Editor’s note: This article is part of a series on current challenges facing the federal bureaucracy from “Rethinking Our Democracy.” A joint initiative by the Center for Effective Government (@UChicagoCEG) at the University of Chicago and Protect Democracy (@protctdemocracy), “Rethinking our Democracy” produces written series on key areas of institutional and democratic reform. Other articles can be found here.
What happens when a U.S. president breaks the law? The experience of the previous administration suggests that there are fewer constraints on presidential lawbreaking than people used to think. On the one hand, a president’s orders are only as strong as the willingness of federal officials to carry them out. On the other, officials who resist a lawless president’s order may face difficult consequences.
Although Congress has enacted protections against lawbreaking, a sufficiently determined president can find ways around them. Here is how — and what may happen next.
The checks didn’t work as intended during the Trump administration
Two important checks on executive power turned out to be weak under the Trump administration.
First, Congress is supposed to be the primary bulwark against abuses of presidential power. However, Congress lost its showdowns with President Donald Trump. The House Judiciary Committee was unsuccessful in its attempt to compel former White House counsel Donald McGahn to testify before it. The Trump administration challenged a subpoena to McGahn, and the case wound through the courts for two years. President Biden’s Justice Department largely undermined what remained of the House’s effort by forcing it to settle for a closed-door deposition. More generally, courts were often slow and in some respects reluctant to support congressional oversight, although they did protect individual rights in some cases.
Executive-branch investigators were similarly constrained. Presidential appointees kept the scope of special counsel Robert S. Mueller III’s investigation narrow, and departmental policy barred him from determining whether Trump criminally obstructed justice. Inspectors general, the government’s internal watchdogs, were no match for presidential power, either. Trump fired two and replaced two others who investigated his administration or reported misconduct to Congress. Some of their peers may plausibly have pulled punches to avoid similar fates.
Civil service protections were more potent
One often underestimated check proved more resilient: the merit system. Various laws require that the executive branch base most hiring, firing and other employment decisions on merit. Considering party affiliation is forbidden, as is whistleblower retaliation. In most cases, the law prohibits firing or disciplining an employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation.” Most career employees can appeal firings and other serious personnel actions to the independent U.S. Merit Systems Protection Board, which can award reinstatement and backpay.
This is largely the product of civil service reforms that Congress enacted after the Watergate scandal “to improve the quality of public service” and protect employees against unfair personnel actions. These measures continued a sustained effort to professionalize the civil service, keeping career federal employees independent of politics and ensuring that day-to-day governmental services — payment of benefits, safety inspections, air traffic control and more — are delivered without partiality to favored constituencies. Public servants are supposed to be loyal to the Constitution, not a politician.
That wasn’t always true. Under the earlier “spoils system,” presidents doled out government jobs to loyalists as the rewards of electoral victory. This patronage system fostered a culture of corruption, leading to the passage of the Pendleton Act of 1883, which reserved some positions for merit-based hiring. Subsequent laws and rules over the next 138 years transformed the civil service. The executive branch’s 2.1 million career employees now vastly outnumber its 4,000 political appointees.
These protections enabled public servants to push back against lawlessness
The merit system frees career employees to challenge abuses of power. For example, a career employee blew the whistle over concerns that Trump pressured Ukraine’s president to investigate his political rival. An inspector general cited whistleblower protection laws when siding with a Customs and Border Protection employee who blew the whistle on his agency’s racial profiling of motorists. A court relied on civil service laws to issue an injunction protecting several Voice of America employees from an agency head accused of “political meddling” and trying to “disseminate political propaganda.” An inspector general’s report later vindicated other VOA employees in this work environment.
This system has limits. Its protections don’t apply to all career employees. Some, including FBI agents, lack the basic right to appeal disciplinary actions to the board. Intelligence agency employees and uniformed military personnel have fewer whistleblower protections than other federal employees, and no federal employees have the right to take whistleblower protection claims to court instead of to the board. The law fails to guarantee whistleblowers anonymity.
Making things worse, presidents have been slow to fill board positions — the Trump administration left all three vacant after early 2019 — and the law does not provide for career officials to succeed political appointees automatically if their terms expire. Although the board continued to handle appeals, the process was made less efficient.
The last administration challenged these protections
The last administration came close to circumventing these laws’ protections for employees who reject illegal orders. In October 2020, Trump issued an executive order creating a new class of federal employment exempt from civil service protections.
Time ran out on his effort to move swaths of the federal workforce into this unprotected classification, and Biden as president rescinded the order. But Congress has not closed the legal loophole that made it possible. Another president could reissue the order and break free of the limits that civil services laws indirectly impose.
If a president intent on breaking the law were elected, he or she could plausibly try to exploit these systemic weaknesses. Under existing laws, if members of the public expect civil servants to succeed as the last line of defense protecting the country, they may be sorely disappointed.
Walter M. Shaub Jr. (@waltshaub) is the senior ethics fellow with the Project On Government Oversight. He previously served as the director of the U.S. Office of Government Ethics.