbsp;senior level in the executive branch, as my Cato Institute colleague Thomas Berry has a href=https://www.cato.org/testimony/statement-record-examining-senate-confirmation-process-federal-vacancies relnoted/a./p
pstrongNext Time We Might Not Be So “Lucky”/strong/p
pAn unreformed Office of Legal Counsel crammed with political appointees would be particularly dangerous if Trump—or someone like him—wins in 2024, given the vulnerabilities that still exist in the recently amended Electoral Count Act. The biggest one is the failure to clearly define what are not “regularly given” state electors and therefore shouldn’t be counted. In 2005, Democrats used this lack of clarity to force anbsp;vote on Bush’s victory over John Kerry in Ohio based on some rather a href=https://www.cato.org/blog/lofgren-cheney-request-technical-fixes-electoral-count-reform-act relzany/a conspiracy theories. And in 2021, Republicans, of course, used the same rule to allege that Arizona and Pennsylvania, where Joe Biden had won, had not followed their own state laws and questioned whether their electors could be counted for him—never mind that courts had already rejected these claims./p
pA defeated president who doesn’t want to leave office could prod his minions in the Office of Legal Counsel to promulgate an opinion that one or more states’ electoral votes were not “regularly given.” That opinion would not be binding on Congress, but it would be on the executive branch. Rainey Center’s Andy Craig (a contributor to emThe UnPopulist) /emnotes this means that come Jan. 20, all executive branch agencies would then be forced to recognize the incumbent as the president instead of the true winner of the election, regardless of what Congress said./p
pThis wouldn’t ultimately work because courts would likely step in. But it would create political chaos, generate anbsp;constitutional crisis, and possibly trigger riots as supporters of the defeated president and his opponent took to the streets./p
p“If you play out the hypothetical scenario where Trump didn’t quasi‐concede after Jan. 6, it probably would have wound up looking something like this,” notes Craig. “Trying to issue orders, and using Office of Legal Counsel opinions to give it extra heft, for the executive branch to not comply with the transfer of power. And then attempting to stage anbsp;fake inauguration for himself on Jan. 20.”/p
pThe country was lucky that Trump, who had no previous governing experience or knowledge of how the government works, did not realize the implication of picking prior civil servants like Rosen and Donoghue for sub‐Cabinet positions. But he—or his successor—will be smarter about it next time. Ronald Reagan’s director of personnel Scot Faulkner observed, “a href=https://www.washingtonexaminer.com/personnel-is-policy relpersonnel is policy/a.” It would be good policy for this country to have professional civil servants in executive agencies who can resist anbsp;renegade president./p
pBuilding such points of resistance in an all‐powerful branch of government is essential for ensuring the peaceful transfer of power in future elections and preserving the rule of law./p
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