White House Concealed Finding That OPM Merger was Illegal, Report Says

The Justice Department reportedly determined last year that a White House plan to dismantle the Office of Personnel Management was illegal—information the White House withheld from Congress while moving ahead with the plan anyway.

The watchdog group Project on Government Oversight published an investigation in The Daily Beast on Wednesday that documented a previously undisclosed conference call with senior administration officials in April 2019 in which the Justice Department’s Office of Legal Counsel rejected the Trump administration's plans to abolish OPM and transfer most of its functions to the General Services Administration. This legal opinion––which the administration denies exists––contradicts White House assertions over the last 14 months regarding the administration’s justifications for restructuring the system for managing federal employees. 

“It is depressing that the administration covered up a clear legal opinion by the Department of Justice finding that its plan to dismember and dissolve OPM was unlawful,” Rep. Jamie Raskin, D-Md., told Government Executive. Raskin is one of several lawmakers who for months have demanded legal justification for the administration’s efforts to abolish OPM. “Trump officials did everything they could to bury this fact and repeatedly dodged my questions in our oversight hearing about the dubious legal authority for its ridiculous proposal. These people have no respect for the rule of law or the truth, and their reputations lie in tatters along with the reputation of Donald Trump,” he said.

Administration officials denied the report by POGO and The Daily Beast. “This story is false,” an OPM spokesperson told Government Executive on Wednesday. “The Office of Legal Counsel never issued an opinion prohibiting the proposed reorganization of GSA and OPM.”

OLC has the option to either publish legal opinions or do “informal talks” for legal analysis, which could create a “gray area,” said Kel McClanahan, attorney and executive director of National Security Counselors, a public interest law firm that specializes in national security. “It does not surprise me at all that something like this would go into oral guidance” as opposed to a written opinion. He noted that a 2018 study found that between 1987 and 2017, 92% of OLC’s written legal opinions to the president supported the expansion of presidential action. Unlike phone calls, written opinions could be subject to Freedom of Information of Act requests as they are official government documents, he noted. 

Nick Schwellenbach, POGO senior investigator, said, “We are confident that OLC provided senior officials at OPM and elsewhere with a legal analysis of the administration’s proposal as described in our story.” 

During a House Oversight and Reform Committee hearing in June 2019, two months after OLC rejected the administration’s plans as illegal, according to notes of the call obtained by POGO,  then-OPM Deputy Chief of Staff Stephen Billy said the legal analysis was “ongoing” and failed to mention the OLC findings. Lawmakers also pressed him to explain why the information on a document provided to the committee regarding the legal authority for dismantling OPM was redacted.

“Our acting director instructed us to provide as much information as we can to this committee, and we respect the oversight authority of this committee and want to continue working with you,” Billy said. “Our attorneys are providing guidance as we go through interagency workings to determine what we’re able to present and when. We’re not withholding anything at this time, but we’re going through the process of releasing it all.”

After a similar hearing by the committee’s government operations panel in May 2019, the Government Accountability Office said in follow-up questions for the record that, “As of July 1, 2019, we had not received documentation from OPM that satisfied our request” for information on the merger. In November 2019, the OPM inspector general stated in a report that the agency had not developed an analysis of alternative options, a cost-benefit analysis, or documentation on the regulatory or legal authorities related to the merger.

Recently, House Oversight and Reform Committee Democrats wrote to GSA on April 1 saying the committee “has received no clear reasoning or analysis” on their requests for information on the OPM-GSA merger and administration’s plans to abolish OPM.

Rep. Gerry Connolly, D-Va., chairman of the House Oversight and Reform Subcommittee on Government Operations, told Government Executive, “It appears that an administration official provided misleading testimony while under oath at our [May 2019] hearing. That is appalling. This administration knew their plan was illegal—and so did we. And yet, they continue to gut the agency that ensures our federal workforce does not become a political tool of this president.”

The OPM proposal was part of the Trump administration’s broader plan to reorganize and restructure the federal government, ostensibly to reduce waste and redundancies. But the plan to dismantle OPM has been widely criticized as an effort to undermine civil service protections and install Trump loyalists.

“As today’s story in The Daily Beast documents, this administration is intent on abolishing the career civil service—even if it means skirting the law to do so,” said American Federation of Government Employees National President Everett Kelley. “We renew that call today and ask Congress to conduct robust oversight of the administration’s efforts to abolish OPM in defiance of the 2019 law.”

The Justice Department and OPM inspector general did not respond to a request for comment. 

Erich Wagner and Eric Katz contributed to this report.