Transition Tales: Draining the Swamp Won't Be as Easy as You Think

This column by ACRU Policy Board member J. Christian Adams was published November 13, 2016 by PJ Media.

Twice in thirty-five years, Republicans have taken executive power from Democrats. Twice, Democrats enjoyed great success is keeping the ministerial state firmly in the camp of the ideological left.

Some gains were made in reining in the power of bureaucrats — particularly by Ronald Reagan in 1980, but less so by George Bush in 2000. Team Trump can learn from the mistakes of the past. Draining the swamp can’t happen by flicking a switch. But some lessons from history can help.

Here are three smart ways to help #DrainTheSwamp.

Consider what happened at the Civil Rights Division of the Department of Justice in 2000 as a case study. The Civil Rights Division is the most powerful and radical part of the most powerful and radical federal agency. In 2000, Clinton political appointees at the Justice Department did all they could in the two months between the election and the inauguration to sabotage any incoming agenda of the Bush administration.

These problems will manifest across the federal government, but this agency was the engine of the most radical Obama policies, so it deserves special attention.

1. Reverse the Coming Hiring Spree of Leftists and Burrowed-In Political Hacks

When President Bush left office, there was a single so-called “career” deputy assistant attorney general in the Civil Rights Division. This was a position purportedly designed to provide expertise across different administrations. In practice, it became a perch for leftist lawyers to interfere with and sabotage Republican attorneys general in future administrations. During the Obama administration, that single “career” position has been increased, I am told by Division staff, to three permanent “career” front-office staff.

But that’s not all. Team Trump cannot allow the current Obama political leadership in the Justice Department, and particularly the Civil Rights Division, to go on a hiring spree, packing the Division with militant liberals before handing over the keys to Trump. This was exactly what the Clinton Justice Department did from November 2000 through January 2001.

Literally dozens of partisan leftists joined the Division’s bureaucratic ranks during those months, as if a blue-light special on federal employment was being conducted at the ACLU. New George W. Bush appointees were caught completely off guard when they arrived, and their naïveté allowed extraordinary mischief to occur.

Indeed, their failure to take prompt remedial action against these abuses greatly exacerbated the seemingly never-ending political battles that the Civil Rights Division bureaucrats waged with the new political leadership in the ensuing years.

Civil Rights Division lawyers were also responsible for sabotaging the federal judicial nomination of Senator Jeff Sessions before he became a senator. Some of those responsible for sabotaging Sessions, and their progeny and allies, are still in the Division in senior executive service and career lawyer positions.

Jeff Sessions Judiciary Committee hearing witnesses

Jeff Sessions Judiciary Committee hearing witnesses

Personnel is policy.

As Hans von Spakovsky and I demonstrated emphatically in our Every Single One series at PJ Media, the Obama Civil Rights Division has strategically filled the civil service ranks from top to bottom with some of the most strident ideologues in Washington.

For eight years, these individuals have served as loyal foot soldiers for the Left, standing ready to do the bidding of liberal advocacy organizations, and carrying out Eric Holder’s (and now Loretta Lynch’s) deeply partisan agenda. Meanwhile, the resumes we received in response to our public records requests revealed that not a single conservative joined the Division during those eight years.

It will be next to impossible to dislodge most of these attorneys, because they have vested into full civil service protections.

So, a reduction in force passed by Congress would be needed.

The Trump team must not repeat the mistakes from 2000. The Department of Justice — and all federal agencies — must be told now: No hiring until after the inauguration. Anyone who starts should be let go after January 20.

2. Consider Replacing the Civil Rights Division’s Section Chiefs

The second way to drain the swamp, closely related to the first, is to strongly consider leadership changes among the Civil Rights Division’s section chiefs. These individuals have the ability to advance the new attorney general’s agenda, or bring it to a screeching halt.

Remember, these are the people who waged war against Voter ID laws, attacked Sheriff Joe, attacked border control, attacked birth genders, who pressed out-of-the-mainstream racial tests over every aspect of economic life, and who waged a campaign against law enforcement.

In other words, the Civil Rights Division section chiefs are the people who created the mainstream American backlash that helped elect Trump as president.

It won’t matter if all eight Trump political appointees in a Division of 900 employees are screaming at them to enact the Trump agenda. These skilled survivors won’t listen, or they will sabotage and slow-walk the commands — just as they did in the past.

Not surprisingly, virtually every incumbent is a fierce liberal with barely concealed ideological fervor — particularly towards someone like Trump.

Just a few months ago, DOJ Special Litigation Section Chief Steven Rosenbaum stood before dozens of employees at a staff meeting and openly made derisive jokes about Donald Trump.

Rosenbaum has a long history of hostility to police departments and has mistreated conservative lawyers inside the Civil Rights Division, according to multiple sources there I have spoken with.

This is the man who will be managing federal civil rights policy towards police departments. He is precisely the sort of entrenched federal lawyer who must go — or the swamp will still crawl.

DOJ Special Lit Chief Steve Rosenbaum

DOJ Special Lit Chief Steve Rosenbaum

These Senior Executive Service employees, along with their deputies, routinely leak like a sieve to their ideological comrades in the media and on the Hill. They will not hesitate to gum up the works of any investigation or policy matter with which they have political disagreements.

When the Justice Department inspector general discovered that DOJ employees committed perjury to hide leaks about voter ID decisions to the Washington Post, absolutely nothing was done to punish the transgressors by these Senior Executive Service employees.

When another DOJ employee was caught using a government credit card to fly to see his mistress, and managed numerous laptops that went missing, the same Steve Rosenbaum approved a lucrative buyout of the employee.

According to sources I have spoken with inside his Section, Rosenbaum also retaliated against whistleblowers who first reported the misconduct.

Rosenbaum’s handiwork can be found in the condescending language found in the Section’s recent “findings letters” against numerous police departments and correctional facilities, and in the over-the-top provisions littered throughout the Section’s judicial consent decrees. Much of this is completely untethered from any constitutional or statutory foundation.

But it isn’t just him. There’s the Criminal Section, for example.

This section gave outlandish cover to a lawyer still employed at $155,000 per year who helped frame police officers in a criminal trial in New Orleans.

The Obama administration is leaving a ticking time bomb for Team Trump by appointing Tamara Kessler as the new chief of the Criminal Section. Kessler, a former Civil Rights Division attorney returning to DOJ for a second time, is slated to begin her tenure later this month following a stint as the director of the Department of Homeland Security’s Office of Civil Rights and Civil Liberties.

There, Kessler spent the bulk of her time engaging in outreach to Arab and Muslim communities and advocating for the elimination of ethnic and racial “profiling” in policing.

Referred to as an “outspoken Democrat” by those who have worked with her, she is perhaps best known as the lead investigator and co-author of the factually laughable Office of Professional Responsibility/Inspector General report on the Civil Rights Division back in 2007.

Tamara Kessler

Tamara Kessler

It is hard to imagine a bigger “Screw You” to the incoming president, the Fraternal Order of Police and other law enforcement organizations than putting Ms. Kessler at the helm of the Division’s Criminal Section.

Fortunately, she will be in a probationary period for one year after her return to DOJ, so there will be ample opportunity to replace her with someone far more balanced and professional.

This is what a swamp looks like. Draining a swamp requires draining the creatures that make it a swamp.

A federal regulation, 5 CFR § 317.901(c), prevents the involuntary reassignment of any of these individuals for 120 days after the new attorney general or senior political appointee in the Division takes office.

But after that, it’s fair game.

They can be given the choice to move anywhere in the country, at any federal agency — such as the U.S. Geological Survey — or quit.

3. Drain the Swamp of Career Leftist Lawyers

Again, personnel is policy. And Ronald Reagan knew it.

Unless one has actually worked in the Division, it is almost incomprehensible just how partisan and unethical the line attorneys there can be.

The problem is that many do not see their jobs as enforcing the law as written and representing the United States. Instead, they view themselves as advocates for far-left interest groups who are advancing a radicalized agenda — an agenda the American voters squarely rejected last week.

Their behavior won’t change in a Trump administration without remedial measures.

The good news — this part of the swamp can be drained effectively using civil service laws.

It is not always easy, and it is nearly always inefficient (particularly for any “private sector” lawyers who find themselves running the Division after January 20, 2017). As an initial matter, all new attorneys serve a one-year probationary period following their arrival at DOJ. During that time period, they enjoy virtually no civil service protection, and they can be easily terminated or reassigned. Adverse personnel action cannot be taken on the basis of partisan political affiliation, but almost any other conduct detrimental to the mission of the Department will do the trick.

For example: advancing substantively tenuous legal or enforcement theories would suffice.

Disciplining non-probationary entrenched attorneys who seek to thwart the Trump administration by imposing their own political will on the Division’s policies and enforcement activities is equally imperative. Writing up a problematic attorney is admittedly a cumbersome process — you will curse the amount of time it takes. But papering the personnel files of such individuals from the very outset is essential to accelerating their removal from the Division, if warranted.

Verbal warnings are pointless and, I promise, will be ignored.

In some cases, section chiefs hid from Bush political leadership the misconduct of career lawyers because they shared the same politics. For example, one militant left-wing lawyer was allowed to work from her cabin in Michigan instead of in her office in Washington, even after the section chief was warned that the cozy telecommuting arrangement was not permitted. That lawyer is still employed by the Department.

Any member of the Trump political leadership who thinks they will make friends of the career attorneys is on a fool’s errand. The attorneys are there to pursue their own agenda, not yours, and certainly not the agenda of President Trump. Previous well-meaning appointees failed to grasp these realities.

Regrettably, the Justice Department’s Office of Professional Responsibility became a politicized joke under Eric Holder.

As detailed at National Review Online, Holder’s appointment of a partisan Democrat to lead that office has rendered it useless in monitoring partisan misconduct by Civil Rights Division attorneys. The inspector general is also barely effective now. A far blunter instrument will be necessary.

The new Trump leadership team should immediately reach out to the Civil Rights Division’s Administrative Section.

The staff there are bright, apolitical, and committed to serving whatever political team happens to be in office. They understand the civil service rules as well as anyone, and they will help the new leadership navigate the difficult terrain in this area. They can provide all of the emails the Division has produced over the last several years.

Sadly, they are one of the only parts of the Division that can be fully trusted by Team Trump.

Even if all of this advice is followed, it will still be hard to “Drain the Swamp” as promised. The country elected Donald Trump because he is an outsider who expressed a willingness to eschew the banality of political correctness and “shake up” the system that the Washington establishment holds dear.

There are few places as swampy as the Civil Rights Division at the Department of Justice.

Eric Holder used this Division to try to fundamentally transform the nation. The rank-and-file who willingly helped Holder are still there, enjoying $155,000-per-year salaries, or more.

And they don’t think Trump has any chance of draining their swamp. After all, they survived previous attempts.