Lessons in Draining the Swamp from Ukraine

The recent impeachment inquiry appears to be a concoction of the deep state and its breathless media allies, just like the earlier fiction of Russian collusion. Unfortunately, if Trump gets through this, it won’t be the last time he has to deal with leakers, saboteurs, and other forms of resistance. The defining feature of his presidency is that much of his agenda has been thwarted by enemies and insiders, particularly in the intelligence community, who believe themselves above the president and, by implication, above the American people.

Ukraine’s Recent History

This recent dust up arises from a brief and unremarkable call with Ukraine’s new prime minister. Most Americans couldn’t care less about Ukraine or Russia, but these remain extremely important topics inside the beltway.

The recent history of Ukraine is complicated but, in short, after the fall of the Soviet Union, it had a series of corrupt leaders; the West in 2004 supported a reformer (Tymoshenko), who also turned out to be deeply corrupt. She was succeeded by a pro-Russian leader (Yanukovych), who was ousted in a 2014 western-supported coup. The coup led to Russia’s bloodless seizure of its former province of Crimea, as well as the far-from-bloodless separatist movements in Ukraine’s Donbas region. The new leader Zelensky follows in the footsteps of the last reformer (Poroshenko) who, like all of his predecessors, left his supporters disappointed and failed to uproot endemic corruption.

The 2004, 2014, and 2019 elections in Ukraine were not simply a matter of changing parties; these were changes of regime. After its initial independence, Ukraine did relatively little to remove former communists from power, unlike the aggressive efforts among some of its neighbors. These officials, as well as the monuments and symbols of the Soviet Union, remained. After Yanukovych was deposed, his successor Poroshenko pursued an aggressive effort to root out former communists, as well as high level officials of the Yanukovych regime. This process was called “lustration.”

The lustration laws required that for five to ten years public officials and civil servants who worked for Yanukovych or “who were elected and worked in high positions in the Soviet Communist Party” be removed and banned from significant positions within the government.

The purpose of these measures is evident: they are designed to clear out opponents of reform. Much of what government does or does not do can be sabotaged by low and middle-ranking officials selectively applying neutral rules to reach particular outcomes. Ukrainians saw that previous regimes, including the one of Yulia Tymoshenko and her so called Orange Revolution, did not deliver the promised reforms, not least because of the persistence of former communist officials, the influence of billionaire oligarchs, and the thorough-going corruption that animated figures at every level of political power.

Their new president, Zelensky, has promised an even more ambitious reform effort and has extended “lustration” to officials under the Poroshenko presidency.

The Spoils System or the Civil Service

There is precedent for this kind of house cleaning. Denazification is probably the most well-known one; it removed various Nazi Party officials from power in the post-war German government, but it was abandoned as impractical, because of the need for manpower, technical experts, and reconciliation to strengthen Germany as a western ally during the Cold War. Here, the facts were unique: any risks to German governance from the involvement of former Nazi regime officials were limited by the presence of allied occupation armies through the end of the Cold War.

Lustration, denazification, and other forms of deliberate purging of the ranks within government are just variations on the spoils system. There are two models for how to handle important government functions in a democratic regime. Under the spoils system, as a party won, it would fill important and not-so-important jobs with loyal supporters. This persists today on a smaller scale with the hundreds of positions set aside for presidential appointment.

The alternative is the civil service system. This emerged in the latter part of the 19th century and exemplified the reformist spirit of the progressive era. It presupposes that there is a non-ideological, “scientific” standard of good governance that exists apart from and does not even require the input of elected officials or the people who elect them. The civil service system is contrary to the entire structure of the United States Constitution. The Constitution provides executive power exclusively to the president. There is no “headless fourth branch” or supra-political authority over the executive. When generals saluted and imposed transgender reforms on the military in the Obama era or the DOJ acceded to an order to investigate a local crime in Sanford, Florida, this shows what ordinary executive power looks like. Within the law, the president can make policy and apply executive discretion selectively. And voters know who to hold accountable if they do not like it.

The pretentiousness of the disgraced former FBI director James Comey’s “higher loyalty” and talk of FBI “independence” are the products of a civil service system where the intelligence agencies and other government workers often are completely hostile to control by the president or anyone else who would disturb the status quo. Today, the vast majority of the federal government’s 2,000,000 employees are civil servants.

Civil servants should be reconsidered as a type of political faction and interest group, whose natural bias is hostile to reform. The more complex and arcane the government and the more its regulations proliferate, the more each of these subject matter experts work to preserve job security and expand their institutional power. This is particularly apparent in the age of public sector unions; these groups work hand-in-glove with the Democratic Party and tend to support the following views: preservation and expansion of government power, opposition to accountability measures and merit pay, and opposition to control by elected leaders.

So long as civil servants remain immune from the president’s control, elections will hardly matter. Presidents in both parties have faced this resistance to some degree, but none has dealt with as much deliberate obstruction, slow-walking, and outright defiance as President Trump. Something is wrong when a senior Justice Department official—someone who serves at the pleasure of the president—is talking about wearing a wire and when the head of the FBI is hiding information in hopes of ginning up an impeachment. The latest scandal follows the same script as its predecessors.

The counter-argument to the spoils system is that it can be taken too far. A good example of this would be the de-Ba’athification efforts in Iraq. Not only did the mass firings of former regime officials lead to disgruntled former military members becoming the nucleus of a violent resistance, but these policies deprived the new Iraqi government of needed technical expertise. Undoubtedly, this was a problem but it is not clear if it was the major problem in the Iraq War, a poorly conceived operation to impose democracy on one of the most sectarian and tribal places on earth. There likely would have been an entirely different set of problems if Ba’athists were left in power.

The Constitution Demands a Unitary Executive

There is no need to look to former Communist regimes or to Iraq for precedent; these societies and their problems are very different from those in the United States. There are, however, two relevant American precedents: The War for Independence and the Reconstruction system following the Civil War. The War for Independence was as much a civil war as it was a war against Great Britain. In its aftermath, tens of thousands of loyalists had property confiscated, were expelled, were tarred and feathered, and were otherwise excluded from polite society. These details are little known by most Americans, but they expose as fantasy the notion that our historical tradition demands genteel manners and fair play, even if it means losing.

Similarly, after the Civil War, former confederate officers and statesmen were barred from office, faced confiscation of property, were required to take loyalty oaths, and military governors were installed for a time in the southern states. In both the War for Independence and in Reconstruction, American leaders recognized that disloyal people left in power would be obstacles to change and good government.

Under the Constitution, there is only one executive. All of the other executive branch officers are subordinate to him; none are over him. While the civil service regime is an obstacle to presidential power, higher level officers all serve at the pleasure of the president and, though confirmed by the Senate, can be fired at will. 

Under the spoils system, the old custom was a government of amateurs, where citizens not only voted but also participated in government in various ways: as jurors, as members of the militia, in the posse comitatus, and as citizen legislators. From Washington and his self-conscious embrace of the Spirit of Cincinnatus to the more recent custom of distinguished civilians like Dean Acheson handling important matters of diplomacy, the affairs of state were certainly run no worse in the age of amateurs than they have been in the age of the managerial elite.

The Founders recognized the changing of the guard as a natural feature of the unitary executive. As observed in Federalist 72:

The actual conduct of foreign negotiations, the preparatory plans of finance, the application and disbursement of the public moneys in conformity to the general appropriations of the legislature, the arrangement of the army and navy, the directions of the operations of war, these, and other matters of a like nature, constitute what seems to be most properly understood by the administration of government. The persons, therefore, to whose immediate management these different matters are committed, ought to be considered as the assistants or deputies of the chief magistrate, and on this account, they ought to derive their offices from his appointment, at least from his nomination, and ought to be subject to his superintendence. This view of the subject will at once suggest to us the intimate connection between the duration of the executive magistrate in office and the stability of the system of administration. To reverse and undo what has been done by a predecessor, is very often considered by a successor as the best proof he can give of his own capacity and desert . . .

Personnel is policy, in the modern parlance.

The latest impeachment crisis, like the earlier Russian collusion fiction, derives almost exclusively from a clique of disloyal, ideological career government officials, who represent the distinct interests of the civil servant faction. It appears now that the CIA was involved and the whistleblower rules were changed by departing officials to permit this flimsy complaint to proceed, as it consists almost entirely of hearsay and speculation ultimately disproved by the actual call transcript.

For Trump or any future president to “Drain the Swamp,” government workers must again be rendered civil servants, subordinated to the elected president. As it stands now, this faction’s power derives almost entirely from civil service protection and the related problem of public sector unions. Without such a reform, neither Trump’s election, nor any other, will really matter.

Today, everyone purports to have deep knowledge and opinions about the intricacies of Ukrainian political infighting. In the process, it would be worthwhile if we all learn about the benefits of their practice of lustration.

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About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

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