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Wed Oct 28, 2020, 09:44 AM

Federal Employees' Liability Risks for Following Illegal Directives to Interfere in 2020 Election

A timely warning: Robert S. Taylor, “Federal Employees’ Liability Risks for Following Illegal Directives to Interfere in 2020 Election,” Just Security, October 28, 2020

Federal Employees’ Liability Risks for Following Illegal Directives to Interfere in 2020 Election

by Robert S. Taylor
October 28, 2020

With President Donald Trump’s electoral prospects continuing to look poor, will the president call on federal employees to take actions intended to interfere with a fair and free election? Last month, the president refused to commit to a peaceful transfer of power if he loses the election, because, he asserts, a loss could happen only if the election is stolen from him. Certainly, the president’s rhetoric suggests that he will attempt to do whatever he can to remain in power, with possible regard only for a thin veneer of legality. With Mr. Trump facing a possible financial squeeze from a combination of a hundreds-of-million-dollars debt coming due, a possible assessment for $100 million or more from a long-running IRS audit, and New York State investigations for fraud and tax evasion – all of which are less likely to happen during the next four years if he remains in office – the personal imperative to do all he can to stay in office goes far beyond any policy concerns he might have with former Vice President Joe Biden.

And President Trump may have little incentive to be concerned about being held to account for any actions he personally takes to attempt to stay in office. For example, before leaving office, he could purport to pardon himself or perhaps he could resign any time before noon on January 20 with the assurance of Vice President Pence that he will pardon Mr. Trump. Indeed, the President is already facing significant criminal exposure for other federal crimes, such that close observers predict he will likely try to pardon himself before leaving office. Further, the President could have a reasonable expectation that he will be deemed immune from civil liability even after his term is over for acts performed during his time in office under the doctrine of Nixon v. Fitzgerald. With three appointees to the Supreme Court, all three under unusual circumstances (two due to the timing of their appointments and one due to the nature of questions raised about his character and a hobbled FBI investigation), and with two other members of the Court who some (most likely including the President) view as partisan, the President might well believe that the Court will have his back, almost no matter what he does. Though I hope and believe that every member of the Court is a person of integrity, I am addressing here what the President might expect and believe.

But what of the people that the President would have to count on to execute any pre-election or post-election actions to undercut the will of the people? It looks like the military, after an initial stumble, has regained its bearing and made it plain to the President that it will not betray its role in our democracy – to the great frustration of the President. Secretary of Defense Mark Esper, Chairman of the Joint Chiefs Mark Milley, and other leaders have by their statements and their actions conveyed to the President that the military will not be drawn into dubious activities intended to advance the narrow political interests of the President. Further, a network of leading military justice experts and former military members, including the scholar Eugene Fidell, have made themselves available to advise any military member who believes he or she has received an illegal order – raising the real prospect of mass disobedience of legally dubious orders. ... In contrast, the Department of Homeland Security, through its actions in Portland and in other cities, has shown itself to be more willing and ready to carry out questionable directions that abuse the executive’s authority. The Postal Service seemed headed toward self-destruction in what appeared to be an effort to undermine public confidence in voting by mail, and to imperil the timely delivery of requests for ballots, blank ballots, and completed ballots. In both cases, the worst of the harmful actions have at least slowed down, even if they have not stopped completely.

But with the election now just around the corner, the inauspicious polls, the threats to the President’s liquidity if not to his wealth, and the President’s articulated unwillingness to accept defeat, federal employees must anticipate being directed to take actions that they know or should know are not legally authorized. Federal employees need to be prepared. They need to think ahead about what their obligations are, as federal employees and as citizens, and consider what risks they personally face if they either do, or do not, carry out actions intended to interfere with the election or to subvert the results of the election.


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