After thousands of angry Trump supporters invaded the US Capitol, assaulting law enforcement and stealing equipment, questions arose about how these individuals could have made it into the Capitol building. After all, when BLM protests had taken place on the Mall, hundreds of riot police had been prospectively deployed, along with the constitutionally questionable deployment of law enforcement from DHS and the Federal Bureau of Prisons. Now, with five people dead and recordings emerging of some federal police opening the gates for and taking selfies with insurrectionists, and with Department of Defense officials delaying the requested deployment of the national guard, even the general public had to wonder whether our public servants, people paid by the people to work for the people, were in fact working against our democratic institutions.
In the days leading up to the inauguration, due to these concerns, the military began vetting the tens of thousands of national guardspersons belatedly deployed to prevent further insurrection and harm to the incoming administration. This is an extraordinary action for us, as a nation, to have undertaken. In doing so, we publicly acknowledged that we cannot trust that people currently “serving” the United States, people sworn to “uphold and defend the constitution against all enemies foreign and domestic,” would not seek to undermine democracy, facilitate an insurrection, seek to harm the newly elected President or Vice President, and use their positions in public service to carry out these plans.
We are not the first country to question whether our law enforcement, judiciary, military, and other public servants are too corrupted to be trusted in carrying out the functions for which they are paid. But we might be one of the last to consider whether to vet them as a consequence for their misdeeds– to reassess whether they are too compromised, corrupt, partisan, racist, supremacist, nationalist or fascist to carry out their public duties.
It is time to talk about lustration, the process of vetting and removing from public service those who engage in or support extremism or seek to undermine democracy.
Before I became a law professor, I worked for UN agencies and other international organizations in countries emerging from ethnically and politically motivated civil war and subsequent collapse. Their leaders had preyed on bias, racism and exceptionalism. They amped up nationalism and poured racism on the embers of fear – stoking the fires with perpetual handwringing amongst supporters of lost status or power or wealth. Nationalist politicians blamed poverty and unemployment on “others” to avert eyes from their own corruption and self-dealing. They placed those loyal to them in positions of power, at every level, from diplomats to bureaucrats. Over years and years in office, they packed their institutions of power and justice with their own supporters. Amongst the citizenry, they encouraged vigilantism and marauding squads of gun-toting thugs who paraded their arms publicly, to escalate fear even higher. They engaged in voter suppression and fraud, suspended rights citing “states of emergency,” and called on the military to support their agendas. If this all sounds very familiar to you, I can tell you that I have been shouting at anyone who will listen for the past four years, because I too find it to be very, very familiar.
To counteract the disastrous effects of this type of political self-dealing and corruption, many of these countries agreed to lustration as part of their post conflict democratization and transitional justice plans. The theory behind lustration is that in order for a country mired in racism and fascism to move forward, it must rid itself of corrupt public servants by vetting them, and potentially dismissing from employment and cancelling pensions of those who harbor such deep bias that it would be impossible for them to fairly and impartially exercise the discretion they have been granted by virtue of their position in public service.
Lustration has been carried out or proposed in many countries attempting to pull themselves from the wreckage of fascism, genocide, and nationalism. From post-Soviet countries to those recovering from externally imposed regime change, countries such as Bosnia, the Czech Republic, Hungary, Poland, Ukraine, Ghana, Liberia, Sierra Leone, Iraq, and Libya have all considered or undertaken lustration projects. In some places lustration has been deployed as a “hard law” alternative to truth commissions and in others undertaken in parallel with, or to add weight to “soft law” transitional justice practices, such as calls for unity.
If looking at this list of countries above leads to a reflexive, “Yes, but in America…” reaction, I would remind you again that in January of 2021, the US Capitol was overrun. It was overrun by people who hoped that their actions, at the very least, would disrupt the democratic transfer of power. It was potentially facilitated by federal law enforcement officers, and members of Congress who are being investigated for effectively aiding and abetting the insurrectionists. Tens of thousands of national guard members were just vetted for their loyalty to the constitution they swore to uphold and protect. There can be no question that American exceptionalism should be put to rest on this question. There is clearly nothing so exceptional about our democratic institutions that they are immune to infiltration by extremists.
In the case of the United States, not only are the public servants in question violating their oath of office, they draw their salary and pensions from the people they are sworn to but are failing to serve. It is time for lustration in the United States and the most obvious and legally straightforward place to begin is within the administrative agencies, under the authority of the Executive branch of government. Several reasonable arguments will be inevitably raised in opposition to this proposal – ranging from “it offends the constitution,” to “it will spark a civil war.” Again, I remind you that we already vetted our national guard, whom we deployed at every state capitol and all over the District of Columbia because insurrectionists have threatened civil war.
Yet another reason to begin lustration within the federal administrative agencies lies in the fact that over the past several years, not just under the Trump administration, but going back decades in some instances, several federal (and state, but I will leave them out of the discussion at this stage) agencies have intentionally or at least knowingly hired biased and corrupt people. In fact, many reasonably argue that our present systems of law enforcement were created to uphold racial injustice. This administrative agency packing begins to look like a long game being played by those who would fill state and federal institutions with those interested in a nativist, white patriarchal America. Sometimes this agency packing takes the form of hiring individuals who do not believe in the core mission of the agency (for example, climate change deniers working in the EPA or science deniers and anti-vaxxers in HHS or the CDC). Other times, agencies seek out those who are hostile to or biased against the people they are paid to interact with (CBP, ICE and many state and local law enforcement). Still other agencies are stuffed full of political appointees with no subject matter experience and no intention of being unbiased, even where impartiality is the core function of their job (administrative law judges).
Conveniently for the purposes of lustration, many of these public servants have set up social media group accounts where they post evidence of the type of extremism, insurrectionist plans, racism, misogyny and bias that should disqualify them from the jobs they hold. All federal employees swear to “uphold and defend the constitution of the United States against all enemies foreign and domestic.” The easiest place to begin vetting would be during the hiring process. No one is entitled to a job, and not hiring an avowed extremist is unquestionably constitutional. The next step would be to look at those currently employed who publicly admit insurrectionist ideation. They cannot reasonably expect to continue to be paid by “the people” to undertake activities which violate their oath. Neither “it’s just locker room talk,” nor “my free expression rights are being violated,” are a sufficient defense to retain employment paid by the people whose institutions they seek, actively or effectively, to dismantle. Next would be people given incredible discretion within their jobs, who are presently allowing their bias and prejudice to guide the exercise of that discretion in such a way that contravenes their ability to carry out their core functions.
At the very least, those who have publicly supported, or aided and abetted insurrectionists should be vetted and dismissed. The same should apply to anyone drawing a pension for those jobs. The people of the United States should not be obliged to continue to pay people, let alone be “served and protected by” people engaged in undermining the democratic institutions that make up our government, who work against the core functions they were hired to carry out, or who let their bias guide their discretionary decisions.
The primary and harder argument against lustration in the United States is likely to be that our constitution complicates this process, and I acknowledge that. It is worth pointing out, however that the Constitution does require is that a public servant about to be vetted receive notice, process and an opportunity to appeal. I argue that, if performed well, the lustration process is that process due. There are also many ways to add even more process to overcome constitutional objections — create new conditions of employment, for example. This is essentially what we do when a civil rights act is passed that prohibits discrimination in the workplace; we don’t exempt the dinosaurs who have worked within those institutions for decades. Or, we could place the burden on the employee to prove that they are not racist, fascist, misogynist, etc., in order to retain their position. Or we could inform federal employees that they will be suspended after a certain date unless they supply evidence of their democracy-supporting bona fides, lack of bias, incorruptibility, and so forth. Or we could immediately suspend any federal employee who has been charged with a criminal offense, a hate crime, domestic violence, sexual harassment, sexual assault, weapons violations, and conducting warrantless searches. We could even suspend those accused of any of these crimes.
Many people will read this and object to the suspension of an employee for mere accusations and they may be correct to so object. Yet it is also worth noting that the level of process due to a person in the criminal justice system, threatened with confinement by the state (jail) is higher than the level of process due to a person who is threatened with being vetted from a job. And this, in turn, is higher than the process due to a person seeking employment in the first place. There are ways to vet public servants without violating the constitution, and we can focus on the “easy,” cases first. When applying for a job, an employer absolutely has the right to consider accusations of criminal activity, misconduct and conduct unbecoming or contrary to the core functions of that agency. Pretending otherwise only benefits perpetrators of abuse and perpetuates the patriarchal systems of power that got us in this mess in the first place. We have been unhelpfully conflating the levels of due process in ways that have led us to this point – a point where federal employees who have previously been identified as problematic are facilitating insurrection.
So, I propose that the Biden administration establish an Office of Lustration. This could be a new agency, but it needn’t be. At the federal level, it could easily be housed within the Inspector General’s Office or the General Accounting Office, for example. If the notion caught on, it could be extended to state employees, as well, although this would require that Congress pass a law, based on its spending power authority, offering funding to states willing to implement parallel state level lustration departments. Lustration could be undertaken in waves, so as not to paralyze government functions. Vetting employees, employees that we the people have been paying, is not only legally permissible it is desirable, and — now more than ever — imperative. There is simply no way for the United States to move forward as a constitutional democracy, representative of all of the people within our borders, without scrubbing itself clean of the racists, misogynists and grifters in every single administrative agency. As for the hard work necessary to coordinate this undertaking, I volunteer.
Dina Francesca Haynes is Professor of Law and Director of the Human Rights and Immigration Law Project at New England Law. Prior to teaching, she worked as a human rights lawyer within UN human rights agencies and other inter-governmental organizations in several post conflict countries.