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During a press conference a week before the 2020 elections, Director of National Intelligence (DNI) John Ratcliffe warned that Iran was sending intimidating emails to Americans in order to “damage President Trump.” Ratcliffe underplayed Russia’s actions, adding, “although we have not seen the same actions from Russia, we are aware that they have obtained some voter information just as they did in 2016.” As Politico later reported, “The reference to Trump was not in Ratcliffe’s prepared remarks about the foreign election interference, as shown to and signed off by FBI Director Chris Wray and senior DHS officials Chris Krebs, the director of the department’s Cybersecurity and Infrastructure Agency.” Both civil servants stood on the stage behind Trump loyalist Ratcliffe, but neither was given the opportunity to speak.
Ratcliffe’s spontaneous kow-towing to Trump may seem like small beer, compared to some of the other irregularities of the Trump presidency, such as having Acting Secretary of Homeland Security Chad Wolfe send federal forces to Portland to combat protesters. But I would argue that precisely because Ratcliffe latched onto voters’ concerns about electoral interference, his insinuation that Iran was trying to hurt Trump was more invidious than Wolfe’s more flagrant embrace of Trump’s “law-and-order” campaign message.
Of course, the politicization of the executive goes back to the early years of the republic. When, in 1864, it looked as if the Republicans in the House of Representatives were short of the 2/3 majority they needed to pass the XIIIth amendment, which would liquidate slavery, President Lincoln was not above instructing his emissaries to entice House members to vote for it by offering them patronage appointments. Although much was made of this in the Spielberg film Lincoln, the president thought it a normal adjunct of presidential power to use it to twist arms in Congress.
Similarly, when Franklin D. Roosevelt came into office in 1932, he brought with him as both chairman of the Democratic National Committee and Postmaster General, James Farley, who had successfully used his vast network of contacts to pilot FDR’s campaign. Farley was no typical backroom politician; as Postmaster General, he used the over 100,000 non-civil service jobs at his command to pilot FDR’s legislative program through Congress. For both Lincoln and for FDR, patronage was used to gain the political clout to make important policy changes.
Still, what we’ve seen in recent decades is something new: the wholesale use of executive power to advance partisan interests through control of the civil service. “Partisanship is no longer a struggle over the size of the State,” writes Nicholas Jacobs, Desmond King and Sidney Milkis in an important recent paper on the “Conservative State;” “It is a struggle for the services of national administrative power.” Despite repeated Republican claims since Nixon that their goal is to roll back the state, “self-styled conservative administrations,” explain Jacobs et. al., “have sought to redeploy rather than dismantle or roll back State power.” Trump’s latest executive order – giving him the power to fire higher civil servants at will – is only the latest in a series of wholesale efforts to politicize the state.
Of course, any use of the executive to advance specific policy projects often has a “policy feedback” effect. For example, as Suzanne Mettler showed in her landmark study of the effects of the G. I Bill, Soldiers to Citizens, by opening up educational opportunities to thousands of veterans, the Roosevelt administration laid the groundwork for them to become active participants in politics. The same may turn out to be the case for beneficiaries of the Affordable Care Act, although this was not the primary objective of the law. Those were “wholesale’ policy feedback effects.
But what we saw in the Ratcliffe press conference was a “retail” use of executive power for partisan purposes. First elected to the House of Representatives in 2014 with support from the Tea Party Express and the Club for Growth, Ratcliffe built a record as one of the most conservative voices in Congress, with a wobbly relationship to truthfulness. Ratcliffe was one of the first Congress members to embrace conspiracy theories about the Russia investigation, and among the sharpest questioners of Robert S. Mueller III after the latter’s investigation of Russian interference in the 2016 election.
While Republicans like Senator Richard Burr, chair of the Senate Intelligence Committee, warned that Ratcliffe was unfit for the job of DNI, his advice was ignored. During Trump’s impeachment hearings in the House, as legal scholar Ryan Goodman and his collaborators have noted, “Ratcliffe grossly misrepresented facts to the public, including when the information at the time was confidential and could not be independently assessed. He defended the most serious allegations against the president by treating as acceptable what most would consider clear abuses of Executive Branch power.”
Ratcliffe’s remarks on Iran trying to hurt Trump while downplaying the Russians’ more sophisticated intrusions were easily exposed by alert reporters. A Google search for “Ratcliffe” and “Iranian interference” a week later found 266,000 mentions of these two search terms. Far less obvious was the shadowy decision of William Barr’s Justice Department to let off with a slap on the wrist a Turkish Bank, close to President Erdogan, that had been laundering money to Iran, in defiance of American policy. The US Attorney for the Southern District of New York, Geoffrey Berman, who had been pursuing the case, discovered this only when he flew to Washington in mid-investigation and was presented with a fait accompli by Barr and his prosecutors. “This is not how we do things at the Southern District,” Berman reportedly replied when Barr tried to persuade him that the move would mend U.S. foreign relations with a critical ally. A few weeks later, in June, 2020, Barr fired Berman.
At the same time, Trump was putting pressure on the Post Office, which had been severed from the executive branch decades ago in order to end the practice of allowing it to be used for patronage appointments. Unfortunately, appointing the Postmaster General remained a presidential prerogative, and when Donald Trump came into office, he used that power to appoint a major donor, Louis DeJoy, to do his bidding. With the election approaching, DeJoy quietly instituted changes that slowed down mail delivery, in the midst of the Coronavirus pandemic, at a moment when many Americans were planning to vote by mail. When DeJoy’s changes ended up in court, a federal judge demanded that they be reversed; but we may never know how many voters will have been disenfranchised by DeJoy’s machinations.
As the post office episode suggests, “retail” politicization is not necessarily less dangerous than its “wholesale” counterpart. In fact, it is, if anything, more dangerous, because it is more dispersed and less visible. Because of its widespread policy impact, wholesale politicization publicizes itself. Think of the GI Bill: in their 2009 study, The GI Bill: New Deal for Veterans, Glenn Altschuler and Stuart Blumin showed how the dominance of southern Democrats in Congress during the bill’s crafting ensured that African American vets would be less likely to benefit from it than whites. Nobody who looked at the law’s policy impact could have missed this deliberate bias in the use of the national government for policy purposes.
Retail forms of politicizing the executive can be more elusive, less concentrated, and thus harder to identify and combat. DeJoy’s corruption of the Postal Service for electoral advantage was an exception, but only because the pandemic had made voting by mail so urgent. But episodes like the Justice Department letting a corrupt Turkish bank off the hook to please the President did not make many headlines, nor did insertion of Trump’s name in a press conference by DNI head John Ratcliffe, until alert reporters noticed what he had done.
Obviously, electing a decent man to the Presidency would help to root out some of the crooks and incompetent loyalists who have crept into the highest levels of the executive under Donald Trump. Putting more teeth into the inspector general system will also do some good, as would greater protection for whistleblowers. But unless we want to return to a regime in which the executive is the political arm of partisan officials, more fundamental institutional change will be needed.
The biggest danger of the politicization of the executive is that it may be irreversible. If enablers like Ratcliffe, Barr, and DeJoy can get away with abusing their executive positions to advance a besieged President’s political position, what will prevent Biden appointees from doing the same – especially as they face a recession, a pandemic, and ongoing Republican obstruction in the national struggle for racial justice?
Sidney Tarrow is Emeritus Maxwell Upson Professor of Government and Adjunct Professor, Cornell Law School.