Lawfare Daily: The Legality of OPM's "Deferred Resignations”

[Intro]

Nick Bednar: And so it's very alarming that you receive this document that has no legal citations other than some stuff about privacy laws, and doesn't seem to comport with anything we know about how the civil service operates, and in fact is not using the program that most civil servants understand to be used in the case of a buyout.

Quinta Jurecic: It's the Lawfare Podcast. I'm Quinta Jurecic, a senior editor at Lawfare, talking with Nick Bednar, an associate professor of law at the University of Minnesota.

Nick Bednar: The problem is, if you give up your rights today, if you sign those all away, right, you don't have recourse later. And so the question is, do you want to stick it out and see what happens in the next four years? Or do you want to participate in this program that might be unlawful?

Quinta Jurecic: We're discussing the legal issues raised by the Office of Personnel Management's puzzling “Fork in the Road” email, offering deferred resignations to federal employees.

[Main podcast]

Nick, thank you so much for joining the Lawfare Podcast. You are now one of our favorite guests. And the last time that you joined, you were speaking with Alan Rozenshtein about Trump's executive orders on the civil service. And I definitely encourage listeners to go back and take a listen to that.

But this time we want to talk specifically about a memo, or really a number of memos, that went out to federal employees about a quote unquote deferred resignation program. And crucially, it gave these employees only until Feb. 6 to make that decision, which is why we're talking to you now.

So to start off, let's start with the first memo. What exactly is this? What did it say? Where did it come from?

Nick Bednar: Let me take it back even a step further, right, which is why do we have this memo in the first place. So, it's very clear, if you read the executive orders, that President Trump intends to reduce the size of the federal workforce one way or the other. And so, we got this memo that offered something called a Deferred Resignation Program.

And it started as an email. And the email had the subject line “Fork in the Road,” which will be relevant in a second, but it provides this overview at the start of all the things that are about to change with the federal workforce. We're going to change how we're evaluating people's performance. There're going to be a lot of relocations. We can't guarantee you're going to keep your job.

And then it offers employees an opportunity and the opportunity available to them is if you resign or announce your resignation today, effective Sept. 30, you will be placed on administrative leave, and you will continue to receive all pay and benefits. until Sept. 30.

Now, it has this, like, kind of, not quite a contract, contract language towards the end of that email that talks about, like, you'll be put on administrative leave unless your agency leader thinks you shouldn't be put on administrative leave for purposes of transition or because you performed some necessary functions, so there are a lot of caveats here.

And it was very unclear what was truly being offered, and the only concrete thing that seemed to be offered was, if you agree to resign by Sept. 30, you are exempt from President Trump's orders that require employees to return to the office.

Quinta Jurecic: And so what happens then? That's sort of the, the beginning of like Rumsfeldian deluge of, of memos that seems to just flow into the inbox of every federal employee as I can–as far as I can figure out.

Nick Bednar: Yeah, so it's complicated and the timeline is really hard to keep track of because it seems like about every 12 hours we have something new from the Office of Personnel Management.

So, the first thing that happens is, all these employees get this email. It sounds like a lot of agency leaders were not notified this email was going to be sent and agency leaders don't really have an opportunity to discuss with their employees anything about this program prior to it being sent. It just says, if you accept, please reply, resign.

So a lot of employees honestly think this is spam. They're sort of like, I don't understand why I'm receiving this email from a group I have never received an email from. If you read the offer, it does not sound like anything that was drafted by an attorney. Like, it's not the modus operandi of most personnel actions. There are no official government forms attached to this thing. The terms of the agreement are not listed out. It's just kind of this weird email.

So the first reaction we have is a bunch of federal employees going, what is this? And how did they get my number? So OPM responds. And they respond with a frequently asked questions thing that's like, yes, this is real. Yes, it's lawful. Here's some more information that people have been asking us, hope you take the deal.

A couple more days go by and they update the frequently asked questions page. And this time it's more emphatic that it's legal and that the deal is really as great as it seems. They add at the top, you know, do I have to work if I take the deferred resignation program? It has a single word: No. It says, what should I be doing with my time? Go find a private sector job and enjoy your vacation.

Like it just gets more and more emphatic that this is truly, you're going to go on administrative leave. And you will receive full pay and benefits, and you should take a nice vacation for yourself, because you've worked hard, but you'll work harder in the private sector.

So, the frequently asked questions page gets like updated a couple more times, right, and one of the hardest things, and we can talk about this a bit more about covering this, is it changes constantly. And so, I like to think I'm, you know, following this pretty closely and that I'm, I kind of know what I'm talking about with respect to this. And I'm having a very hard time following what exactly is coming out of OPM because it is just a deluge of information.

So what happened last night I think is like the most recent update. They officially released a contract and this contract has different provisions that more or less echo what was promised in the original agreement. in a bit more legalese, and a few more additional provisions that'll be pretty key. That's contract number one. About four hours ago, they issued a memo saying this program is legal. Here is our evidence that it's legal. Here's contract number two. And contract number two differs in its terms from contract number one.

So what we've had over the last couple weeks is this program that has evolved. And no one can really track down what the terms of the agreement actually are. There are some key features, and it is my opinion that no matter which version of the contract we look at, those key features don't change. And those key features are what make this plausibly unlawful, not this additional ink.

Quinta Jurecic: So I want to get to those key features, but before we do, I think it's worth driving home just how much this is not how things are actually done within, within government. I'm sure there are like 30 different ways that that is the case, but it might be helpful to just list some for listeners who are unfamiliar about, you know, why, if you're, you know, a federal employee sitting at your desk and you, you're getting these emails, this is sending up like 30 different red flags.

Nick Bednar: Yeah, so number one is usually these sorts of emails come from the head of the agency, not OPM directly. There are reports that the way these emails were secured is there is a server that was installed in OPM's office to create a new email address to contact all federal employees.

And so that's red flag number one, right, is that traditionally the way this works is OPM releases a memo that is given to agency heads. Because the agencies are very diverse. They all have different policies, they all have different requirements. The law for some civil servants is different depending on which agencies they work for. And so OPM directs the agency heads to notify employees of certain things. So red flag one is, this is not coming from my agency head, it's coming from this Office of Personnel Management email address.

Red flag two is that there's no official forms. There's no, you know, standard personnel forms that would usually be sent for when an employee is going to adjust something about their personnel records, which is what we would expect to probably see attached.

Red flag three is that there are actually programs within U.S. law that would permit something like this. So there's something called voluntary separation incentive payments. And these were enacted during the Clinton administration and they were enacted with the goal of having individuals resign from federal service. And they were incredibly effective during the Clinton administration. But under law, these payments can only be up to $25,000, and many federal employees, their pay from February to September is going to far exceed $25,000.

And so it's very alarming that you receive this document that has no legal citations other than some stuff about privacy laws and doesn't seem to comport with anything we know about how the civil service operates and in fact is not using the program that most civil servants understand to be used in the case of a buyout.

Quinta Jurecic: And then there's the Elon Musk of it all as well. So, so I believe there's, there's reporting at this point that this is, this effort is connected to Elon Musk's Department of Government Efficiency, or DOGE, or whatever you want to call it and that this is sort of part of this slash-and-burn, as you say, kind of Musk Twitter takeover style effort to bring down the, the size of the federal government.

I'm curious, does the fact that this is sort of a Musk program play into the concerns that that rise up for you about it insofar as Musk's status is not actually clear. I think that at this point, they've, they've—the administration have said that he's been designated as a special government employee, but there are a lot of questions about that. Does his involvement raise issues?

Nick Bednar: Yeah, so, I guess I forgot the biggest red flag, which I mentioned at the top of this, which is the subject line of the email was “Fork in the Road.” And that might seem like rather innocuous—it's very odd for a government email—but the reason it's relevant is that it is the same subject line that Elon Musk sent to Twitter employees when he took over.

So does Elon Musk's involvement raise any red flags for me? Yes. Elon Musk is tasked, right, with administering DOGE and its mission, and we know DOGE has two central tasks. One is related to technology. We can set that aside for the moment. The other that appears in other executive orders is that DOGE is tasked with creating these federal hiring plans.

The problem with Elon Musk being involved here is he is relatively reckless in the way he manages an organization. He has a very kind of authoritarian burn it down method of approaching management, which is what we saw at Twitter. And the federal government is not a private company. It is subject to a lot of different statutory law. Its employees enjoy certain protections that private sector employees do not. It is a very arcane mess of regulations that govern how you have to remove people, what kind of benefits you can offer.

And the fact of the matter is Elon Musk doesn't have the expertise to manage that. And so it's very concerning that he's the one doing it and particularly this fast. Because maybe if you were asking me, am I worried about Elon Musk two years from now, and I had observed that Elon Musk had surrounded himself by people who actually understood these systems—I may not agree with what he was doing by any stretch of the imagination—I would be less concerned. But it's been less than a month and we've seen nothing but kind of this effort to tear down the federal workforce without regard or consideration of what the law requires.

Quinta Jurecic: One of the areas where the federal government does not work like a private business is where the money comes from. And this I think is, is sort of one of the big looming concerns that I have seen from federal workers talking about this, that, you know,

The government is, is currently being funded through a continuing resolution that expires on Mar. 14. This raises a bit of a question if someone signs this agreement saying, you know, you're going to be paid this amount through Sept. 30, given that if you make that agreement now in early February, you actually don't know where that money is, is coming from.

 So walk me through the, what the dynamics are there, how Congress plays a role in this and what legal questions that raises.

Nick Bednar: So Article I of the Constitution gives Congress the spending power, right? So Congress decides what money shall be spent and the executive branch implements that. There's something called the Antideficiency Act, and the Antideficiency Act says that an agency cannot obligate funds that have not been appropriated by Congress.

So the federal government does not contract like other entities. It can't just say, yeah, we're okay to pay you till September, because they don't have the authority to do so under existing law. Existing law says most agencies are funded till Mar. 14. The Antideficiency Act says you cannot enter into any agreement that would require payments beyond Mar. 14, because we don't know how much money Congress is going to give, right?

So the way this should work, setting aside the program, is that Congress figures out how much money each agency needs for personnel, and it appropriates funds so that agencies can pay the salaries of workers in the next fiscal year. Sometimes what happens though, is Congress decides, we actually don't think the agency needs that many personnel. And it will reduce the level of funding that is appropriated for the federal workforce. And that triggers a reduction in force. So the agency now needs to assess who should be terminated in order to meet that appropriation are.

But what the deferred resignation program purports to do is it promises all of this money for federal salaries of people who choose to participate that doesn't yet exist. So the agencies don't have authority to authorize future salaries for any employee regardless of whether they choose to participate.

Quinta Jurecic: And is it fair to say, this seems to me in some ways to be kind of the mirror image of the Impoundment Act problems, or Impoundment Control Act, excuse me. We've been having this discussion about the funding freeze on federal funds, which is now halted under two different temporary restraining orders, or nominally halted that has to do with the executive not spending money that Congress has said it has to spend.

If there's an Antideficiency Act problem, that's an example of the government, or the executive rather, saying, you know, we're, we're going to promise to pay you this money that we actually don't know where it's coming from and it hasn't been appropriated yet. Does it make sense to see them as, see these sort of different actions as two sides of the same coin in that way?

Nick Bednar: Yes. So they are two sides of the same coin, but they're, like, very connected to one another, right? Because, you're right, the Impoundment Control Act issues are related to this idea that the Trump administration doesn't want to spend certain money that Congress has told it to spend. And here what we have is a situation where the Trump administration is obligating itself to future funds that Congress also hasn't told the executive branch it can spend.

So, although they're, like, two very different issues in terms of whether we're spending or not, they're very related to the idea, right, that it's the president usurping control over the power of the purse. It's President Trump saying, I'm going to choose to offer these individual salaries, but not pay out any of these other federal programs. And Congress, you should go along with the program. Right? But that's not how this traditionally works. And in either situation, it is in conflict with Congress's powers under Article I.

Quinta Jurecic: So we have these, these many legal problems that are raised by these OPM memos. And you published an article with us—we're recording today, so Feb. 4—raising the issue that because of the precise shape of these legal issues that if an employee decides to sign this contract and go ahead with the, the deferred resignation program, they may actually not have legal recourse if things go haywire down the line. Why is that?

Nick Bednar: Yeah. So, I think this is the big problem.

So the first thing you have to think about, right, is the fact that these payments likely are not authorized by virtue of the fact that they violate the Antideficiency Act. So what we have is the federal agencies entering into an unlawful agreement, right. And the way OPM has responded to this is more or less, no, we're going to continue to pay you. Don't worry about it, Congress is going to appropriate the money.

Suppose Congress doesn't appropriate the money. And suppose what happens is enough people take the deferred resignation program and Congress doesn't appropriate money to cover all those people, and some of those people have to be terminated through a reduction in force. Right, someone's not getting paid.

And the question is, okay, if they're not getting paid, can't, can't they just sue to enforce the agreement? In normal employment matters with private actors, right, an employee accepts a severance package, the employer doesn't pay, the employee sues in court, and the court enforces that agreement and says, employer, you have to pay out.

That's not how federal law works, or how federal employment works. The reason is because we care a lot that those agreements be authorized by law. And so the argument that a federal employee would have to effectively make is that the federal government should be estopped from asserting that this action was unlawful and then can't be enforced.

So you would have to say, well, I relied, as a federal employee, on the federal government's assertion that the program was lawful and I shouldn't be punished simply because it turns out it wasn't lawful. And the Supreme Court has pretty handily rejected that argument and said that it will not permit an action of estoppel in cases where the government's agents or employees or the president has authorized unlawful spending.

Okay. And that comes from this case, it's Office of Personnel Management v. Richmond. It involved a Navy employee and the Navy employee was receiving disability benefits. And he was also working part time as a bus driver. And he was trying to figure out how much could he work before his disability benefits would be taken away.

And he called the Navy's HR department. And they gave some advice, and it turns out the advice relied on an old version of the statute. And when he applied to renew his disability of benefits, Office of Personnel Management denied the benefits because he had exceeded the work limits. And so the employee goes to the Supreme Court and says, I shouldn't be punished because I relied on the Navy's assertion of the legality of my ability to work. And the Supreme Court says no.

And the reason it says no has a lot to do with the constitutional principles we've just outlined, that it would turn the spending power into a nullity if the president could just authorize funds and people could go to court and get those funds enforced, right? It becomes—the spending becomes a game between the president and the court and Congress gets left out. The president can choose what gets spent. And if Congress stiffs the people who the president contracts with, well, those people can just go to the courts and get the money anyway.

And so there's probably no remedy if someone accepts this program, sues in federal court, asking for them to uphold this otherwise unlawful agreement.

Quinta Jurecic: There's also particular language in the contract that was finally put forward that states that in, in signing it, the employee would be releasing the federal government from all claims, which is a whole different layer on top of this. So can you talk about that aspect a little bit?

Nick Bednar: Yeah, a little bit. I will say, you know, we've only had the contract for less than 24 hours. So my ability to, you know, really engage with it is somewhat limited in terms of—

Quinta Jurecic: And by the time that people will hear this podcast, it may have been changed several times.

Nick Bednar: Right. It's already been changed at least once, about four hours ago. Now this particular provision is still there and did not change, but it is changing so frequently it is hard to keep track of it.

So paragraph 12 of this contract has this release. Like, like it waives liability of the employee, not only for any action that comes out of the deferred resignation program, but any action related to the employment of the individual while they were at the agency. And it relieves, it relieves the federal government of judicial and administrative review, right?

And I don't know if that would be upheld or not. I really don't. But it's contrary to the way the civil service works, right? The way the civil service works is almost any time there's a personnel action taken that is adverse—you know, it harms you in some way—you have an administrative remedy. You can file a claim with the Merit System Protection Board and an administrative law judge will evaluate that claim. And if you don't like what the administrative law judge says you can appeal that to the Merit System Protection Board. If you don't like what they say, you can appeal it to federal court, right?

So I don't know to what extent that provision holds up as a matter of law, but it's a very troubling provision, right, because we're talking about a contract that is seemingly unlawful and has a lot of really questionable decisions in it. And yet, you're telling federal employees they have no right to have this contract reviewed if something goes wrong.

Quinta Jurecic: So there's a lot happening there. And even so, I think we've, we've only touched on some of the ways that, that this raises legal questions. What are other issues that cropped up for you?

Nick Bednar: Yeah, so, you know, I think the big one is really the spending question. And that's where like the bulk of the analysis ought to be here.

Some other things—there are at least two other big ones. Okay. So one concerns, the idea of putting individuals on administrative leave for this period of seven months, right? So in 2016, Congress got upset because the agencies were kind of using administrative leave wantonly.

And some agencies were letting people linger on administrative leave for months while they were investigated. Other agencies were putting people on administrative leave so that they could, you know, attend education courses that were maybe related to their job. And there was no consistency in how administrative leave was being administered.

And what Congress became concerned with was the lack of standardization. So they chose to standardize administrative leave. And the way they did that was they enacted the Administrative Leave Act. It's actually part of the Defense Appropriations Bill of that year, but it is still good law.

And the Administrative Leave Act has a provision in it that says an agency can only put an individual on administrative leave for a period of 10 days in a calendar year. And if we just look at that statute, we are clearly going to exceed that if these individuals are on administrative leave from March to September.

Now, there's one mild defense available to the Trump administration, and that's the Biden administration enacted regulations. That said, well, that provision only applies, the 10-day provision, only applies to investigative leave. And I don't think that's right. If you read the congressional record, it's pretty clear that the administrative leave provision of this act was intended as the broad catch–all. There are separate provisions for investigative leave, and so it doesn't make a lot of sense that this would apply to investigative leave as well. It's clear to me that Congress thought of this as the generic solution to nonstandard leaves.

And so perhaps a court would uphold the Biden regulation and say that this is not the sort of administrative leave contemplated by that provision. But at the same time, I think the Biden regulations conflict with the plain language of the statute, which makes it very likely that a reviewing court would find this administrative leave of seven months as exceeding the statute. You know, there are a lot of like legal things we could get into here, but there's like one other main one.

Quinta Jurecic: There's so many rabbit holes here.

Nick Bednar: Yeah. Another main one has to do with this promise of private sector employment. It's not a promise of private sector employment, but it says you can go work in the private sector while on administrative leave and technically that's right. For most employees, not all employees, but for most employees there is no provision of law that prevents you from holding a second job. It’s, just like in a vacuum.

The question concerns what job can you hold? Because there are a lot of conflict of interest requirements. and ethics requirements that bind federal employees and they prohibit them from working with employers that may cause a conflict of interest. And the federal government is involved in a lot of economic activity and with a lot of employers.

And it's very hard to know if you are an employee looking at this contract, what private sector opportunities are available to you unless you hire an attorney who is going to evaluate any possible job to see whether there's a conflict of interest here. And so employees are opening themselves up to liability merely by choosing to follow the suggestion of the Trump administration to go find private sector employment.

I'll add one other legal hiccup here, which is I don't know what the terms of this agreement are anymore. It has changed a lot. And people have been able to accept since the first email and I'm sure someone did. But we keep getting new versions of the contract and new FAQs. And they all tweak slightly what the terms of agreement are.

So at one point, right, the very first email said, you don't have to work unless your agency leader says you do. And that raised a lot of questions of like, okay, so I'm going to say, I'm going to resign on Sept. 30. And then my agency leader says, okay, well we need you because there's a hiring freeze. And so we need you to continue to work until Sept. 30. We know, you know, it alludes to administrative leave, but it does have this exception. Well, subsequently, there's this FAQ that says, Do I have to work? And it says no.

And so I have no clue what offer was accepted by any of these federal employees. And it's very possible that there are five or six different deferred resignation programs that exist right now, depending on when you sent your email resigning. You know, I can't follow this. I don't know how federal employees are following this, and I do not envy them at all for having to try and sort through any of this. But I don't know which contract's binding.

Quinta Jurecic: Right, so, so my question then is, what happens if you sent an email saying resign to the first version, but then it changed at some point, you know, in between when your message was read, and when you sent it, or you signed one version of the contract, and then another version of the contract went out? Are people signing up for different things? Is the old version binding once the new one is in place? Is there any clarity on that?

Nick Bednar: I mean, there's no clarity, right? My—

Quinta Jurecic: I should have known better than to ask.

Nick Bednar: Yeah. If I start with first principles of contract law, right? And I say, a contract is an offer and acceptance and consideration. Just focus on those first two. That first email is an offer, and then it's accepted, and that's the terms of the agreement.

And the federal government, if that's the accepted offer, shouldn't be able to change the terms once it's offered, right, just because they send a second email saying, actually, this is what we meant. I don't think that's what bound the person who sent in their acceptance first.

That said, we're so far from basic principles of contract law that I don't know if that's what would happen. I don't know how many people have accepted. I don't know when they accepted. I find it very concerning that we have two different contracts that get released in the same day. So, I don't know.

Quinta Jurecic: So I'm, I'm curious for your thoughts on, there's some Axios reporting that according to an administration official–I think it's, it's credited to an anonymous senior administration official—saying that about 20,000 workers have accepted the offer which I believe is about 0.7 percent of the entire federal workforce.

So, first off, I should say it's not totally clear where they got that number and I haven't seen it confirmed anywhere. So, you know, don't, don't hold that as gospel, but second, assuming, let's say for the sake of argument that that is the actual number as of, you know, as of today, does that strike you as a lot, a little? Can we derive any information from it?

Nick Bednar: Yeah. Whether it strikes you as a lot or a little, I think depends a little on your perspective, right? 20,000 missing employees could be very disruptive. Right? A lot of these people are involved in implementation of programs that ordinary Americans benefit from. And so, if 20,000 missing employees means two more hours waiting in line at the Social Security office, maybe that's a lot of employees.

Now, if your perspective is that, I really want to reduce the size of the federal workforce, 0.7 percent doesn't seem like much of a win, right? So, you know, there are about 2.8 million career civil servants. 20,000 is a drop in the bucket. And I think that's part of the reason we're seeing so much chaos, right? I think they are trying to entice people to take the offer, and they are disappointed with how few of people are taking the offer, which is why we see the OPM FAQ becoming more emphatic about you should take a vacation.

Now, I do think it speaks a lot to who federal civil servants are. So, you know, one thing to know is a lot of these individuals have better opportunities in the private sector. A lot of people take a pay cut to go work for the federal government. The federal government's a very competitive employer to work for. There are all sorts of reasons for that.

But one reason people are willing to take this pay cut is a lot of people have high public service motivation. They are motivated by the mission of their agency and to serve the public. And they find it insulting that Elon Musk and the Trump administration would just say oh, no, you should go work in the private sector. Because the fulfillment they derive from their job is based on this idea of serving the public. And they don't feel like they can do that elsewhere.

So they're not interested in 7 month salary and administrative leave, right? In order to take 7 month salary and administrative leave, they have to give up the value of their current job, and they can't replace that. And no OPM FAQ in no contract can restore the loss of motivation that these individuals feel by serving the public.

Quinta Jurecic: Right, it seems like there's, there are multiple levels of disconnect going on here. There's the sort of procedural disconnect, and then there's the disconnect of having a bunch of people who seem to have—the people who are coordinating this, insofar as they're part of the Musk team, seem to have come from the private sector are sort of trying to communicate with a federal workforce that is just not receptive to the message that they're trying to send out, even if it were communicated in a more coherent way.

Nick Bednar: Yeah, and I think that's, you know, it goes back to like, why is Elon Musk not the right person to do this? It's not just that Elon Musk doesn't understand the procedure. It's–even if you believe that the federal workforce should be reduced, he doesn't understand how to reduce the size of the federal workforce because he doesn't understand the motivations of federal civil servants.

Quinta Jurecic: So you've been posting on Bluesky kind of about your experience trying to follow all of this as you've been writing. And you made this interesting point that it's hard to kind of figure out what's actually happening when it comes to this policy, which I think that confusion we've, we've definitely expressed here.

But part of what you said there is that, you know, you're trying to kind of keep a, get a sense of what people who are in government are thinking and what kind of the, the mood is. So I'm curious for your sense of what the temperature is and how people are feeling as they're kind of scrambling to understand what's going on here.

Nick Bednar: Yeah, so I'll say, you know, the first piece I published on this, I did not expect to take off the way that it took off. I thought I had written kind of this wonky piece about this weird program that was being offered and that like, someone would read it and find it interesting, but there was enough going on that I didn't think it was going to be a big deal.

I have gained over 13,000 followers on Bluesky in about three days. And it's not just the followers on Bluesky, it's emails and it's people calling me. And so I'm getting a lot of information about not necessarily what's happening, but how people feel, right?

And there are a couple different reactions. The first goes back to what I just said, right? Which is people are really mad, and there's a lot of backlash. Like, I do not think the Trump administration imagined there would be backlash to this program, but if you go to Reddit and look at r/fednews, it is people just livid that they're even being offered the opportunity to resign.

And that, that comes through in what people send me too. Like, people are like, I do not understand; why they would offer me this deal because they know I won't take it. So that's part of it. A lot of it's backlash.

And we talk a lot about the backlash to be clear. And I think, you know, the statistic you provided of 20,000 people, right, supports that. There's still 20,000 people who took it. And so who are those people? What I have seen, what the people have talked to me tend to be of two variety. Both groups are very clear eyed about the risk. They do not trust Elon Musk to uphold his end of the deal.

They tend to be in one of two situations. Either they are retiring soon anyway, and they cannot take it any longer. And so they feel that this is an opportunity for them to retire and emerge from the chaos. The second group are there are a lot of disabled federal employees who work at home, who are very worried that they will not have the opportunity to continue to work from home, and they view this as the opportunity to take seven months to figure out what they're going to do next.

And so those are the two big groups, and I don't begrudge either of them. Like, I don't begrudge anyone who has to sit here and think about, do I want to emerge from this chaos and hopefully get paid seven months, right? But those are the people I'm talking to who are really worried in terms of they are facing a lot of social stigma where they feel like they should stick around, but at the same time, they have very serious personal considerations that lead them toward. accepting the offer, even knowing that there's a possibility that on Mar. 14, it just all fades away.

Quinta Jurecic: So then that, that I think leads us back to this question of what the remedy is, if on Mar. 14, it does all fade away. And we've talked about why the courts are maybe not a particularly reliable place for someone who takes this offer to find recourse if the executive doesn't follow up on its end of the bargain.

But you wrote in your, your most recent article that Congress may offer the only true remedy. So I wonder if you could spell that out a little bit more and then maybe also situate what that means given not just the kind of separation of powers dynamics here, but also the specifics of this Congress.

Nick Bednar: Yeah, so let's start with the theoretical, and then we'll talk about this Congress. Just frankly, right, Congress can remedy the harm done by the president. It could—in the Appropriations Act—appropriate money for every individual who took this offer, place them on administrative leave, and remove them from the ethics obligations, right? It could do that. There's nothing that prevents Congress from doing that. It can ratify the actions of the Trump administration.

The next softest thing it could do that would still be murky is it could fund personnel at a level that ensures there aren't going to be large scale reductions in force. And it could just not acknowledge that there's a violation of the Antideficiency Act that this exceeds the administrative leave and maybe this goes away just because no one's willing to engage with the illegality of it. We just like–it's a black mark on how civil service operated for nine months and we're just going to let it go.

The other option—and I'll be clear, like, I don't know what Congress is going to do. I never know what Congress is going to actually do. The other option is that Congress could further reduce the size of federal workforces, it can appropriate less money. It could start to deconstruct agencies. And I think that's the world we have to be really worried about.

Now, which of these worlds is most likely, I don't know. I will make the following observation. We are in a situation of unified government where the party in power in Congress aligns with the Trump administration, and it is also the party of small government. And a lot of people in Congress have wanted to see the size of the federal government shrink for a long time.

And accordingly, it might very well be the case that they choose to go along with large scale reductions in force based on this, you know, perception that now's the time to reduce the size of government, right? They don't know if they're going to have power in two years in Congress. And so they might seize this opportunity to really start slimming government. And if that happens, that's the worst case scenario if you are someone who chose to participate in this program.

Now, I will say, you know, something we didn't mention is there is another provision in this contract that says something to the effect of like, we won't terminate you or remove you or you won't, you'll be exempt from reduction in force, right.

Two really bad scenarios. One, a whole agency goes away, or most of a whole agency, right? Those people have no funds appropriated to them, whether they're remaining or not, right. The second bad scenario is like kind of a legal wonky one that has to do with, again the federal service does not operate the way the private sector operates and it has to do with the order of retention.

So, when there's a reduction in force, the federal government is supposed to retain people according to a very, like, strict formula. And that formula is in the law. And this contract appears to be saying that formula doesn't apply to these people, and it's not clear to me they can do that.

And so, I don't know what Congress is going to do. But there's a very real risk someone who takes this deal is going to get hurt in a way that they may not have anticipated when they took the deal.

Quinta Jurecic: I think we’ve been pretty thorough, but before we close out, are there any other considerations that you would suggest people who are weighing this option keep in mind?

Nick Bednar: I think it's a hard decision. I think—the problem is if you give up your rights today, if you sign those all away, right, you don't have recourse later. And so the question is, do you want to stick it out and see what happens in the next four years? Or do you want to participate in this program that might be unlawful, right? And you might end up in the same place regardless.

I really value the work that civil servants do. And I think, and I hope, they feel supported by the public. They're clearly not supported by the Trump administration, but they matter a lot for the everyday amenities that we enjoy.

They are the air traffic controllers who ensure that planes land and depart safely from airports. They are the people who ensure money gets put in state accounts so that roads can be built. They're the people who send us social security checks, the people who deliver our mail. They do a lot of good for us.

And I'm worried that they're being treated in such a way that they don't feel the value of their work. And I hope they know, regardless of what decision they take, they have contributed a lot to the public.

Quinta Jurecic: All right, let's leave it there. Nick, thank you so much for joining us.

Nick Bednar: Yeah, of course. Thank you, Quinta.

Quinta Jurecic: The Lawfare Podcast is produced in cooperation with the Brookings Institution. You can get ad free versions of this and other Lawfare podcasts by becoming a Lawfare material supporter through our website, lawfaremedia.org/support. You'll also get access to special events and other content available only to our supporters.

Please rate and review us wherever you get your podcasts. Look out for our other podcasts, including Rational Security, Chatter, Allies and the Aftermath, our latest Lawfare Presents podcast series on the government's response to Jan. 6. And check out our written work at lawfaremedia.org.

The podcast is edited by Jen Patja and your audio engineer this episode was Cara Shillenn of Goat Rodeo. Our theme song is from Alibi Music. As always, thanks for listening.