With President Donald Trump’s electoral prospects continuing to look poor, will the president call on federal employees to take actions intended to interfere with a fair and free election? Last month, the president refused to commit to a peaceful transfer of power if he loses the election, because, he asserts, a loss could happen only if the election is stolen from him. Certainly, the president’s rhetoric suggests that he will attempt to do whatever he can to remain in power, with possible regard only for a thin veneer of legality. With Mr. Trump facing a possible financial squeeze from a combination of a hundreds-of-million-dollars debt coming due, a possible assessment for $100 million or more from a long-running IRS audit, and New York State investigations for fraud and tax evasion – all of which are less likely to happen during the next four years if he remains in office – the personal imperative to do all he can to stay in office goes far beyond any policy concerns he might have with former Vice President Joe Biden.
And President Trump may have little incentive to be concerned about being held to account for any actions he personally takes to attempt to stay in office. For example, before leaving office, he could purport to pardon himself or perhaps he could resign any time before noon on January 20 with the assurance of Vice President Pence that he will pardon Mr. Trump. Indeed, the President is already facing significant criminal exposure for other federal crimes, such that close observers predict he will likely try to pardon himself before leaving office. Further, the President could have a reasonable expectation that he will be deemed immune from civil liability even after his term is over for acts performed during his time in office under the doctrine of Nixon v. Fitzgerald. With three appointees to the Supreme Court, all three under unusual circumstances (two due to the timing of their appointments and one due to the nature of questions raised about his character and a hobbled FBI investigation), and with two other members of the Court who some (most likely including the President) view as partisan, the President might well believe that the Court will have his back, almost no matter what he does. Though I hope and believe that every member of the Court is a person of integrity, I am addressing here what the President might expect and believe.
But what of the people that the President would have to count on to execute any pre-election or post-election actions to undercut the will of the people? It looks like the military, after an initial stumble, has regained its bearing and made it plain to the President that it will not betray its role in our democracy – to the great frustration of the President. Secretary of Defense Mark Esper, Chairman of the Joint Chiefs Mark Milley, and other leaders have by their statements and their actions conveyed to the President that the military will not be drawn into dubious activities intended to advance the narrow political interests of the President. Further, a network of leading military justice experts and former military members, including the scholar Eugene Fidell, have made themselves available to advise any military member who believes he or she has received an illegal order – raising the real prospect of mass disobedience of legally dubious orders.
In contrast, the Department of Homeland Security, through its actions in Portland and in other cities, has shown itself to be more willing and ready to carry out questionable directions that abuse the executive’s authority. The Postal Service seemed headed toward self-destruction in what appeared to be an effort to undermine public confidence in voting by mail, and to imperil the timely delivery of requests for ballots, blank ballots, and completed ballots. In both cases, the worst of the harmful actions have at least slowed down, even if they have not stopped completely.
But with the election now just around the corner, the inauspicious polls, the threats to the President’s liquidity if not to his wealth, and the President’s articulated unwillingness to accept defeat, federal employees must anticipate being directed to take actions that they know or should know are not legally authorized. Federal employees need to be prepared. They need to think ahead about what their obligations are, as federal employees and as citizens, and consider what risks they personally face if they either do, or do not, carry out actions intended to interfere with the election or to subvert the results of the election.
Two key federal statutes compel federal employees not to follow illegal directives in the situations under discussion: the Anti-Deficiency Act (ADA), which prohibits federal employees from expending federal funds on government actions without congressional appropriation; and the Hatch Act, which prohibits federal employees from engaging in partisan political activities during the course of their official duties.
1. The Anti-Deficiency Act
Anything and everything the government does costs money. And if the money is not legally available for the activity, then carrying out that activity will entail a possible violation of the ADA. The Act prohibits federal employees from:
● making or authorizing an expenditure from, or creating or authorizing an obligation under, any appropriation or fund in excess of the amount available in the appropriation or fund unless authorized by law …
● involving the government in any obligation to pay money before funds have been appropriated for that purpose, unless otherwise allowed by law …
● … [and] making obligations or expenditures in excess of an apportionment or reapportionment, or in excess of the amount permitted by agency regulations
Although there have been no criminal prosecutions under the ADA, every federal employee should assume that if he or she carries out an activity intended to impair or impede the election, or to otherwise illegitimately affect the results, their conduct will be judged by people deeply upset over the effort to entrench a President viewed as a threat to the very foundations of our democracy – whether political appointees of a new administration, or career civil servants. The next administration might also pursue other administrative sanctions that can cost individuals their reputations, their careers, and their money, and there is ample precedent for such measures. The ADA also has a self-enforcing mechanism: Agencies that determine (through an inspector general investigation or otherwise) that there has been a violation must report such matters to the President and Congress.
2. The Hatch Act
The Hatch Act prohibits the use of appropriated funds for partisan political purposes, and it prohibits the use of official authority to affect the outcome of an election. Reportedly, the President’s promise to send Medicare participants a $200 drug discount card days before the election was derailed when a conscientious lawyer within the Department of Health and Human Services raised questions about the legality of the hastily constructed plan based on Hatch Act concerns.
It is noteworthy that the Hatch Act appears to have no statute of limitations, meaning that the risk of prosecution for a violation would extend beyond President Trump’s term, even if he is reelected. The ADA, however, appears to have a three year limitations period.
But, sadly, the courts might not be much help. The courts might refuse to take action, deciding perhaps that there is no cause of action (as the Court seems likely to decide in the case challenging the construction of the border wall with funds appropriated for other purposes), or deciding that the case raises a political question and therefore is not justiciable. Federal employees should be aware, however, that they could face personal liability for taking actions that the courts refuse to prohibit. A court’s refusal to stop action is a far cry from a determination that the action itself is legal. The risk is almost certainly nil during President Trump’s remaining tenure in office (either less than three months or four more years), but if he is replaced in this election, the legality of federal employees’ actions will be judged in the first instance by people who feel deeply aggrieved by the conduct in question. The fact that the action complained of will have been directed by superior officials, perhaps even by the President, will be raised in the employee’s defense, but that will not be enough to ensure that charges are not filed, putting the employee’s liberty at risk.
There may well be congressional investigations — especially after the new Congress is sworn in on Jan. 3 – with a strong reason to look into any efforts to interfere with the 2020 election. Committees and individual members could make criminal referrals to the Justice Department in the event of finding wrongdoing.
In short, federal employees need to be on guard against efforts by the President and his enablers to impair, impede, and otherwise to affect the election, including in the days following November 3. Our democracy hangs in the balance.
Image: Chip Somodevilla/Getty