The Stones that Paved the Way to 1/6
Newsletter 106: De-Trumpification is still incomplete
Tomorrow marks one year from when rioters stormed the Capitol building in an attempt to overturn the 2020 presidential election. In the 364 days since that horrific event some things have certainly changed: the presidency has successfully changed hands, almost 200 insurrectionists have plead guilty, and a handful of Trump’s associates have been held in contempt of Congress for their refusal to testify before the select committee. And yet, in other respects, progress has been woefully incomplete. Key officials from the Trump administration remain in place, the federal government continues to defend many of Trump’s seemingly indefensible legal positions, and Trump and his inner circle have not faced consequences for inciting the insurrection.
As political leaders gather this week to mark the anniversary, they must resolve to change that once and for all. That will require recognizing that the events of January 6, while undoubtedly appalling, did not represent a break but a culmination of the Trump administration’s obvious and escalating disregard for the law. Those intent on tackling that legacy must turn every stone on that path leading to the insurrection.
Governance
It’s clear that Attorney General Merrick Garland, arguably the official most empowered to confront that legacy, is not particularly interested in doing so. His department appears only to have reluctantly charged Steve Bannon with contempt of Congress. There seems to be little effort to use lower level prosecutions of those who breached the Capitol to get to those responsible for organizing and financing the attempted coup. And, of course, there continues to be absolutely no indication that the Justice Department is pursuing those atop the conspiracy, whether it’s Donald Trump himself or the many administration officials and members of Congress involved.
The inaction is becoming impossible to excuse, even for those who were once inclined to give Garland the benefit of the doubt. And though he is joining in the week’s programming with a speech today on the Department’s January 6 investigation, a DOJ spokesperson made clear that he “will not speak about specific people or charges” but rather discuss “the department’s solemn duty to uphold the Constitution, follow the facts and the law and pursue equal justice under law without fear or favor.” In other words, his remarks (the first Garland has offered on the investigations since taking office) seem like they may be less aimed at informing the public and more at quieting his critics with vague generalities.
Unfortunately, this is far from the only example of Garland’s refusal to face Trump’s enduring impact within the Justice Department and beyond it. Notably, almost a year after Biden took office, his administration is maintaining and defending a long list of Trump-era policies. That is despite overwhelming evidence – including an astonishing loss rate in friendly courts – that the Trump administration’s policies were put forward with the barest legal justification. If you’re interested, my colleague Hannah Story Brown has just completed an update to our blog tracking these positions. A recent New Yorker story on one of them – in which Justice and Education Department lawyers are opposing a motion that would reinstate protections for borrowers at predatory for-profit colleges – underscores how damaging this can be. The Education Department currently has the tools to crackdown on for-profit colleges, which have benefited from a wave of new enrollments throughout the pandemic. The evidence suggests that these newly-enrolled students will rarely find quality educational or career training opportunities, but will come away with a great deal of debt that they will struggle to repay. With each day that the Education Department (with the help of the Justice Department) continues to refuse to reinstate standards that would require for-profit colleges to demonstrate that the majority of their graduates earn enough to repay their loans, more borrowers are being caught in this predatory trap. Look at many of the other cases in our tracker and it quickly becomes apparent that the consequences are similarly severe and the legal arguments to support them are equally full of holes.
But that’s not all. As we’ve highlighted before, Garland has also failed to acknowledge or investigate potential instances of politicized hiring into the Justice Department’s career ranks. We know of several officials who moved from political roles in the Trump administration to senior career positions under President Biden. We also know that the Office of Personnel Management (OPM), the entity in charge of scrutinizing these conversions and ensuring that they meet merit systems principles, fell victim to political attacks that undermined its credibility. And yet, there is no indication that Garland has done anything to verify that these hires were legitimate, nor to investigate if other hiring occurred under unusual circumstances.
Over the coming days, we are sure to hear from many leaders about the need to ensure that nothing like January 6 ever happens again. If there’s anything to be learned from Trump’s time in office, however, it is that elite wrongdoers who face no consequences for their actions will not stop of their own accord, they will only get worse. If this administration is serious about preventing another January 6, Merrick Garland and others can’t turn a blind eye. They must confront every aspect of the prior administration’s wrongdoing head on.
Personnel
When it comes to the work of de-Trumpification, President Biden has shown greater resolve than Garland. On his first days in office, he exercised his right to remove officials like the Director of the Consumer Financial Protection Bureau (CFPB) and the General Counsel of the National Labor Relations Board (NLRB), despite Republicans’ hypocritical protestations. Over the course of the year, he went on to fire the heads of the Office of the Comptroller of the Currency (OCC), the Federal Housing Finance Agency (FHFA), and the Social Security Administration (SSA). As the year went on, however, his progress slowed. In December, he failed to act on calls to fire the Chair of the Federal Deposit Insurance Corporation (FDIC) after she illegally blocked a vote of the board (fortunately, her power grab sure to disintegrate upon contact with the courts, she announced her intention to resign at the end of last month). Others, like Bureau of Prisons Director Michael Carvajal, Financial Stability Oversight Council member Thomas Workman, and Office of Financial Research Director Dino Falaschetti, inexplicably still remain.
Arguably most baffling, however, is Biden’s decision to retain Trump’s hand-picked FBI Director Chris Wray. The circumstances surrounding Wray’s elevation are troubling enough, but his conduct at the head of the FBI leaves no question about the need to remove him. In April, my former colleague Mariama Eversley showed clearly that Wray has consistently failed to take the threat of white supremacist violence seriously and deploy the Bureau’s resources accordingly. Wray was also ultimately responsible for the sham investigation into accusations against then-judicial nominee Brett Kavanaugh. He subsequently evaded questions for lawmakers about his handling of that investigation. This is not someone who should still be in charge of the FBI. It’s time Biden fired him.
Independent agencies:
Nominations are also a key means for Biden to rid the federal government of Trump’s insidious influence. In particular, independent agency nominations are essential. One year into his term, numerous independent agencies lack the nominees they need to begin rolling back Trump-era policies, meaningfully enforcing the law, and establishing new, stronger regulatory frameworks. The Federal Communications Commission and the Consumer Product Safety Commission, for example, are gridlocked between two Republicans and two Democrats. The Commodity Futures Trading Commission lacks a quorum. The Merit Systems Protection Board (MSPB), for its part, has no members, preventing it from tackling an immense backlog of complaints (including many that surely occurred under the Trump administration). While other executive branch positions can be filled with acting officials, these will remain vacant until someone is confirmed to fill them. To restore agency functionality, stamp out Trump’s legacy, and advance his agenda, Biden must make a priority of filling them.
Want more? Check out some of the pieces that we have published or contributed research or thoughts to in the last week:
One Unexpected Way for Biden to Help the Climate and Rural America at the Same Time
‘Trucking Action Plan’ Missing in Action
Amidst a Record Supply Chain Crisis, What is the Federal Maritime Commission’s Capacity?
The Trump Administration Made a Mockery of the Law. Why Hasn't Biden Tossed its Cases?
The Administration’s Actions on Federal Student Aid Deserve Sustained Scrutiny
Only Two Senators Own Crypto Assets. Both Are Shaping the Industry’s Rules.
For-Profit Colleges Have Made a COVID-Fuelled Comeback
In 'Victory for Democracy' and 'Blow to Trumpism,' FDIC Chair Resigns
Make sure to follow us on …