The FBI's McCabe and Bias in the Deep State

Andrew McCabe was fired from the FBI reportedly for lying.  He should have been fired for misuse of office and bias.

Notably, lying to the FBI is a crime under the False Statements Act.  So what "Andy" did was arguably a crime, for which dismissal is normal.  But bias, favorable or unfavorable, is not a crime.  That is why it is far more dangerous if left unchecked.  And that is why Andrew McCabe should have been fired for it.

Consider the perfidy that has been revealed to us at the top reaches of the FBI and DOJ.  While a second special counsel should be appointed, it may be found that no crimes were committed.  What we may have is a situation of gross prosecutorial under-zealousness and gross prosecutorial overzealousness, which is to say of bias.

Think, for the former, of Mrs. Clinton's probable exposure of national secrets or Lois Lerner's IRS jihad and, for the latter, the judgment entered against General Flynn.  Absent other facts that do not appear to be there, going berserk against General Flynn is not a crime, nor is weakly investigating and declining to prosecute Lerner or Clinton.  The same can probably be said for the FISA warrants unwarrantedly targeted against the Trump administration.

That is the problem, and therein lies the danger.

Now, many have trumpeted the false doctrine that it is illegitimate and tantamount to obstruction of justice to criticize or to strive to supervise such agencies of government as the FBI, DOJ, and IRS.  This conviction is what former CIA director John Brennan based his now infamous tweet upon, and which it is fair to say has disgraced him, and this (false) conviction has fueled similar sentiments expressed by others, such as Rep. Mark Pocan (D-Wis.) ("destruction of our democracy").

One reporter viciously attacked the president for having "little respect" for "institutional independence," which, purportedly, the firing of McCabe demonstrates.  But a web search for the phrase "institutional independence," which the reporter posits is so important that the president is to be berated for disrespecting, brings up almost nothing – save one South African web page.

In other words, there is no such thing as institutional independence in the constitutional arrangement of the United States.  The president is the executive.  The executive is unitary.  It is supposed to be.  The position of the Framers was summed up by James Wilson at the Constitutional Convention: "In order to control the Executive you must unite it" (Page Smith, The Constitution, p.155).  The Framers understood that unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us.  And thus, they will be completely beyond our control.  (Even the lamentable James Comey has admitted that the president has the power to direct FBI investigations.)

Some may still not have a firm grasp upon just what the president should and must be in charge of.  The most important thing is for him to police the officials' discretion.  Officials have a great deal of discretion; in law enforcement, this manifests in decisions as to what to investigate, whom to prosecute, and how.  But these decisions not all cut and dried.  Both inefficiency and bias can appear in any system, and it is the duty of the president to ride herd upon this, with the aid of the Congress exercising its oversight function.

In this light, the acknowledgement of a president's power of oversight and direction does not mean acquiescence to or even support for partisan meddling and obstruction of justice.  The former is absolutely necessary to maintain democracy, and use of this power in ways the electorate does not support, even if entirely lawful and with good intentions, may result in a change of administration.  The latter is dealt with in several ways, depending upon the situation.  Were a president's motives corrupt, the facts may constitute obstruction of justice, and even a president can be indicted after he has left office.  A sitting president may also be impeached.

It seems necessary to stress that in the actual case, Andrew McCabe was terminated not for abuse of office, but on the basis of the FBI's own investigation, which found that McCabe had lied.  Many ignore this, and so many others (@48) equate even comment by the president upon matters, such as Andrew McCabe's actions, with obstruction of justice.  It simply is not.

One can hear the lamentations drifting in over the battlements.

Oh, why can't we just let the agencies run themselves?

Because of bias, my dear.

McCabe was fired not for bias, although he should have been.  What happens when bias takes a grip on an agency?  Note again that mere bias is not unlawful.

Imagine a game with a referee such as basketball or football.  Let us posit that the referee is biased.  What he does when he favors one team over another, bending over backwards not to call a foul on one team and calling fouls that never were on another, does not run afoul of the criminal code.  This is true even if many of those around him are also biased in the same manner.

It's hard to win a basketball game when the referee is against you.  It's hard to get a fair shake when important government agencies such as the FBI, the DOJ, and the IRS have declared a jihad against you.  To shift our focus for a moment from the FBI, consider the IRS-Lois Lerner scandal.  Eventually, the IRS apologized for aggressively targeting conservative groups, and the DOJ settled civil cases brought by those groups.

That is why we have a unitary executive.  The elected president must ride herd on unelected officials.

But this is not to say that this part of our constitutional heritage is supported by all.  As pointed out above, many are stridently opposed.  And indeed, de facto, the situation on the ground, so to speak, is other.

In fact, it is extremely difficult for a president and his Cabinet to eradicate – no, even to mitigate – bias and favoritism in the face of massive bureaucratic obstruction.  Witness the inexplicable refusal by the DOJ clerkdom to prosecute Lois Lerner, Hillary Clinton, and fill-in-the-blank.

It is precisely awareness of the Deep State's bias and obstructionism that prompts many of President Trump's tweets.  Indeed, he has stated in regard to the DOJ's treatment of Hillary Clinton that "I am very unhappy with it.  The saddest thing is that because I'm the President of the United States, I am not supposed to be involved with the Justice Department, I am not supposed to be involved with the FBI. ... I am very frustrated by it."

President Trump is not the first president to feel frustrated in his dealings with the Deep State.  H.R. Haldeman, chief of staff to President Richard Nixon, in his book The Ends of Power relates that Nixon felt even then – nearly fifty years ago – that the IRS was unfairly aggressive in its investigations regarding Republicans and ignored or was extraordinarily lenient when the perpetrators were Democrats.  This drove Nixon − who had no Twitter account in those days before the internet – to distraction.  Haldeman mused:

Why was Nixon so angry? ...  I believe what caused his anger was that by 1971 Nixon had realized that he was virtually powerless to deal with the bureaucracy in every department of the government.  It was no contest.  Nixon could rave and rant.  Civil servants, almost all liberal Democrats, would thumb their noses at him. ...

Republican Cabinet officers, installed at the head of departments, soon find that they rule nothing.  The real decisions are made below by people who cannot be fired under Civil Service rules and who will be there long after the Republican Cabinet officers depart.  As far as civil servants are concerned, every Republican administration is a transient phenomenon of no lasting importance.

We found this out at another agency, the I.R.S.  I was involved in some of these efforts – and what a waste of time. Example: ... [W]hen Republicans screamed about tax audits and pointed fingers at 'deserving' Democrats, [we] couldn't get any action at all against those Democrats [such as] ... the notorious Mr John Doe, a Democrat, who we had been told was cheating on his taxes[.] ...

On the other hand, it seemed almost certain that as soon as a notable person in any field, from Billy Graham to John Wayne, announced his backing of Nixon, a tax audit notice would arrive in the next week's mail, courtesy of a loyal Democrat civil servant in the I.R.S.

The measure of Nixon's powerlessness is [illustrated by the ludicrous suggestion of a low-level White House employee] on how the President could get action at the I.R.S.: 'Why don't I write them an anonymous letter?'

Nixon's understanding of what we would now call the biased Deep State may have been ahead of its time.  As law professor Michael J. Glennon wrote in 2014, "[t]he public believes that the constitutionally-established institutions control national security policy, but that view is mistaken.  Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal" (National Security and Double Government, p. 1).

Amazingly, Trump's tweets exhorting action and criticizing inaction indeed may be working.  That is, they may achieve something close to constitutionally prescribed presidential control of executive agencies.  If so, his tweets have risen to constitutional importance, however improbable that may be.  And if so, tweet on, Mr. President...tweet on.

The author is a former law school dean and former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).