Trump and Bureaucracy

A tweet:

So much of modern administrative law is premised on the “presumption of regularity”—an assumption that, all things being equal, government generally acts in good faith and follows its own rules.

A President with this approach to the law makes it hard to defend that presumption. https://t.co/1WzziYnrFh

— Steve Vladeck (@steve_vladeck) July 21, 2019

The Dilemma of Trump's Appointees

The Mueller report has shown the tightrope which Trump's appointees must walk, particularly in the case of Don McGahn.  It's a question of how far you go in appeasing your boss, versus compromising your own ethics. 

As an ex-bureaucrat who had some people among my superiors whom I didn't much respect, I've some empathy for the McGahns of the current administration.  That perhaps leads me to undeserved sympathy for AG Barr.  He's gotten criticism for his summary of the Mueller report, spinning the conclusions to be the most favorable to his boss.  That's deserved.  But we need to remember that he did succeed in getting the Mueller report released, although with redactions.  That's not something I would have predicted back when he was nominated.  It's possible he regards the release as serving the public interest, a release important enough to justify his tactics in getting the release past his boss.  (Will Trump start blasting Barr for the release?  Maybe.)

The Bureaucrat and Politics: Reagan and Me

The DOJ IG report is out.  Pro-Trump partisans see it as helping him; anti-Trump partisans see it as confirming Clinton lost the election due to Comey's announcements.  Both seem to agree that the Strzok-Page emails were beyond the pale, particularly his reassurance to Page that "we'll stop him" meaning stopping Trump from winning the election.  The only evidence he did anything to back up the promise is the idea he didn't work on the Weiner emails issue for a month because he was working on the Russian-collusion investigation.  At least in the discussions I've read there's little detail on this.

In defense of bureaucrats being able to separate personal opinions and professional duties I'll offer a story from the Reagan administration.  I was strongly opposed to Reagan's election, and remained so throughout his 2 terms.  I was in the habit of referring to him as "the senior idiot", and a boss of mine as "the junior idiot".  Although I don't remember saying that to my co-workers, I'm sure most of them knew I wasn't for him.  In ASCS at the time, at least in the program areas one was pretty well identified as Democrat or Republican.  While I steered away from active involvement and wasn't then contributing money, the players within the bureaucracy knew my tendencies.

Anyway, comes fall of 1982 and the Reagan administration decides to implement a legally-questionable multi-billion dollar program to both reduce CCC-owned surpluses and crop acreages without budget expenditures--the program known as Payment-in-Kind.  Because of my background on the administrative side I knew the people who needed to be involved to create the forms and handle the directives and regulations to implement the program.  Because of my experience on the program side I understood most of the complexities of creating the program, writing the regulations and the contract (the contract the OGC lawyers insisted on to provide a legal fig-leaf for the program), and dealing with Kansas City IT players, I was a key player in the implementation (Had a chance to watch Seeley Lodwick, then the Under Secretary ramrod morning coordination meetings, giving me an example of what to do, an example I dearly wish Obama had seen when implementing ACA.).

The bottom line: I and a lot of other bureaucrats did a good job and PIK was implemented.  We did it despite our political leanings, whether pro- or con- Reagan.

I've written before on this question: Trump trusts people working for him to be good soldiers, if not lickspittles, and support his positions even if they're very different than what the workers used to support.  (See Mulvaney, see Bolton.) The same should apply to FBI agents.

Addendum: I admit there's a difference between the FBI behavior I've seen described from articles on the OIG report and mine.  Some of the agents were more open in expressing their opinions to each other than I ever remember being.  That's a bit bothersome.   On the other hand, I'm sure many soldiers and marines involved in our years of recent wars openly voiced their adverse opinions, while still doing their jobs.

Why Not Trust Bureaucrats?

Via a twitter mention, I got to this Weekly Standard article reporting on a discussion with the OMB/CPSB director, Mulvaney.  It's interesting, but as sometimes happens I have my own take on part of it.

Mulvaney was challenged about the differences in his actions as OMB director and his outspoken policy preferences in his previous job as a member of the House, like no reform of Social Security and running big deficits.  His response basically is, he's not changed his mind, but as a member of Trump's administrator in his day job he follows directions from his boss.

That's fine.  The sense the article gives is that Mulvaney was open and direct, making a contrast with some other politicians.  So good for Mulvaney.

But what's sauce for the goose should also be sauce for the gander.  If Republicans want me to respect Mulvaney's stance, they should offer the same respect to bureaucrats in the administration.  If Mulvaney can salute and say "yes, sir", so can career bureaucrats.  Give them competent leadership and you can trust them as much or more than you can trust the political appointees of the administration.

J. Edgar's Long Shadow

This is pure speculation, but I believe we can blame J. Edgar Hoover for Mr. McCabe's firing.

Why?

Back in the day, that's the 1920's, 1930's, 1940's, 1950's, 1960's, and only ending in 1972, Hoover ruled the roost at the (Federal) Bureau of Investigation.  He was a very political leader, using information to protect his position and advance his issues.  He had strict rules for his agents, because he was the one who could bend the rules.

My speculation is that the FBI culture retains that dichotomy: rules on the one hand, leaks to advance the agency or leader on the other.  And that seems to be what happened with McCabe.  He authorized a discussion on background to, he says, correct erroneous information reaching the public.  He claims it was something often done, but it seems to have also been against the rules.  So when OIG people interviewed him, he was caught in the middle, not admitting to something which was okay by FBI norms, but not the rules.

Again, speculation, but to me the culture of an agency lasts, and lasts.

Epithets and the Bureaucrat

Turns out Lois Lerner used "___hole"  in an email to her husband, referring to some conservatives.    I know nothing about Ms Lerner except what I read on wikipedia . She seems to have been a career government lawyer.  Now I don't like lawyers much, though I suspect our family attorney with whom we've been dealing this summer doesn't know that.  I also believe I did a good job of hiding my feelings back in the 1980's, when I used routinely to refer to President Reagan as the "senior idiot" and my division director as the "junior idiot".

My point is that a professional bureaucrat should be able to separate personal feelings and professional behavior, just as an attorney should be able to defend a person she believes is guilty.  Maybe it's that separation which many may perceive as inauthentic which leads people to dislike both attorneys and bureaucrats.

Bureaucratic Triage

I'm musing on a question, stimulated by the Sherrod uproar: is it ever right for a bureaucrat to discriminate (in the technical sense, not the pejorative sense) among his clients/customers/public and, if it is, for what reasons? We all agree a bureaucrat working on behalf of the public should not/may not discriminate based on race, religion, etc. But what discriminations are appropriate and why?

I'm thinking about MASH, or other hospital shows, which show a triage process.  If you consider the medical staff to be bureaucrats, then they're discriminating among their clients, but using criteria which normally we'd endorse. 

There used to be a field called operations research, coming out of the whiz kids and WWII, which tried to evaluate different strategies for handling customers: first come, first served; express lines, etc.  Is first come, first served discriminatory?   Or is giving priority to the simple cases, which speeds average throughput, be discriminatory?  Is it okay if you're transparent about your algorithm?

We all know, I think, that some people get treated better than others for reasons of personality.  Is that ever right?

No answers today, but it's an interesting question.

Rights of Government Bureaucrats

Relative to the controversy over FSA employees using government PC's and Internet for their own purposes, Slate has this piece explaining the rules for the military. The New York Times recently published an op-ed by 7 enlisted personnel on Iraq. We don't know how they did what they did--whether they used personal PC's during off-duty hours or what. The Slate piece focuses on rights to publish opinions.

Another Politician Heard From

Mulch reports another politician has written Secretary Johanns about the Pigford emails.

Improper Use of Government PC's--Northern Ireland

Bureaucrats in Northern Ireland got themselves into trouble by using government PC's to edit wikpedia. See this article

Bureaucrat as [Biased] Umpire II

In contrast to the Will piece on Froemming (see prior post) the New York Times reports an academic study (somewhat similar to the previous one on NBA referees) which shows umps biased in favor of their own race.

"Specifically, an umpire will — with all other matters such as game score and pitcher quality accounted for — call a pitch a strike about 1 percent more often if he and the pitcher are of the same race."

Apparently the bias would seldom affect the game, particularly as umpires are less biased when the situation is tightest (and not biased at all when the new electronic device that checks their accuracy is running).

Bureaucrat as Umpire

George Will writes of the glory of the umpire, focusing on Bruce Froemming, the ump with the longest career:

"Consider Sept. 2, 1972, when Froemming was behind the plate and the Cubs' Milt Pappas was one strike from doing what only 15 pitchers have done -- pitch a perfect game, 27 up, 27 down. With two outs in the ninth, Pappas got an 0-2 count on the 27th batter. Froemming called the next three pitches balls. An agitated Pappas started walking toward Froemming, who said to the Cubs' catcher: "Tell him if he gets here, just keep walking" -- to the showers.

Pappas's next pitch was low and outside. Although he did get his no-hitter, the greater glory -- a perfect game -- was lost. Another kind of glory -- the integrity of rules [emphasis added]-- was achieved."

That's one cardinal virtue (and vice) of the bureaucrat, upholding the integrity of the rules.

More on Pigford--Use of Government Equipment

This article in Government Executive and this AP article give the current state of play on the issue I referred to yesterday.

Sidestepping the policy issues, the question of proper use of government equipment is interesting. When I was hired, you weren't supposed to use your telephone for personal calls. On your lunch hour you called from the pay phone. Over time that policy was relaxed--you could make and receive personal calls, provided you didn't abuse the privilege.

I'd guess that a similar evolution might have occurred with employees, their PC's and their Internet connection. Limited personal use may or may not be technically legal, but only abuse (like looking at porn) is going to attract punishment.

But the issue being cited here is the possible violation of laws against using appropriated funds to lobby Congress. The USDA has an explanation of what's allowed or not allowed here. Basically, big shots can lobby Congress, small shots can't.

However, I'm reminded of a similar flap early in my USDA career. Might have been the end of LBJ or the beginning of Nixon. The issue there was someone, perhaps the head of a state office, talked to Congress without talking to DC first. The flap resulted in a directive to everyone in the agency saying: you can't talk to Congress unless it's cleared by the office of congressional relations. A few days later they came back and said: of course, everyone has a first Amendment right to petition Congress and we didn't mean to infringe that. You just have to do it on your own time. (It's similar, in some respects, to Karl Rove having to have a separate RNC email account and Congress people having to leave their offices to solicit contributions.)

Without being a lawyer, that seems to be the key issue here. Was the email being written and distributed using government time and government money? Or not?