Resistance (At All Costs)

by Kimberley Strassel

  The left loves to disparage “dark money” and conservative nonprofits. They bitterly complain about Supreme Court decisions such as Citizens United that allow for free speech and a thriving nonprofit community. They spent years accusing watchdog organizations like Judicial Watch of hounding the Obama administration. But if imitation is the sincerest form of flattery, Judicial Watch has a lot of admirers in the Trump era.

  Within months of Trump’s inauguration, progressive nonprofits started popping up all over Washington—set up by powerful liberal political players (many of them Obama and Clinton alumni), funded by sources unknown, and united in burying the Trump administration under a mountain of scandal. They instantly teamed with the internal Resistance.

  These are groups like Democracy Forward, which launched in 2017 with a mission to litigate the Trump administration into the dust. The board at launch included Marc Elias, the Perkins Coie lawyer behind the infamous Steele dossier, and John Podesta, chairman of Hillary Clinton’s 2016 campaign. It has a big operation as these things go, with a staff composed largely of Obama administration lawyers and advisers. It instantly started filing lawsuits against the administration on everything from immigration policy to health care rules.

  American Oversight, also created in 2017, billed itself as “the top Freedom of Information Act ligitator investigating the Trump administration.” Its chief counsel had served eight years in the Obama Justice Department. Restore Public Trust, which launched in 2018, explained its mission was to “expose corruption and malfeasance at the highest levels of government.” Its executive director, Caroline Ciccone, was a longtime DNC and Obama campaign surrogate, and her board was stacked with former Obama and Clinton people. A Daily Beast headline on its launch day spelled out the mission: “New Progressive Oversight Group Wants to Make Trump’s Cabinet Miserable.”

  Plenty of longtime Washington progressive groups had already been doing just that: Public Citizen, the Center for Public Integrity, Citizens for Responsibility and Ethics in Washington, the Campaign Legal Center, the Sierra Club, the NRDC. Working alongside them were liberal think tanks like the Center for American Progress, and leftist press “watchdogs” such as Media Matters. This network of pressure groups allied with rebellious federal bureaucrats and started claiming Trump scalps.

  Trump named Scott Pruitt to lead the EPA in December 2016, and many conservatives were thrilled by the appointment. Pruitt had been the highly successful attorney general of Oklahoma and a fierce critic of the Obama EPA’s extralegal actions. Pruitt vowed to take the EPA back to basics. “Agencies exist to administer the law. Congress passes statutes, and those statutes are very clear on the job the EPA has to do. We’re going to do that job,” Pruitt told me in an interview the WSJ ran in February 2017.

  Democrats and EPA bureaucrats despised Pruitt for that very mentality, and EPA staff was openly hostile to his leadership—more so than workers at any other agency. Newspapers reported how EPA resisters were calling their senators, urging them to vote against Pruitt’s confirmation. They openly provided quotes disparaging the nominee. The union representing EPA employees sent e-mails and Facebook and Twitter messages “urging members to reject him,” detailed the New York Times. Chicago EPA employees engaged in a demonstration against the nomination, holding signs that read: “We Want Clean Air and Clean Water!” (Who doesn’t?) Jeffrey Holmstead, a senior EPA official back in the George W. Bush administration, acknowledged to the NYT that “I don’t remember, in my time, anything like this. But I think that anyone Trump nominated would be targeted.”

  And that was Pruitt’s mistake—not taking that threat seriously. Even in the face of explicit warnings. In January 2017, the far-left environmental group NRDC ran a piece on its website titled “Scott Pruitt: You’ve Been Warned.” It went on to read: “Pruitt may have cleared the ethics bar, but he shouldn’t get too cocky. The last time a fervently anti-regulation, pro-industry ideologue took over the reins at the EPA, it ended very badly—for the EPA director, I mean.” The author was referencing Anne Gorsuch, whom the bureaucracy had taken out in two years.

  Pruitt should have handcuffed himself to an ethics lawyer the minute he walked into his office. Especially because he was effective—one of Trump’s most productive reformers. As the WSJ editorial board wrote: He “started to roll back the Obama administration’s Clean Power Plan that attempted to re-engineer the economy with little effect on climate change. He clamped down on the ‘sue and settle’ racket that allows environmental groups to impose policy through consent decrees. He moved to redefine the Waters of the United States rule, that let EPA regulate ponds and potholes. Mr. Pruitt also sought to require more honest cost-benefit analysis.” These successes further infuriated bureaucrats in an agency that had become the tip of the progressive, green spear.

  Pruitt unfortunately also provided the left all the fodder it needed to turn a million little molehills into a mountain. Internal resisters began leaking documents to outside activists and the press; each little dot and jot became a “scandal.” They targeted his air travel, his requests to his staff, his meetings with members of industry. They went after his spending, which included taxpayer dollars for customized fountain pens and for a soundproof phone booth (particularly dumb moves on Pruitt’s part). They engaged in a protracted drama over a small condo in D.C. that Pruitt had briefly rented from casual friends. The haters pounced on the fact that the condo was co-owned by a woman whose husband owned a lobby firm representing energy industry players. The husband had no share in the condo and he had no lobby contact with the EPA in 2017 or 2018. The EPA’s principal deputy general counsel released a memo explaining that EPA career ethics officials had reviewed the lease and found that Pruitt paid a “reasonable market value.”

  But the endless internal leaks and hits created a D.C. meme that Pruitt was irredeemably “corrupt.” Even some conservatives began labeling Pruitt as part of the “swamp.” The campaign had two goals—to drive Pruitt out and to send a message to other cabinet members: We run things here, and if you attempt to change the system, we will destroy you. It was without doubt the most brazen and unprofessional bureaucratic rebellion in the history of U.S. politics. But it worked. Hamstrung by a barrage of ethics complaints, Pruitt resigned in July 2018.

  Emboldened, the bureaucratic-activist complex seamlessly retrained its fire on another hated secretary: Interior’s Ryan Zinke. The former Montana congressman had been similarly aggressive about reforming his sprawling department. He in particular had voiced his intention to once again use public lands “for the benefit and enjoyment of the people.” The line, which comes from the Yellowstone National Park Protection Act of 1872, is the true definition of “conservation” and was once the guiding mentality of Interior Department leadership. But many Interior bureaucrats are today captive to a green mentality that wants to put public lands off-limits to any use—energy extraction, snowmachining, fishing, even hiking.

  Zinke also put forward exciting new plans to devolve more authority out to employees in the field, and maybe even relocate some of Interior’s agencies to the West—closer to the lands they oversee. These innovative proposals were an opportunity for Interior’s workforce. Instead, the D.C. mandarins worried about job security. And green bureaucrats and activists reviled Zinke’s conservation approach.

  Zinke never gave the haters as much ammunition as Pruitt did. Resisters nonetheless engineered at least fifteen investigations into everything from a Montana real estate deal, to Zinke’s security detail, to whether (no joke) his wife could ride with him in government vehicles. Zinke submitted his resignation letter in December 2018. The haters also successfully smeared Ronny Jackson, Trump’s nominee to become secretary of veterans affairs. Jackson, a rear admiral, had served as a respected White House physician for three administrations. Upon his nomination, unnamed White House medical staff—part of that deep-state Resistance—accused Jackson of creating a hostile work environment and of excessive drinking. None of this was ever p
roven, but the “scandal” was such that Jackson withdrew himself from consideration—another personal casualty of the Resistance smear campaign.

  Could the Pruitts of the administration have been far more careful in their actions and done a lot more to hew to ethics regimes? Absolutely. And they should have; they were working for a president who had promised to drain the swamp. The takedowns at least served as a wake-up call to other Trump officials, too many of whom came into D.C. unprepared for the coming onslaught. Yet at the same time the bureaucrats and activists created a dangerous new standard in Washington. Many talented and qualified—and highly ethical—people have since passed on opportunities to work in the Trump administration. They have no desire to have their personal lives ransacked and their reputations smeared, or to open themselves up to litigation—which is now a risk even for people who do nothing wrong.

  The Resistance might call this a victory. But don’t we want highly qualified people serving their country? And if the Resistance truly does think Trump is a danger, don’t they want capable people around him? This model—which the Resistance has turned into the “new norm” in Washington—will deter many other accomplished people from serving in government in future. That will be a loss to both Democratic and Republican administrations, and to the country.

  * * *

  Nearly every mainstream news story about Trump and the federal workforce lays the dysfunction on the president. Trump has crippled government morale. Trump is causing a federal brain drain. A March 2018 Politico story even blamed Trump for provoking “anxiety,” “depression,” and “heavier drinking” among the federal bureaucracy.

  Responsibility for said misery and exits rests with the bureaucracy itself. Every American has the right to a political view and a vote. But federal employees don’t have the right to carry those views into their work environment and act upon them. Millions of civil servants prior to 2016 managed to faithfully discharge their duties under both Republican and Democratic presidents. Those who revolted against Trump have undermined the professionalism of their colleagues, sowed greater distrust in the civil servant class, and leaked damaging confidential and classified information. Mostly, they have discouraged Americans in the future from serving their government—whether at the appointed or the staff level. All are further consequences of the over-the-top reaction to the 45th president.

  Chapter 8

  Judicial Unrestraint

  It was July 2016. Both Donald Trump and Hillary Clinton were gearing up for their nomination conventions. Republicans were still going rounds over whether Trump was a good face for the party, whether he’d govern the way he’d campaigned, and whether he even had a shot at beating Clinton. Into this discussion wandered the least likely, and least appropriate, of voices: Supreme Court Justice Ruth Bader Ginsburg.

  High court justices don’t often give interviews. And they never criticize political candidates. Yet Ginsburg in July sat down with the New York Times to unleash on Trump. “I can’t imagine what this place would be—I can’t imagine what the country would be—with Donald Trump as our president,” she said. “For the country, it could be four years. For the Court, it could be—I don’t even want to contemplate that.” She suggested maybe now was the time to “move to New Zealand.”

  Ginsburg’s comments were met with shocked disapproval from court watchers and legal scholars. George Washington University law professor Jonathan Turley pointed out that her comments were “thoughtless,” but more importantly “they were facially unethical. Canon 5 of the judicial code says that judges cannot make statements of this kind in opposition to political candidates.” Yet rather than apologize to her fellow members of the judiciary, Ginsburg doubled down. Only a few days later she sat down with CNN and complained: “He has no consistency about him. He says whatever comes into his head at the moment. He really has an ego.” She also called him a “faker.”

  Trump’s election brought with it one particularly dramatic warning: Resisters insisted the rule of law would be trampled. The haters were right; the rule of law has been stomped. But it has been done by the very federal judiciary pledged to faithfully discharge the laws and Constitution of the United States.

  The Resistance was overwhelmingly bitter over what a Trump presidency meant for the courts. A Clinton victory would have finally delivered them a liberal Supreme Court and a progressive jurisprudence that ended gun rights and political free speech. Their disappointment was palpable. What nobody might have imagined is that this profound discontent was fully shared by many members of the federal judiciary, or that some would act on it.

  No one was surprised when Trump’s critics quickly turned to the courts to oppose his actions. If anything, this was reassuringly normal. It is routine for the party out of power to mobilize its state attorneys general and activist groups to test the legality of a president’s policies. Republicans filed piles of lawsuits against the Obama administration and racked up an impressive record of staying or overturning Obama’s extralegal moves. Opposing parties can, of course, be overly litigious—challenging every little thing. But the courts exist to settle legal disputes.

  What did surprise court watchers was the eagerness with which members of the federal judiciary accepted even crazy challenges and abandoned normal judicial practice in order to strike down Trump policy. The “normal judicial practice” point is key. We’ve always had splits in judicial ideology. Yet despite their vastly different readings of the law, federal judges are nonetheless expected to adhere to basic principles that are designed to maintain the integrity of the judiciary as a whole. Judges, for instance, are meant to ensure that those who come before the court have legitimate “standing” to bring a suit, to deter frivolous cases. They are discouraged from issuing nationwide injunctions, since those orders stifle legal debate. They are supposed to decide cases on the basis of statutes wherever possible and avoid immediately jumping to sweeping constitutional conclusions.

  What distinguishes Resistance judges is their new willingness to throw over these norms, and the rule of law, in order to slap down Trump’s policies. “It’s one thing to have different approaches to constitutional or statutory interpretation,” constitutional expert and Baker Hostetler partner David Rivkin tells me. “But if you are going to pretend to be a federal judge you have to start with a doctrine. If you instead start from the position ‘how do I screw Donald J. Trump,’ you aren’t a real judge.”

  The Resistance judges have undermined both the law and the Constitution. They have also undermined the reputation of the courts, at a time when the public is already losing faith in core institutions like Congress and law enforcement. And they set new and potentially dangerous precedents that will outlast any Trump presidency. The country has traditionally looked to the courts to provide a less-partisan, more cool-headed judgment of disputes. The Resistance judges damaged that public belief.

  * * *

  Trump isn’t shy about attacking the courts and judges, and that isn’t actually so shocking. Judges are no strangers to criticism, and the public and officials have as much right to call out that branch as any other. Obama publicly complained about court decisions, and in 2010 he used a State of the Union Address to scorch the conservative majority of the Supreme Court for its Citizens United decision—with several of the justices sitting right in front of him. Making it worse, Obama accused the Supreme Court of allowing “foreign” corporate contributions in U.S. political campaigns—which was patently false. (Lucky for Obama, his untruth was not greeted with rounds of press stories about his “lies.”) Trump has occasionally taken shots at the Court’s legitimacy—which is a bigger problem. Criticizing opinions is one thing; suggesting a court is rigged is another. At the same time, the White House has never come close to defying judicial authority.

  More shocking has been judiciary members’ willingness to take personal shots at the president—which is virtually unprecedented. Judges have ideologies, but they always take great care not to express partisan view
s. Ginsburg’s comments on Trump were utterly inappropriate and did far more damage to the Court’s reputation than anything Trump has said. How can Americans trust the Supreme Court to fairly judge a president’s policies in light of comments like that?

  Former Supreme Court Justice John Paul Stevens did further damage—and violated more norms—when he launched himself in 2018 into the partisan fight over Trump high court nominee Brett Kavanaugh. Stevens in a talk said he’d come to the conclusion that Kavanaugh didn’t have the “qualifications” for the high court. He didn’t doubt his “intellectual ability,” but said Kavanaugh’s decision to defend himself during his show trial hearing over sexual assault allegations demonstrated “political bias.” It has always been the tradition of former justices to remain quiet during confirmation battles, but there was Stevens sounding like a mouthpiece for Democrats.

  * * *

  The judiciary’s actions spoke even louder than these words. Nothing highlighted the lawless impulses of Resistance judges better than the first legal fight of the Trump administration: the travel ban. Trump signed his initial executive order on January 27, 2016, restricting travel into the United States from seven countries with terrorist ties. Trump opponents knew this was coming, and they were ready. Between January 28 and January 31 (the three days following the order), dozens of cases were filed in federal court. This flood of litigation was what inspired then–Acting Attorney General Sally Yates to issue her showboat memo ordering DOJ staff not to defend the executive order in court. Bye, bye, Sally.

  Washington State was the first to file, and that case subsequently got the most attention. The speed with which the state’s attorney general got his paperwork in showed the Resistance had been planning this a long time—and intended to sue no matter what the content of the executive order. The suit landed with a Seattle federal judge, James Robart. By February 3, Robart had ordered all parties to his courtroom, where he allowed oral argument for a mere hour. The judge complained about the “litany of harms” the ban was putting on Washington State and declared that for any order to be constitutional, it needed to be “based in fact, as opposed to fiction.”