POTUS appearing to interfere in a disciplinary process for career officials is dangerous. Due process protections for career feds ensure that politicians don’t interfere in activities that should be carried out objectively, like criminal investigations and other functions /1
of the government. It’s another threat to the institutions of our nation if politicians abuse the levers of power to convert the law enforcement apparatus of the state from a defender of the rule of law into a tool for politically motivated persecution, which can happen if /2
if the politicians start directing the outcome of disciplinary processes. This president recently called for a ”purge” of career officials, implicitly based on their political views. He has also called for banana republic-style prosecution of his vanquished political rival. /3
You put those two things together along with his wildly inappropriate tweets about this career official, and they create the distinct appearance that this firing has been politicized, regardless of its underlying merits, and may lead to much worse. (I doubt POTUS read the IG /4
report, so the merits of the case would appear to mean nothing to him and his intent seems to have been to influence the disciplinary action.) The fact that this could happen owes largely to the diminished due process rights of FBI agents, as compared to other feds. That’s /5
why it’s always a bad thing when Congress reduces due process rights of feds. I have opposed that for years. As OGE Director, it might have been easier for me to fire bad employees if Congress had reduced their rights. But when Congress asked me if I wanted them to make it /6
easier to fire Feds, I said no. I know that the convenience to managers would be offset by the harm to our government and, ultimately, the American people. I have seen Members of Congress from both sides of the aisle jump on the “let’s make it easier to fire them” bandwagon, /7
but they forget that the reason for these due process rights is less about fairness (though fairness should be important to the government) and more about the danger to the republic that is created when politicians and political appointees can get away with abusing their /8
power to politicize governmental functions that should not be politicized. I certainly hope they will learn a lesson from this foreseeable consequence of their decision to deprive FBI officials of the level of due process protections that other feds have. We are in a /9
situation now where, whether McCabe is innocent or guilty, we have a President who has demonstrated a willingness to interfere with in a career disciplinary process. That represents a real threat to the integrity of government, and that threat is why I have always considered /10
the Merit Systems Principles and related due process protections to be part of the government ethics program. In this case, his effort to interfere to be a fatal procedural definiciency warranting reversal without regard to the substantive merits. Congress should also focus /11
on augmenting the due process protections for FBI officials and all other officials who have a lower level of due process protection than is traditionally accorded feds. The argument for taking away those rights was always that these positions are too important to have to /12
wrangle with the hurdle presented by due process protections, but I submit that they are too important NOT to have full due process protections. We need them to guard against political interference in our most sensitive functions. /13
In conclusion (and to prove that I’ve been on this beat for more than a minute), here’s a response from February 2016 in which I warned Congress that stripping due process protections could lead to politically motivated personnel actions. https://oge.gov/Web/OGE.nsf/Congressional%20Correspondence/622E9F23603BA8DA85257F54007B67D2/$FILE/OGE%20Responses%20to%20Questions%20for%20the%20Record.pdf?open …
(Oops, a few typos in this thread. One sentence in particular needs correction. I meant to write: “In this case, his effort to interfere should be a fatal procedural deficiency warranting reversal without regard to the substantive merits.“)
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