The Wombat: Friend or Foe?
Or both?
Good Evening:
Today on #DogShirtTV, the estimable Holly Berkley Fletcher and I welcomed Rick Ehrenreich, a guest not only estimable but esteemed above all other estimable guests. Because, my friends, today’s guest wore a garish dog shirt of his very own.
Rick is also a former State Department intelligence analyst with a specialty in East Africa, so he and Holly took me through the current situation in Rwanda and the Democratic Republic of Congo. It’s messy. It’s also a really useful and interesting conversation:
Today On Lawfare
Compiled by the estimable Caroline Cornett
Office Providing Relief to Fired Federal Employees Is Under Threat
Nick Bednar outlines the essential role the Office of Special Counsel (OSC) plays in protecting the rights of federal employees and upholding the merit system, including investigating prohibited personnel actions and petitioning the Merit Systems Protection Board (MSPB). Bednar explains how Donald Trump’s attempt to fire OSC head Hampton Dellinger imperils the agency’s work and undermines employees’ constitutional due process rights:
Although most employees may directly appeal a removal, suspension, demotion, or reduction in force, employees whose complaints are brought by OSC enjoy some advantages before the MSPB. A key advantage is that OSC can request a stay of the personnel action on behalf of the employee. The stay can provide immediate relief to an employee who would otherwise be removed from their position. An employee cannot request a stay unless they allege retaliation for whistleblowing. OSC’s investigation and decision to file a complaint also lends credibility to the employee’s claims. Yet, the employee cedes control over the case to OSC. Accordingly, preserving employee rights requires a head of OSC willing to zealously defend the merit principles.
White House Investigations: A Proposal for a New Approach
Jonathan Shaub proposes the creation of an independent commission for White House inspection, citing limits on special counsels and the attacks levied against them and Congress’s lack of authority to enforce its oversight functions as impediments to current efforts to ensure executive accountability:
Accordingly, I advocate the creation and empowerment of a continuing, multimember, expert, independent commission for White House investigation—which I call “inspection” in the article to remove any connotation of criminal enforcement. This purely investigatory body would maximize the first four values listed above but have no power to sanction or even opine on the permissibility or advisability of sanction. Instead, it would simply investigate and provide facts to the public and to the accountable entities charged with sanction, such as the House or the Department of Justice.
Skirting Judicial Scrutiny by Mooting and Scooting
Richard Salgado highlights the impropriety of the Justice Department’s tactic of refusing to consider objections to surveillance demands until the service provider files a motion with the court, at which point the demand is withdrawn and made moot. Shaub examines three cases in which the government used this strategy to prevent warrants of a questionable nature from undergoing review:
In these cases, the government is well aware of the objections through often detailed discussions with the provider, before any formal filing is made. Yet the government often treats the exchanges as unworthy of consideration and takes the time to reflect on its actions only if the provider expends the funds to prepare and file a motion (which will easily exceed $20,000 in attorneys fees alone) and the court is brought in. At that point, the government quickly withdraws the demand and moots the objections and avoids a potential adverse ruling. The ignoble surveillance technique remains at the ready to deploy again, and the provider has been taught it will pay a price for the fight with no ruling at the end. Perhaps next time the government will meet a provider that is less alert, or is less likely or has fewer resources to contest, and will be before a court and with facts more sympathetic to the government. And if not, the government can just withdraw and moot the whole thing again. If deftly applied as a strategy, the law will develop as the government wishes, ever ratcheting in its favor. The gamers out there will note that the technique enjoys infinite respawns and save points.
Podcasts
On Lawfare Daily, I moderate a discussion with Anastasiia Lapatina, Fiona Hill, Tyler McBrien, and Constanze Stelzenmüller on Trump’s return and the fate of the Ukraine:
On Rational Security, Scott R. Anderson sits down with Laptatina, Natalie Orpett, and me to discuss the week’s big national security news, including the Trump administration’s push for a stake in Ukraine’s rare earth minerals (while not offering hard security guarantees), Germany’s new chancellor Friedrich Merz’s call for European independence from the U.S., and migrant detention at Guantanamo:
Videos
On Feb. 28 at 4 p.m. ET, I will speak to Anna Bower, Chris Mirasola, and Roger Parloff about the status of the civil litigation against President Trump’s executive actions, including the birthright citizenship executive order, detaining immigrants at Guantanamo Bay, and the dismantling of the U.S. Agency for International Development, and the firing of probationary employees:
Today’s #BeastOfTheDay is the wombat, seen here as a friend:
And here as an enemy:
In honor of today’s Beast, be like the wombat and the dictator Lucius Cornelius Sulla: No Better Friend and No Worse Enemy.
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