Both Things Could Be True

We are having an interesting discussion about the President, the Constitution, and obstruction of justice. I don't see anything wrong with Andy McCarthy's argument that the President can't commit obstruction by ordering Federal police to exercise discretion. As he says, the FBI/DOJ is not a separate branch of the Federal government. They exist as an arm of the executive branch, whose powers are all invested in whomever the President happens to be. The President may choose to let the Department of Justice operate independently, but it has no constitutional standing to insist on doing so.

In large part, that is because the Founders never intended the Federal government to have the general police power: that was to go to the states, or be reserved by the People. The Constitution does not imagine a Federal police agency with anything like the FBI's reach or jurisdiction: even the Secret Service only dates to the end of the Civil War. The idea that the Federal government should have a police agency that could go anywhere and arrest anyone -- let alone spy on them in the myriad ways that our Federal government does -- is nowhere imagined. Controls on those powers were never set by the Founders, because the powers were never granted by the Founders. Controls were never set by an amendment seeking new authority from the People, because no authority was asked. These powers were arrogated by the government to itself.

The spying powers in particular were done so behind walls of classification. The citizenry never voted to grant the Federal government those powers. The citizenry never even knew what powers were being assumed. Nor could they, of course, without greatly weakening the security the state hoped to gain for them by assuming these powers: a public debate on the propriety of this spying would mean informing the enemy, not just the citizenry, of the capacity for the spying.

By the same token, David Frum is not wrong to argue that this is dangerous and that it could lead to unacceptable results. He is only wrong to argue that, since there is a danger of unacceptable use of power, the power must not exist. Yes, the President is invested with a great deal of power; perhaps it is more than is wise. We can change that via the Article V amendment processes, or by throwing out the Constitution and writing another one.

All the same, consider the remedy more carefully. Do we really want this vast security state untethered from any elected official? Congress cannot run it in the place of the President; as today's Contempt of Congress resolution shows, they cannot even compel compliance with basic oversight requests even when the President would like the agencies to comply. Formalizing this independence, which is already too great to be safe, would mean taking the last chains off a demon.

Could the courts control these agencies where they decide they need to be independent from their elected officials? Of course not: the enforcement of the courts' orders already depends on the police.

Cassandra was just reminding us that sometimes there aren't good answers or easy solutions. Perhaps this is one of those cases. But as dangerous as a corrupt President might be, should we find ourselves (again) with one, at least there is a formal control on him in the form of the Article I impeachment power. The police need to be tightly chained to the President because a President can be removed and replaced. Loosing a mighty demon to protect us from Donald Trump is, as the metaphor intends to suggest, a devil's bargain.