No Such Thing As An Independent FBI

Of the many criticisms of President Trump, perhaps one of the more ill-considered is the suggestion that he is interfering with the “independence” of the FBI. The FBI, the argument goes, is not only a high-skilled, highly trained, and highly professional law enforcement organization—which it undoubtedly is—but should do its work free from political interference or control by the executive.

This is nonsense—nonsense with totalitarian implications.

The FBI is part of the executive branch, an investigative arm of the Department of Justice. The chain of command is simple. “We the people” are sovereign and elect the president and our other representatives. The president in turn, with the advice and consent of the Senate, appoints an attorney general. The president also hires an FBI director—whom he may fire—and that person serves a ten-year term and is subordinate to the Attorney General. The 10-year term arose, incidentally, through legislation after the long and controversial 37-year rule of the Bureau by J. Edgar Hoover. Hoover’s willingness to employ agents to spy on political figures and his long-unchecked reign gave him a great deal of potential and actual control of elected officials through blackmail.

The idea that anyone is independent within the executive branch is an artifact of the civil service system, itself a product of the Progressive Era and its aspirations to scientific, efficient, and technocratic government. Previously, the spoils system was the order of the day. Everyone from postmen to park rangers came and went after elections. Well-paying government jobs could be doled out to unqualified political supporters as a reward.

The civil service remains in place for long-term and lower level employees. They serve from administration to administration doing the important and not-so-important work of various government agencies. But at the top, the president still gets to pick his men, the political appointees. These serve “at the pleasure of the president” and commit to advance his agenda. Thus, Jeff Sessions is now the head of the Department of Justice, and Trump, acting well within his presidential powers, canned the sanctimonious (and apparently dishonest) FBI Director James Comey and replaced him with Christopher Wray.

Presumably, appointees will share a vision with and be loyal to the president. This is normal. It would be exceedingly difficult for a president to advance his agenda if all of those assigned with carrying it out were unknowns, immune from his control, or otherwise disagreeable. The president’s powers (and time) are limited; personnel is policy in more ways than one.

Law enforcement is no different from other parts of the executive branch in this way. We elect sheriffs and county prosecutors, for example. Deputies and assistant prosecutors remain from administration to administration, but the leadership—and the inherent powers of the boss—are in the hands of elected officials or those accountable to them.

This political control should not be confused with naked partisanship. America, happily, has a long tradition of not employing law enforcement against one’s political enemies, at both the local and federal levels. Elections, in particular, serve as a check against such malfeasance. The absence of such a check surely had much to do with the FBI’s abuses under the long tenure of J. Edgar Hoover: he became too powerful and too permanent to be easily controlled by any elected president.

Just as Hoover’s fiefdom entailed certain abuses, political control can also be abused. The decision to go soft on Hillary Clinton for her alleged criminal violations of laws regulating email security and classified documents appears highly tainted by public remarks by President Obama, private meetings between Attorney General Lynch and former President Clinton, and the foregone conclusion not to prosecute by FBI Director Comey. But no one can deny Obama had the right to pardon Clinton, or that former Attorney General Loretta Lynch could have reviewed the FBI’s investigation and exercised her authority not to prosecute, regardless of the FBI’s recommendation.

Indeed, Comey acted unusually in announcing his own decision not to prosecute, as if the Department of Justice and its prosecutors were his subordinates. Comey with his talk of an independent FBI seems to have missed that the attorney general issues guidelines to the FBI and that the Bureau’s website notes its responsibility to the attorney general.

The task of a prosecutor includes a great number of decisions that have political aspects. There is the question of priorities. Will it be white collar crime, drugs, terrorism, or financial crimes? And, if all of them are important, what proportion of energy will prosecutors spend on one or the other? Such questions don’t lend themselves to precise or scientific answers. “Values”—or politics, in other words—must play a part.

The notion of presidential control should not worry people as much as it worries partisans in the press. There is an informal check on this type of abusive behavior. Unlike a career FBI official, a president has to answer to voters every four years. He may even be impeached and removed. If his subordinates pursue a prosecution, a defendant is tried before an independent judiciary and a neutral jury applying laws drafted by a legislature also outside executive control. None of these safeguards hinges on the existence of “independent” executive officials.

By way of analogy, no one expects the military to be independent of the president, pursuing its own idiosyncratic ideas of foreign and defense policy. This would be the stuff of banana republics. We call the president “commander in chief” in relation to the military for good reason. But the more common appellation in the first 100 years of the republic was “chief magistrate.” He oversees the entire apparatus of the executive branch of government, military and civilian, and has constitutional authority to do so.

Everyone who works for the president is obliged to exercise his judgment in certain instances and to obey the law in all instances. But this requirement prevails with the military, too. In the military, as in law enforcement, a great deal of what any official does is not controlled by the prohibitions of the law. This is the stuff of discretion, of policy—of politics. There is no escape.

In addition to the usual passive-aggressive resistance by career bureaucrats, the risks of a self-described independent FBI have been brought into focus by evidence that a clique within the Bureau actively conspired against the president before he even took office. Egged on by the media and the Democratic Party’s sore losers, #TheResistance may include higher-ups in the FBI using serious law enforcement and surveillance powers to frustrate, embarrass, and discredit President Trump. The evidence, while still developing, suggests a trumped-up Russian collusion investigation, disappearing (and reappearing) texts, made-up dossiers, a reported “insurance” policy against Trump before he was elected and more worrisome indications of a secret law-enforcement effort against him after he was elected.

Even without these abuses, the entire country should be wary of the concept of an independent FBI. The FBI, which is filled with dedicated and highly professional agents, is a subordinate part of a government, whose most powerful leaders are elected and must engage in politics. Any suggestion of a nonpartisan and apolitical FBI, like claims of technocratic governance more generally, would simply mask unavoidable political choices under the rubric of scientific management.

The FBI is no more independent than the Office of Management and Budget or the Army. And if it were, it would be a dangerous thing—because if the president cannot control the FBI, who would control it and to what ends?