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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

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.