Executive Power

FBI Independence: Some Thoughts in Response to Robert Litt

By Andrew Kent
Tuesday, July 18, 2017, 1:30 PM

I appreciate Robert Litt's response to my recent Lawfare piece, which raised the possibility of Congress giving the FBI independence from presidential control by means of statutory for-cause limits on removal of the director. My post was, of course, motivated by President Trump's firing of FBI Director James Comey, Trump's public admission that he did it to stymie the Russia investigation, and Trump's other affronts to longstanding norms meant to protect the independence and apolitical nature of federal law enforcement.

Litt raises a number of important objections to the proposal I floated, objections to which I want to respond. I should say at the outset, though, that I do not yet have a firmly settled view about the wisdom of making such a change. I am open to the possibility that giving the FBI director statutory tenure-in-office protection could cause more harm than good. My goal in the initial post was to raise the issue, report that some thoughtful members of Congress proposed such a reform in the 1970s in the aftermath of Watergate, and to suggest that constitutional objections to such a change might not be as preclusive as most lawyers probably assume.

Litt has two major objections to the proposal. The first is that it is essential to the proper execution of federal law that the president is able to direct both broad enforcement priorities for the FBI as well as the investigation of particular cases that the president assesses to have national importance.

Litt's underlying assumption seems to be that an FBI director who can only be removed from office for good cause would have more ability to resist presidential direction than a director removable at will. I agree with that—in fact, that assumption motivated the statutory change I discussed. But—at least prior to Trump, and talking only about the post-J. Edgar Hoover era—FBI directors have had a fair degree of independence from White House control as a practical matter, even though they were all at-will employees of the president. (Hoover's tenure, during which he had very substantial independence, was in many ways sui generis, as I discuss below.) The norms and internal guidelines designed to keep law enforcement free from political interference by the White House have given FBI directors the ability to push back a bit against the White House, if they chose to. The relationship between Director Louis Freeh and the Clinton White House is one example.

So the statutory change raised in my piece might be a more incremental rather than revolutionary change over the pre-Trump status quo. If that is the case, perhaps such a change would protect against abuse by presidents like Trump while not disturbing relations between the FBI and ordinary presidents. But perhaps not. There are hard and important issues to weigh, and I emphasize that I am not necessarily sold on the wisdom of change.

Another question to consider is whether there is something about criminal law enforcement as opposed to civil, or something about the kinds of laws that the FBI enforces, that uniquely requires presidential control. Because for about a century, the U.S. government has enforced a large amount of federal law civilly through independent regulatory agencies which have either for-cause removal standards or other structural protections giving them independence from White House control—or sometimes both. Independent agencies enforce laws vital to our economy and society, concerning such topics as securities markets, communications networks, labor relations, antitrust and competition, consumer financial services, energy markets, and consumer product safety.

I am not saying that law enforcement by the FBI is the same as law enforcement by independent agencies. My point is only that arguments against FBI independence should explain why the type of law enforcement that the FBI does is different enough from law enforcement by independent agencies as to require direct presidential control via at-will employment of the FBI director. Maybe the answer has to do with criminal-civil differences, with the varying subject matters, or with differences in the stakes for the nation of the matters covered by these entities. The FBI's role in the intelligence community, its counter-terrorism and other national security missions, and its lead role in countering foreign espionage might reasonably be thought to set it apart from agencies like the Federal Trade Commission (FTC) or National Labor Relations Board. But specifying these or other differences, and their import for agency independence, seems worthwhile.

A final note on Litt's first objection is that good-cause removal does not mean no ability to fire an agency head. One of the bills I discussed protecting the FBI director from firing, introduced by Senator Henry "Scoop" Jackson, would have made the FBI director removable for

  1. permanent incapacity,

  2. neglect of duty,

  3. malfeasance in office,

  4. any felony or conduct involving moral turpitude.

If, as Litt suggests, an FBI Director refused a presidential directive to bring a case that "might affect vital national security interests," that might constitute good cause for firing under prong two above. If Litt's scenario is not covered by any of Jackson's categories, maybe those categories of good cause for firing should be broadened a bit. For instance, commissioners of the FTC can be removed by the president for "inefficiency," in addition to "neglect of duty" and "malfeasance in office." Perhaps other, even more capacious language could be used to give the president somewhat more control over the FBI director than is the norm for other independent regulatory agencies.

Litt's second major objection can be summed up in one word: Hoover. He writes:

[W]hile it is unquestionably true that law enforcement decisions should be made free from political considerations, history teaches that too much independence for the director of an agency as powerful as the FBI is a bad thing. The obvious example of the dangers presented by an unconstrained FBI director is J. Edgar Hoover. The president’s power to remove the director serves as an important check on abuse of power.

I wholeheartedly agree that Hoover's long tenure as FBI director gives much reason for caution. After Hoover died in 1972 and Congress considered a new statutory framework for the tenure of the FBI director, preventing another Hoover was just as important to Congress as giving the director independence from political or other improper influences via the White House.

But we should not forget that an enormous amount has been changed for the better in U.S. law and institutions since the time when Hoover reigned as king of the FBI and abused his vast powers.  

Congress has created an inspector general for the Department of Justice (in which the FBI is housed), responsible for investigating and reporting on violations of statutes and other abuses. The Attorney General has issued important guidelines (amended over the years) governing the predicates needed to open different types of FBI investigations and the investigative steps that can be taken. Much electronic surveillance for national security purposes is now regulated by the Foreign Intelligence Surveillance Act (FISA), which has exacting requirements for judicial review and other protections to prevent abuses. Wiretapping and other surveillance for criminal investigative purposes are now regulated by comprehensive statutes, one of which was enacted in the last years of Hoover's life and others which post-dated him. The use and release of information collected about U.S. persons is now regulated by statutes such as FISA, the Privacy Act, and Freedom of Information Act. Since the days of Hoover, the FBI and the federal government generally are much less trusted by the courts, Congress, the press, and the public, leading to much greater skepticism and push back. Many more interest groups monitor the FBI activities today compared to forty or fifty years ago. Other changes could be listed as well. Jack Goldsmith's terrific book Power and Constraint addresses many of these themes and Litt himself just spent most of the last decade supervising some of these systems.

I am not saying that the Hoover problem has been cured. Litt is absolutely right to raise it. My point is that we should evaluate potential Hoover problems today in light of the many beneficial changes that have occurred since his death.

I appreciate the chance for dialogue that Litt's response brought, and will continue to study these issues. Even if for-cause removal for the FBI director is not ultimately a desirable response to Trump's actions, it is increasingly clear that Trump's presidency is exposing many weaknesses in our laws and institutions that would benefit from legislative response. The period after Watergate was an incredibly fertile one for Congress, generating an astonishingly wide range of important reforms that ever since have helped keep the executive branch in check. That is the context in which proposals for FBI independence arose. Although Congress's performance recently does not give much cause for optimism, it still seems worthwhile to think about what types of additional statutory reforms would be desirable today, in case we were again to have an energetic legislative majority committed to protecting against executive abuses.