It’s all J. Edgar Hoover’s fault.
Because of him, both Washington and Augusta still grapple with the issue of the independence of law enforcement from the political world.
Hoover, the late, former FBI director, seemed to hold a lifetime position and used his job security to collect intelligence on political figures, including the presidents he worked for, which he could use effectively to blackmail them into toeing his ideological line and keeping him in office.
Everybody, even a president, is subject to the law. That means a chief executive must accept the authority of law enforcement officials. Hoover, as a law enforcement official, could use his role not only to make major political figures subject to the law, but also to make them subject to him.
Congress had enough of this abuse of power and after Hoover had finally departed, it passed a law that tried to have it both ways. The FBI director would have a ten-year term, continuing to enjoy considerable independence. But a president could remove the director at will, thus preventing Hoover-like blackmail threats.
This formula might allow a president to remove an unethical director or one who abused his powers. But it squarely posed the issue of the independence of justice and the law from politics. And the question arose just as the courts themselves were becoming politicized.
President Trump, seeking to avoid potentially embarrassing revelations, wanted an end to inquiries into Russian campaign meddling. FBI Director James Comey continued investigating possible Russian contacts with the Trump campaign. Trump fired Comey.
Then, Trump’s spokesperson said of the investigation, “There’s nothing there. It’s time to move on.” That’s wishful thinking at the highest level.
Trump, perhaps based on his business experience, has seemed to believe that winning the presidential race gave him almost unlimited power. He has been learning, painfully and publicly, that government is unlike business, and he must deal with institutions and agencies independent of his control.
The president sees the Russia investigation as a political maneuver to undermine his legitimacy. The FBI sees it as a way to determine if there has been a threat to the American political system. In this conflict, Trump must give way, no matter what he thinks.
But he was so frustrated by both the inquiry and the amount of attention Comey was getting in the media that he removed the FBI director. Trump has the right to fire him, but acting while his campaign was under FBI investigation was far from the intent of the presidential power of dismissal.
Dumping Comey, after trying to get him to halt an investigation of the campaign, has led to some in Congress to begin talking about dumping Trump as well.
His move and the reaction to it is another sign of the stress being placed on the unwritten understandings of the American system. Clearly, Trump does not feel bound by them, and it may be reasonable to update some traditions. And Comey’s handling of the Hillary Clinton emails was flawed, making his tenure questionable.
One solution may be to make the FBI director safe from firing for anything other than an illegal act. The term would be reduced to six years, allowing presidents significant appointing authority. But no president could impulsively dismiss a director, thus reducing the chance of the decision being purely political.
In Augusta, Gov. Paul LePage has been obviously unhappy about the independence of Attorney-General Janet Mills. He would rather appoint the attorney-general to ensure that she would be under his control. She angered him by refusing to sign onto to federal suits against Obama policies, opposed by LePage.
Mills has agreed to allow the governor to hire his own counsel with state funds when she will not take up the matter. He then represents his office, but not the state.
To guarantee the independence of law enforcement from the governor, the attorney-general is elected by the people in 43 states, in Maine by the Legislature and in Tennessee by the state Supreme Court. In only five states, the governor appoints the attorney-general.
LePage tried to get the Legislature to give him the power of appointment early in his term, but his bill was defeated with votes from both parties.
Conflicts about the system of checks and balances are almost uniquely part of the American system. No president, no governor is supposed to have unchecked power. But, having won a general election, it seems too hard for winners these days to come to terms with limits on their power.