This summer, President Trump reportedly took the unprecedented step of injecting a partisan loyalty test into the historically nonpartisan process of evaluating nominees for the Board of Veterans’ Appeals. After learning that four nominees were not loyal Republicans, the White House reportedly rejected them. The nomination of judges to the Board has historically been a nonpartisan process of elevating career civil servant attorneys. For the first time, however, the Trump White House reportedly demanded information about potential judges’ personal voting patterns and political associations, and rejected four candidates who were not reliably loyal to the GOP. The introduction of an unprecedented partisan litmus test cuts the pool of qualified candidates for the Board in half, at a time when the Board seeks to reduce the extraordinary delays in VA disability claim processing that have long plagued veterans seeking to get the care promised to them. We’re working with VoteVets, a veterans’ advocacy organization, to investigate.
The Constitution and various federal laws prevent the federal government from punishing employees for their personal politics. Retaliation against employees for personal political activity protected by the First Amendment is illegal. Under the federal Privacy Act, agencies are prohibited from maintaining records about individuals’ political activity and using those records to punish employees.
We and Vote Vets have requested an investigation by the Department of Veterans’ Affairs Inspector General into potential legal violations in the Board’s appointment process and are seeking documents from the VA ourselves. We requested that the Inspector General answer fourteen important questions raised by the reports of politicization at the Board. We have asked the Inspector General to investigate whether the Department’s handling of the nominations violates the U.S. Constitution, the Civil Service Reform Act, the Privacy Act, the Whistleblower Protection Enhancement Act, the Consolidated Appropriations Act of 2018, or Department guidelines. We hope that the Inspector General will thoroughly investigate the reports of malfeasance, and reinforce to the Board and the White House that political retaliation is both illegal and detrimental to the veterans seeking efficient resolution of their claims. We and VoteVets also sent the Department a Freedom of Information Act (FOIA) request about the Board nomination process on November 9, 2018.
We look forward to a response from the Inspector General to our December 6, 2018 letter and to documents from the Department. The Inspector General’s office may explicitly inform us as to their decision to take up this matter, or they may simply open an investigation and report their findings. We are also waiting for the Department’s response to our FOIA request.