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Biden is firing some top Trump holdovers, but in some cases, his hands may be tied

The Washington Post logo The Washington Post 1/24/2021 Lisa Rein, Anne Gearan

President Biden is trying to shake a Trump hangover in the federal government by acting to remove some holdovers and install his own appointees, but a quiet push to salt federal agencies with Trump loyalists is complicating the new president’s effort to turn the page.

The Biden team, showing a willingness to cut tenures short, moved quickly last week to dump several of high-profile, Senate-confirmed Trump appointees whose terms extended beyond Inauguration Day — in some cases by several years.

They include the surgeon general, the National Labor Relations Board’s powerful general counsel and the heads of the Consumer Financial Protection Bureau and the U.S. Agency for Global Media.

But other, lower-profile Trump loyalists, some of whom helped carry out his administration’s most controversial policies, are scattered throughout Biden’s government in permanent, senior positions. And identifying them, let alone dislodging them, could be difficult for the new leadership.

The Jan. 16 appointment of Michael Ellis, a former GOP operative who served in President Trump’s White House, as the National Security Agency’s top lawyer caused such a furor that he was placed on paid leave within hours of taking office.

And in Trump’s final months and weeks as president, dozens of other political appointees had their status similarly converted to permanent civil-service roles that will allow them to stay in government for years. These new career officials are protected from partisan removal unless the new administration discovers that they got their jobs illegally — without competition and because of their political affiliation.

As Biden tries to reset the government to match his priorities, Democrats fear the Trump holdovers, who served in partisan roles, could undermine the new administration as they move into the civil service, which is supposed to operate free of partisanship.

The practice of shifting employees from appointee to career status, informally called burrowing, occurs at the end of every presidency — and it is controversial. Trump aides and their GOP allies in Congress, for example, threatened at the start of Trump’s term to remove any Obama-era political appointees who had been replanted in the civil service, and dozens were, records show.

But the just-departed president is on track to exceed the number of Democrats the Obama administration rewarded with permanent roles. In his final year, President Barack Obama moved 29 political appointees into career jobs. As of November, Trump had installed almost that many, 26, in the first 10 months of 2020, according to data provided to Congress by the Office of Personnel Management (OPM).

Nine more requests await review by personnel officials. More are expected. Congress has not received data covering December and the first 20 days of January, a period when outgoing administrations tend to move quickly to reward appointees who want to stay in government.

[Former GOP operative Ellis placed on administrative leave from job as NSA’s top lawyer]

Burrowing is frowned upon by good-government groups — and by members of the party that is out of power — even when it is carried out legally, which means the appointee competed for the position and was the top candidate on the basis of merit and work experience, with no nod to political affiliation or loyalty.

The hiring of a political appointee for a career job must be scrutinized by the federal personnel office for five years after the person left the partisan job.

Such conversions also can violate civil-service laws, as occurred during the George W. Bush administration, when a young Justice Department lawyer from the Republican National Committee, Monica Goodling, was found to have broken the law by using politics to guide hiring decisions for a range of critical jobs.

Goodling was granted immunity from prosecution in exchange for her testimony and was reprimanded by the Virginia State Bar. She acknowledged during a House hearing that she “crossed the line” and broke civil-service hiring rules.

“There’s a great irony here,” said Rep. Gerald E. Connolly (D-Va.), who leads the House Oversight subcommittee on government operations, referring to Trump’s efforts to place his appointees in government. “The crowd that didn’t believe in government and called its agencies the deep state now wants to work for them.”

Connolly has asked the Government Accountability Office, Congress’s research arm, to tally all of Trump’s conversions over four years.

Range of agencies

Many of the new hires were not announced by their agencies, which may have made it difficult for Biden’s transition team to discover them.

“The incoming Biden-Harris administration is keenly aware of last minute efforts by the outgoing administration to convert political appointees into civil service positions,” the Biden transition team said in a statement.

“We anticipate learning more in the weeks ahead as our work to restore trust and accountability across the federal government begins, including reviewing personnel actions during the Trump administration,” the statement said.

Trump partisans work in Biden’s government at a range of agencies, including the Justice Department, the Department of Homeland Security and the Occupational Safety and Health Administration. Many are serving in senior executive roles, the highest echelon of career leaders. They work as assistant U.S. attorneys, general counsels, intelligence leaders, immigration judges.

[Biden fires Trump-appointed labor board general counsel and deputy who refused to resign]

Some got significant raises when they joined the permanent bureaucracy. Jordan Von Bokern, who clerked for Judge Amy Coney Barrett when she was on the U.S. Court of Appeals for the 7th Circuit, went in April from counsel in the Justice Department’s Office of Legal Policy, making $93,642 a year, to a career trial attorney in the agency’s civil division making $109,366, records show. Von Bokern did not return a call seeking comment.

At the Energy Department, there is Brandon Middleton, a lawyer who fought the Endangered Species Act for the conservative Pacific Legal Foundation before joining the staff of then-Sen. Jeff Sessions (R-Ala.). When he was Trump’s first attorney general, Sessions hired Middleton to work in the Justice Department’s environmental division. Then Middleton held a deputy solicitor job at the Interior Department before his permanent appointment as chief counsel in the Energy Department office that manages contracts for cleaning up toxic waste. He got a $10,000 raise to $172,508, records show.

“If I was at Energy, I would be looking at Mr. Middleton very warily,” said Nick Schwellenbach, a senior investigator at the nonprofit Project on Government Oversight.

Middleton declined to comment.

In June, then-Attorney General William P. Barr hired Tracy Short as the chief immigration judge at the Justice Department, after he served three years in a political role as senior adviser and legal adviser to the leadership at Immigration and Customs Enforcement. ICE was responsible for carrying out Trump’s hard-line immigration policies, which Biden is moving to reverse. Short also got a $10,000 raise, to $185,368.

Short did not return a call seeking comment.

About that time, Lawrence Connell, a senior executive who was chief of staff in the Veterans Health Administration, a political appointment with a $179,700 salary, was hired to a permanent job leading the Department of Veterans Affairs’ health-care system in Rhode Island, which provides care to more than 35,000 veterans. His new salary is $190,400. Connell did not respond to an email seeking comment.

These hires were approved by the OPM, which reviews requests from federal agencies. Some requests are rejected, when personnel experts conclude that political considerations played a role. The OPM declined 14 of the Trump administration’s requests during the first 11 months of 2020, compared with 10 during the final year of Obama’s second term, data shows.

Recently denied conversions include Charles Cowan Jr., an appointee in the Office of Administration at the Department of Housing and Urban Development, hired in 2017 as a senior executive. Cowan applied to be senior adviser for public affairs.

“We could not conclude appointment was free of political influence and complied with merit system principles and applicable civil service laws and regulations,” the reviewing official wrote.

Cowan said in an email, “I was disappointed in OPM’s decision, as I could have had a positive impact at HUD, but they made their decision and HUD complied with it.” He said he was well qualified for the job, with a long career in public affairs, including a decade in the housing sector.

“I wanted to continue my service to this country as a career employee while continuing to support HUD’s important mission,” he said.

[Biden has picked 51 nominees to fill key roles in his administration so far]

Ellis’s hiring at the NSA was not made available to the personnel agency, which recently told Democrats in Congress that it does not review requests from the intelligence community, sealing those decisions off from the public and Congress.

Ellis is on leave pending an inquiry by the Pentagon inspector general into the circumstances of his selection. NSA Director Paul Nakasone put Ellis on paid administrative leave four days after then-acting defense secretary Christopher C. Miller was ordered by the outgoing administration to install Ellis in the job.

But if Ellis and the others who were burrowed were hired properly, firing them outright will be hard for Biden to accomplish. At most agencies, career officials serve a year on probation — that period is two years at the Defense Department — during which they can be fired without cause. If some of the Trump loyalists already have made it through probation, they can be reassigned to other roles or given little to do. Like all career employees, they have rights to due process, experts said.

Incoming officials at the Energy Department are weighing whether they can remove at least two Trump appointees who just landed postings as foreign attaches to support international energy cooperation, according to people familiar with the appointments who spoke on the condition of anonymity because they were not authorized to comment publicly.

Michael Brown, a former coal executive who was national political director for Republican Ben Carson’s 2016 campaign for president, had been deputy general counsel at the Energy Department. Brown was recently approved for a job representing the agency in Riyadh, Saudi Arabia.

Kyle Nicholas, a political appointee with a health-care background who served as an adviser in the Energy Department’s international affairs offices under Trump, was just posted to a similar job in Brussels. The appointments were first reported by E&E News.

The moves were made possible after the Trump administration stacked a little-known panel called the Overseas Presence Advisory Board with political officials, removing some career appointees. The board then facilitated the appointments, which last up to three years and do not have to be reported to the OPM.

Obama’s Energy Department prohibited political appointees from taking overseas posts. The Biden Energy Department did not respond to a request for comment.

Resignations requested

Biden has more control over political appointees. He has asked for the resignation of Surgeon General Jerome M. Adams, who had been nominated by Trump in 2017 to a four-year term set to expire in September. The new president has moved to install new leadership at health agencies that will be crucial to fighting the coronavirus pandemic, after accusing the Trump team of muzzling federal scientists and pursuing a political agenda at the cost of public health and lives.

In other cases, Biden has sought to get rid of people installed by Trump in what the new president considers bad faith.

For example, Biden quickly forced out Michael Pack, the controversial head of the agency that oversees Voice of America and four other networks that broadcast news to millions of people abroad, amid complaints of censorship and political interference by Pack. Biden also removed VOA’s director and deputy director after they had been on the job only a few weeks, and the head of the Office of Cuba Broadcasting resigned.

[Some groups want Biden to fire Trump’s Social Security commissioner. That’s not easy to do.]

Andrew Saul, a Trump appointee whose six-year term as Social Security commissioner officially ends in 2025, had a curious new “acting” title on a list of temporary government leaders distributed by the new White House last week. Saul announced Thursday that several high-ranking deputies on his team, who had pushed for stricter eligibility for benefits, had been replaced — with labor-friendly Democrats. The Social Security Administration did not respond to a request for comment about the “acting” title.

In firing the National Labor Relations Board’s general counsel, Peter Robb, Biden broke with precedent to end the tenure of a figure seen as a foe by worker advocates and labor unions.

Robb had refused to resign when asked to do so just hours into the new presidency. The request was a departure from the norm that presidents of both parties have followed to allow the general counsel to serve out their term. Robb’s term was scheduled to run 10 more months.

White House press secretary Jen Psaki was asked last week whether Biden is pursuing a political purge.

“That’s an individual who was not carrying out . . . the objectives of the NLRB, and so they were, they are, no longer in their position,” she said. “We’ll make those decisions as needed.”

Erica Werner, Ellen Nakashima, Jeff Stein and Alice Crites contributed to this report.

Correction: An earlier version of this report implied that Jonathan Midgett, who had served as executive assistant at the Consumer Product Safety Commission starting in 2017, was appointed by Trump. Midgett was appointed by Democratic members of the commission. The reference to Midgett has been deleted.


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