"I don't envy them," former official says of current employees in the middle of the Trump administration's standoff with Congress.
The first time Rick Foster threatened to quit his job as chief actuary at the Centers for Medicare and Medicaid Services was in 2001, shortly after a new director took over the agency.
Tom Scully, appointed by President George W. Bush to head CMS, asked Foster to end the 40-year tradition of the chief actuary providing technical assistance to Congress. Members or committees would send proposals to the actuary, who would estimate the cost or savings involved and send them back. Scully, however, sought to intervene in that process, demanding all such requests go through him.
Foster said he could not go along with that, as Congress had the right to the technical information and Scully should not make determinations on which requests his office should grant.
“That infuriated him,” Foster recalled. “He said we needed a new chief actuary and I said, ‘Fine, you can fire me anytime you want.’ ”
The two eventually reached a compromise in which Foster would inform Scully of the nature of incoming requests, but the actuary’s office would maintain its independence. That arrangement worked for a couple years, but things came to a head in 2003. In that year, Congress was working on a key Bush initiative to expand prescription drug benefits for Medicare recipients. When Foster’s estimate of reform came in $100 billion over the amount for which Congress had budgeted, Scully told Foster, “We can’t let that get out.”
The director implemented a new rule that all estimates went to him, and he would in turn send them to Congress. Foster raised objections, but Scully insisted on the policy. The actuary went to the deputy administrator, who provided a constitutional argument supporting Scully’s decision. Foster said he felt his hands were tied.
“My whole career had been devoted to providing objective, technical information to policymakers and they can’t do their job without that information,” Foster said. “I felt horrible that I couldn’t respond directly to those requests. At the same time, I was facing this order.”
Foster’s dilemma is newly relevant, providing a potential roadmap for federal employees now caught up in the congressional impeachment inquiry into President Trump. The White House said it will not comply with any requests for documents or testimony from lawmakers. The administration has begun informing current employees they cannot participate in the process or provide any records to Congress as part of the probe.
On Friday, Marie Yovanovitch, a career employee and Foreign Service officer who recently served as Ukraine ambassador, opted to give her deposition to Congress over the administration’s objections. At the 11th hour, the State Department, at the White House’s request, advised Yovanovitch not to testify. House Democrats quickly issued a subpoena for her deposition, which Yovanovitch decided to honor.
During her appearance, the White House distributed talking points to its allies accusing Democrats of putting Yovanovitch in a “precarious position” because there is a "serious danger that she could breach her obligations as a current employee not to reveal” sensitive information without authorization. The White House also accused Democrats of putting "career officials in such risky situations while bullying them with legally unfounded threats of obstruction charges."
The administration previously blocked U.S. Ambassador to the European Union Gordon Sondland from a scheduled deposition, though after receiving a subpoena he announced on Friday he would appear before Congress next week. He added, however, he would not make available any of the documents or records lawmakers demanded without permission from State.
When faced with his own quandary, Foster first sought to simply remove himself from the situation: he once again threatened to quit. He said he went as far as to draft his resignation letter before other officials in the agency talked him off the ledge, arguing Scully could replace him with an individual without the same ethics or professional credentials.
“I felt very conflicted, and very sad,” Foster said. “It was the worst period of my life.”
Ultimately, he sought to work around Scully’s mandate. As often as he could, he would call Scully to notify him of a request from Congress, downplaying it as immaterial and not worth the administrator’s time.
“If he said anything that sounded like 'yes,' I went ahead and sent it,” Foster said. He now estimates he successfully fulfilled 90% of lawmakers’ requests. There were two or three memoranda, Foster said, that Scully successfully held off until it was too late or never sent at all.
Foster said he received calls of support from the Health and Human Services Department’s secretary at the time, Tommy Thompson, and the chairman of the House Ways and Means Committee, but neither proved successful in forcing Scully to stand down. Foster’s situation improved only after Scully left for a job in the private sector.
Scully did not respond to a request for comment for this story, but Foster’s versions of events have been supported by investigations by both the HHS inspector general and the Government Accountability Office. In its findings, GAO said CMS could not legally pay Scully’s salary because he was in violation of an anti-gag order appropriations rider, but the administrator by then had already left government. The IG called on HHS to make Scully repay his salary, but the department declined to do so. Foster wound up appearing before three different congressional committees to testify about his experience.
Foster, who retired from government in 2012, recalled the angry phone calls he received after circumventing Scully’s orders. He described that time of his life as a “rotten, nasty period.” He was willing to be fired, he said, a luxury he said he could afford because he had a job lined up in the private sector. For employees now in a similar position, he said losing a job is “not the end of the world” compared to facing criminal liability.
While Foster thought his circumstance—at least for a brief chapter—helped turn a page and remind the executive branch of its obligations to Congress, he acknowledged that individual federal employees caught up in the impeachment probe are in a similar position he found himself in nearly 20 years ago. Now, however, he said the employees are even worse off.
“In my case, I had agency director causing me grief; in their case, it’s a president causing them grief,” Foster said. “I don’t envy them.”