A response to David Frum.
A response to David Frum.
A t the Atlantic, David Frum proposes that Donald Trump is scheming “a constitutional scandal far greater than Watergate.” The anticipated crime? Trump’s intention to fire the incumbent FBI director, Christopher Wray. Per Frum, the problem with this plan is not that Trump’s expected replacement, Kash Patel, is a bad guy — although Frum believes that he is — but that Trump might exercise the power to choose who serves as director of the FBI per se. “The essential harm,” Frum contends, “will be done by the firing of Wray, not the hiring of Patel (or whoever ultimately gets the job).” That, he concludes, is “the real outrage.”
In my estimation, this argument is entirely backwards. Adumbrating his case, Frum rehearses the history of what he describes as an “unwritten rule governing” the FBI director’s “appointment — no dismissal except for compelling cause.” Next, he submits that this “unwritten rule” is important, because “FBI directors wield awesome powers over the liberties of Americans.” But it is precisely because the FBI has so much power that Frum’s “unwritten rule” is problematic. The United States does not have an unwritten constitution; it has a written one. And that written Constitution is extremely clear in its allocation of power. As is proper, most of that power lies in Congress — including the power to consider and approve or reject executive nominees. But, per Article II, the president gets to run his own department. “The executive Power,” that provision holds, “shall be vested in a President of the United States of America.” Included within is the power to fire his subordinates.
This matters enormously. Why? Because the president is the only member of the entire executive branch who is elected, and thus the only member of the entire executive branch who is accountable to the public. The FBI resides within that executive branch, and, as such, is not some floating, untethered fourth branch of government sitting under a penumbra of an “unwritten” rule, but an agency under the president’s control. If the FBI behaves badly, that’s on the president. If the FBI behaves well, that’s on the president, too. That being so, the president must be able to fire the FBI director if he is unhappy with him — for any reason, not under some malleable “compelling cause” standard — and he must be able to hire a replacement of his choosing, subject to the uncircumventable permission of the Senate. There is nothing scandalous or crisis-inducing about this arrangement; rather, it is how the executive branch was designed to operate. One might even say that it is crucial to the integrity of “Our Democracy.”
We have just emerged from a protracted election season in which Donald Trump informed the electorate, loudly and clearly, that he felt that the FBI was corrupt and ought to be disciplined. Whether he was right or wrong — and irrespective of the degree to which this position affected the outcome — a system in which the FBI’s director may not be easily removed after such a campaign is a system with a profound legitimacy problem. One must ask the material question: If, having fruitfully contested an election promising change at the top of the FBI, a new president is unable to effect change at the top of the FBI, then how, exactly, are voters supposed to hold the FBI accountable?
Frum implicitly counters these rejoinders by proposing that the FBI is qualitatively “different” than other agencies. And so it is. Frum notes, “Republicans and Democrats alike agreed that there must be no return to the days when J. Edgar Hoover did special favors for presidents who perpetuated his power.” I agree. The FBI has a disgraceful past, and that its building is still named after Hoover remains baffling to me. The problem lies in Frum’s attendant assumption, which is that the FBI may have had issues in the past, but that it works well now. It does not. It has never slotted well into our constitutional system of government, and it still doesn’t. Now, as ever, it is corrupt, arrogant, recalcitrant, distracted, ambitious, and politicized. Such flaws are a risk in any institution of law enforcement, which is why, in pretty much every other case, we ensure that American police departments are headed up by a commissioner, chief, or sheriff who is either popularly elected or appointed by the elected government. To break the direct connection between the department and the civil power to which it is accountable is to create a rogue agency that answers to nobody — an outcome that is more dangerous to our republic than the one Frum fears.
It is entirely possible that, at some point in his second term, Donald Trump will create a constitutional crisis. It may even involve the FBI. If he does so, the states and other branches of the federal government must use the tools at their disposal to deal with it. They must not, however, preemptively resort to extraconstitutional measures that undermine the democratic processes that undergird our nation. Donald Trump won the presidency fair and square. After January 20, for no more than four years, he must be permitted to exercise the powers he is accorded by Article II — no more, no less. If, over time, the FBI has proven itself too dangerous a tool to place within the orbit of the executive, the solution is for Congress to regain its enthusiasm for limiting government, and to abolish or fundamentally reform it — not to bend our constitutional order to keep control away from the elected.