To state the obvious, these are not normal times. A veteran of five presidential transitions spells out the hard choices officials face today.
Presidential transitions are always challenging, but none may be more so than this one if the last few weeks are a harbinger of things to come. Despite laws aimed at smoothing the transfer of power from one administration to another, no previous Congress anticipated our current situation. You can bet that the always-extant turbulence of a transition will be exacerbated as a result.
As a former long-time civil servant (although I still consider myself one), and given the likelihood of severe transition turbulence, I believe it’s important to consider what’s required of federal civil servants to bring some order to a potentially chaotic situation. What is your duty? And perhaps more importantly, what are your options?
Ordinarily, a column like this would be unnecessary. Under normal circumstances, the transition would have begun a few days after the November 3rd election and we’d be well on the way to achieving one of the hallmarks of our Constitutional democracy—the peaceful transfer of power from one administration to its duly elected successor.
But to state the obvious, these are not normal times. According to far too many Americans, the 2020 election remains in dispute—despite every state’s certification of the outcome, the dismissal of dozens of court challenges and the subsequent Electoral College vote affirming the result. All that has given rise to a destructive disinformation campaign and alarming reports of political appointees encouraging career civil servants to form pockets of resistance after the January 20 inauguration of President-elect Joe Biden.
The Duty of Federal Civil Servants
Even more disturbing is the reported talk of martial law and invocation of the Insurrection Act to force an election “do over” in certain contested states. That talk has been labeled as “fake” by President Trump, but none of us can predict the reactions of some to such provocative pronouncements. Look no further than the death threats received by many election officials—fellow civil servants just doing their duty.
And these are not just the rhetorical ramblings of some far-right (or far-left) conspiracy theorists. They are also coming from those in positions of prominence and influence, so far without the unequivocal rejection of many leaders, ironically including those re-elected in the same allegedly rigged election.
Thus, if anyone thinks it’s all over, that the fat lady will sing when Congress certifies the results of the Electoral College on January 6, I say beware; there’s still some two weeks before Inauguration Day, and a lot can happen between now and then, not to mention afterwards. And as civil servants, we have sworn to ensure a smooth transfer of power, even when that may not be the objective of many others across the current political divide.
So, in these far-from-normal times, what is our duty as career civil servants during this potentially turbulent transition?
I’ve had occasion—and obligation—to weigh that duty during five presidential transitions as a member of the Senior Executive Service (including three from one political party to another), all with a direct reporting relationship to cabinet or sub-cabinet level political appointees, and I want to provide readers with the benefit of that thinking. But I’ll warn you now: There are only hard choices to be made.
Speaking Out, Possibly at One’s Peril
Let’s start with our seminal duty. In my view, as civil servants, our No. 1 job is to always speak truth to power. While that duty is not expressly stated in the oath of office that we all take, it’s our raison d'etre, our reason for being as civil servants. I also believe that under all but the most extraordinary of circumstances, that “truth to power” conversation should be had in private, rather than in the media (social or otherwise). However, this may be easier said than done these days.
Over the last six weeks or so, I’ve received a disturbing and unusually high number of calls from colleagues in government describing situations in which they or their co-workers have been reassigned or ostracized for speaking out, their career bosses pointedly counseled to keep them quiet and out of the way. And many of the calls are from people in policy positions that could be covered by the newly established Schedule F, with its far easier termination provisions. So, they’re holding their collective breaths and counting the days to Inauguration.
These instances of what can only be called retaliation are anecdotal. But where there’s smoke, there’s often fire. So those with the courage to speak truth to power in these extraordinary times may do so at their peril. Even if that peril is temporary.
The good news is that under a new administration, such overtly partisan personnel actions as reassignment—especially if done to chill a senior civil servant’s attempt to do his or her duty—are reversible. But reversing them will hardly be a priority of the Biden administration, especially with Senate-confirmed nominees potentially facing months of partisan push-back, so the exercise of such courage may have to be accompanied by a measure of patience.
Regardless of the consequences, the question remains: Will speaking truth to power make a difference? Or is it better to live to fight another day?
Don’t Look at Me, I’m Just Following Orders
We civil servants are also sworn to serve “the Government of the day,” typically manifested in the form of compliance with an order from a duly confirmed or legally appointed political superior. And in such circumstances, shouldn’t that superior (and his or her orders) be given the benefit of the doubt? After all, that too is part of our raison d'etre—to carry out those orders, whether we agree with them or not. After all, appointees represent the will of the people—before, during, and after Inauguration Day—and we are sworn to do their bidding. So, is it simply a matter of following orders?
I’m not referring to those instances where one is being told to do something that may be unethical or even illegal. Those situations are relatively easy to deal with. If what you’re being told to do doesn’t comply with the law or ethical standards of conduct, the answer is an unequivocal “no” regardless of the consequences. But the interpretation and application of laws and standards of conduct are rarely so clear; legislators often write them with deliberate ambiguity, and where that’s the case, the choices are problematic.
So, do you comply with an order of arguable legality? In weighing your options, you must also ask whether what you’re being told to do can be undone. In the “just following orders” option, this question is especially germane during transition. There are always so-called “legacy orders” that an outgoing administration or appointee gives for the record (or their resume), and if the action is more for show than for go, it may just be a matter of complying, calling it to the attention of the incoming administration, and asking them to reconsider. The recent Office of Management and Budget effort to eliminate much of the regulatory teeth of the Government Performance and Results Act is a good example of this.
But what if it can’t be undone. And to make it even more complicated, what if what you’re being asked to do is clearly contrary to the new administration’s stated policy objectives, such that executing it will bind that new administration for months if not years?
Do I stay, or Do I Go?
If you conclude that you cannot comply with an administration’s orders, incoming or outgoing, that’s your right, and I respect it. But if that is the case, do you owe it to the American people and your fellow civil servants—and your own conscience—to resign?
That’s the most extreme (and dramatic) of choices available to the civil servant who disagrees with the policies of a particular administration, and it is the grandest of gestures for those sworn to protect the public interest. But as good as it may make you feel—I should know, as I made my own grand gesture just a few weeks ago—it has all sorts of practical considerations.
Of course, there’s the financial aspect of resignation, as it may mean sacrificing your immediate economic livelihood to make a point, and whether you have a Plan B (in the form of alternative employment or income, or full-on retirement) has a lot to do with this choice. But as hokey as it may sound, I believe most civil servants aren’t in it for the money. It is the impact and influence that they have when it comes to public policy. That’s why most of us do what we do.
Civil servants are professionals in governance, and they put up with long hours, low pay, underappreciation, and sometimes even abuse to practice that profession and to make a difference. Thus, the monetary consequences are often secondary, and the question of Do I stay, or do I go? more often comes down to whether we believe we can have more impact and influence on the inside—with a seat at the table, or the ear of an appointee, even if that appointee has a different point of view—than on the outside.
I know from personal experience that suddenly finding oneself on the outside—especially after years of watching what one says in public, can be quite liberating, and also quite frustrating. You suddenly have a public voice, not just a private one, and if the issue that led to your resignation is important enough, you might find yourself at the center of a policy debate and able to express yourself without fear of retribution. But that 15 minutes of fame can also be quite fleeting. You may find yourself yearning for the days when you were able to participate, albeit privately, in the give-and-take of the policy debate.
To me, that’s the ultimate cost of resignation, and it is a high one. If the stakes are high enough, it is worth it, but they’d better be high.
There’s a less extreme option, one that is less dramatic and self-satisfying, as well as much trickier from a moral-ethical (not to mention legal) standpoint, and that’s going underground. Not in a passive, duck-and-cover sense, but rather as one’s affirmative duty as a civil servant.
If the order is otherwise lawful, but is 1) contrary to the stated policy objectives of the incoming administration, and 2) difficult to undo, then one tried-and-true strategy is to delay, demur, and deflect the matter until the new administration can reconsider it. The Trump administration’s Anonymous chronicler offers an extreme example of this approach.
But is it the right one? I would never officially counsel such a strategy. It smacks of the very “Deep State” that many conspiracy theorists rant about. And I share their concern, at least up to a point. In all my years in government—including stints in agencies at the center of many of the conspiracy theories (the IRS and the CIA), I have found no evidence of such a Deep State. I’ve never come across a cabal of civil servants that has its own independent policy agenda and seeks to frustrate elected officials and the will of the people they supposedly represent.
That said, I have seen far too many cases of bureaucratic intransigence, often for the most venal of reasons, and those can be frustrating to any administration. However, these only serve to confirm the old adage: Never ascribe to malice or ulterior political motive what can be attributed to sheer incompetence.
Thus, like election fraud, there is simply no evidence of some vast, hyper-partisan cabal firmly (and clandestinely) embedded in the federal bureaucracy that seeks to deny an administration’s policy agenda, other than the “cabal” that has sworn to uphold the Constitution and the rule of law.
But that begs the question: When left with no other choice—that is, when faced with an arguably lawful order that if executed is clearly contrary to the new administration’s policy agenda and cannot easily be undone—is going underground an option?
That is a matter of personal conscience, and while it is not for me to recommend it to anyone, I will admit to exercising this option in the past. I did so in only a very few instances, and not without considerable soul-searching and sleepless nights. It was a matter of my own personal conscience: I covertly delayed and obfuscated compliance with an outgoing appointee’s legacy order so that it could be reconsidered by a new administration.
Considering the Public Interest
How did I dare do so? What gave me that right? Who are we to judge whether something is in the public interest, especially when an appointee or an administration is telling us (and the public) otherwise? After all, we’re civil servants, sworn not to create the laws of the land but to faithfully implement and execute them.
But is that really true?
In my case, I felt doing so was my sworn duty as a civil servant, my obligation to protect what, in my professional experience I truly believed to be the public interest. That is our ultimate responsibility as civil servants.
Is what you’re being told to do in the public interest?
That’s the question I had to ask myself, and that is the question you too must ask if faced with a similar situation. Unfortunately, there’s no by-the-book answer to it. If the order comes from someone whose legal authority is without question, and if the laws and regulations governing that order do not expressly preclude it—in other words, when there’s no easy answer—that’s when a career civil servant must exercise his or her professional judgment and decide whether or not it’s in the public interest—even (especially?) if it may become permanent in the outgoing administration’s eleventh hour, such that it can only be undone with great difficulty.
Therein lies the dilemma, the real paradox of public service. On one hand, it is in the public interest to comply with an outgoing administration’s Constitutional prerogative, right up until a new president is sworn in. But on the other, it is also in the public interest to not blindly follow that outgoing administration’s last-minute edicts, especially when they may be motivated by partisan pique.
It all comes down to this: Is your choice ultimately for the good of the nation? And that too is far easier to ask than to answer. When faced with an order that is arguably legal but institutionally questionable, do you just follow orders and salute smartly, regardless of what your conscience says? Do you follow that conscience and go underground, clandestinely thwarting that otherwise legal order as only a civil servant can? Or do you make the grandest of all gestures and resign?
There’s no book answer, only hard questions. I know, because I’ve been there myself. That’s the moral-ethical tightrope civil servants are sworn to walk. Bottom line: It is the duty of every civil servant embroiled in the tumult of this year’s transition to ask those hard questions, and to answer them as a matter of personal conscience.
A Final Note
I apologize if anyone misconstrues this column as being partisan in nature. Some of you will undoubtedly disagree with me, but having served the Trump administration since 2017 (after almost four decades as a career civil servant), only to resign over my own unintentionally well publicized crisis of conscience, I can honestly say that I’ve been there. And for what it’s worth, I have endured the wrathful posts of social media mavens for doing so (my favorite one encouraged me to “…die, you f***** swamp rat”). But to me, that’s when civil servants must do their duty—to the Constitution, to the Government of the Day, to the people—even if it may sometimes be difficult to define.
Ron Sanders was a federal civil servant for almost 40 years (21 as a member of the SES), serving in senior positions with the Defense Department, the IRS, the Office of Personnel Management, and the US Intelligence Community. He also served as a vice president with consulting firm Booz Allen Hamilton, and until his resignation in October, as the Presidentially-appointed Chair of the Federal Salary Council. He is currently Staff Director for the Florida Center for Cybersecurity.