What, though, if it happens to be that the arrangement in question is one that (a) I vocally disapproved of, and that (b) benefited someone I am known to despise? Does the fact that I didn't want to do it to begin with abrogate my duty -- or even my legitimate power -- to cancel the agreement? Does the fact that I might wish to harm someone I dislike outweigh the duty, or make illegitimate the otherwise legitimate authority to ensure adherence to the law?
Philosophically, the way to talk about this is the concept of 'overdetermination.' Overdetermination occurs when there are more causes in evidence than are necessary to drive the effect. For example, say a big rock doesn't float up off the bottom of the ocean both because it is too heavy to rise off the ground, and also because there is a sufficient weight of water atop it to hold it in place. If you removed the water, the rock still wouldn't rise off the ground. But if you (somehow) reduced the mass of the rock enough that it might get blown around by the wind, it still wouldn't move if the water remained in place. More than one sufficient cause is present to explain the effect.
This is sometimes thought to be a problem by philosophers (what isn't?). After all, an effect should have a sufficient cause; to say that something is overdetermined is to be unable to say what the cause 'really' is. Thus, to return to the Rotary Club example, in order to determine if I am or am not engaged in the legitimate use of authority, we need to determine if I am 'really' motivated by my duty, or by my animus.
That is the subject of David French's article today.
Only a blindly dedicated partisan would claim that lying to Congress doesn’t raise concerns about an official’s truthfulness and character. If that was the true reason for revoking Brennan’s security clearance, then he should absorb the blow, move on, and consider himself fortunate. He’s faced only minimal sanction for a serious offense.This same habit of mind is behind the whole 'obstruction of justice' claim around the Comey firing, as well as the defeated lawsuits aiming to block Trump's temporary travel ban on certain named countries. Does a President have legitimate authority to fire the FBI director, especially given the abuses and failures chronicled by the Rosenstein memo? Of course! Was the firing thus legitimate? We've had more than a year of investigations aimed at determining the 'real' reason for the firing, and if that somehow eliminates the legitimacy of a clearly authorized action.
But what if that’s not the real reason he lost his clearance? What if the real reason is the one articulated by President Trump himself in an interview with the Wall Street Journal? There, Trump decried the “rigged witch hunt,” declared that “these people led it,” and added that “it’s something that had to be done.”
Same with the travel ban, as the Supreme Court agreed. The President clearly has legitimate statutory authority to do what he was doing; he also could be said, based on public statements, to have an animus at work. If we can show that his 'real' reason are rooted in the animus, does that make illegitimate the clearly legal and authorized action?
So too with border enforcement, etc.
As the rock example shows, though, my sense is that these overdetermination cases shouldn't be viewed this way. You could argue that it is 'really' the weight of the rock that is the cause of it being on the ocean's floor, as when it first fell into the ocean the the weight of the water wasn't on top of it yet. But that doesn't explain the 'real' cause of it staying on the floor now, only of it arriving there in the first place. Nor is it important to do so, since doing so requires disposing of a part of the truth of the matter. It is neither 'really' the case that the rock is held in place by its mass (plus gravitational attraction to the planet), nor by the weight of the water. You could remove either one of these things and the rock would remain in the same place. (Insofar as anything is ever in 'the same place,' given that planets spin around suns that spin around galaxy centers, etc; but to speak plainly, as we usually do.) What is 'really' at work is that both things have happened, and either of them suffices. It's not important to say which one is the 'real' cause.
What that means for actions from authority, I think, is that an action is legitimate if you can strip away the bad reason and still find a sufficient cause. You might caution a President against firing someone under these circumstances, but you shouldn't take him to court for doing it.
That is not to say that these aren't dangerous waters. The way to address them is to reconsider the scope of granted authorities, restricting it where it has been unwisely granted. Ultimately the security clearance is similar to the military commission in that both are rooted in special trust and confidence. The reason to permit former officials to retain a clearance is that you might want to ask them for advice or commentary on the problems you face, based on how those problems looked in their era. If you have lost all confidence in the person, such that you'd never consider asking them for advice, there is no reason for them to retain their clearance.
Yet that does point up the problem. A military commission explicitly states that it is founded on the special trust and confidence of the President. What if a President decides he cannot repose his (or her) special trust or confidence in political opponents? Such a President would have legitimate authority to revoke the commissions of all such opponents, thus purging military leadership for political reasons. Is that a wise power to invest in any President? It has worked so far, but it might be worth reconsidering.
