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Congress, Protect the Political Appointments Process From Presidential Abuse

Here is how we can reform the political appointments process to protect government decision-making from political patronage or nepotism.

  • Preet Bharara
October 17, 2019
jared and trump
Chip Somodevilla/BCJ

The piece was origin­ally published by the Guard­ian.

Long before Pres­id­ent Donald Trump lied about the path of a hurricane and threatened the lead­er­ship at the National Oceanic and Atmo­spheric Admin­is­tra­tion, he nomin­ated the former CEO of AccuWeather to serve as its admin­is­trator. In past pres­id­en­cies, such a nomin­a­tion would have been out of bounds. It breaks the decades-long preced­ent of having a scient­ist lead the more than 6,000 scient­ists and engin­eers at NOAA, not to mention the obvi­ous conflict of interest in putting someone in control of the govern­ment’s weather data who had advoc­ated for the privat­iz­a­tion of that data for his personal profit. The nomin­a­tion turned out to be a prelude to Pres­id­ent Trump’s politi­ciz­a­tion of the tradi­tion­ally non-partisan work at NOAA.

Over the last half century, a set of norms, unwrit­ten rules, and a few laws kept the pres­id­en­tial appoint­ments process focused on naming people to senior govern­ment posi­tions who serve in the public’s interest. Appointees were expec­ted to be qual­i­fied, free of conflicts of interest, and not members of the pres­id­ent’s family. These prin­ciples helped prevent corrup­tion and main­tain a basic level of trust in the integ­rity and effect­ive­ness of govern­ment and those who led it. They protect govern­ment decision-making from the improper influ­ence asso­ci­ated with polit­ical patron­age or nepot­ism.

Of course, pres­id­ents didn’t always get it right, and when they ran afoul of these prin­ciples, Congress took notice.

After Pres­id­ent John F Kennedy appoin­ted his brother as attor­ney general, Congress passed and Pres­id­ent Lyndon John­son signed an anti-nepot­ism stat­ute. After Hurricane Katrina, the federal govern­ment’s bungled response was at least partially attrib­uted to the fact that the head of the Federal Emer­gency Manage­ment Agency at the time lacked exper­i­ence in emer­gency manage­ment. Some attrib­uted his appoint­ment to his friend­ship with Pres­id­ent George W. Bush’s campaign manager. Congress respon­ded by mandat­ing addi­tional qual­i­fic­a­tions for future FEMA direct­ors.

It’s again time for Congress to act. Last week, the National Task Force on Rule of Law & Demo­cracy, convened by the Bren­nan Center for Justice and that I co-chair, released our new report, which provides Congress with a roadmap for protect­ing the polit­ical appoint­ments process from further abuse. Our members come from both polit­ical parties and have either served as exec­ut­ives or in the exec­ut­ive branch, or both. We know govern­ment cannot succeed without person­nel who are qual­i­fied and ethical.

Pres­id­ent Trump’s choice to lead NOAA is only one of many person­nel moves that flout the usual bound­ar­ies and unwrit­ten rules. He installed Ken Cuccinelli as the acting head of U.S. Customs and Immig­ra­tion Services despite his having no prior federal exper­i­ence. He also tried nomin­at­ing a talk radio host with no scientific creden­tials to serve as the chief scient­ist at the U.S. Depart­ment of Agri­cul­ture and tried appoint­ing a Repub­lican oper­at­ive opposed to compet­it­ive elec­tions into a posi­tion at the Census that is tradi­tion­ally filled by a career offi­cial with a strong stat­ist­ics back­ground.

Of course one of the most contro­ver­sial moves in this arena was Trump’s decision to appoint his son-in-law and daugh­ter to senior White House posts. Other pres­id­ent­s—in­clud­ing CarterReagan, and Obama—also considered appoint­ing members of their famil­ies to offi­cial posi­tions but were rebuffed by the Depart­ment of Justice, who advised them it would run afoul of the anti-nepot­ism law. In Trump’s case, DOJ determ­ined that a super­sed­ing law created an excep­tion for pres­id­en­tial appoint­ments in the White House.

Nepot­ism puts favor­it­ism and priv­ilege above fair­ness and merit. It also under­mines the integ­rity of poli­cy­mak­ing. Congress can respond by making clear that the prohib­i­tion on nepot­ism applies to pres­id­en­tial appoint­ments in the White House.

Congress has already shown a will­ing­ness to require that appointees in certain crit­ical posi­tions have specific expert­ise or exper­i­ence after witness­ing inept perform­ances by their prede­cessors. (Congress has also waived these require­ments when it has deemed it neces­sary, as it did for Defense Secret­ary James Mattis.) Instead of respond­ing piece­meal and wait­ing for the next abuse, our task force recom­mends Congress conduct a review of posi­tions requir­ing Senate confirm­a­tion to determ­ine which warrant addi­tional stat­utory qual­i­fic­a­tions.

Pres­id­ents have also under­cut the consti­tu­tional system of checks and balances by attempt­ing to circum­vent the Senate’s advice and consent role in the appoint­ment of senior exec­ut­ive branch officers. For example, Pres­id­ent Clin­ton had an acting assist­ant attor­ney general for civil rights at the Depart­ment of Justice for almost two years. It motiv­ated Congress to pass the Federal Vacan­cies Reform Act—with bipar­tisan support—in 1998. Pres­id­ent Trump has exploited loop­holes in the FVRA to fill his govern­ment with “acting” offi­cials whose appoint­ments are not subject to congres­sional scru­tiny and who are less beholden to congres­sional interests, which has drawn Senate Demo­crats’ and Repub­lic­ans’ ire. Congress should amend the act so that it serves its inten­ded purpose, and our report outlines how.

As I’ve said in the past, pres­id­ents have the right to have their own people—it’s why Pres­id­ent Trump was within his rights to remove me from my former posi­tion as U.S. Attor­ney for the South­ern District of New York. But the pres­id­ent’s person­nel pref­er­ences cannot come at the expense of a qual­i­fied and ethical corps of public servants. And the guard­rails against abuse cannot be so flimsy that the appoint­ments process is manip­u­lated to meet partisan or personal ends. For Congress to respond, it should enact reforms that restore public service as a public trust.

Preet Bhar­ara is the former U. S. attor­ney for the South­ern District of New York and co-chairs of the National Task Force on Rule of Law and Demo­cracy housed at the Bren­nan Center for Justice.