Unpublished Op-Ed

Mark Kleiman and I wrote this in February 2017, but never had it published. I thought that it might be worth posting at this time.

Some Words of Advice for Federal Employees

Receiving directives inconsistent with good government – if not worse – creates one of the most difficult situations a civil servant can face. As former Justice Department staffers, we have some advice to offer Federal employees when such situations arise, as they seem likely to do often under the current regime.

1.       When told to implement a policy that is counter to statute, regulation, or the stated and authorized goals of the agency, take good notes; such directives rarely come in writing. Then go back to your office and write down your understanding of the recommended policy, making sure you have correctly described what you were told. Then send that account as a memo to your superior.

2.       Whether or not you receive a reply, follow up with a detailed list of issues and concerns, both pro and con, involved with proposed policy or action. Describe them in full context and cite the relevant legislation, executive orders, and constitutional issues. Send that, too, up the chain of command.

3.       You may also be at the receiving end of threats or other problematic situations that are meant to intimidate you. Write a memo to yourself and share it with a trusted friend as soon as possible, to establish a time line.

4.       Do not use your office phone or computer (or cell phone while in the office) for personal reasons, least of all to complain about these situations, as this may open you up to attack. If your agency expects you to be available for phone calls and text messages around the clock, get a cell phone that you use only for official business. You might want to use a text messaging app that encrypts the message, and ask your recipients to do the same.

5. Maintain a contemporaneous, written log on a ruled ledger with a sewn binding, so removal of any page will show. Enter every meeting, call, and significant email on successive lines in ink, leaving no spaces. Fill in any space on the right with a slash, so nothing can be added. Note the date, time, attendees, subject, and conclusions. Absent minutes, no one else will remember what happened a day later, so your record will become dispositive. This approach, laborious though it is, can provide valuable protection for anyone from a GS-1 to a cabinet officer.

6. If you decide to talk to a reporter, get the ground rules clear first. “On background” means you can’t be identified, but your agency can; “deep background” means that even your agency isn’t mentioned.  Any communication to the press about official business not previously cleared by your agency’s public information office will probably put you out of bounds; consider whether you’re willing to take the consequences. If you’re later asked about whether you were the source of a story, either tell the truth (and be prepared to find a new job) or refuse to answer.

There are already reports that White House Chief Strategist Steve Bannon has taken steps to erase the paper trail behind various Executive Orders. All the more reason for career civil servants and the political appointees more loyal to the country than to the ruling cabal to make as much of a record as possible.

Michael Maltz is Emeritus Professor of Criminal Justice and of Information & Decision Sciences at the University of Illinois at Chicago. He was a research analyst with the National Institute of Law Enforcement and Criminal Justice during the Nixon administration and had to deal with some questionable directives.

Mark Kleiman was Professor of Public Policy at the New York University Marron Institute of Urban Management. He served as Director of Policy and Management Analysis for the Criminal Division in the Carter and Reagan Administrations, never receiving an improper order.

Kavanaugh’s reputation destroyed in real time

Brett Kavanaugh is, as far as we can tell, a respectable and competent lawyer and jurist. He could have had a distinguished, or at least successful, career as a federal judge.  Now he’s the latest victim of Trump’s systematic, relentless, demolition of the honor and reputation of everyone within his reach.

He may well be confirmed, in which case he will find the appointment a thoroughly poisoned chalice.  Most important, he wears around his neck the stain, on both his character and his competence, that he was the first choice of a deliberately–obsessively–ignorant, hateful, narcissist. The guy who found him suitable for the job is a historically mendacious and malevolent fool, whose staff (what remains of the “best people”) spend half their time protecting the nation from his childish impulses and recklessness and the other half patching a bubble inside which he might float to the end of his term.  Trump’s understanding of the law and the constitution is well summarized by today’s whine that the criminal indictment of two Republican congressmen should have been put off until they were reelected this fall (or, I guess, forever).

He will also be the justice confirmed by the McConnell senate that cheated to substitute Gorsuch for Garland, and that was denied the documentation (i) necessary to evaluate his qualifications and competence (ii) that, when it comes to light during his lifetime appointment, is quite likely to throw serious shade on him (or why were those documents secreted?).  All we really know about him is that the reactionaries and troglodytes of the Federalist Society believe he’s just the guy to protect the rights of the richest to get richer and buy elections and policy, of industry to poison their neighbors and workers, and of Republican politicians to choose their voters. Not to mention, the guy to send women back to the coathanger era.

Poor Brett: if this comes out as it seems headed, he will forever be “the guy Trump nominated to fend off his impeachment”; one of his senate interlocutors wisely said “you will always have an asterisk next to your name”, which is right except that the asterisk will be an indelible and devastating blot. No respectable judge or lawyer will be comfortable citing his decisions; his influence will be restricted to hacks and stooges, and he’s smart enough that he will eventually realize this, but alas, too late.

 

Donald Trump, MS13 operative

Donald Trump talks about MS-13 more than any other NGO (no, I haven’t got actual numbers to support this), and it’s not surprising. He loves American exports, and MS13 was made in USA prisons and delivered to El Salvador; its cruelty and misogyny is surely a level of aspiration for him. So it’s not surprising that he and his catspaw Sessions have signed on as actual MS13 operatives, now delivering escaping victims back to them (and all the other Central American gangs)  for rape, enslavement, and murder. Even when they’re in court trying to get asylum.

I wonder if he has a deal for docile immigrant employees in his hotels…

Does the Constitution authorize immigration restriction?

Continue reading “Does the Constitution authorize immigration restriction?”

The Red Hen, the baker, and refusing service

Sara Huckabee Sanders was asked to leave a restaurant in Virginia. I think this is a positive good, and I don’t think Masterpiece bakers had the right to refuse a gay couple a cake.

There is nothing in the Masterpiece case to indicate that the customers behaved or intended to behave, professionally or personally, in a way that would hurt the bakers. The bakers thought a gay marriage sinful according to their own religion, but this only gives them the right to preach against it and to not enter into such unions. I suppose they can pick and choose their personal friends on such grounds also, but they can’t discriminate commercially.

Sanders is quite a different story.  She is on the public payroll, in the public eye, supported by taxes everyone pays.   She isn’t a civil servant working to implement the policies of an a legitimately elected administration  that operates within the larger norms and rules of democracy. She is a political appointee whose daily practice is to lie and deceive, actively subverting the function of the press,  in the interest of a hateful, mendacious, deliberately ignorant president who respects no norms, and whose praxis is to spread hate and fear. To injure the sick, the child refugee at our gates, the brown, the black, the poor, the young, and the unfortunate are not within the legitimate range of left-to-right American governance policy preferences. No member of the Trump administration deserves to have Luis[a] Gomez so much as wash a dish for her.

Back in the day, there was a legal status of outlaw whose disrespect for the law and its courts was so great that they were thought unworthy of the protections of those institutions, and left to the mercies of citizen vigilantes.  That was not good practice; even the Kelly gang deserved fair trials.  But the senior officials of the Trump administration are properly “outlaws” with respect to the norms and standards of civilized society, and they don’t have any right to hide behind those norms for the right to circulate in public.  Republicans who haven’t completely surrendered their consciences and brains to the Trump-Putin kleptocracy have a right to eat out in peace; Trump people at the level of Sanders have surrendered that right. They can  eat at home with whoever will still socialize with them, or perhaps at venues whose staff, customers, and owners aren’t their intended victims.  One more time; they should be pariahs not because of their beliefs, but because of their behavior, behavior actively hostile to wide swaths of the population and far outside the norms and conventions that entitle the rest of us to a peaceful night out among citizens.