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Yeomans Work

DOJ

  • Is Comey Flap Giving Congress Cover?

    As James Comey continues his book promotion, it has become painfully clear – as predicted – that the tour is another expression of Comey’s hubris that is likely to do more harm than good. He has gone toe-to-toe with Trump, who has been tweeting back insults as if he couldn’t care less about the country or its institutions. Unfortunately, Comey has tangled with Trump on the playground, making their exchange a distasteful round of political mud wrestling.

    A few points merit highlighting. First, when it comes to veracity, there is no contest. For all his flaws, Comey comes across – as he did in his congressional testimony – as a superlative fact witness. He tells a story complete with compelling narrative structure and enriching detail. Trump, by contrast, is stunningly inarticulate, scattered, illogical, and transparently self-serving. Oh, and he lies shamelessly, spouting easily disprovable nonsense.

    Read more

    April 19, 2018 | Department of Justice, DOJ, Donald Trump, Hillary Clinton, James Comey, Rod Rosenstein
  • Are We There Yet?

    The ever-expanding chaos in the Trump administration has amped up concern that we are reaching the bursting point.

    The departures of Gary Cohn, H.R. McMaster, Hope Hicks, Rex Tillerson, Rob Porter, David Shulkin, John Dowd, and others launch a new phase in which Trump can surround himself with characters from his TV world and act even less responsibly. Trump has spewed ever more astonishing tweets disparaging the FBI, DOJ, Democrats, immigrants, and Amazon. Mueller’s net is tightening and, apparently, driving Trump toward desperation.

    This is a phase to be dreaded – an endgame in which Trump will cast aside any remaining constraints, launching an orgy of firings, pardons, and maybe a couple of wars. Members of Congress heightened the concern by issuing statements cautioning Trump not to fire Bob Mueller and pushing for legislation to protect him.

    Read more

    April 5, 2018 | David Shulkin, Department of Justice, DOJ, Donald Trump, Jeff Sessions, John Dowd, Robert Mueller, Robert Wilkie, Rod Rosenstein
  • Trump Keeps Making Trouble for Himself as the Midterms Approach

    This week, as the embarrassing Republican majority on the House Intelligence Committee tried to help Trump darken the Russia investigation, Trump unexpectedly thrust the investigation into the congressional spotlight by firing Secretary of State Rex Tillerson and teeing up Senate confirmations that promise intensified focus on Russia.

    The Republican majority on the House Intelligence Committee announced that it is wrapping up its report on its sham investigation into the Russian attack on the 2016 election. Not surprisingly, the majority concluded that there was no evidence that the Trump campaign colluded with Russians. Rep. Mike Conaway (R-Tex.), who led the investigation whenever Chair Devin Nunes felt obliged to honor his recusal, conceded that there had been some ill-considered meetings and other actions, but dismissed the notion that they amounted to collusion. He also announced that the Republicans did not accept that the Russians’ interference was designed to help Trump. That finding is at odds with the conclusions of the intelligence agencies. It also conflicts with Mueller’s indictment of 13 Russians and three Russian organizations. Mueller alleged that the Russian troll operation began as an effort to disrupt, but morphed into efforts to favor Trump, disparage Clinton, and suppress turnout among likely Clinton voters.

    Read more

    March 13, 2018 | Devin Nunes, DOJ, Donald Trump, Rex Tillerson, Robert Mueller, Russia, senate intelligence committee
  • Side-Stepping the Bureaucracy on Affirmative Action

    News broke over the summer that the Justice Department’s Civil Rights Division (CRT) intended to investigate affirmative action in higher education.

    The news was a stunning reversal of Obama CRT policy and somewhat baffling given the Supreme Court’s recent approval of the University of Texas’s affirmative action program. The move, however, was consistent with Jeff Sessions’s long-held views and appealed to Trump’s base, much of which resents minority gains and is openly hostile toward higher education generally. More recently, CRT announced that it was investigating a complaint that Harvard University’s affirmative action program intentionally discriminated against Asian Americans on the basis of race. And most recently, word leaked out of a dispute between Harvard and CRT over the production of information requested by CRT.

    This episode is emblematic of the Trump administration’s effort to undermine policies designed to promote inclusion and diversity. It is also an example of the importance of procedural regularity in the administration of justice. The complaint that CRT is pursuing was filed with both the Justice Department and the Department of Education in 2015. The Department of Education dismissed the complaint almost immediately on the basis that the same dispute was being litigated in a private lawsuit in federal court. That lawsuit was backed by Ed Blum, the right-wing activist who had previously engineered the challenge to the Voting Rights Act that resulted in evisceration of the Act in Shelby County v. Holder in 2013. He had also driven the challenge to UT’s affirmative action program that, on its second trip to the Supreme Court, resulted in a ruling in 2016 reaffirming the constitutionality of using race in admissions to promote diversity. Meanwhile, the complaint against Harvard languished in the Justice Department.

    The Trump administration, working hand-in-glove with the private litigants, saw the Harvard complaint as an opportunity. But, knowing that the career attorneys in CRT who handle such litigation would raise valid policy, legal, and procedural objections to pursuing the complaint, the political appointees in CRT took control of the investigation. They staffed it primarily with other political appointees and issued a memorandum asking for volunteers to work on the matter.

    It is highly irregular for CRT to launch an investigation into a two and a half year old education complaint pursuant to Title VI of the 1964 Civil Rights Act (which prohibits racial discrimination by recipients of federal funds) that has been dismissed by the Department of Education and is already being litigated in a well-resourced private lawsuit. Moreover, the case, which threatens a stark reversal of a position taken by CRT under Obama, is an attempt to re-litigate affirmative action law that was settled recently in the Supreme Court.

    For all of these reasons, career attorneys in CRT would have resisted the move as inconsistent with prevailing law and a misuse of public funds. That’s their job. It’s what makes the career bureaucracy so valuable as guardians of the rule of law, good policy, and the public fisc. It’s also what frequently frustrates incoming administrations and has infuriated Trump, who lacks understanding of or respect for the institutions that make our democracy work.

    To circumvent the career bureaucracy, the Trump administration followed a previously-used path: it pulled the investigation from its usual place, put it under the direct control of political appointees, and recruited like-minded career lawyers to work with them. The Justice Department has jurisdiction over the complaint because it makes grants to Harvard through its Office of Justice Programs (OJP). That office has initial responsibility for ensuring that the recipients of its funds do not discriminate. In this instance, OJP delegated authority for the investigation to CRT. Normally, either the Federal Coordination and Compliance Section or, more likely, the Education Section of CRT would conduct the investigation.

    According to standard procedure, career trial attorneys would conduct the investigation, then write a lengthy memorandum laying out the facts and the law. The memorandum would make a recommendation regarding whether to proceed toward litigation. The recommendation would go to a career deputy section chief, who would then send it to the career section chief with a recommendation. Only then might the recommendation reach a political appointee. At each stage, career employees would contribute expertise in the relevant law and the skills of litigation, immersion in CRT’s standards for pursuing a lawsuit, an understanding of the history of CRT and the past course of such suits in court, and due regard for the other business competing for the time and resources of the relevant section.

    All of this expertise is wasted when political appointees start and conduct the process. They make it much more likely that decisions will be guided by ideologically-determined goals; that facts will be shaped to fit the ultimate goal; and that legal arguments will be grounded in policy rather than objective legal analysis. Moreover, it is simply bad management for political appointees who are supposed to be supervising large swaths of CRT to become bogged down in the daily tasks of investigation and litigation. It is one thing to compose an amicus brief and quite another to run an extended investigation and litigate a case. Notably, the Reagan administration engaged in similar procedural shenanigans in its assault on race conscious remedies.

    Ultimately, the procedurally-irregular involvement of political appointees at this level of law enforcement risks undermining its legitimacy. Whenever political appointees step in to take responsibility away from career lawyers, concern arises that politics will subdue the law.

    The abuses in CRT represent one way in which the Trump administration is assaulting and circumventing the bureaucracy. It bears remembering that the bureaucracy exists to implement the laws passed by congress. It is populated overwhelmingly by dedicated public servants who believe in the rule of law, have deep expertise in the laws and programs they implement, understand the procedural frameworks in which government must operate, and recognize that they serve the enduring law and not just the passing whims of each administration.

    Incoming presidents – especially those who have run on promises to shake up government – learn that they cannot simply snap their fingers to make things happen. Rather, they have to accomplish change through hard work that takes time and filters out actions that are unlawful, waste resources, or are dumb policy.

    Trump has been more frustrated than most because of his astonishing ignorance of government and the deficiencies of temperament he brought to the job. He has lashed out in a variety of ways, including slashing attacks on the work of government agencies from the CIA to the EPA, and failure (whether through incompetence or intent to undermine agencies) to fill vacancies. We can only hope his time in office will end before he does irreparable damage.

    December 5, 2017 | affirmative action, Civil Rights Division, CRT, DOJ, Justice Department
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