Today’s histrionics in the Washington Post come in the form of a breathless story from four of the paper’s top reporters about how prospective Trump administration attorney general Pam Bondi, on orders from the boss, is going to clean house by firing all of the dozens of prosecutors and investigators involved in Biden-Harris DOJ special counsel Jack Smith Trump investigation. Simultaneously, there is to be a dragnet to root out . . . yes . . . 2020 election fraud.
Please.
We’re in the eleven weeks between an election and the inauguration of a new president. Besides appointment intrigue, this is a news vacuum. Yes, events are happening in the world, some of them critically important (see, e.g., our editorial and Matt Continetti’s column on the outrageous International Criminal Court arrest warrants against Israel’s prime minister and former defense minister). But the Biden administration was moribund even before the election, with the president pretty much out of it and the vice president trying to distance herself from it. For the next couple of months, we can only hope they don’t do too much damage. Meantime, Trump is not in office yet — and you didn’t really think his election, notable as it is, was going to end Russia’s war of aggression against Ukraine in a single day, did you? We only have one president at a time.
To fill the void, it is typical in the Trump era for the media-Democratic complex to parade all sorts of democracy-dying-in-darkness horribles about what is about to happen come January. Hence, today’s Post report.
Can we calm down for a second?
Jack Smith himself is going to resign after he winds down his cases on or about December 2. As for his staff, the non-government people will go back to their firms. The DOJ and FBI people who don’t decide to seek greener pastures will go back to their government jobs. The talk about AG Bondi coming in and firing all those people is just that — talk.
That doesn’t mean no action will be taken, but it’ll be theater.
A president can always fire political appointees, but I would expect just about all of the Biden-Harris appointees to follow Smith’s example of resigning rather than giving Trump the satisfaction of firing them. As for the career people, they have statutory civil service protection under statutes Congress began enacting in the post-Watergate era during which the Democrat-dominated Congress was hostile to executive power (e.g., the Civil Service Reform Act of 1978).
I have always been dubious about the constitutionality of some of these protections. They limit the president’s control over those who wield his power in executive agencies, on the theory that the putatively non-partisan career professionals who staff the bulging bureaucracy are better thought of as a fourth branch of government that should be insulated from the chief executive’s political control. (To be sure, I would have enjoyed the benefit of civil-service protection had someone tried to fire me when I was a DOJ prosecutor.)
Trump is going to start out his new administration, probably on Day One, by reviving an executive order he issued right before his first term ended. As the Post notes, this EO is referred to as “Schedule F,” and it purports to reclassify categories of federal employees, making it easier for the president to fire them. Biden reversed Trump’s original EO, and as our James Lynch reported back in the spring, the Biden-Harris administration has been trying to bolster civil service protections in anticipation of a potential Trump presidency. (Democrats, after all, are the party of government, public employee unions, and the administrative state. That’s part of why Trump got elected.)
Suffice it to say that terminating career employees is a fraught legal issue. While it is unconstitutional for Congress to diminish the president’s authority over executive officials by statute, it is also unconstitutional for the president to amend statutes by executive order. It comes down to whether the statutes in question are constitutional, and that will take time to sort out. Which is to say, the first time AG Bondi tries to fire someone who, say, worked on Smith’s investigations of Trump, that person is going to file a lawsuit and the matter is going to be tied up in litigation for who knows how long.
No one is getting fired any time soon, at least not with finality. What Bondi can do is marginalize DOJ and FBI officials – move them out of their current jobs to something less consequential. Elon, Vivek, and DOGE notwithstanding, eliminating government jobs and shrinking the size of the federal workforce is going to take legislation, and congressional Democrats will not cooperate.
As for the 2020 election, there is a five-year statute of limitations on federal crimes (with some exceptions not here relevant). Large scale election fraud cases are not easy to investigate and prosecute even when there is good evidence, and the evidence of federally criminally actionable misconduct regarding 2020 has never appeared to be good. (I am not saying there were no irregularities, but those are mostly state crimes.) Even if there were viable election-fraud cases to make, the notion that they could be made in a timely manner is a pipedream.
If President-elect Trump, AG-nominee Bondi, and other incoming administration officials want to think realistically about the new administration, they must bear in mind that Trump will be a one-term president who, if he hits the ground running, will have about 18 months to pursue his agenda before the midterms and the politics of the 2028 presidential election begin making him an increasingly lame duck.
In the realm of law-enforcement, the administration can spend that time productively on border security, immigration law-enforcement, and the narrow areas of agency reform that can be accomplished without legislation. (While the FBI and DOJ are executive branch components, they are creatures of statute and it would take legislation to do major surgery on them.) If the administration wastes its time on vendettas and chasing 2020 ghosts, it’s going to be a lost opportunity. Of course, anyone who has truly abused power should be transferred and marginalized if termination is not an immediate legal option. But there are big, ongoing crime problems to deal with right now, and that has to be the priority.