De-Trumpification Needs to be Taken Literally and Seriously
Newsletter 70: Call us impatient, but we won’t be satisfied until every Trump political appointee is out of the job Trump et al gave them
And just like that, Donald Trump has been acquitted a second time. But, at least, Senators can devote more time to the many other priorities on their plate, like COVID relief, hundreds of confirmations, and holding Trump accountable through other means, right? Oh, hold on, I’m being told that they’re actually on recess and doing none of those things.
Transition:
We’re rapidly approaching the end of Biden’s first month in office. A lot has changed in these few short weeks, but the transition is really just beginning. Take nominations, for example. By the end of his term, Biden will have nominated people for well over 1000 roles across the executive branch and the judiciary. So far, just seven people have been confirmed. Another sixteen will need confirmation votes before Biden has filled out just his Cabinet. That means it is going to be months -- maybe most of a year -- before most subcabinet roles are filled.
Acting officials, therefore, will be incredibly important to Biden’s plans and his ultimate legacy. Many of these figures may lead agencies and offices for ten to twenty percent of Biden’s first term. It matters whether they are launching bold plans, sitting idle, or actively undermining the new administration. Given the variation in how acting officials have been selected, all three are a possibility.
Some were plucked up and placed in the line of succession by outgoing Trump officials in the administration’s final days. It was, for example, Steven Mnuchin who picked acting Comptroller of the Currency Blake Paulson to succeed Brian Brooks. In Paulson’s short time in office, he has already made the controversial decision to approve a new bank charter for the fintech company Protego, continuing Brooks’ and Mnuchin’s agenda for the agency. As our Eleanor Eagan wrote for the American Prospect last week, the Office of the Comptroller of the Currency is too important an agency to leave in the hands of someone uninterested in wielding its power for the public interest. Biden has the power to replace Paulson immediately. He should use it. (And, while we’re at it, he should commit to choosing a permanent replacement who does not have Brooks’ seal of approval).
The OCC example also carries broader lessons. Acting officials who are in their roles by dint of Trump officials’ favor should be scrutinized. Are they really the best qualified for the position? Or are they simply the most likely to continue to carry out the outgoing administration’s priorities? In any given case, the answer is not predetermined, but the questions are certainly worth asking.
Sadly, it is not just Trump holdovers that give cause for concern. Some of the Biden administration’s own choices for acting officials fall far short of being the best possible candidate for the job. The Acting head of the Department of Justice Civil Division, Brian Boynton, a WilmerHale alum with ample experience defending odious corporate actors and few credentials for government, is a particularly troubling example. At the helm of the Civil Division, Boynton will play an important role in determining the administration’s litigation posture on labor, health, administrative, education, financial, and other issues for months to come. Already, he has earned many progressive groups ire for “block[ing] lawyers representing former for-profit college students from taking a sworn deposition of Donald Trump’s notoriously anti-student secretary of education, Betsy DeVos.”
Our Jeff Hauser and Andrea Beaty highlighted another area of concern, the Department of Justice’s Antitrust Division, on our blog over the weekend. One of the three figures that the administration picked to lead the division is a career official who rejoined the Department soon after Trump’s election and was quickly elevated to Assistant Attorney General Makan Delrahim’s inner circle. In one of his last acts in office, Delrahim installed the other, Babette Boliek, to a top role in the antitrust division, a position she will likely hold until Biden’s confirmed Assistant Attorney General chooses her replacement.
So far, few names have been announced for permanent leadership positions in the DOJ, but the favor shown to BigLaw figures for acting appointments and other hires gives cause for serious concern. This is particularly puzzling when juxtaposed with Biden’s admirable commitment to pick judicial nominees with backgrounds outside of BigLaw -- a standard which received renewed attention last week after Senator Michael Bennet (D-CO) caught flak for openly defying. If Biden and his team recognize the danger of BigLaw judges in the judiciary why not the equally harmful impact of BigLaw lawyers throughout the executive branch?
Governance:
With the second impeachment trial over, a lot of people are likely asking themselves, what is next for Trump accountability? Our latest memo, “Existential Threat to the Civil Service: Politicization Under Trump” helps point the way. Drawing on reporting from the last four years, Revolving Door Project has sought to deliver a clear picture of the scale of the damage to our governing institutions and to offer some initial steps towards repair.
As we have emphasized many times before, one of those steps must be removing remaining Trump officials from government service wherever legally possible. We were, therefore, heartened to learn that Biden has asked most sitting US Attorneys to resign prior to the end of the month. Given that many of Trump’s selections underwent personal interviews with the President and that those who were deemed disloyal were fired, it was always clear that a reset would be needed.
As our Mariama Eversley wrote for Talking Points Memo last week, however, this is just a first step to restoring justice. As detailed above, for example, given that US Attorneys generally choose their successor, the acting officials who rise to take their places should be scrutinized. (It is both legal and routine for the president to choose his own acting US Attorneys.)
There are still others who Biden needs to remove from office. Last week, Robert Kuttner made the case that Biden should fire the head of Federal Student Aid, Mark Brown, who is responsible for managing the federal government’s enormous loan portfolio. And our Eleanor Eagan joined the chorus of voices calling for Biden to fire members of the USPS Board of Governors for cause. Others who still have their jobs but shouldn’t include IRS Commissioner Charles Rettig, Director of the Federal Housing Finance Agency, Mark Calabria, and Director of the Federal Bureau of Investigation Chris Wray.
But even sweeping all of these figures out will not be sufficient by itself. De-Trumpification also means questioning the outcomes of corrupt processes. In other words, it stands in direct conflict with a desire to simply return to normal. One area where this will be particularly important is at the DOJ, where Biden appointees will be considering how to manage litigation left over from the Trump administration. While norms would hold that Biden not abandon Trump’s positions wholesale, the utter lawlessness of the last administration points to a blunter, more sweeping approach.
If you read one thing this week, make it this brilliant op-ed from Sherilynn Ifill, president of the NAACP Legal Defense Fund. In it, she traces how individual lawyers and the legal establishment “enabled Trump’s worst abuses” and calls for a “full accounting and examination of our profession’s role in contributing to the erosion of our democracy.” We feel confident that such an accounting would undermine any impulse to give deference to the Trump team’s legal reasoning and actions but also, more broadly, call into question the harmful mirage of legal impartiality that has protected BigLaw lawyers from the need to answer for their clients or positions for so long.
Congressional Oversight:
On Monday, House Speaker Nancy Pelosi announced plans to form an oversight commission, similar to the one created in the wake of 9/11, to investigate the events of January 6. This is a welcome indication that impeachment did not mark the end of official accountability for the coup attempt. It must not, however, come at the expense of other oversight.
After watching Pelosi evade the House’s oversight responsibilities at virtually every possible turn, it is hard not to see this as an effort to wash her hands of the hard work of accountability. As a complement to extensive oversight efforts that examine broader questions -- such as attacks on the civil service, institutional degradation, abuses of power, and more -- an oversight commission could provide immense value. As a standalone, however, it would be woefully insufficient.
Independent Agencies:
With so many people to nominate, selections to independent agency boards should rise to the top of the list for one simple reason: no acting leader will fill the vacancy in the interim. That means boards will stay as they are -- in most cases either tied or with Republican majorities -- until replacements are confirmed. Given the power many of these boards have to fight everything from the pandemic to climate change and racial injustice, any delay in getting them working for the public interest is unacceptable.
As our Eleanor Eagan explained in a blog earlier this month, Democratic majorities are in reach at many critical agencies, including the Commodity Futures Trading Commission (CFTC), Federal Communications Commission (FCC), Federal Trade Commission (FTC), the United States Postal Service (USPS), and many others. So far only one nomination, to the Securities and Exchange Commission, has been made.
The lack of nominations to the USPS board remains conspicuous. Given the Postal Service’s overwhelming popularity and the widespread outrage over its sabotage, working to restore it quickly would seem like a no-brainer. And Biden and his team have had the full transition period to give this question thought; three vacancies (enough to restore a Democratic majority) have been open since well before election day.
In light of DeJoy’s plans to press ahead with even more destructive “reforms” at USPS, Biden’s commitment to nominate new Governors at some point is not enough. There should have been names on day one, but barring that, tomorrow will do. (Even better, he could fire all of the governors except one who can fire DeJoy and nominate 8 replacements).
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
The Trump Holdovers Biden Still Needs to Fire
Resignation of Trump-Appointed US Attorneys Is Just The Start Of DOJ’s De-Trumpification
Trump Appointees Still Setting Agenda At Biden's Antitrust Division
How A Little-Known Treasury Position Could Move Mountains For Climate Action
Jamie Gorelick: Amazon's Anti-Union Shadow Adviser At The DOJ
Barr's Current Fintech Ties Run Through Venture Capital Firm Of Former Finance Execs
Impeachment Just the Start: Lawmakers Must Reverse Trump's Damage to the Civil Service
Public Financial Disclosures Reveal Potential Conflicts Of Interest Facing Biden Appointees
The State of Independent Agency Nominations - Update for February 2021
Even After The Cabinet Selections, Personnel Is Policy
Biden's Newest Treasury Tax Appointees Delight and Disappoint
The Revolving Door's Power Couple: Heidi Crebo-Rediker And Doug Rediker
Biden’s Covid Czar Could Define Early Months of His Presidency
Biden's DOJ Defending Betsy DeVos Against Defrauded Students
Biden Justice Dept. Hires For-Profit College Lawyer, And He's Defending Betsy DeVos
Progressives critical of Biden's expected OCC nominee over fintech ties
Harvard’s Sunstein Joins Biden’s DHS to Shape Immigration Rules
Linda Thomas-Greenfield and Her 'Gumbo Diplomacy' Take Center Stage at the United Nations
The Biden Team Wants to Transform the Economy. Really.
Elizabeth Warren’s influence in Washington rises as allies take Biden administration posts
Robinhood-GameStop saga could put spotlight on DC, Wall Street revolving door
FCC Leadership: Rosenworcel Seen as Current Leader for Full-Term Chair, But
Progressive Sohn, Industry Attorney Smith, Starks, Dark Horses Possible
Al Jazeera English February 10th, 2021
'A Complete Capitulation': Outrage as Democrats Abruptly Back Off Push for Witnesses in Trump Trial