Is the FBI too big to fail? Apparently not, according to one of the biggest establishment conservative magazines — and a recent article from it suggests that we may just need to split up the nation’s largest law enforcement bureau.
In a piece published Sunday titled “Maintaining Our Constitutional Order Might Require Splitting Up the FBI,” National Review executive editor Reihan Salam argues in favor of a recent paper that suggests that the FBI’s independence from the president might be problematic and that the bureau might need to be broken up.
National Review, we might remind you, is the magazine that dedicated an entire issue in January 2016 to chronicling why Trump shouldn’t be president and still isn’t terribly jazzed about the nation’s 45th commander in chief. Nevertheless, Salam says that recent events (and a working paper) have made him rethink his position on the president’s control over the bureau.
“There has long been a bipartisan consensus that the Federal Bureau of Investigation ought to be insulated from political pressure, and it has been reaffirmed in the wake of President Donald Trump’s firing of FBI director James Comey,” Salam wrote.
“Republican and Democratic lawmakers alike insisted that Comey’s successor, Christopher Wray, be independent of the White House, and he has by all accounts endeavored to do just that. But should we really want a truly independent FBI, and is an independent FBI in keeping with America’s constitutional order?
“In keeping with the conventional wisdom, my inclination has been to answer yes to both questions. So I was struck by a recent working paper by Justin Walker, a law professor at the University of Louisville’s Brandeis School of Law (and a newly-minted contributor to National Review), which argues that just as the military is subject to civilian control, on the grounds that an independent military would represent a grave threat to civil liberties, the FBI, a powerful agency charged with a number of national-security functions, should answer to the president,” he wrote.
Walker’s paper notes that the FBI’s assumed independence is more fictive than reality, particularly when it was under J. Edgar Hoover, and abuses were frequent.
Walker argues that since an independent FBI “threatens civil liberties in ways similar to how an independent military threatens civil liberties … it should be controlled by the President, like the military whose purpose it shares.”
Walker also notes that an independent FBI isn’t necessary to probe the president.
“First, Congress can investigate suspected criminality by the President or his administration. It has the means and the constitutional responsibility to do so,” the paper reads.
“And second, if one believes that as a general matter federal crime should be investigated by an agency independent of the President, the solution is to split the FBI, reserving its national-security functions for one agency and its criminal investigative functions for another. This is the model that many western democracies have adopted.”
It’s worth noting that Salam says that Walker’s “preferred alternative, it seems, is for Congress to take the lead in investigating the executive branch.”
Salam notes a separate problem addressed in a paper by Daryl J. Levinson and Richard Pildes of NYU — “the Framers assumed that the legislative branch would be eager to check the powers of the executive branch, but what they failed to anticipate is that partisan loyalties might outweigh institutional loyalties.”
Thus, Salam figures, Congress might not be willing to investigate the president if it’s dominated by the president’s party.
“If Walker really is right that an independent FBI represents a serious civil-liberties threat, splitting the FBI seems like the sounder solution,” Salam notes.
Now, of course, the only reason this is coming under examination at all is because of the documented bias of the FBI in handling both the Hillary Clinton email investigation and the Trump-Russia inquiry, both of which have come under fire in recent weeks since the Department of Justice inspector general’s report was released last month.
That report — which we were all assured by the media contained no instances of bias — contained a whole lot of bias, including new text messages and gifts accepted by employees, among other fun revelations.
So, how bad was it? Bad enough that even the mouthpiece of the Republican establishment is assuming that maybe it’s time to split the FBI up.
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