Newsweek: No Country for Law Men


No Country for Law Men: The GOP Votes to Defund the FBI | Opinion

Published Mar 22, 2024 at 5:37 AM EDTUpdated Mar 25, 2024 at 10:04 AM EDT

By Thomas G. Moukawsher

Retired Judge and Author

It is a supreme irony that with urban Democratic leaders easing ill-advised restrictions on policeRepublicans in Congress have managed the only successful federal attempt to defund the police. And not just any police. The GOP has bitten a sizable chunk out of the FBI‘s budget.

Republicans criticized the Bureau for investigating the more than 100 contacts ultimately found insufficiently collusive between the 2016 Trump campaign and Russia during that country’s interference with our presidential election. Republicans in Congress also blamed the FBI for not making more out of the Hillary Clinton emails, many of which were exposed by the Russians, and Hunter Biden‘s dealings in Ukraine—despite the most serious claims coming from a now arrested source with extensive Russian connections. They opposed FBI action against those who attacked the Capitol in 2021 and castigated it for investigating former President Donald Trump‘s role in the attack and his violation of laws concerning classified documents.

Now they have acted on their criticisms. Republicans conditioned support for the first tranche of spending bills signed by the president on March 9 on cutting $654 million from the FBI budget—including $32 million that went to the heart of operations, a cut that still left far-right Republicans complaining the cuts weren’t deep enough.

If Trump were a man with a spotless record of respect for the law, Republicans might be right to call into question the FBI actions against one so highly placed. But no serious observer would call Trump above reproach in the face of the unprecedented catalogue of credible claims against him, including his questionable connections to Russia and the non-criminal court conclusions that he has engaged in fraudrape, and insurrection. So, it’s hard to avoid the conclusion that congressional Republicans are trying to interfere with the FBI while it does nothing dirtier than its duty.

And that should leave us worried about the rule of law in America. We were promised a government of laws not men, and during the latter half of the last century, we came to recognize as integral to this the defense of the integrity and independence of law enforcement.

In 1973, with the J. Edgar Hoover era over at the FBI, Attorney General Elliot Richardson refused to follow President Nixon’s order to fire the Watergate special prosecutor, and so did his deputy. When it became evident that Hoover’s successor L. Patrick Gray was using the FBI to do Nixon’s personal bidding rather than following the law, it cost Gray his job. And so it has been since. It had been an article of faith in Washington until the Trump Era that the Justice Department, including the FBI should not be tampered with by the White House or Congress.

The legal basis for this view is firm. Advocates of the “unitary executive theory” rightly point to the Constitution’s Article II Vesting Clause stating that, “The executive Power shall be vested in a President of the United States of America.” This plainly enough means that the president is the head of the executive branch, including the Justice Department and the FBI within it, and this means that Congress has no constitutional right to dictate who gets investigated and who gets charged.

But Section 3 of Article II means the president can’t frustrate law enforcement either. It charges the president to “take Care that the Laws be faithfully executed,” making it hard to see that the president would be working within his constitutional authority if he took care that the laws were not faithfully executed by interfering with the FBI’s criminal investigations or the Justice Department’s prosecutions. So, the president may not use his control over federal law enforcement to persecute the innocent or protect the guilty. To see it any other way would give the president power to nullify laws passed by Congress merely by barring the arrest of those who violated them.

Honest law enforcement should be a fundamental American commitment. Congressional Republicans pressing for the defunding of the FBI runs firmly counter to our love for the rule of law. They should rethink what they did. A nation of laws protects them too. A country of men loosed from legal constraints threatens them as much as it does their opponents.

Thomas G. Moukawsher is a former Connecticut complex litigation judge and a former co-chair of the American Bar Association Committee on Employee Benefits. He is the author of the new book, The Common Flaw: Needless Complexity in the Courts and 50 Ways to Reduce It.


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