The President, the National Security Establishment, and Conlawprof

Professor CCC,

You wrote: “And that doesn’t even begin to count the number of times [Trump has] rebuked the intelligence community and/or ignored their findings . . . .Until Trump, any one such instance would have been widely, if not universally, seen as beyond the pale—an obvious and outrageous breach of longstanding norms and his constitutional responsibility.” (parentheses omitted)

So your saying that Bush II did not rebuke the intelligence community [after the fact?] and he did not ignore their findings in regard to WMD’s [before he (as President) initiated a war in reliance on their findings]? Perhaps, Bush II should have done so—before, or after, or both? What do you think? Only about 22,000 American war dead and wounded. We, the People, elect the President, not the heads of the CIA and the other intelligence agencies.

The President is not a cipher. He is supposed to hear advice from his security establishment and others—he is not obliged to take that advice.

                                

If, as Bob Bauer & Andrew McCabe and others have suggested, that the FBI/DOJ are running investigations of the President based upon his exercise of lawful free speech, then Trump is obliged (under Article II) to take corrective action and to supervise his subordinates.

Professor CCC, you wrote: “The silver lining, as Jack Goldsmith keeps emphasizing, is that thus far the institutions appear to have resisted the constant efforts to compromise their independence and professionalism.” Jack Goldsmith has certainly emphasized that despite Trump’s efforts these institutions are fairly robust and they have maintained a large degree of “independence.” As to so-called “professionalism,” Jack Goldsmith has questioned whether the FBI gets to decide the so-called “national interest” where the President’s judgment differs with prior policy. As I understand Jack Goldsmith’s position, he has argued that under Article II, it is the President who makes the national security call, even where the President’s position differs with his predecessor’s views, prior policy, and the judgment of the national security establishment. Where the FBI runs an investigation of the President based upon the President’s putting a new policy forward, that suggests that the bureaucracy does not understand its legal duty. Jack Goldsmith, in effect, has questioned the bureaucracy’s “professionalism”—albeit, he acknowledges that it is a difficult question. If Jack Goldsmith is correct about this, then it is hardly obvious why the President should not vent his own views to the public about FBI/DOJ failures (in his view) to conform to extant law and legal norms. Nor does it matter if the President is correct in his assessment of such (purported) failures. In this country, as a general matter, you don’t investigate people for nothing more than airing a contentious political view in public—that standard must apply to the President above all others. After all, the President is also a party leader and elected on a party platform. The President does not have to “shut up” just because you and others do not care for what he has to say. One might even praise the president for his transparency. We used to call investigating people for their political speech and political associations McCarthyism. We used to think that that was wrong—but, “now all is to be changed.” Just like you and me, the President is not supposed to be investigated because some people object to what he has to say. 

To put it in slightly different terms, as I think Scalia argued from time to time, “independence” is not an unalloyed good. The more independence the bureaucracy has, the less democratic oversight and accountability exists. (To put it another way: the less democratic oversight, the less valuable your right to vote.) As for agency independence ... the FBI and DOJ are in the Executive Branch. They are not run by independent multi-headed hydra-like commissions. Both the FBI and the DOJ have a single presidential appointment at its helm; each is accountable to the President, and the President has a duty to supervise that agency head and agency. 

One might add, and I know no statute to the contrary, that where the FBI and DOJ are running an illegal investigation, one contrary to presidential policy, and established norms, then in regard to presidential subordinates in the FBI and DOJ, their merely asserting “professionalism” and “independence” does not (without more) excuse the president from supervising his subordinates. I don’t see any reason for that analysis to be wholly eclipsed because the target of that investigation might be the President and/or his colleagues, family, and friends. We see the same in regard to Article III judges under the rule of necessity. If an Article III court is the only court which can hear a class of cases, then the court should hear the case even if that judge and all other Article III judges face a conflict of interest. The President is charged with supervising the FBI and DOJ—there is no one else to do so, and the FBI and DOJ do not escape supervision where their illegality involves the president himself.

Professor CCC: Your position is (as best as I can tell) that the Bush II and Trump were and are obliged to take the advice and to accept the factual findings of the national security establishment. That view has consequences. President Bush II did not supervise the national security establishment in regard to WMDs. The consequence: about 22,000 American dead and wounded.

Seth

CITATION:

Seth Barrett Tillman, The President, the National Security Establishment, and Conlawprof, New Reform Club (Feb. 20, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/02/the-president-national-security.html>. 

My prior posts on this subject: Seth Barrett Tillman, Free Speech in Andrew McCabe’s America: A Post on Conlawprof, New Reform Club (Feb. 19, 2019, 6:54 AM), <https://reformclub.blogspot.com/2019/02/free-speech-in-andrew-mccabes-america.html>. 

Seth Barrett Tillman, Bob Bauer’s Free Speech Problem and Ours, New Reform Club (July 23, 2017, 10:36 AM), http://tinyurl.com/y7ahouep.

Seth Barrett Tillman, This Is What Is Wrong With The American Judiciary, The New Reform Club (Mar. 16, 2017, 4:23 AM), http://tinyurl.com/z4q9f8v.