June 2018

The President vs. the FBI



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Much of the controversy surrounding the interactions between the president of the United States and the director of the FBI is due to the fact that the Constitution provided for one, but not the other. When the Founding Fathers organized what was to become of the United States, they made no provision for a national police force, much less a national secret police force. They saw no need for it and believed such a force to be harmful. For over one hundred years the the United States did without a national police force. The failure to create a national secret police force was not an oversight.

J. Edgar Hoover took an insignificant government agency and built an empire. Successive presidents were afraid of him. During World War II the FBI was given counterintelligence duties. In the 1950's the FBI hunted communists and in the 1960's antiwar protestors and civil rights workers. Under the noses of the Congress that was supposedly overseeing them, the FBI ran a secret domestic counterintelligence program called COINTELPRO that was only discovered when antiwar activists broke into a local FBI office and stole documents. 
Reform came and then went. To avoid another Hoover, the term of the FBI director was limited to ten years. This meant that the director's term could overlap the terms of up to three presidents. The idea was to make the office--an office the Constitution never provided for--apolitical, but as is seen today, it gives rise to questions over who is in charge. 
The director of the FBI is an inferior officer, that is, a lower-level officer. He reports to the Attorney General, who serves at the pleasure of the President. But today the office of the FBI director, though not the director himself, has continued to exercise powers usurped from the time when Hoover was in office. The director can acquit in a way a jury cannot. He can enter a political campaign to absolve a candidate. Like a pope, he can withhold that absolution from others--even his own boss. By withholding his imprimatur, the FBI director can influence public discourse. The country wasn't supposed to operate this way.
The chief law enforcement officer of the United States is not the Director of the FBI. The chief law enforcement of the country is the President. Trump's general boorishness should not lead anyone to look to the FBI director for help. Democrats are unhappy about the FBI's absolution of Hillary Clinton followed by a partial retraction. Trump is unhappy about the continuing investigation of the White House for links with Russian operatives. The FBI concluded that Russian hackers had influenced the presidential election--a comforting thought, really, for we can blame the election results on bogeymen and avoid blaming the true culprits: ourselves. The New York Times was forced to retract its assertion that seventeen intelligence agencies had agreed with the FBI's assessment, a story the newspaper has been trumpeting for months. In the echo chamber that is the press, CNN repeated the fable as recently as last week. Seventeen intelligence agencies (is there some reason why so many are needed?) did not concur. Only four did. These intelligence assessments are not necessarily facts. In law, a fact is that which can be proved by a preponderance of the evidence, or which is so obvious that no evidence is needed. In criminal law, the standard is higher. In journalism, a fact is that which can be confirmed from two independent sources who have not collaborated. In the intelligence community a fact is--we're just going to have to accept what they say.
Remember that it was not so long ago that George Tennant, the former CIA director, confirmed that it was a "slam dunk" that Saddam Hussein possessed weapons of mass destruction, justifying a war that has morphed and is unfinished. Would we really feel better if five agencies had agreed? What about six or seven? Could you get a verdict if only 23.5% of the jury was in favor of conviction?
Until these structural problems are resolved, there will be no political peace. Whether you like Trump or not, a government that permits the concentration of power in unelected officials who run secret armies is no government at all.
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No evidence is needed: I'm referring here to judicial notice; the rules regarding taking judicial notice are quite strict. Judicial notice is very different from findings of fact made by a judge. President Nixon formed the Drug Enforcement Agency by transferring assets and elevating the status of the Bureau of Narcotics and Dangerous Drugs, an agency structurally on the same level as the FBI. Elvis Presley wanted a DEA agent's badge. Nixon gave him one. In the 19th century, the closest thing the country had to a national police force was the Secret Service. These days, apart from their well-known protective branch, they chase counterfeiters and credit card fraudsters.