Biden administration is busy 'Trump-proofing' the DOJ, independent watchdog warns

An independent watchdog group is warning that the Biden administration is busy working to blunt the impact that a Trump presidency might have on the Department of Justice using special authority to appoint without competition select career civil servants to key roles. 

The warning comes from nonpartisan government watchdog Protect the Public’s Trust after the group obtained appointment records through a Freedom of Information Act request showing other efforts by the Biden administration to ensure friendly civil service employees are appointed at other agencies and cement into place progressive agency rules.

Special hiring authority

“So what they're doing is they're using a hiring authority that's outside of the normal competitive process for hiring career officials,” Protect the Public’s Trust Director Michael Chamberlain told the "Just the News, No Noise" TV show Tuesday. 

“Normally to be hired into a career civil service job it takes a listing in usajobs.gov and they'll have several candidates, and they'll go through a competitive process to choose these. But, the DOJ is using a process outside of that, the non competitive process, to hire hundreds of attorneys into areas that are going to be vital to protecting the Biden Harris administration's policies from a Trump administration or another future administration,” he continued. 

Chamberlain says that because of the special authority the Biden Administration is using to hire these employees, known as Schedule A, some of those appointees may receive special career civil service protections before Donald Trump would start a second term if he wins the election, hamstringing his administration’s ability to control its own Justice Department or to “Trump-proof” the federal government. 

“Around this, the Schedule A hiring that they're using to bring in these attorneys and judges, a part of that it can be used to hire people with disabilities, but it can also be used to to hire individuals who are in specialties like judges and attorneys, and also in in certain…for scientists and certain hard-to-find places, critical areas,” he said. “But, there is, in the Schedule A, there's a term for two years in which they're kind of at will employees, but after that, they serve that two years, then they become career civil servants, and they have the same Civil Service protection that other career employees would have.”

The documents obtained by PPT show the Biden administration has used Schedule A to appoint employees in key divisions and roles throughout the department that the organization says are the most politicized in the department. Federal regulations prohibit using Schedule A to hire any employees for a policy-influencing role, however, hiring ideologically aligned individuals in these divisions may provide an avenue for advancing preferred policy, even under a new president. 

Hundreds of appointments made

For example, more than 100 immigration judges were hired under the authority, according to the documents. Those judges “decide whether a noncitizen may remain in the United States or must leave the country,” according to the DOJ.

The agency used the same hiring authority to appoint at least 104 trial attorneys to the Environment and Natural Resources Division. The main mission of that division is “the collective pursuit of environmental justice,” according to its website. 

The administration has also appointed over 150 attorneys inside the Justice Department’s Antitrust Division, which the Biden administration has used to achieve policy objectives and pressure private companies. For example, earlier this month, Federal Trade Commission Chair Lina Khan proposed an inquiry into grocery stores over high prices. During a virtual meeting hosted alongside the DOJ, Khan said the proposed investigation would “shed light” on why grocery prices, and company profits, remain so high.

“The Biden-Harris administration and its allies have already signaled their intent to hamstring their successor and prevent a future president from reversing their agenda,” Chamberlain said in a press release. “Exploiting non-competitive hiring authorities to fill career civil service positions could be just another component of this scheme. It’s no wonder that the public’s trust in its government has all but disappeared.”

The White House did not immediately respond to a request for comment. 

Drafting rules to obstruct a Trump administration

The noncompetitive hiring spree at the Justice Department is not the only way the Biden administration is trying to “Trump-proof” the federal government. Throughout the spring, the administration rushed to finalize federal rules to cement a record that a potential Trump administration would have a hard time overturning, Politico reported in May. 

When Donald Trump entered office for his first term in 2017, his administration was able to exploit the Congressional Review Act to undo many regulations implemented by the Obama-Biden team in the waning days of their term. According to the law, Congress can rescind a rule within 60 working days if both Houses pass a resolution that is signed by the president. The Biden administration’s flurry of rule-making sought to cement the rules outside of the 60 day window, which began in May. 

In fact, the Trump administration was the most prolific user of the CRA, using it a total of 16 times to reverse Obama-era rules with the help of a friendly Congress. Biden also used the CRA, but on fewer measures than his predecessor, according to the Wall Street Journal. 

Progressive agenda

Some of the rules advanced cover key priority areas for the Biden administration, including climate change, abortion, credit card “junk fees,” and providing healthcare to illegal immigrants, Politico reported. In nearly all of these policy areas, a future President Trump would hold opposing positions.

For example, the U.S. Securities and Exchange Commission promulgated a new rule in March requiring publicly traded companies to divulge data on their climate impact for investors, including greenhouse gas emissions. 

In April, the Biden administration’s Department of Health and Human Services issued a new rule strengthening medical privacy regulations on “reproductive healthcare.” The rule permits the federal government to use the health privacy law, commonly known as "HIPPA," to protect access to abortion, Politico reported. 

A Trump administration can reverse these rules through the normal process, outside of the Congressional Review Act, but it will be a slower process. The use of disapproval resolutions under the CRA also may not be available if Donald Trump wins but does not have a friendly House or Senate which with to work.