In January of 2021, I wrote a review of the first term under President Trump. I pointed out that in addition to pursuing regressive, and sometimes illegal, policy changes, the Trump I administration went out of its way over four years to violate “good government” laws and norms that had been built up over the prior five decades, going back to the Nixon era abuses. Trump I took rampant “bad government” steps that we must not forget. Their overall effect was not only poor performance of his agencies’ duties and cratering staff morale but also the delegitimization of those agencies in the eyes of many stakeholders.
Here is my list of a “dirty dozen” of the worst abuses from the first Trump administration, each of which I am proud to say that PEER worked against in some form during 2017-2020. Several of these will be critical for potential environmental whistleblowers and sources working in the second Trump administration. They stand as key parts of the “checks and balances” on the President’s power that have kept the U.S. constitutional system in place since its founding. In recent weeks, President-elect Trump has already raised new threats to good government norms to a level that is unprecedented and frightening.
- Allowing political objectives to override expertise. This was most acutely displayed in Trump I’s botched response to the COVID-19 pandemic. His nomination of the unqualified Robert F. Kennedy, Jr. for Secretary of the Department of Health and Human Services graphically illustrates Trump’s continuing disdain for expert opinion in the public health arena. More chronic, but even more devastating over the long term, was Trump I’s non-response to global warming, the existential threat to our planet. Trump II will again choose “head in the sand” denial, which is the absolute last thing needed. PEER will continuously call this out.
- Violating separation of powers regarding agency leadership appointments. Fringe unconfirmed figures with conflicts of interest led several key bureaus under Trump I, often for several years, all of which could have been remedied by the process of Senate confirmation as required by the Constitution (Art. II, Sec. 2), which Trump routinely ignored. The transparent “advice and consent” and confirmation hearing process exposes much more information about the nominees and can weed out fringe figures.
Trump has already demanded that the Senate bend over backwards to allow him to make “recess appointments,” which enables avoidance of the advice and consent process altogether for up to two years. The Senate should not give up its confirmation prerogative, but in the current political situation, we are concerned that Senate Republicans certainly may give up this prerogative. Actions taken by improperly appointed future officials could be ripe for constitutional litigation. - Improperly allowing acting officials to lead key agencies. Related to number 2, the Trump I Administration frequently allowed lower deputies and political appointees to be the “acting” heads of various agencies. This left them short-staffed in key leadership slots. Further, doing so was illegal under the Federal Vacancies Reform Act in many situations. Litigation resulted in at least five District Court decisions throwing out actions by various improperly acting Trump I officials. Future PEER litigation against such actions is possible, once the 300-day grace period during which a new President can rely on acting officials expires.
- Unqualified nominees. Several Trump I agency leaders nominated for Senate confirmation were patently unqualified for their positions, such as the head of the U.S. Fish and Wildlife Service. Trump’s recently announced appointments are continuing that trend – in spades. PEER will work to highlight the lack of qualifications for nominees to key environment and health-related positions – and advocate against their confirmation.
- Trashing the civil service and merit protections. Trump issued a number of Executive Orders aimed at weakening civil service protections for a broad swath of Federal professionals. One order, issued at the end of the Trump presidency, would have labeled a significant portion of federal employees as Schedule F, making them “at-will” employees equivalent to political appointees. Trump’s campaign claimed there was a “Deep State” out to get him that had to be neutered, but he aims now to slash the highly qualified and non-partisan Federal civil service in favor of a patronage system that would take us back to the 1800s. PEER will be smack in the middle of the fight against that proposal. Plus, we will oppose the weakening of other civil service protections, such as abuse of administrative and investigative leave, on which we just landed a very big victory in compelling more protective final regulations on such leave from the Office of Personnel Management.
- Gross abuse of the Hatch Act. This took too many forms to count under Trump I. It consisted of improper political and electioneering actions by Federal employees. Several times, the Office of Special Counsel, charged with enforcing the Hatch Act, warned White House personnel about violations, which the White House basically laughed off. While Mr. Trump will not be able to run for re-election, his Administration associates who are interested in future elections will likely abuse it. This is an area for which civil servants can be sources of information about violations that others outside of government may not be able to observe.
- Meddling with, and frequent rejection of, the Inspectors General (IG) and the Government Accountability Office (GAO). These are key “good government” agencies. Trump I fired several agency IGs for no apparent reason other than that his agency heads were under threat from IG investigations or findings. And when the GAO issued adverse opinions, the Trump I Administration rejected several of them. Civil society will need to highlight any more such abuses under Trump II.
- Freedom of Information Act (FOIA) abuse. Citizens, the media, and NGOs all benefit from FOIA, which helps them shine a light on federal government actions. Trump I was the worst administration in memory in terms of politicizing FOIA response processes, such as allowing affected officials to review and change or redact responses before they went out — so-called “awareness reviews.” We expect PEER’s FOIA litigation to ramp up to high levels to compel agency compliance.
- Federal Advisory Committee Act (FACA) violations. Congress created FACA to ensure that the many agency advisory committees were unbiased and allowed public input. Trump repeatedly set up biased industry-dominated committees and allowed other abuses. As with the Hatch Act violations, this is an area in which inside agency sources can help PEER and others fight FACA violations by bringing them to our attention. We already know that on Inauguration Day there will be a huge FACA violation ripe for legal challenge: the so-called Department of Government Efficiency (DOGE) led by Elon Musk and Vivek Ramaswamy. The DOGE is not an actual department, but on January 20, it will become an illegal advisory committee.
- Breaches of scientific integrity. This was blatant in several instances under Trump I. Unfortunately, a long, drawn-out effort by the Biden Administration to create stronger scientific integrity policies across all the agencies fell flat, leading to “reforms” that lack enforceability and in some cases made the policies worse than before. PEER will continue to advocate for real reforms as we have for more than a decade. This also is an area for which sources within agencies can alert us to violations.
- Ignoring the Office of Government Ethics. These abuses were concentrated early in the Trump I presidency when he, his family, and many Cabinet members ignored long-standing ethics guidelines by failing to reveal conflicts of interest, not divesting stocks or business interests, and so on. We expect more of the same this time around.
- Improper actions during government shutdowns. Two shutdowns occurred under Trump I, including the notorious 35-day shutdown of 2018-2019, the longest in U.S. history. However, one might expect that with the Republicans in charge of both chambers of Congress and holding the Presidency, the likelihood of a shutdown would be low. Recent events right before Christmas showed the dysfunction likely may continue. Trump I allowed some favored activities to continue during the earlier shutdowns despite violating anti-deficiency laws. For example, an authoritative GAO report found that diverting funds to keep facilities such as the Grand Canyon National Park open was illegal. But, of course, the Interior Department rejected the GAO’s opinion. We should expect more of the same shenanigans if future shutdowns occur.
Ignoring laws and long-standing norms, weakening federal agencies, and stripping the protections of civil servants is a recipe for governmental failure. PEER’s goal will be to limit the damage, to keep the environmental agencies as attractive places to work, and to help bolster the quality of the environmental and other services those agencies provide. Representing whistleblowers and rooting out Trump II corruption and abuses are areas where we can provide real added value.
Peter Jenkins is PEER’s senior counsel.
