Many people are oscillating between panic, denial, and depression about what Donald Trump will mean for America.
Some people look to the judiciary for hope, and, obviously, the Ninth Circuit fed the fans of this hope.
Some people express faith in a few Republicans in the Senate who may be willing to put country over party or power if they’re pushed far enough. The signs are mixed here: it looks like the Senate will investigate Trump over Michael Flynn’s lying about his Russia contacts. Though not much has happened with getting Trump’s conflicts of interest investigated or disclosed. And his cabinet picks have been having a relatively easy time getting confirmed.
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Many have also reassured themselves with the thought that career civil servants will slow down Trump. The Washington Post had a piece about the role of the civil service in a hostile administration; this comment seems representative of the sentiment:
Paul Davison, a retired Air Force civilian attorney in Kathleen, Ga., said if a policy violated the Constitution, statutes or regulations, “I would have an obligation to refuse, recognizing that this administration in particular seems less inclined to tolerate any dissent.”
The leaks from the intelligence community are a version of this. We are watching a high-level fragging. And leaks are only one way to resist. (For more, check out this other piece in the Post.)
In the face of all of this, one may wonder what to make of Homeland Security’s actions in the last few weeks.
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First, when Trump’s Muslim ban went into place, Customs and Border Patrol agents seemed very excited to implement it. It may be that this is unremarkable. Chris Edelson, a professor at American University, argued for this view in an op-ed, “Ordinary Americans carried out inhumane acts for Trump”:
The men and women who reportedly handcuffed small children and the elderly, separated a child from his mother and held others without food for 20 hours, are undoubtedly ‘ordinary’ people. What I mean by that, is that these are, in normal circumstances, people who likely treat their neighbors and co-workers with kindness and do not intentionally seek to harm others. That is chilling, as it is a reminder that authoritarians have no trouble finding the people they need to carry out their acts of cruelty. They do not need special monsters; they can issue orders to otherwise unexceptional people who will carry them out dutifully.
While I agree with much of the sentiment, I don’t think it quite fits here. There weren’t rules in place; CBP officers have a lot of discretion. CBP officers weren’t ordered to be horrible to children and families coming through customs; they decided to be. CBP was champing at the bit to harass Muslims.
And now, we see Immigration and Customs Enforcement rounding people up in new and wider immigration raids. ICE has detained women calling law enforcement to report domestic violence. Children are sent to school not knowing if their parents will be home when they get back. People who have regularly reported their whereabouts to immigration officials for years are suddenly being taken into custody by ICE.
Where, one may wonder, is the civil service’s resistance at ICE or CBP? Is Homeland Security one massive counterexample to any expectation that the civil service can provide meaningful resistance?
I think not. Instead, Homeland Security may be the best reason for hope about the power of the federal employee.
The Department of Homeland Security has been a bastion of anti-immigration sentiment.
Remember when Obama started launching immigration raids? There was no political case for those raids, in light of what Obama wanted to be doing with policy. If anything, they made things more unpleasant for Hillary Clinton’s campaign and did nothing for Obama. There was no change in circumstance that required those raids. The best way to make sense of those is that the people at Immigrations and Customs Enforcement have their one political agenda and are their own political constituency. And that this political power can be enough to create change in government action, despite what the President wants.
Another good example is the FBI. James Comey threw the election to Donald Trump not because he’s anti-Hillary or pro-Russia, but because he was unable to effectively manage the FBI. Some of his agents were pro-Russia and/or anti-Hillary and he couldn’t stop them from leaking.
These examples — the intelligence community’s leaks on Flynn, the FBI’s threatened leaks on Hillary, and the ICE raids under Obama — are all examples of people in the world of law enforcement driving where things go. Perhaps, say, a line person at the EPA is in a different situation.
Or perhaps not.
The power to leak is there at every agency. And federal employees of all kinds are given small measures of discretion. Just like one person at a protest doesn’t turn it into a huge event, and one vote doesn’t give a 3 million vote margin, one small act of discretion may not move the ocean liner of policy.
Though lots of small actions put together can move a government.
Matt Kaiser is a white-collar defense attorney at KaiserDillon. He’s represented stockbrokers, tax preparers, doctors, drug dealers, and political appointees in federal investigations and indicted cases. His twitter handle is @mattkaiser. His email is [email protected] He’d love to hear from you if you’re inclined to say something nice.