By Scott Weiser
One of the challenges President Trump faces in draining the D.C. swamp is the Civil Service System itself. Designed by the father of modern Progressivism Woodrow Wilson in 1914, the Civil Service Act was intended in part to insulate federal government employees from the slings and arrows of changing administrations on the theory that non-appointed employees and professional bureaucrats are supposedly non-partisan worker-bees who don’t deserve to lose their jobs every four years or so just because the political pendulum swings the other way.
Wilson’s more specific intent was to create a civil service that was resistant to political patronage, which is the practice of installing administration employees loyal to the new President as a reward for their support. Prior to the Civil Service Act regular house cleanings would occur at almost every level of the federal bureaucracy and bureaucrats and employees of the preceding administration were summarily relieved of their duties and were replaced with political appointees who might or might not have been qualified to do the job. This caused plenty of trouble with the functioning of the bureaucracy, which does in many cases rely upon the institutional memory of the agencies and employees in order to function efficiently.
Employers value long-term employees over new hires for precisely this reason. The costs, both in loss of productivity and for training are substantial when someone new has to take over a complex job. This is true for federal employees who are knowledgeable and skilled at their jobs, who are an asset to any administration regardless of which administration hired them…most of the time.
But what makes the Civil Service System work at all is that federal employees are supposed to be non-partisan and politically neutral in their jobs. But this is a fiction that today is all too often not the case. There’s a secret and scandalous practice called “burrowing-in” that has in many cases turned non-partisan federal agencies into rogue political operations that are run by radical partisan political operatives who have managed a tick-like infestation that is very difficult to root out because of Civil Service rules designed to make it hard for a President to rid the system of disloyal and insubordinate employees.
To “burrow-in” a political appointee, generally those not subject to Senate confirmation, uses political influence and patronage to be hired into a parallel position as a Civil Service employee. Once under the protection of the anti-patronage Civil Service Act the partisan political operative can continue to sabotage the new administration from within, largely secure in the knowledge that it has customarily been very, very difficult to fire a federal employee.
An example of this was seen in the insubordinate actions of employees of the National Park Service who, after being ordered to cease communicating with the public during the Trump transition, insubordinately defied that order and went ahead and published various global warming materials not approved by the new administration. This open defiance of a presidential order is just one of many examples of the dangers of ideologically-biased federal employees sabotaging the will of the people with respect to how their federal government operates.
Every employee owes a duty of loyalty to their employer and obedience to the lawful orders given by their employer. Disloyalty to an employer is legal cause to dismiss an employee in both private business and in government employment. So is insubordination.
A more blatant example of insubordination and deliberate sabotage of President Trump’s new administration is former Acting Attorney General Sally Yates, who was fired by President Trump on Monday, January 30 for insubordination. Yates not only refused to do her job of defending a valid executive action, she showed disloyalty by advising other members of the DOJ to likewise refuse to defend President Trump’s temporary hold on immigration.
In attempting to justify her insubordination and disloyalty she said “I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right.” The problem is that her legal and ethical duty is not to impose her notions of “what is right” on the DOJ, it’s to represent her clients to the best of her ability and according to her client’s orders, within the framework of the Constitution and the laws of this nation.
Yates’ client is not the Department of Justice, her clients are the people of the United States and our duly elected representative client to the DOJ is the President of the United States, Donald Trump. By defying President Trump Yates not only defied and failed to properly represent we, the People, she violated her oath of office and her duty as a lawyer under the canons of professional legal ethics.
If she believed that the executive order was unconstitutional or illegal her duty was to advise the President of her professional opinion on the matter and await his decision on how to proceed. If she in good conscience could not legally defend the order because she actually believes it to be either unconstitutional or illegal, then her only legitimate recourse under the canons of professional responsibility for lawyers was to resign from her position. She had no authority to advise other DOJ staff to be insubordinate or disloyal to the President.
Yates was properly fired, but that’s hardly enough given the gravity of her offense. She violated the most sacred canon of professional ethics there is: her duty to represent her clients and obey their orders regarding her representation of them.
Sally Yates must be disbarred and prohibited from ever acting as a lawyer again because she has demonstrated that her partisan political interests take precedence over her duty to represent her clients.
More generally, any federal employee who displays the tiniest bit of insubordination to President Trump’s authority must be summary discharged and replaced.
Yates was allowed to clear out her office and leave at her leisure, but that was a tactical mistake by the President. Any federal employee who is fired for insubordination or disloyalty should be escorted from the premises by the U.S. Marshal’s Service, preferably by frog-marching them from the building without prior notice in order to prevent them from sabotaging computer systems and deleting files or records, something that President Trump’s political opponent Hillary Clinton is notorious for doing and her ideological ticks in the federal government are highly likely to do as well.
You don’t have to just drain the swamp, you have to remove the dangerous creatures before they can harm anyone.