A Justice Department Afraid to Say No

Weakening civil-service protections will not make DOJ more accountable. It will make career lawyers more fearful, more political, and less independent.

United States Supreme Court. (Source: Phil Roeder, Flickr)

The Supreme Court’s decision last month in Trump v. Slaughter will mostly be discussed as a case about the President’s power to fire members of independent agencies. But its consequences may reach far beyond the Federal Trade Commission.

One of the institutions now at risk is the Merit Systems Protection Board—the agency charged with protecting the federal civil service from partisan political abuse, retaliation, and arbitrary personnel decisions.

Those concerns are no longer theoretical. In Harris v. Bessent, the D.C. Circuit held that the President may remove MSPB members notwithstanding the statutory “for cause” removal protections. The Supreme Court recently declined to review that decision, leaving it in place. Whether or not one agrees with that result, it substantially weakens the structural independence Congress sought to provide the Board.

That may sound technical, but it’s not. If the MSPB loses its independence, then the people who are supposed to protect career federal employees from political retaliation may themselves serve at the pleasure of the President. The referee would answer to one of the teams. This is a sea change across the federal government. But it especially impacts the Department of Justice.

DOJ is different from most agencies because DOJ can take away an individual’s liberty. It can investigate, indict, search, seize, prosecute, negotiate pleas, make sentencing recommendations, and speak in court in the name of the United States. When that power is used properly, it protects the public and vindicates the rule of law. When it is used improperly, it can destroy lives and institutions.

That is why career, nonpartisan attorneys are the standard.

The modern civil service was built to move the federal government away from the old spoils system, where government jobs were rewarded for political loyalty. The basic idea was simple: government should be staffed by people selected for competence, integrity, experience, and commitment to lawful public service—not personal loyalty to the winner of the last election.

At DOJ, that principle is not an abstraction. Career prosecutors and lawyers are often the people in the room who say the hard thing: the evidence is not enough; the search is unconstitutional; the case should not be charged; the discovery must be turned over; the law does not support that position; that request would cross a line.

Those moments rarely make headlines. But they are among the most important things DOJ does.

Political leadership has a legitimate role. Presidents appoint Attorneys General, who set priorities. Presidents also appoint U.S. Attorneys and other limited roles at the department. Elections have consequences, and federal law enforcement priorities can change from administration to administration.

But DOJ’s legitimacy has never depended solely on obedience to political leadership. It depends on something more durable: a professional culture in which lawyers understand that their duty is to the Constitution, the law, the facts, institutional guidelines, and the public—not the personal interests of any president.

Civil service protections helped make that possible. They do not make federal employees untouchable. Bad employees can and should be disciplined. Misconduct should have consequences. Poor performance should be addressed. Accountability is crucial.

But there is a difference between accountability and political control.

A merit system says employees may be disciplined for legitimate reasons, but not for refusing to violate the law, not for disclosing misconduct, not for applying the rules evenly, and not for failing a political loyalty test. The MSPB is part of the structure that gives those protections meaning. If that structure weakens, DOJ changes even if no one rewrites the department’s mission statement.

The danger is not only that career lawyers will be fired. The danger is that they will learn to be afraid.

Recent reporting suggests that these concerns may already be affecting the Board itself. According to the New York Times, White House Officials have sought to influence MSPB decisions behind the scenes in cases involving the dismissal of federal employees. Those reports have been disputed in part, but they underscore the broader concern: once an adjudicative body loses institutional independence, pressure need not take the form of formal directives. Even the perception of political influence can erode confidence in the fairness of the process.

Career attorneys will hesitate before putting concerns in writing. They will stop raising hard questions. They will avoid cases that might anger political leadership. They will wonder whether saying “no” will end their careers. Some will leave. Some will stay and adapt. Over time, the culture shifts from independent legal judgment to anticipatory obedience.

That is how institutions decay. A DOJ filled with fearful lawyers is not a stronger DOJ. It is weaker, less honest, and less worthy of public trust. It will make worse decisions. It will bring weaker cases. It will miss constitutional problems. It will tolerate abuses that should have been stopped early. And if the department becomes staffed or led according to personal loyalty rather than professional judgment, the public will no longer see law enforcement as law enforcement. It will see power protecting friends and punishing enemies.

That is a fatal blow to the rule of law.

The answer is not to pretend career lawyers should run the department; they should not. The Justice Department is part of the executive branch, and democratic accountability is important. But democratic accountability does not require turning career public servants into political instruments.

The better tradition is the one DOJ has long claimed for itself: follow the facts and the law wherever they lead, without prejudice or improper influence. That principle is easy to say. It is much harder to honor when people fear retaliation for saying what the law requires.

The MSPB is not just some obscure personnel board. It is part of the architecture that allows career public servants to resist unlawful pressure. If that protection weakens, anyone who cares about an independent Department of Justice should be alarmed.

The Department of Justice needs lawyers willing to say no when necessary. And it needs institutions strong enough to protect them when they do.

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Andrew J. Tessman is a former federal prosecutor, and Founding President and Board Member of the American Constitution Society Mountaineer Lawyer Chapter. He previously served as an Assistant United States Attorney in the Southern District of West Virginia and the District of Columbia. The views expressed are his own.