Friday, May 19, 2017
Questioning DOJ Independence
Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration. Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.
Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration. Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive. I am not so sure.
To the extent that the FBI is independent from the administration, the FBI is not democratically accountable. Of course, most democratic accountability in the Executive Branch is indirect. The primary democratic check on executive officials is the presidential election. The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official. But indirect accountability comes at a price: independence from the administration.
Years ago, when the legal community was in an uproar about whether the Department of Justice had become too politicized under George W. Bush’s administration, I had the good fortune to attend a panel on the U.S. Attorney firings. The panel consisted of all of the former U.S. Attorneys who had been fired at the beginning of President Bush’s second term. One U.S. Attorney said he had been fired for refusing to seek the death penalty in a particular case. Another said he’d been fired for refusing to move quickly on political corruption charges against Democratic officials. And a third said that he had been fired for refusing to bring obscenity charges against internet providers. The prevailing sentiment, both at the panel and also in the press, was that, although the President had the power to fire those U.S. Attorneys, the decision to fire these particular attorneys was inappropriate because it had been done for “political reasons.”
The panel was fascinating, but I had the same question then that I do now: If prosecutors, the FBI director, and other executive officials derive their legitimacy from their indirect democratic accountability, then why is it a scandal to fire such an official for “political” reasons. How do you draw the line between a legitimate “policy” reason and an illegitimate “political” reason?
Because I apparently do not lack self-confidence, I asked the panelists this question. And the answer that I got was, essentially, that general policy directives are okay, but any attempt to influence decisions in individual cases are off-limits. At the time, I thought that this was a satisfying answer. But now I am not so sure.
When it comes to police and prosecution, policy statements don’t seem to mean very much. Policy statements, like the charging memos that Attorney Generals regularly disseminate to federal prosecutors, are necessarily general. And they invariably leave room for professional judgment. In fact, you might say that the true policies of a prosecutor or law enforcement office can be discovered only by assessing how that professional judgment is employed in different circumstances. To use one of the examples from the U.S. Attorney firing, it doesn’t tell you much to know that a particular prosecutor supports capital punishment; what you really care about is the circumstances under which he or she will seek the death penalty.
Of course, the news accounts of the interactions between Director Comey and President Trump are not a simple example of law enforcement independence. Because the investigation at issue involved the President’s own campaign, there are a multitude of other issues at play. But whatever we take away from the Comey affair, I don’t think it should be a lesson of absolute independence for the Department of Justice.
I think Asher has the right of it. There's a difference between ordinary independence and independence in cases where an agency is charged with investigating the person with respect to whom the independence is under consideration. In other words: I can't see any particular rule of law damage from the President getting to exercise prosecutorial discretion directly w/r/t which bankers get charged with mortgage fraud or whatever (well, except with this administration, which of course totally lacks the ordinary mechanisms of insulating presidential decisions from personal presidential financial interests). But matters are rather different in the case of the circumstances of the Comey firing and indeed of the independence he was trying to protect...
Posted by: Paul Gowder | May 20, 2017 6:03:44 PM
My experience as a civil enforcement officer at the state and federal level is that, unless the violation is particularly egregious (imminent threat to human health or the environment), we tend to use formal enforcement (citation and penalties) as the last resort due to the resource-intensive nature of this action. From a public policy perspective, the states and feds prefer to use enforcement as a tool to (a) level the playing field, and (b) demonstrate credibility to various stakeholders.
My friends in the criminal side of enforcement remind often remind me, "We only catch the stupid ones".
Posted by: Paul | May 20, 2017 5:19:56 PM
Is that, responding to the end of the comment above, the choice, exactly? What if conflict rules prohibited presidential/AG directives on certain investigations, but not others, like some of the examples Professor Hessick gives? Is there anything corrupt about demanding a particular obscenity prosecution or demanding that a prosecutor seek the death penalty in a particular case? In fact, I thought that was something like the situation we had; Sessions is conflicted out of the Trump campaign investigation, but can, I suppose, make the ultimate decisions on other investigations or prosecutions.
Posted by: Asher Steinberg | May 20, 2017 10:50:05 AM
Independent agencies are for the most part given independence because Congress made a particularized policy choice in setting them up that it did not WANT them to be "democratically accountable." Independent agencies don't "derive legitimacy" from "accountability"; they, like courts, generally derive it from expertise.
Granted, Congress didn't set the FBI up as an independent agency, but (at least for the FBI) it's a completely coherent policy position to think that it SHOULD have, and that a literal application of the idea that the President can cashier the Director any time the latter threatens to undermine the former would abolish the rule of law by rendering the President effectively immune from investigation and prosecution.
The only way to combine "democratic accountability" with the rule of law is to elect prosecutors separately from the President. Most state governments are of course structured that way, but that would require a constitutional amendment to the Appointments Clause at the federal level. Still, given that we have to sacrifice one or the other, the choice between "vague notions of indirect accountability" and "government that isn't root-and-branch corrupt" doesn't seem like a very hard one to make.
Posted by: Paul Thomas | May 20, 2017 1:03:06 AM
That looks like a fascinating article, Adam. Thanks for alerting me to it!
Posted by: CBHessick | May 19, 2017 2:55:59 PM
Maggie Lemos (Duke) addresses some of these same questions in an forthcoming forthcoming in the Cornell Law Review, Democratic Enforcement? Accountability and Independence for the Litigation State, https://scholarship.law.duke.edu/faculty_scholarship/3588/
I recommend her whole article, but here's a small taste from her introduction:
Enforcement, I will argue, shares features with both legislation and adjudication, making familiar notions of political accountability and responsiveness to the public will seem simultaneously indispensable and alarming.
On the one hand, enforcement entails the sorts of policy judgments that characterize legislation and regulation. No public enforcers —at least not in the U.S. —have the resources to pursue every possible
violation of the law. They have to pick and choose, to set priorities and goals. These are policy questions through and through, and it seems not only inevitable but appropriate that their resolution be “political” in some sense. Accountability, then, surely is part of the enforcement story.
On the other hand, certain aspects of enforcement seem more akin to adjudication than to legislation, making the strongest versions of popular control appear inapt. Enforcement decisions are not just made at wholesale; in actual day-to-day practice, law enforcement is a retail endeavor. Having determined to go after fraudsters, for example, enforcers must then decide to pursue this offender or that one, to seek these remedies or those. And, given that the overwhelming majority of government enforcement actions are resolved through settlement rather than judicial decree, enforcers frequently decide on outcomes as well as objectives. The individualized and retroactive nature of enforcement distinguishes it from prospective, generally applicable legislation, and complicates the answer to the accountability question. There is something decidedly uncomfortable in the notion that government’s choice of enforcement targets— and of penalties in each case —should be subject to public, or political, whim.
Posted by: Adam Zimmerman | May 19, 2017 2:33:14 PM