Public Servants, Your Responsibilities Trump Your Right to Partisan Participation

By David French

Saturday, December 09, 2017

Earlier this week, my friend and esteemed colleague Andrew McCarthy wrote a thought-provoking essay urging Americans to withhold judgment on Peter Strzok, the FBI agent dismissed from Robert Mueller’s team after he allegedly exchanged anti-Trump text messages with his reported mistress, an FBI lawyer named Lisa Page. Andy makes a good and fair point. A civil servant — including a prosecutor or law-enforcement officer — can be an informed citizen with partisan political preferences and still do his job fairly and competently.

Are we now saying that whether a prosecutor or agent is qualified to work on a political-corruption case depends on his or her party affiliation or political convictions?

That would be a terrible mistake. It would do more to intrude politics into law enforcement than remove it. Bear in mind: We already have ethical standards and oaths. If an investigator knows he or she cannot be fair to a suspect, or that the investigator’s participation in the case would create a reasonable perception of bias, the investigator is obliged to recuse himself — and, failing that duty, the supervisor must disqualify the investigator.

Andy’s right, of course. A partisan can still be an effective prosecutor. There are public servants who set aside their political preferences to do good and effective jobs without demonstrating the slightest favoritism. Moreover, there exist legal and ethical safeguards against the worst and most obvious forms of bias.

But how is a member of the public — especially in the midst of hyper-partisan times, when elements of the bureaucracy have been weaponized against political dissent — to know when a civil servant with known partisan preferences is fair? How can we have a degree of confidence that our most contentious disputes are decided on the law and the facts rather than according to political bias?

As for me, I’m done with giving government employees the benefit of the doubt. Want me to have confidence in your fairness, prudence, and good judgment? Refrain from violating your marriage vows (an act, by the way, that makes an FBI agent vulnerable to blackmail) and texting inflammatory political content to your mistress. Or, in the case of Barbara Bosserman, the Obama donor and DOJ attorney who helped oversee the IRS Tea Party–targeting investigation, make a choice: Give money to your favorite politician, or lead the then most-contentious investigation in American politics.

Indeed, here’s a good rule of thumb. The more politically contentious the investigation, the greater care should be taken to cleanse the investigators and prosecutors of obvious partisan leanings. Even though the DOJ may not discriminate on the basis of political affiliation when hiring for career positions, nothing stops a lawyer or investigator from saying no to an offer or declining to apply. Indeed, it’s worth building your career around a principle of restraint. The culture should be clear: If you want to protect the republic from public corruption, voluntarily relinquish your rights to certain kinds of public political participation. Your acts of voluntarily restraint are the acts that will lay the foundation of public trust.

And that brings us to Robert Mueller’s investigation. The Wall Street Journal’s Kimberly Strassel has been keeping score:

Judicial Watch this week released an email in which Mr. Weissmann gushed about how “proud and in awe” he was of former acting Attorney General Sally Yates for staging a mutiny against the Trump travel ban. Of 15 publicly identified Mueller lawyers, nine are Democratic donors — including several who gave money to Mrs. Clinton’s 2016 campaign. Jeannie Rhee defended the Clinton Foundation against racketeering charges, and represented Mrs. Clinton personally in the question of her emails. Aaron Zebley represented Justin Cooper, the Clinton aide who helped manage her server. Mr. Goldstein worked for Preet Bharara, whom Mr. Trump fired and who is now a vigorous Trump critic. The question isn’t whether these people are legally allowed (under the Hatch Act) to investigate Mr. Trump — as the left keeps insisting. The question is whether a team of declared Democrats is capable of impartially investigating a Republican president.

Yes, I know that some or all of these individuals may well be outstanding public servants who are capable of exercising independent judgment. And, yes, I know that the law and rules of ethics already place a coherent set of limits on public employees. They can’t, for example, use public resources for partisan activities. They’re (as Andy notes) supposed to avoid “the appearance of impropriety,” but that’s a notoriously loose standard — one that, for example, still permits an investigator to stock his staff with political donors and known partisans.

The objections to voluntary restraint are obvious. “I have a right to donate to candidates, and the exercise of my rights cannot and should not impair my career opportunities.” Or, “I have a right to my private life, and my private communications shouldn’t cost me my job.” And, of course, there’s a degree of truth in these objections. As much as possible, we want to protect individual liberty and create a culture where freedom doesn’t limit opportunity. In normal times, I’m persuaded.

But these are not normal times.

We’re confronting a crisis of confidence in America’s public institutions. Negative polarization is through the roof. This is the worst time for careerism in the civil service. It’s the worst time to watch public servants grasp at power. There’s a path through the darkness, but it requires the kind of virtue that the military demands from its members. It demands selfless sacrifice. It asks a person to say, “I’m not the man for this job.” I’ll have greater confidence that a public servant can lay aside their partisan bias when they’ve already done so thoroughly enough that I can’t discern their partisan leanings.

Many years ago, at the start of my Army career, I met an Army lieutenant colonel who told us that he not only didn’t give to political candidates, work for political candidates, or discuss politics at work — he refused even to vote. He wanted the men under his command to know that the identity of the commander in chief was irrelevant to his commitment to his duties.

I’m not saying that our public servants need to go that far. Refraining from voting is too extreme. But it is time for our bureaucrats — before they engage in partisan expression or partisan giving — to ask, “What would a reasonable partisan opponent think of my conduct?” It’s time for bureaucrats to apply a governmental version of the Golden Rule. Should I inflict on others the kinds of suspicions that I’d feel myself if the roles were reversed?

Applying that rule would mean that a certain number of talented, honest civil servants would pursue other projects or maybe even other jobs. But our nation doesn’t suffer from a lack of lawyers or investigators. It suffers far more from a lack of integrity and confidence in political institutions. Americans are no longer giving bureaucrats the benefit of the doubt. Good public servants shouldn’t ask us to.