Trump’s team in for a rude awakening
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The Obama administration is coming to a close, and with it the date for President-elect Trump to take the oath of office is rapidly approaching. Trump has slowly but surely continued to select individuals to serve in his Cabinet and other senior level positions in his coming administration, and with those selections it has become clear he intends to rely heavily on individuals whose careers have been predominantly (if not exclusively) in the private sector. Many of them, like Trump himself, have virtually no experience in the public sector and are largely unfamiliar with the realities of serving in government.

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They are all about to discover that whatever attenuated interactions they had in the past with government oversight pales in comparison to the scrutiny with which they will now have to contend.

 

Congress, even under the control of Trump’s Republican Party, appears poised to exercise its oversight authority on several national security topics on which Trump and Republican congressional leadership differ, including Russia and Syria. Trump and several members of his team may have testified before Congress during the course of their business careers, but that pales in comparison to running departments whose operations and finances are subject to Congress’ oversight and budgetary control. 

The Trump administration will soon find that Congress doesn’t act like shareholders in a private corporation, and that political officials have their own agendas and interests over which the president can only assert so much leverage and influence. 

Nor have Trump’s team of “private sector rivals” ever had to contend with an institutional oversight mechanism similar to the various agencies’ Offices of Inspectors General. The most played out joke inside the Beltway is that if the State Department had a permanent IG in 2009 it is unlikely Secretary Hillary ClintonHillary Diane Rodham ClintonLanny Davis says Nixon had more respect for the Constitution than Trump Clinton commemorates Sandy Hook anniversary: 'No child should have to fear violence' Sanders, Warren meet ahead of potential 2020 bids MORE would ever have been allowed to use her own private server to conduct State business. Needless to say, former CEOs of large private corporations are going to find that IGs retain far more independent authority than corporate auditors might wield. 

Do not even get me started on the difference between the public and private sector in terms of hiring and firing. Outside of political appointee positions, Trump’s administration is going to find that their ability to bring on loyal friends is hamstrung by the civil service laws, which specifically were designed to avoid political cronyism and which removes political officials from at least the initial vetting of potential candidates for open government positions. Plus, Trump’s famous line may be “you’re fired,” but his administration will soon find that the civil service laws provide due process protections for significant swaths of the federal government (although Congress exempted much of the Intelligence Community from this statutory requirement). It’s not a simple matter of snapping your fingers; it will have to be “for cause” and it will require considerable evidence to justify the terminations.

All of this, of course, simply concerns institutional oversight mechanisms within the U.S. government as a whole, and each of which have their own deficiencies. The Trump administration will also find itself facing off, however, with a transparency mechanism with which few of them have previously had experience and that is available to the public as a whole: the Freedom of Information Act. Anyone can use FOIA to request records from federal agencies, subject to statutory restrictions and exemptions, and there is no comparable transparency requirement that applies to private corporations. 

During the campaign Trump basked in the drama that followed Secretary Clinton due in part to the FOIA lawsuits brought by media outlets and transparency organizations relating to her time as Secretary of State. The karmic shoe is now on the other proverbial foot. It is now the Trump administration that will find its internal operations exposed, bit-by-bit, to the public for scrutiny. It will face off against the very same array of organizations that caused Secretary Clinton so much trouble. 

Groups like the ACLU and Judicial Watch are certainly already ramping up for a fight, with the ACLU in particular all but declaring “war” on November 9, 2016, with its “see you in court” banner warning to Trump. Other smaller organizations are also gearing up to supplement those efforts. 

In the interest of full disclosure, I serve as deputy executive director for one such organization, The James Madison Project. JMP has already initiated one FOIA lawsuit seeking records regarding the government’s investigations into possible election interference, the apparent leaks of FBI information to Trump campaign advisors, and agency coordination with Congress concerning the investigations into Hillary Clinton. In the coming months JMP will be bringing several additional FOIA lawsuits spanning a range of topics, from Trump’s private security detail to his business conflicts of interest. These litigation efforts by groups like JMP are only possible due to generous donations from the public.

FOIA, for all its flaws, has served as a useful tool for holding Government accountable to the public. The institutional safeguards within the Executive Branch, as well as the constitutionally-separate authority afforded to Congress, can similarly play a role in constraining the Trump administration in the same manner in which they on occasion (although not always) reigned in the excesses of the Bush and Obama administrations. The Trump administration is going to find that governing is not as easy as it looks on TV. 

Welcome to the Beltway.

Bradley P. Moss is a partner at the Washington, D.C. Law Office of Mark S. Zaid, P.C., and the deputy executive director of the James Madison Project, through which he has represented media outlets such as Gawker, Daily Caller, and the Daily Beast in FOIA lawsuits against the Bush and Obama administrations.


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