Trump taps free government labor to execute political agenda

TSA worker

Thousands of food, drug, medical and aviation safety inspectors have returned to work without pay to blunt the effect of the shutdown on the lives of everyday Americans. | Spencer Platt/Getty Images

Government Shutdown

Agencies have called back thousands of furloughed federal employees, raising questions about whether the administration is favoring politically advantageous policies.

The Trump administration is pushing the legal boundaries of a government shutdown, fueling fears that the president is manipulating federal agencies and workers to soften the political blow against him.

In recent days, agencies have called back to work thousands of furloughed federal employees, restarted services and pursued key policies at shuttered agencies. The activity has legal experts, administration officials and veterans of past shutdowns questioning what actually constitutes a government shutdown if the administration can simply resurrect its preferred services and à la carte policy to-do list nearly a month after funding technically expired for several agencies.

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So far, the Trump administration has continued to plow forward on its controversial immigration policies, brought back workers to ensure government assistance gets to farmers and ranchers — a key constituency — and is weighing whether to recall workers would could assist in the federal rulemaking process that has been stymied during the shutdown, according to administration officials.

“What they are doing is making an obligation and policy without Congress’s approval,” said Barry Anderson, former deputy director of the nonpartisan Congressional Budget Office. “Congress is saying there is no money for this and Trump is still doing it.”

In particular, the Trump administration has continued work to finalize its “Remain in Mexico” policy, said three administration officials, even as the agencies working on the issue are mostly closed. The plan — cheered on by Trump’s base — would require Central Americans migrants to say on the southern side of the U.S.-Mexico border while awaiting the results of their asylum requests.

The administration officials also said the government is nearly finished with an upcoming rule that would revise a visa for high-skilled workers known as H-1B. President Donald Trump has promised the updated policy would offer “certainty to your stay, including a potential path to citizenship.” Uncertainty over the future of such visas — frequently used by U.S. tech companies to bring in skilled foreign workers — has caused tech workers to decamp to friendlier countries like Canada.

The immigration work has irked some who see it as an example of the Trump White House reshaping the definition of “essential” to include its favored political agenda items.

“It is shady that the federal government is continuing to work on immigration policy while the Coast Guard is not getting paid,” said one official, not authorized to discuss internal government machinations. “You can’t shut down the government because of the lack of wall funding but then use the excuse of an emergency to keep working on immigration.”

The contested shutdown work is spanning the government.

On Wednesday, the Secretary of Agriculture announced he would recall roughly 2,500 Farm Service Agency workers to temporarily re-open offices to help provide services for farmers and ranchers — many of whom are hurting financially from the administration’s tariffs.

At the Office of the Federal Register, the administration is considering bringing back staff so it can continue publishing proposed rules out of agencies, said one administration official.

Already, thousands of food, drug, medical and aviation safety inspectors have returned to work without pay to blunt the effect of the shutdown on the lives of everyday Americans. And the Internal Revenue Service announced it would bring back to work thousands of employees if the government shutdown persisted until Jan. 28, the kickoff of tax filing season.

Over at the Environmental Protection Agency, officials updated their shutdown contingency plan to add 17 new employees to the agency’s exempted category in the wake of questions from Senate Democrats about whether acting EPA head Andrew Wheeler was using staff that should be furloughed to prepare for his own confirmation hearing on Wednesday. Wheeler has been tapped to run the agency permanently.

EPA justified the move by noting that Justice Department lawyers had told the agency the staffers were necessary for the performance of the president’s constitutional duties. The EPA’s efforts to revise and eliminate Obama-era climate regulations has been a key talking point for Trump officials.

One senior administration official defended all of these actions, arguing the Trump administration is following rules and precedent first laid out in legal arguments from DOJ’s Office of Legal Counsel dating back to 1981 and 1995. The official called the 1995 rulings a guiding light for what is permissible during a shutdown. And the Office of Management and Budget must approve every action an agency takes during this shutdown to reopen services or recall personnel.

“We are doing everything legally possible to keep programs running, and if critics want to argue we should let [food stamp] beneficiaries go without payment for a month or that tax refunds should sit around, then that is their prerogative,” the senior administration official said. “I’d rather be busy trying to figure out with agencies what we can do legally.”

But longtime federal workers and legal experts say the Trump administration is playing fast-and-loose with well-established rules as it continues to pursue its agenda while trying to inoculate itself from public grips by maintaining services for consumers. The shutdown has now lasted a record 26 days, and there is no clear end in sight to the impasse, which centers on funding for Trump’s long-promised wall on the southern border.

G. William Hoagland, a former Republican staff director of the Senate Budget Committee, said the Trump administration is violating the Anti-Deficiency Act, which says the federal government cannot employ personnel, or accept voluntary services during a shutdown except in cases of emergency involving the safety of human life or protection of property. The senior administration official disputed this idea, saying the prior legal rulings provided more flexibility than the act itself says.

“At the end of the day, whenever this is over with, there will be a number of GAO investigations or requests for investigation,” Hoagland said. “I would argue they ought to be careful about these decisions they are making on the fly. At some point, they will be audited on these decisions after the fact.”

Already, House Democrats are questioning some these shutdown decisions, focusing most recently on an Interior Department decision to bring back employees working on offshore drilling efforts, another politically divisive policy move. They slammed the move as illegal and demanded an end to it.

“This is an outrageous step, and the justifications provided … are farcical and make it clear that the administration cares only about the impacts on its favorite industry and not its workers, their families, and ordinary Americans,” wrote House Natural Resources Committee Chairman Raúl Grijalva (D-Ariz.), Rep. Betty McCollum (D.-Minn.), who chairs the Appropriations subcommittee for Interior, and Rep. Alan Lowenthal (D-Calif.).

Everyday, top officials at the Office of Management and Budget are meeting and talking with agency heads to determine what services can reopen, or which employees need to return to work without pay. That calculus has changed as the shutdown has dragged on. Keeping essential parts of the government humming is a mandate from the acting director of the budget agency, Russ Vought, who has urged agencies to make the shutdown as painless as possible, said the senior administration official.

A federal judge on Tuesday also rebuffed a lawsuit from federal workers that argued the Trump administration couldn’t force its employees to work without pay during a shutdown.

That approach stands in contrast to White House’s attitude during the second-longest government shutdown, which occurred under President Bill Clinton. Then, Democratic officials wanted Americans to feel the pain of the shutdown as a way to create pressure on Republicans to end it and refute their opponents’ claims that big government was not ultimately necessary.

“The Trump administration seems to be eager, whenever they get pushback from citizens, to do something about it and mitigate it. We were not in that mode,” said Alice Rivlin, director of the Office of Management and Budget during that time. “We were not trying to make it easy. We wanted to show you do need the government and let’s get this settled.”

Jim Dyer, former staff director of the House Appropriations Committee, argued the Trump administration is not doing anything illegal because they are not spending new money, which has yet to be appropriated by Congress at the closed agencies — even if they are making thousands of employees work unpaid.

And in some instances, the Trump administration is reopening services like asking the IRS to verify incomes for mortgage applications and arguing those services can be funded by fees paid to the agency instead of appropriated money.

“The legal boundary for me is the obligation of money. I have not seen or heard any evidence it is happening,” said Dyer, now a senior adviser at Baker Donelson. “The only thing you’ve got to be mad at them about is the fundamental stupidity of the shutdown.”

Dyer cautioned that this fiscal year was meant to be an easy one, with plenty of money to work with and agreements already reached by the appropriators in Congress.

The 2020 fiscal year will be much more trying, he added, with budget caps that need adjusting and a debt ceiling will need raising — a foreshadowing of the potentially epic battles ahead.

Eric Wolff and Ben Lefebvre contributed reporting.

Greek prime minister wins vote of confidence

Greek Prime Minister Alexis Tsipras and members of his government applaud after winning a confidence vote at the parliament in Athens on January 16, 2019 | Louisa Gouliamaki/AFP via Getty Images

Vote had been called after dispute over Macedonia name change.

Greek Prime Minister Alexis Tsipras on Wednesday won a parliamentary vote of confidence called following a dispute over changing the name of Macedonia.

Tsipras secured 151 votes in favor in the 300-seat chamber, in which his left-wing Syriza party has 145 seats, Reuters reported. The prime minister had called the vote after his government’s junior coalition partner, the right-wing Independent Greeks (ANEL), quit in disagreement over a deal to end a name dispute with Macedonia.

“I call on members of parliament to vote in favor of continuing the work that began four years ago,” Tsipras said ahead of the vote.

Greece and Macedonia struck a deal in June agreeing that the Balkan country will be renamed the Republic of North Macedonia to distinguish it from Greece’s northern region, also called Macedonia.

Watchdog: GSA ignored Constitution on Trump D.C. hotel lease

Trump International Hotel

The General Services Administration leased the historical landmark to Trump in 2013, two years before he kicked off his presidential campaign. | Gabriella Demczuk/Getty Images



Lawyers for the General Services Administration chose to “ignore” the U.S. Constitution and other legal precedents when they allowed the Trump International Hotel to maintain its lease on the Old Post Office building even after Donald Trump became president, the GSA’s internal watchdog said on Wednesday.

In a 47-page report, the GSA’s inspector general said government lawyers were aware of constitutional restrictions under the emoluments clause, but decided to “exclude” those potential issues from its consideration of whether to maintain the lease after Trump was sworn in.

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The IG report said “all” of the lawyers “agreed early on that there was a possible violation of the Constitution’s Emoluments Clauses,” which prevent presidents from accepting money from foreign governments. The internal watchdog recommended that the agency review the arrangement again.

“[Lawyers] decided to ignore the constitutional issues without preparing a formal decision memorandum to document the rationale for the position they were taking,” the report states.

The GSA did not immediately respond for comment.

The GSA leased the historical landmark to Trump in 2013, two years before he kicked off his presidential campaign. But after Trump became president, the IG said, GSA lawyers should have determined whether the arrangement was a violation of the emoluments clauses.

The attorneys general of Maryland and Washington, D.C., filed a lawsuit in federal court in 2017 alleging that the lease amounts to a constitutional violation, and Democratic lawmakers have backed the effort amid concerns that foreign diplomats and other officials were using the hotel to curry favor with the Trump administration.

House Oversight Committee Chairman Elijah Cummings (D-Md.) said Wednesday that the “devastating” report shows why the president should have divested his business interests.

“President Trump should not have any contacts with the federal government,” he said in a statement. “It is an obvious conflict of interest, and it is why the lease for the Trump hotel in Washington, D.C. explicitly prohibits any federal government official from being a part.”

Rep. Gerry Connolly (D-Va.) agreed with Cummings and questioned whether Trump is “faithfully executing the duties of his office and abiding by the laws of this country or is he just looking for ways to profit off of the Presidency? The corruption in this Administration is pervasive.”

Beto skips town while his brain trust sketches 2020 plans

Beto O'Rourke

Rep. Beto O’Rourke is leaning toward running for president, according to at least four sources who have spoken to him or his advisers, but he has kept a relatively low profile since leaving Congress earlier this year. | Chip Somodevilla/Getty Images

EL PASO — Beto O’Rourke has left Texas, decamping for a highly anticipated road trip, but his former advisers are quietly sketching the outline of a potential presidential run that would replicate — and on a national scale — the grassroots-driven organizing model O’Rourke employed in his Texas Senate campaign.

Becky Bond, a senior adviser to Bernie Sanders’ 2016 presidential campaign and an adviser to O’Rourke’s 2018 Senate run, has been talking with operatives in recent days about potential jobs on a 2020 campaign, two sources familiar with those conversations told POLITICO.

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The effort is preliminary, and the imprimatur of O’Rourke was implied — not stated, the sources said. Unlike many candidates-in-waiting, who have PACs or other organizations to assemble staff, O’Rourke is not yet assembling a campaign team.

But in talks with Democratic strategists, Bond and David Wysong, O’Rourke’s former longtime chief of staff, have discussed ways for O’Rourke to expand the “distributed organizing” form of field operations used by Sanders in 2016 and replicated by O’Rourke last year — with the campaign training low-level staffers and volunteers to orchestrate their own, phone banking, text and email operations.

O’Rourke’s closer-than-expected run against Republican Sen. Ted Cruz last year was supported by the creation of hundreds of “pop-up” offices across Texas, which served as decentralized hubs for volunteers and get-out-the-vote operations.

O’Rourke, who had been lying low in El Paso since leaving Congress earlier this month, posted on Medium on Wednesday that he had left the state, traveling through New Mexico, Oklahoma and Kansas. Far from reporters who have been trickling into El Paso, he said he spoke with a motel owner, a waitress and a community college student, among other people he encountered. He also went on his first run in more than a month.

“Have been stuck lately,” he wrote. “In and out of a funk. My last day of work was January 2nd. It’s been more than twenty years since I was last not working. Maybe if I get moving, on the road, meet people, learn about what’s going on where they live, have some adventure, go where I don’t know and I’m not known, it’ll clear my head, reset, I’ll think new thoughts, break out of the loops I’ve been stuck in.”

O’Rourke is leaning toward running for president, according to at least four sources who have spoken to him or his advisers, but he has kept a relatively low profile since leaving Congress earlier this year. He is scheduled to appear in New York for a live, one-on-one conversation with Oprah Winfrey on Feb. 5.

Wysong has been speaking privately with Democratic strategists since November. In late December that Bond was quoted as saying she wanted to be part of O’Rourke’s presidential campaign. “I don’t know if Beto is going to run, but if he does I’m all in,” she said.

Bond, an online organizing specialist, was instrumental in helping to build Sanders’ national organizing operation in 2016, a juggernaut that helped to keep the Vermont senator competitive during the 2016 primary. Noting the limited supply of staffers for 2020 contenders at a gathering of progressive donors and activists in the Los Angeles area last month, Bond urged “movement leaders” and donors to “really consider going into that vacuum, joining a presidential campaign early, and you can actually bend these campaigns towards the agenda that you really care about.”

Jody Casey, who managed O’Rourke’s Texas Senate run, is not expected to join the 2020 effort, according to two sources familiar with her plans.

Bond referred questions to O’Rourke’s Senate campaign spokesman, Chris Evans, who declined to comment.

O’Rourke, who raised more than $80 million in his Texas Senate campaign, is polling in the top tier of 2020 contenders and is widely expected to be able to raise money quickly if he joins the race. But he will start at an organizational disadvantage, with Sens. Elizabeth Warren (D-Mass.), Kirsten Gillibrand (D-N.Y.) and other candidates already locking down talent in early nominating states.

In an effort to prepare groundwork for O’Rourke, two separate “Draft Beto” campaigns have intensified their efforts in recent weeks, adding strategists and hosting meetings in early primary states. On Wednesday, organizers of one of the efforts began a social media campaign with a video of O’Rourke supporters urging him to run.

Will Herberich, a New England-based strategist co-chairing the group behind the social media push, said, “Our whole idea has been to be able to start to identify grassroots activists who can be helpful to him, especially while other candidates are announcing or reaching out.”

He said, “We want people to have a place to go who are Beto supporters … My hope is that we’re able to hand over a list of those people when we’re done on the draft side for him to tap into.”

If he runs, O’Rourke would enter the race in a far different position than he has held in previous campaigns, when he ran as an insurgent for Congress in 2012 and again last year in his race against Cruz. With recent polling putting O’Rourke near the top of the 2020 field, he would join the Democratic primary as one of a handful of frontrunners.

“It’d be a position that he has never run from, but his campaigns have always been grounded on getting out and speaking to people and listening,” said Steve Ortega, a friend of O’Rourke who served on the El Paso City Council with him. “What will change is that everyone’s arrow will be pointed at him.”

He said that O’Rourke, who famously eschewed political strategists and pollsters in his 2018 race, “will always be at the forefront of his campaigns.”

“He is the manager, he is the strategist,” Ortega said. “And if he runs, it will be the exact same way.”

Distributed organizing is not without limitations: Relying on volunteers can result in clunkier execution, with less oversight leaving doors unknocked and campaign messaging less controlled. But even O’Rourke’s critics saw its value in his Senate campaign — and in a potential 2020 run.

“They had a lot of flaws,” said Jeff Roe, who was Cruz’s chief strategist. “They had distribution problems, they had execution problems, they had engagement problems. But they had a good, fervent group of people hustling. And hustle makes up for half of that problem.”

As for scaling the distributed organizing model for a presidential campaign, Roe said that for a Democrat, “That’s a great model for a national campaign.”

Will the Real Bill Barr Please Stand Up?

On the opening day of his confirmation hearings, attorney general nominee William Barr said many things to reassure senators and the American public about his commitment to the independence of the Department of Justice under the Trump administration. “I will not be bullied into doing anything I think is wrong by anybody, whether it be editorial boards or Congress or the President,” Barr told the Senate Judiciary Committee, sounding bold, albeit slightly rehearsed.

Barr projected himself as principled, professional and deeply committed to the rule of law. But that did little to calm the concerns of critics who point to the nominee’s long commitment to an extreme view of executive power in which the president is effectively above the law, and his bizarre memorandum addressed to Deputy Attorney General Rod Rosenstein which criticized what Barr assumed was special counsel Robert Mueller’s theory of obstruction of justice—a writing which favorably circulated among top White House officials.

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After the hearing, one question remains: Which Bill Barr would assume the role of attorney general? If it is the principled, experienced, crusader for apolitical law enforcement, then we can all rest easy. But if the other Bill Barr takes the reins, there is cause for concern.

At the hearing, Barr was unable to explain adequately his decision to write the memorandum to Rosenstein last June, while Barr was still in private practice. He claims he was motivated by news stories. But his judgment in drafting and sending it is in tension with his image as a detached professional pursuing evenhanded justice.

Pundits and journalists are expected to speculate on information in the public record. They can and do give their opinions about what it appears Mueller and his team are doing and where they’re headed; this is a public service because they are helping people understand a complex and often technical process. By contrast, in drafting and submitting legal memoranda, lawyers serve a different role and are expected to act differently. Lawyers, unlike pundits, are supposed to reserve judgment about the law until they understand the facts. Despite qualifying his memorandum by explaining that he has no understanding of the facts and no independent knowledge about the Mueller probe, Barr’s memo launched into a full-throated criticism of “Mueller’s theory of obstruction of justice,” as if he knew what that theory is and whether Mueller is pursuing it.

Barr begins his memo by conceding “I am in the dark about many facts.” He goes on to allege that “Mueller is proposing an unprecedented expansion of obstruction laws so as to reach facially-lawful actions taken by the President in exercising the discretion vested in him by the Constitution,” although Mueller has not publicly proposed any such action and Barr would have no way of knowing the special counsel’s thought process. He asserts that “the full measure of law enforcement authority is placed in the President’s hands, and no limit is placed on the kinds of cases subject to his control and supervision.” The Attorney General and Department of Justice lawyers “exercise prosecutorial discretion on [the president’s] behalf,” Barr argues, an interpretation of executive power which both undermines the DOJ’s traditional independence and effectively gives the president the power to stop any criminal investigation he chooses.

Even if we are to assume, as Barr explained in the hearings, that the memo was meant solely as a missive from a concerned private citizen, why would he send it to a potential target of the investigation and Trump’s lawyers? And why did he neglect to send it to Mueller himself, who, on Barr’s view, stood to learn something from it? These choices would be appropriate if Barr was rehearsing for a role as personal lawyer to the president, but makes little sense if his only interest was to inform the relevant parties and preserve his reputation as a public servant.

Both Republicans and Democrats grilled Barr on the independence of the Department of Justice, and he reassured senators on both sides of the aisle that he has no more remaining professional and personal aspirations. All he cares about is his legacy, his reputation. This, he claimed, uniquely suits him to stand guard of the agency he cares about so deeply.

This line of argument is convincing—this is how professionalism is supposed to work. Concern for reputation in a community with particular and exacting standards is a significant check on professionals like Barr, who stand to lose and gain nothing from public service other than their legacy.

But if an enduring legacy of public service is his sole motivation, it makes little sense that he would have drafted that memorandum, which was at odds with the best practices of the bar. Somewhat ironically, Barr explained that he could not answer particular questions at the hearings without more facts. There were numerous questions from senators about what might constitute obstruction of justice by a president. Barr agreed that an explicit offer to exchange a pardon for favorable testimony or the refusal to cooperate would constitute obstruction of justice. Likewise, destroying documents with the intent to interfere in an investigation would be a crime.

But on more nuanced questions, he reserved judgment. One senator asked whether Barr would allow the special counsel to subpoena the president’s testimony. Barr refused to answer, saying he would need to know the facts. Another asked whether Barr would commit to revealing as much as he could of Mueller’s report to Congress and explaining why he has withheld anything if he chooses to do so. Barr refused to make a pledge without first seeing the facts.

Frustrating as these answers are, lawyers are expected to be cautious in this way. Even in the context of a public hearing whose purpose is to inform lawmakers and the public, lawyers tend to reserve final judgment until they know the facts. It is a central part of their professional obligation. But this cautious approach is at odds with Barr’s decision to opine in that memo about whether a set of facts he did not know constituted a crime on a theory of obstruction he did not know was even relevant.

There is another inconsistency between the Barr who appeared before the Senate yesterday and the Barr who wrote that memorandum. The theory he embraced in his memo (and has reportedly long held) and the statements he made in his confirmation hearing are in tension. In the memo, Barr embraced a strong vision of the executive whose power is concentrated in the hands of the president. As a president has plenary authority over the executive, Barr insisted, he has full power to hire and fire for any reason, and cannot be prosecuted for exercising his powers with a subjective intent to interfere with an investigation into himself and his campaign. Yet Barr insisted in the hearing that he understands that as the nation’s chief law enforcement officer, the attorney general must preserve the independence of the Justice Department and protect it from political influence—including from the president to whom he reports.

These two visions are fundamentally incompatible. If the president controls law enforcement, then—as President Trump and his lawyers have insisted—he is allowed to do anything legal, including inject political considerations into individual prosecutorial decisions. Under his own theory, Barr would be limited to resigning if he disagrees with the president’s directive.

Intellectual inconsistency is not a fatal flaw, and if—as he promised—Barr plans to protect both the Mueller investigation and other federal prosecutors from the taint of political interference, the rule of law will win. But his strong vision of executive power calls into question whether that commitment is as strong as he trumpeted at his hearing.

If he is confirmed, which Barr will assume the role of attorney general? And, more importantly, when the political pressure mounts, as it always does in this administration, will Barr withstand that pressure in the name of prosecutorial independence? That will be his legacy.

Rebecca Roiphe (@rroiphe) is a professor of law at New York Law School.