Trump’s New Executive Order on the Civil Service Poses a Grave Corruption Threat

Last week, President Trump issued a new Executive Order that, if implemented, could dramatically change the U.S. federal civil service—and in so doing threatens to subvert one of the most important bulwarks against corruption in all of U.S. law.

First, a quick synopsis of what the order does: Federal civil service laws are complex, but simplifying a bit, the bulk of U.S. civil service positions fall under something called the “competitive service” (also known as the “merit system”), in which hiring is based on competitive examinations administered by the Office of Personnel Management. Furthermore, those holding competitive service positions can only be removed for good cause (that is, they can’t be fired at will), and removals of such officials are reviewable by an independent commission called the Merit Systems Protection Board. Also importantly, those in the competitive service are entitled to union representation. Not all federal positions have these protections; the most senior civil servants are part of a different system (the “Senior Executive Service”), and there are a number of other relatively narrowly drawn exemptions for particular classes of jobs, typically those for which hiring by competitive examination is not practical (the “excepted service”). President Trump’s new Executive Order would shift from the competitive service to the excepted service any position that has “a confidential, policy-determining, policy-making, or policy-advocating character.” If that sounds very broad, it’s because it is. The Executive Order, if implemented, could shift tens of thousands, or possibly hundreds of thousands, of federal civil service positions out of the competitive service, thus giving the President the authority to fire the holders of those positions at will, as well as the authority to replace them with political appointees.

It’s not entirely clear whether the new order is legal. The relevant statute does contain a provision that allows the President to create “necessary exceptions” from the merit system insofar as “conditions of good government warrant.” Past presidents have exercised this authority, though to the best of my (limited) knowledge, President Trump’s Executive Order is unprecedented in both the breadth of its coverage and the thinness of its proffered justifications. That might matter, because there are a handful of prior court opinions (though none at the Supreme Court level) that suggest that the President’s authority to exempt positions from the merit system is not unlimited. It’s also not certain whether the Executive Order will ever go into effect. If Joe Biden wins next week’s election, he could reverse the order as soon as he’s inaugurated, and it’s unclear whether the Trump Administration will be able effect any actual reclassifications under the order prior to inauguration day. (The order itself calls on all agencies to prepare a preliminary list of affected positions by inauguration day, but it’s possible that agencies might move faster and reclassify some positions before then.)

For purposes of the present post, I want to put those issues aside. I also will put aside, for now, broader questions of whether the Executive Order would worsen the politicization of federal agencies or undermine their overall quality (themes I’ve explored in other work). Instead, my objective here is to elaborate on why this Executive Order, if implemented, poses such a significant corruption threat. To do that, let’s consider three forms of corruption (or corruption-facilitating practices) that the civil service merit system is meant to constrain, and the impact that this Executive Order would have on each: Continue reading

South Africa Exhibits the Pitfalls of Private Prosecutions for Corruption

In March 2018, after several years of investigation stemming from allegations of corruption and mismanagement, South Africa’s National Prosecuting Authority (NPA) announced that it would not pursue charges against former South African Revenue Service Commissioner Tom Moyane. But this was decision short lived. A few weeks later, the NPA abruptly reversed course, explaining that it had reopened its investigation into Moyane and was reconsidering its decision not to prosecute. In the interim, the South African civil rights group Corruption Watch had publicly requested from the NPA a certificate of nolle prosequi—a document formally affirming the NPA’s decision not to prosecute. Obtaining such a certificate was a preliminary and necessary legal step for Corruption Watch to launch its own private prosecution of Moyane—which, under South African Law, Corruption Watch would have been able to do if the NPA formally declined to prosecute. Corruption Watch was calling NPA’s bluff, saying, in effect, “prosecute Moyane or else we will.”

Corruption Watch’s implicit threat stems from Section 7 of South Africa’s Criminal Procedure Act (CPA), which permits a citizen to criminally prosecute another person or entity if the NPA formally declines to prosecute. These prosecutions are similar to civil suits but with all the trial rights and potential penalties associated with a state prosecution. Moreover, at any time during a private prosecution the NPA may request permission from the supervising court to step back in and take over the case. South Africa is not unique in this regard: There are provisions for private prosecutions in other countries—especially Commonwealth countries—including the UK, Canada, Australia, Zimbabwe, and Kenya, as well as in China and Israel.

Many commentators in the international community have been optimistic about the potential of private prosecutions, particularly in combating corruption (see here, here, and on this blog here). And forces inside South Africa have been especially enthusiastic; in 2017, the South African civil society organization AfriForum launched its own dedicated private prosecutions unit focused on prosecuting corrupt government officials, with other organizations expressing similar interest. Much of this optimism stems from sheer frustration with the current prosecution regime in South Africa, a country that has long been plagued by selective prosecution, especially in the area of corruption.

South Africa could certainly use more pressure on the NPA to act; the country would also benefit from more resources, whatever the source, devoted to investigating and prosecuting corruption cases. And the fact that the threat of private prosecution appears to have spurred the NPA to action in the Moyane case is encouraging. Nevertheless, South Africa’s recent flirtation with private prosecutions actually illustrates why countries—including and perhaps especially South Africa—should be cautious about embracing organized, comprehensive private prosecution regimes to supplement traditional state prosecution. Continue reading