There has long been a bipartisan consensus that the Federal Bureau of Investigation ought to be insulated from political pressure, and it has been reaffirmed in the wake of President Donald Trump’s firing of FBI director James Comey. Republican and Democratic lawmakers alike insisted that Comey’s successor, Christopher Wray, be independent of the White House, and he has by all accounts endeavored to do just that. But should we really want a truly independent FBI, and is an independent FBI in keeping with America’s constitutional order?
In keeping with the conventional wisdom, my inclination has been to answer yes to both questions. So I was struck by a recent working paper by Justin Walker, a law professor at the University of Louisville’s Brandeis School of Law (and a newly-minted contributor to National Review), which argues that just as the military is subject to civilian control, on the grounds that an independent military would represent a grave threat to civil liberties, the FBI, a powerful agency charged with a number of national-security functions, should answer to the president. While we might hope that an independent FBI will be led by public-spirited officials, Walker reminds us that this hasn’t always been the case. He recounts the FBI’s long history of abusing its power, which reached its nadir under FBI director J. Edgar Hoover, concluding that an independent FBI “threatens civil liberties in ways similar to how an independent military threatens civil liberties,” which is why “it should be controlled by the President, like the military whose purpose it shares.”
But don’t we need an independent FBI to investigate presidential wrongdoing? Walker disagrees:
First, Congress can investigate suspected criminality by the President or his administration. It has the means and the constitutional responsibility to do so. And second, if one believes that as a general matter federal crime should be investigated by an agency independent of the President, the solution is to split the FBI, reserving its national-security functions for one agency and its criminal investigative functions for another. This is the model that many western democracies have adopted.
Though Walker acknowledges that Congress does not have the resources to conduct serious criminal investigations of the executive branch, he offers a straightforward solution: They ought to build this investigative capacity, which they have the constitutional authority to do. And if Congress fails to do so, voters have the right to elect members who will take their responsibilities more seriously. To those who find this solution overly ambitious, Walker offers an alternative: splitting the FBI between an agency focused on criminal investigations, which would be shielded from political interference, and another devoted to protecting U.S. national security against foreign threats. Note, however, that Walker does not recommend splitting the agency. His preferred alternative, it seems, is for Congress to take the lead in investigating the executive branch.
This, however, raises a separate concern, which Daryl J. Levinson and Richard Pildes, both of NYU Law School, addressed in their article “Separation of Parties, Not Powers”: the Framers assumed that the legislative branch would be eager to check the powers of the executive branch, but what they failed to anticipate is that partisan loyalties might outweigh institutional loyalties. That is, partisans in Congress might not be especially interested in investigating a partisan ally in the White House. Relations between the branches tend to be cooperative under unified government and contentious under divided government, which is why Walker’s preferred alternative, in which Congress steps up to the plate to investigate presidential wrongdoing, might only obtain when the partisan stars are (mis)aligned. If Walker really is right that an independent FBI represents a serious civil-liberties threat, splitting the FBI seems like the sounder solution.