Maria J. Stephan is co-author of “Why Civil Resistance Works: The Strategic Logic of Nonviolent Conflict” (Columbia University Press, 2011) and co-editor of “Is Authoritarianism Staging a Comeback?” (Atlantic Council, 2015).
Less than three weeks into the administration of President Trump, resistance from inside the U.S. government is growing. About a thousand State Department employees have signed an unusual “dissent cable” expressing their opposition to the president’s executive order placing a temporary ban on immigrants and refugees from seven majority-Muslim countries. After the White House ordered the Department of Health and Human Services to cease advertising and outreach related to the Affordable Care Act, former agency workers and the law’s supporters pushed back, prompting the ban to be lifted in less than 24 hours. Still other federal workers have created social media accounts to leak information about new policies and directives from Trump’s political appointees. Nearly 200 civil servants signed up to attend a recent workshop to discuss legal rights and ways to challenge unethical or unconstitutional policies.
Bureaucratic resistance from below could cause significant difficulties for the Trump administration, which relies on the approximately 2.5 million civil servants in the federal government to implement policy. The new president is clearly aware of the power wielded by civil servants, who swear an oath of allegiance to the U.S. Constitution, not to any president or administration. One of Trump’s first acts as president was a sweeping federal hiring freeze affecting all new and existing positions except those related to the military, national security and public safety. Even before Trump’s inauguration, the Republican-controlled House of Representatives reinstated an obscure 1876 rule that would allow Congress to slash the salaries of individual federal workers. This was a clear warning to those serving in government to keep their heads down. Trump’s high-profile firing of acting attorney general Sally Yates, who refused to follow the president’s immigration ban, sent shock waves through the bureaucracy.
There are, however, strong arguments for experienced, ethical civil servants to remain in government. Professional bureaucrats are needed to provide high-quality, evidence-based advice, to warn when administration proposals may be outside the law, and, if necessary, to blow the whistle when legal and ethical lines are crossed. Conservative national security expert Eliot Cohen recommended that those who decide to serve in the Trump administration “keep a signed but undated letter of resignation in their desk” in the event that personal or professional red lines are crossed.
But resignation isn’t the only option. There are numerous courses of action for federal workers who are asked to participate in actions they believe to be illegal or unethical or when they are aware of such actions taken by others. Decisions about what to do (or what not to do) are both personal and contextual, based on one’s rank, one’s tolerance for risk, one’s preparation and where one sits in the federal bureaucracy.
Bureaucrats can challenge policies and practices while working from within. On the less risky end of the scale, they can engage colleagues and make the case for why an action or policy is illegal or unethical, work to modify the plan, elevate the issue, or seek advice from the agency’s general counsel office. They can create a paper trail, producing a clearly written account of the problem in question and the actions taken to address it. Under the George W. Bush administration, this tactic was used by career staff in the Environmental Protection Agency, who helped compile 600 pages describing legal mechanisms to regulate greenhouse gases despite the EPA administrator writing an unusual preface describing his personal skepticism. This paper trail later helped to justify further regulatory action. Civil servants can use meticulous documentation to challenge policies or directives they deem unethical or unconstitutional, particularly when the orders are given verbally rather than in written form.
Another option, albeit higher-risk, is for federal works to perform their duties at a foot-dragging pace. As University of Chicago law professor Jennifer Nou notes, such slowdowns, unlike overt strikes, are less likely to attract attention. This tactic was used during the Reagan administration by career civil servants in the USDA’s Food and Nutrition Service who challenged the president’s efforts to cut the food stamp budget and declare ketchup a “vegetable.” They performed the work that was technically required but refused to openly defend the policy to various constituencies.
In the riskier category of dissent options, federal workers can leak information about pending or actual policies with journalists, activists and influential people on the outside. A senior official at the Bureau of Land Management in the Clinton administration described the leaking of internal documents to interest groups as a particularly effective strategy.
Leaking should be used judiciously, and only on truly significant matters. Most disclosures outside of formal, internal whistleblowing frameworks are, at minimum, a violation of contractual duty and may put leakers at significant legal risk. If the information is classified, then the employee can be fired or criminally prosecuted.
The Justice Department has stepped up its prosecution of leaks, a practice that may accelerate with this administration. Federal workers contemplating this course of action should be aware of the risks involved and enlist legal advice. Organizations including Public Employees for Environmental Responsibility, the Government Accountability Project and the Project on Government Oversight were set up to support federal employees considering such actions. Those three organizations contributed to a guidebook called “The Art of Anonymous Activism,” which includes a checklist for whistleblowers, an overview of First Amendment and other legal rights, and advice for engaging the media and delivering messages.
Leaks are among the riskiest of strategies. Once they happen, they can shut down the internal sharing of government documents. Colleagues will face heavy scrutiny, and individuals (besides the leaker) can be penalized. This happened recently when an unknown official leaked the transcript of Trump’s telephone call with the Australian prime minister, resulting in a near-total ban on sharing presidential call transcripts.
Another potentially effective strategy: reaching out to allies in other parts of government. Federal workers can seek out like-minded colleagues in other agencies (particularly important when internal efforts have been unsuccessful) to coordinate responses. They can bring a legal matter to the national security interagency lawyers’ group to receive joint opinions on the legality or illegality of a particular action or policy. Particularly when two or more agencies are in dispute, high-level officials have the option of requesting an opinion from the Office of Legal Counsel at the Department of Justice. Even without a formal complaint, self-organizing with colleagues from within the same bureau and across government agencies can help build trust and confidence as federal workers navigate difficult terrain together.
There is an entire category of tactics associated with whistleblowing, which allows federal workers to air complaints while preserving anonymity (in most cases) and receive protection from reprisals. This includes enlisting the Offices of the Inspector General. These 73 offices are authorized to investigate agency misconduct, including fraud and corruption, through audits and investigations. The intelligence community has a specialized framework for whistleblowing, which can allow employees of certain agencies to bring urgent concerns to congressional attention.
Although not designed for whistleblowing, the State Department’s Dissent Channel allows employees “to express dissenting or alternative views on substantive issues of policy, in a manner which ensures serious, high-level review and response.” Used rarely, the Dissent Channel offers employees a way to communicate directly with agency leadership, which occurred with the recent Trump administration’s immigrant and refugee ban. In response to the recent dissent cable, which garnered far more signatures than other dissent cables in recent years, White House press secretary Sean Spicer issued an ominous warning to career diplomats, saying that they should “either get with the program or they can go.”
A more extreme form of bureaucratic dissent, when more subtle approaches fail, includes suing the agency. This course of action can generate outside pressure, particularly when the individual in question has strong connections to advocacy groups and civil liberties organizations. Border agents from Immigration and Customs Enforcement who objected to President Barack Obama’s directives regarding undocumented immigrants, saying they required them to violate federal law, took this route.
Resignation is always an option for federal workers if they can’t influence a policy or directive they consider illegal or unethical. Even the threat of resignation can have an effect, particularly when it involves high-ranking officials. So-called noisy resignations can shed light on particular policies, notably those that involve coordinated resignations involving multiple officials. The downside of resigning, particularly for individuals (as opposed to a collective resignation), is that one’s departure can be quickly forgotten.
Many of these bureaucratic dissent options are chronicled in civil resistance literature. In his “198 Methods of Nonviolent Action,” nonviolent action scholar Gene Sharp lists actions including the wearing of symbols by government workers, selectively refusing to provide advice, judicial noncooperation, deliberate inefficiency and selective noncooperation by enforcement agents, quasi-legal evasions and delays, and walk-outs. The lines can be fuzzy in terms of which of these actions are legal (wearing symbols at the workplace typically are, as long as they are not backing particular parties or political candidates, which would be a violation of the Hatch Act), quasi-legal (most “go slow” tactics) and illegal (most strikes). For this reason, civil servants should be aware of their First Amendment rights and the legal consequences of various courses of action.
Civil liberties defenders and grass-roots organizers on the outside need ethical civil servants inside government to promote the public good and defend against policies that could harm the country. In their capacity as private citizens, bureaucrats have policy knowledge that makes them highly valuable members of society. Their insights and expertise can help sharpen the work of civil liberties groups and grass-roots citizen groups.
The legal support and advocacy work of civil society organizations, meanwhile, can strengthen the hand of civil servants seeking to serve the public legally and conscionably from the inside. While many Americans regard bureaucrats as enemies of liberty and as symbols of government overreach, in reality they are public servants who are crucial defenders of freedom. Their vigilance and, if necessary, dissent are needed now more than ever to defend American democratic norms, values and institutions.