Timothy Carney writes:
”While President-elect Donald Trump drives out FBI Director Christopher Wray, Trump’s critics have taken to the airwaves, suggesting that the federal law enforcement agency should be beyond the reach of politicians. They posit a fourth branch of government outside of the executive branch and lean on the idea of a 10-year term for the director to suggest the bureau has always and should be run immune to the demands of elected officials.”
Reading this, two things come to mind.
In regard to politics…
I am curious as to whether Trump’s critics believe that the FBI should be beyond the reach of politicians or that agency should stay out of politics. Clearly the FBI is anything but apolitical. To the list that Carney provides at the link, I would add that the FBI not only investigated parents protesting school boards but also at the very least presumably knew the outlines of Jan. 6 well-ahead of time given it had dozens of informants there. If it didn’t know, it should ask for its money back.
No word yet on how many agents were pulled off tasks such as combating human trafficking or cracking down on criminal gangs coming across the southern border, in order to conduct one of the biggest criminal investigations in US history. Hundreds of thousands of children may be missing and Tren de Aragua and other gangs might have taken root in American cities, but thanks to the FBI no one who walked through the velvet ropes in the Capitol rotunda will be at large.
Note, Carney actually understates the authoritarianism in the Mark Houck case. Not only did the FBI create a task force to target pro-lifers, but when it came time to arrest Houck for shoving a pro-choice volunteer who was accosting his son, the FBI organized a team of 20 law-enforcement agents to arrest him. Back in the days when I was in politics, it was understood that such displays of overwhelming force used to intimidate would merit a budget cut.
Somewhere Roger Stone might be nodding in agreement.
As far as the “fourth branch of government”?
There is, of course, no fourth branch of government. The Constitution establishes the Branches of government (Legislative, Executive, Judicial) within the first three Articles; the FBI falls within the Executive Branch, subject to oversight by the Legislative Branch.
The fight both over the meaning of 10-year terms for FBI directors, and over the authority of politicians (meaning elected officials) over the FBI isn’t just relevant in respect to a single law enforcement agency. It points to a deeper, century-long crisis in American government over the growth of the bureaucracy, what John Marini terms the ”Administrative State”, that operates within a post-Constitutional environment. The fight over the FBI is a coming attraction of a much larger battle to come between Trump and the DC establishment.
Marini states that administration was originally understood to be an Executive Branch function subordinate to a political theory of liberal constitutionalism, and therefore that the bureaucracy had no constitutional authority in and of itself outside of the Executive Branch (meaning the president). However, with the intellectual and political victory of Progressivism there has been a fundamental transformation in American politics to tacitly accept administration as something roughly co-equal to the other three branches.
Progressivism in its original form, and therefore the Administrative State, rests not in nature — meaning the preexisting condition of natural rights — but rather within reason. Marini traces the roots of this back to Hegel and his conception of “History,” through Woodrow Wilson and into the present. Through the use of “reason” and “science” by experts there are “correct” answers and, therefore, politics can be avoided. This thinking laid the foundations of modern administration and legitimized its insertion into our political system. It is an anti-Constitutional system nested, through a soft coup, within a limited-government Constitutional framework.
(Note that “politics” is used in this case as an epithet to mean “elected officials.” The only thing worse than an FBI subject to elected officials is an FBI not be subject to them at all. That was the entire point of limiting the FBI director to a ten-year term — to avoid the rogue antics of another J. Edgar Hoover.)
(Note to Chris Wray and all of the other people who would defend the “independence” of the FBI from political control. There is already a specialized institution out there with all sorts of weapons of war that it is very proficient at using, and that is are also under civilian (meaning political) control. It is called the military. If it’s good enough for the Marines, it’s good enough for those in the Hoover Building.)
The battle regarding the legitimacy of the Administrative State has been waged for the past 50 years, all the way back to Nixon. In fact, Marini states that Watergate can only be understood as an attempt at subterfuge and the sabotage of the DC establishment. The Administrative State has so far been able to insulate itself politically by getting Congress and the courts to place it within the Constitutional text, and also by the good old-fashioned way of all guerrilla armies: by controlling necessary resources; while enemy politicians may have watches, the bureaucrats have the time.
The key to why bureaucrats tend to win lies not so much in being smarter or more powerful than their enemies, it lies in the fact that their enemies are otherwise occupied with day jobs. Defeating the enemies of the bureaucracy <i>is</i> the bureaucrats’ day job; they will be collecting their paychecks to frustrate Elon, Vivek, and the DOGE barbarian hordes.
On the other hand, if there is ever a time to go after the Administrative State, it is now. The Supreme Court has Chevron. The DC establishment after COVID, with DEI and the other shenanigans of the past eight years, is discredited. The recent election is a thundering mandate for change.
We’ll see.
In the meantime, a recommendation for DOGE. The FBI wants a new HQ. Tell them they can have it, in any configuration they want. However it has to built out in Pie Town, NM. It’s good country but you have to drive about 70 miles to find a traffic light. Never cared for the pie, though.
That’ll learn the FBI to mess with constitutional rights.
The only way I can imagine that significant pruning can work is to massively reduce their budgets while offering generous early retirement. It will still be a bloody (notional not literal) struggle.
Start with the low hanging fruit, such as the FBI. They are no longer respected or trusted. The IRS, sure. Start with their gun slingers, weapons and ammo and the recently added agents (some fraction of the 89,000 authorized).
If these show good results, go after Education, State, etc. and most of the three lettered government organizations. I think the executive branch (president) can effectively put a choke hold (notionally not literally) on their money and programs.
Most of the departments and activities/commissions/etc. have extensive contractor augmentation and these should be especially targeted for pruning or contract termination.
All DEI staff positions should be unfunded and buried (notionally not literally).
death6
That 10 year term should be viewed as a limit which cannot be exceeded rather than a term that must be fulfilled.
A quick thought to rein in the Rip Van Winkle tactics of the Administrative State.(hang around, asleep if necessary, long enough and the new boss will be replaced by the new boss)
Should Congress fulfill its actual remit to write legislation rather than pass off the task to its administrators ‘as they shall see fit’, they would have less opportunity to create ‘law’ from whole cloth.
If that is too difficult perhaps setting the term limits on GS of high level(get rid of the group who report to no one and cannot be fired – I forget the name) in situ would disable building of private armies of civil servants that reinforce the wishes of the sitting I cannot say how far down the chain of command would need regular changes of station, but the ‘institutional knowledge’ is, I think, not held at the highest level. The choices and direction, howver, are.
Get the high mucky-mucks on a rotational basis just as Military officers are rotated regularly, to prevent fiefdoms along with broadening the knowledge of those expected to be leaders of the future.
Pretty sure ‘your job is in Cleveland, show up Monday’ is within the powers of the new bosses.
Beyond that, defund the whole organization, and all will walk out the door. If you want them back, rehire them. Void all union contracts as there is no need for unions, except to enrich the union officers…
Let’s observe where the root of the problem lies — in the abject miserable failure of the worthless individuals we “elect” to Congress. Those CongressScum have totally failed to write concise laws, and instead have delegated immense powers to a bureaucracy they are afraid to oversee. Those same CongressScum have totally failed to exercise their power of the purse to rein in the bureaucracy.
What to do? Simple rule — individuals holding any elected position are prohibited from running for election or re-election; i.e., prevent individuals from spending a lifetime in Congress. Another simple rule — no pension can be awarded for service in an elective office. Yet another simple rule — only properly-passed laws can bind citizens; regulations may not be issued by unelected bureaucrats. Final rule — before Congress can vote on any law, it must be read aloud in its entirety to a quorum of at least 95% of members.
A couple of thoughts….
I’m with Tommmy re: Congress actually writing legislation as opposed to the old Pelosi gem concerning Obamacare “so that you can find out what is in it and letting the bureaucrats flesh it out with regs. Marini actually deals with that as well and states that the big turning point happened when Congress just gave up in the 1970s and decided to just act of custodians of the bureaucracies.
It doesn’t help that Congress seems addicted to no longer passing budgets through regular order and instead uses the fat-laden continuing resolutions.
Vivek and Elon were saying something like $2 trillion in savings, not sure about that. I think there is bigger bang for the buck in eliminating regulations. Trump is calling for 10 regs to be repealed for every new on enacted. It won’t cut budget but it will get the economy moving
Oh and just for kicks given California just got approval from the EPA to ban gasoline-powered cars by 2035? I would have the EPA remove the ban and then threaten California under inter-state commerce laws to stop destroying the market for gasoline sales in the state (or force them to come up with a plan to build gas stations on the state tax dollar)
The easiest way to reduce the federal workforce is at 12:01 PM, Jan. 20, right after he takes the oath and before he gives his inaugural speech, Trump signs an executive order requiring all federal workers to come in to the office. Take a nice slice off the top
From some reading I’ve done the 10-year term for the FBI director is actually defined in statute as the maximum allowable period of service, with a second term allowed only after Congressional action to allow it, but there is no requirement the President justify removal of the Director before the expiration of the 10 years to anyone. Trump was not the first President to fire the incumbent FBI Director. Bill Clinton removed William Sessions whose term still had more than four years remaining in July 1993, shortly after the start of his Presidency.
https://crsreports.congress.gov/product/pdf/R/R44842
@ Gavin Longmuir
How does shoving elected officials out the door as soon as possible help keep lifetime bureaucrats in check? Does it not, in fact, release elected officials from accountability to the voters, since no matter how well (or poorly) they represent their constituents they aren’t going to face them again?
One of the problems for Congressional oversight is that the bureaucrats have more experience navigating the system; ensuring the Congresscritters cannot meaningfully gain that experience seems more than a little counterproductive as well.
And if you want a responsive House, the problem seems more about gerrymandering. Does it matter that you have a new Representative every two years if it’s the same unelected party bosses selecting them?
Boobah: “How does shoving elected officials out the door as soon as possible help keep lifetime bureaucrats in check?”
By restoring “representative” government. When elected officials find they can no longer make a lifetime career out of repeatedly being consecutively elected, they will start to ask — Why do these bureaucrats who work for us have lifetime employment and are almost unfireable? True representatives will make life much harder for the bureaucrats, and will demand a much higher level of performance. And they will likely reduce the scope of government anyway, eliminating the need for many of those self-serving bureaucrats
There are additional changes needed too — mostly to rip down the special privileges our under-performing “representatives” have established for themselves. Practically, of course some individuals may end up spending many years in “public service” — but not consecutively. They can be elected again after a period out of office, but they cannot be re-elected to the office they currently hold or elected to any other office while they are currently elected. Basically, the elected representative has a full-time job representing her constitutents; she should not be able instead to spend her time campaigning for her next elected office.
As far as length of time for representatives, I’ll make a few a general comments
In my opinion, and I think Marini will agree with me, Congress has not been able to come to grips with dealing the large DC bureaucracy (what he calls the Administrative State.) Marini points to that Congress doesn’t act as a larger, polcit body but instead over the last 50+ years acts as an oversight board for the AS through its various committees amd such. I’ll take that step further and state that Congress doesn’t act as a competing branch ofgovernment to the executive except when at least one of its houses is controlled by the out party.
If you look at how the House operates since 2018 when there were two change in control, the House was aggressive in its oversight and independence when it was controlled by the out party – Democrats in 2019-20 and Republicans 2023-2024. The same with the Senate which in 2021-2022 seriously deliberated eliminating one its prerogatives, the filibuster, in order to push White House infinitives. Also the fact that the White House started unilaterally forgiving student debt without Congressional approval would never have flown 60 years ago.
The House operates much more with the party whip than the Senate, 220+ members in a caucus will do that as opposed to 50+. I cannot find the quote but someone once remarked that half the people in the Senate cloakroom think that they can be president so they become free-lancers.
Focus on the House where you chance for stronger partisan control, culturally and politically, through the Speaker and the various committee chairmen. Whoever is the Republican speaker in a few weeks, if he doesn’t want to be browbeaten (deservedly so) as a DC swamp schmuck, need to have a vision of cutting government nearly as expansive as Trump’s in terms of policy
I hate Pelosi but as speaker she was very effective at getting a narrow and fractious caucus to pass the Democratic agenda in 2021-22; the problems in getting it implemented were in the Senate. That shows the power of a strong leadership. It’s not clear(and won’t be for a long time) how much influence she and the House leadership had in developing those policies and bills in relation to the White House because we don’t know even know how policy was developed at all within the WH.
The only time in my memory that we had an attempt at a strong policy0driven vision from the legislative branch was the Contract for America back in 1994 on. The fact that it didn’t get many of its things passed was of little fault of its own because the Republicans never held the White House. If Dole had won in 1996, we might have gotten the current Trump-Johnson war 29 years early. What Gingrich and others did do was capture and consolidate the mood of the country into some political power for at least 5 years. Until you got Denny Hastert and George W. Bush.
Politics is a pig’s ear because it involves ambition and now immense power in DC, it will always attract the sociopathic and corrupt. What has been interesting over the last week is the demonstration that Trump seems to understand that now as evidenced by his (and Elon’s) whpsawing Johnson over the CR. This past week isn’t about Congress as a message to the Republicans in the House that this isn’t 2017 anymore.
I would go back to 8-year term limit for House and 6-year for Senate, I might change my mind on this, but keep churning and burning through political ambition out there. There are enough ways of funding campaigns to prevent any one group, such as local party bosses, from gaining too much dominance over time. Ideally in each district or state capital there would be a political equivalent of a VFW where all the (many) people who had served in Congress can gather for a drink. There should always be a high multiple of former congressional critters to those who serve.
Mike: “I would go back to 8-year term limit for House and 6-year for Senate,”
Certainly, we have to begin with the obvious fact — What we are doing today in terms of government has failed miserably. Our elected representatives over the last few decades have presided over the destruction of the USA — leaving us with a de-industrialized, import-dependent, impossibly indebted nation. Something needs to change!
I like the original Athenian true-democracy model for representatives — election for a single term only, with an intense audit of the representative at the end of his term, and expulsion from the city or worse if the audit showed he had abused the public trust.