Politics, et Cetera

A publication from The Political Forum, LLC

Tuesday, December 12, 2017

They Said It:

The old dialogue has passed away into the graveyard of consensus.  Yet is persists. Since it has no real, operable meaning any more, it is almost purely ritualistic. However, its persistence has had its real effects. The persistence of this state of affairs so far beyond its own day, has been responsible for two pathological conditions in the 1960’s. The first is that the empty rhetoric has produced a crisis of public authority. Without a basis for meaningful adversary proceedings, there has been little, if any, conflict among political actors at the level where each is forced regularly into formulating general rules, applicable to individual acts of state and at one and the same time ethically plausible to the individual citizen. The tendency of individuals to accept governmental decisions because they are good has probably at no time in this century been less intense and less widely distributed in the United States. This is producing many problems of political cynicism and irresponsibility in everyday political processes; and these problems, in turn, have tended toward the second pathological condition, the emergence of an ersatz public philosophy that seeks to justify power and to end the crisis of public authority by parceling out public authority to private parties. That is, the emerging public philosophy seeks to solve the problem of public authority by defining it away. A most maladaptive “political formula,” it will inevitably exacerbate rather than end the crisis, even though its short-run effect is one of consensus and stabilization….

All of this activity proves that there is no end to government responsibility….The new activity in the 1960’s also proves that the political apparatus of democracy can respond promptly once the constitutional barriers to democratic choice have been lowered. However, that is only the beginning of the story, because the almost total democratization of the Constitution and the contemporary expansion of the public sector has been accompanied by expansion, not by contraction, of a sense of illegitimacy about public objects. Here is a spectacular paradox. We witness governmental effort of gigantic proportion to solve problems forthwith and directly. Yet we witness expressions of personal alienation and disorientation increasing, certainly not subsiding, in frequency and intensity; and we witness further weakening of informal controls in the family, neighborhood and groups. We witness a vast expansion of effort to bring the ordinary citizen into closer rapport with the democratic process, including unprecedented efforts to confer upon the poor and ineducable the power to make official decisions involving their own fate. Yet at the very same time we witness crisis after crisis in the very institutions in which the new methods of decision-making seemed most appropriate.

Theodore Lowi, “The Public Philosophy: Interest Group Liberalism,” American Political Science Review, March 1967.



Last week, various news sources revealed that a number of the FBI investigators working on, or formerly working on, Robert Mueller’s special counsel investigation have rather discomfiting issues with respect to their ability to conduct a fair and honest enquiry.  The most obvious of the culprits is a man Peter Strzok, who was cheating on his wife with a government lawyer and stupidly sent his paramour a handful of anti-Trump texts.  In the grand scheme of things, the texts may not be huge deal, but they were enough to reveal some substantial rot within the agency.  Writing at the Washington Post, Ed Rogers explains:

Enough has been disclosed in recent weeks that would create doubts about the objectivity and honesty of Mueller’s Russia investigation.  Specifically, recent reports suggest that Peter Strzok, the deputy head of counterintelligence at the FBI, was working on Mueller’s investigation until he was removed during the summer, after Mueller discovered he had exchanged text messages critical of Trump with a lawyer assigned to the probe, with whom he was involved romantically. Strzok, it turns out, was also responsible for editing then-FBI Director James B. Comey’s description of Hillary Clinton’s handling of classified emails, reportedly softening the language from describing Clinton’s actions as “grossly negligent” to “extremely careless.”  Oh and by the way, several of the attorneys on Mueller’s team have collectively given over $62,000 in political contributions to Democrats.  Are we supposed to pretend that this doesn’t show any bias?  One attorney in particular, Jeannie Rhee, has donated more than $16,000 to Democrats since 2008 and even defended the Clinton Foundation in a racketeering lawsuit.  She also defended Clinton in a 2015 lawsuit that sought access to her private emails, as well as Ben Rhodes, deputy national security adviser under President Barack Obama, during the House Select Committee on Benghazi’s investigation.  At a minimum, all of this suggests favoritism toward Clinton and the Democrats.

Sadly, Strzok and Rhee are not the only FBI officials who have raised eyebrows.  There is a fellow named Aaron Zelby, who was Robert Mueller’s chief of staff when Mueller ran the FBI.  He has also served in a variety of high-profile positions with national security implications.  It is no surprise that Mueller trusts him and values his opinion and therefore hired him on to be his “right-hand man” in the Trump investigation.  But there’s one catch.  While in private practice in 2015, Zelby represented a man named Justin Cooper.  And Cooper, for those of you without photographic memories, was the man who set up Hillary Clinton’s illegal home-bathroom email servers.  He was also the guy who personally destroyed Hillary’s Blackberries – with a hammer! – ensuring that no one would ever get a look at what was on them.

To be fair, the things that Zelby, Rhee, and Strzok have done do not preclude them from being honest and fair investigators.  Nevertheless, their stories are just three among many which make the investigation appear tainted while also suggesting that the FBI more generally has bigger problems.

National Review is one of the few media outlets that actually employ writers with a solid grasp of the legal and political implications of possible overt bias in this investigation, as well the now- established host of suspicious personal relationships.  National Review’s coverage of this specific FBI matter began last Tuesday when David French, a Harvard-trained lawyer and Army veteran railed against Strzok, whom he called a “reckless, partisan FBI agent.”  He wrote:

If the story hadn’t been verified by virtually every mainstream-media outlet in the country, you’d think it came straight from conspiratorial fever dreams of the alt-right.  Yesterday, news broke that Robert Mueller had months ago asked a senior FBI agent to step down from his role investigating the Trump administration.  This prince of a man was caught in an extramarital affair with an FBI lawyer.  The affair itself was problematic, but so was the fact that the two were found to have exchanged anti-Trump, pro-Hillary Clinton text messages.

Here’s where the story gets downright bizarre.  This agent, Peter Strzok, also worked with FBI director James Comey on the Clinton email investigation.  In fact, he was so deeply involved in the Clinton investigation that he is said to have interviewed Cheryl Mills and Huma Abedin, and to have been present when the FBI interviewed Clinton.  According to CNN, he was part of the team responsible for altering the FBI’s conclusion that Clinton was “grossly negligent” in handling classified emails (a finding that could have triggered criminal liability) to “extremely careless” — a determination that allowed her to escape prosecution entirely.

After the Clinton investigation concluded, Strzok signed the documents opening the investigation into Russian election interference and actually helped interview former national-security adviser Michael Flynn.

In other words, it looks like a low-integrity, reckless, biased bureaucrat has played an important role in two of the most important and politically charged criminal investigations of the new century.  Yes, it’s good that Mueller removed Strzok when he discovered the text messages.  No, Strzok is not solely responsible for the conclusions reached in either investigation.  But his mere presence hurts public confidence in the FBI, and it does so in a way that further illustrates a persistent and enduring national problem: America’s permanent bureaucracy is unacceptably partisan.

Andrew McCarthy, the former Assistant U.S. Attorney who prosecuted the first World Trade Center bombing and investigated the manifestly corrupt Clinton pardons, responded to French, suggesting that when it comes to such matters, things aren’t always as cut-and-dried as French would have us all believe.  To wit:

We have not yet seen the text messages between Strzok and FBI lawyer Lisa Page, who are said to have had an affair while working together on both the Clinton emails investigation and, for a brief time, Robert Mueller’s special-counsel investigation.  But let’s assume he and Ms. Page are liberal Democrats and ardent anti-Trumpers, and that this is reflected in their exchanges, as it has been reported.

Are we now saying that whether a prosecutor or agent is qualified to work on a political-corruption case depends on his or her party affiliation or political convictions?  That would be a terrible mistake.  It would do more to intrude politics into law enforcement than remove it.  Bear in mind: We already have ethical standards and oaths….

In return, then, French ceded the point, but argued that while investigators can be partisans, they shouldn’t be, which is to say that they should do themselves and their country a favor by refraining from partisan politics as long as they are part of a high-profile investigative unit conducting high-profile investigations.

On the one hand, we think that McCarthy got the better of the argument here.  We’re not entirely sure that we would put as much stock in “ethical standards and oaths” as he does.  After all, in a land with no God, to whom do these people swear to be honest and honorable?  At the same time, we agree with him that any attempt to make partisan political affiliation a condition of employment in the federal government would be a terrible mistake and would render the very notion of a “professional bureaucracy” completely unworkable.

On the other hand, the very notion of a professional bureaucracy is mostly nonsense anyway.  The fact is that the so-called professional bureaucracy no longer exists, and hasn’t existed in a very long time.  And therein lies the much more important issue exposed by the current brouhaha over the FBI’s actions; that being the short-lived professional bureaucracy’s successor, the administrative state.

Let us explain.

Back in February, just a month after Donald Trump had taken the oath of office, we penned a piece suggesting that the contemporary administrative state necessitated a reevaluation of Max Weber’s long-accepted and long-revered model of bureaucracy.  We suggested, among other things that bureaucratic behavior in the age of Trump demonstrated rather conclusively what we had suspected for some time, namely that Weber had a few things wrong.  We put it this way:

As any schoolboy knows, Max Weber was the “godfather of sociology” and the first scholar to identify and articulate the characteristics of “bureaucracy.”  Much of what he had to say on the subject has been analyzed, absorbed, and revered by his fellow sociologists, in addition to political scientists and organizational theorists, for the better part of a century now.  And for good reason.  Weber’s keen and astute observations helped explain what a bureaucracy is, what it does, why it is important in an advanced industrial (or post-industrial) society, and what risks it poses to democratic governance.  The overwhelming majority of Weber’s insights remain both highly relevant and powerfully accurate today.

That is not, however, to say that he was right about everything.  He wasn’t.  And while this is a truism – no one is right about everything – only lately have some of Weber’s miscalculations become obvious.  For decades, students of Weber’s work have believed certain things that now appear untrue.  Indeed, we ourselves have believed certain things that are now demonstrably untrue.  And as it turns out, some of these things matter a great deal to anyone who has an interest in understanding the contemporary administrative state and forecasting its future behavior….

Weber’s observation that “the mechanism . . . is easily made to work for anybody who knows how to gain control over it,” sounds peculiar, almost laughable today.  No one knows how to gain control over the bureaucracy.  To do so is, frankly, impossible….

Between the Great Depression, the New Deal, World War II, the rise of the Military-Industrial Complex, the Great Society and countless other periods of “innovation” in government, the administrative state has ballooned in size and scope to proportions that no one, not even Max Weber, could have imagined.  Today, the federal bureaucracy decides everything for Americans, from which relationships are acceptable in the state’s eyes to who gets to go potty where.  Government “administration” is, as we have noted countless times in these pages, not merely a rival to capital and labor, the traditional bases of power in the Western world, but also the most important and most dominant feature in contemporary civic life.

Our point then – as it is now – was that the federal bureaucracy is no longer under anyone’s control.  The renowned political scientist Theodore Lowi made this point a long time ago with respect to the accountability of the bureaucracy to Congress.  With the accession of Donald Trump to the presidency, we are learning that the bureaucracy is no longer even accountable to the chief executive who is, ostensibly, the ultimate “boss” of all bureaucratic agencies.

In May, the President moved to exercise his CONSTITUTOINAL prerogative to remove the FBI Director and replace him with a candidate of his choice (pending Senate approval, naturally).  The entire political world reacted as if Trump had committed a heinous and dangerous act, had undermined the very notion of “democracy.”  The political world had it backward.  But, of course, no amount instruction could correct its collective ignorance.

Last week, when the Peter Strzok story broke, Trump tweet-mocked the FBI for its hackery.  In response, fired FBI Director James Comey quoted himself as follows: “I want the American people to know this truth: The FBI is honest.  The FBI is strong.  And the FBI is, and always will be, independent.”  The catch here is that Comey’s statement is as ignorant and arrogant as was the media’s response to his firing.  The simple and undeniable fact of the matter is that the FBI is not now and never has been “independent.”  It is an agency tasked with enforcing the law.  It is NOT the law itself.  It works for the people, and as such, it works for the people’s representatives, the most important of which is Donald J. Trump.

In 1972, when “Deep Throat” began leaking information about Watergate to Bob Woodward, the corpse of longtime FBI Director J. Edgar Hoover was barely cold.  The infamously secretive and cunning Hoover had, at times, run the Bureau as his own personal fiefdom, using its resources to advance his agenda, in addition to the formal agendas assigned by the Justice Department.  And despite all of this, Deep Throat – a.k.a. Mark Felt, a bitter man passed over for the directorship upon Hoover’s death – believed that he needed to hide his identity and carry on all sorts of cloak-and-dagger antics to get his leaks to the press.  He was rightly afraid of how it might look if a 30-year FBI veteran was unmasked as the man working his hardest to bring down the twice-elected President of the United States.

Today, by contrast, leaks abound in the Mueller investigation.  Nobody feels the need to signal to FBI agents using potted plants.  Nobody steals reporters’ copies of the New York Times and draws clock doodles on them.  And nobody meets clandestinely in parking garages at the Rosslyn end of the Key Bridge.  There’s no need for secrecy, largely because there’s no apparent need to fear repercussions from elected officials or the public.  Many men and women in the FBI behave, as James Comey hinted, as if the Bureau is “independent,” a law enforcement agency that answers to no one but itself.

Four years before Mark Felt started leaking to Bob Woodward, William Niskanen, then an economist at the Institute for Defense Analyses, published an essay (that would later become a book) detailing how bureaucracies were, in the end, primarily concerned with maximizing their budgets and thereby maximizing their personal well-being, as well as the appearance of indispensability to the legislators who held regulatory authority over them.  Niskanen’s “budget-maximizing model” of bureaucracy shook up the public administration and political science worlds by demonstrating that bureaucracies were not merely self-interested but perpetually expanding as well.

Naturally, Niskanen’s model has been the subject of much criticism over the decades, in part for failing to explain the how a bureaucratic organization made up of hundreds of individuals takes on and advances a singular anthropomorphic principal.  Nevertheless, he was undoubtedly right about the self-interested action of bureaucracies, even if he failed to identify the most important and most concerning characteristic of the bureaucracy.

You see, Niskanen was primarily concerned with budgetary matters and the bureaucracies’ ability to manipulate the public policy process to maximize their budgets.  But he wrote when the administrative state was young and the real threat was not yet clear.  In truth, bureaucracies maximize not just their budgets, but their power and their turf as well.  Indeed, it turns out that the collective will of the bureaucratic organization is so powerful that it can and does protect its power and its turf against all challengers, including those who pass the laws that fund it.  What this means, in turn, is that the partisan composition of any given bureau is largely irrelevant, as we argued above.  The bureau itself seeks to maximize and to constantly expand its power and turf.  It is, almost by definition, a statist organization, immune in our current political milieu, both to the partisan makeup and will of its individual members and to the will of the people as expressed through their elected representatives.

By noting this, we’re not picking on the FBI in particular.  We are simply stating the facts about bureaucracies and bureaucratic organizational behavior in the administrative state.  The FBI is hardly alone in maximizing its turf and its power, and it is therefore hardly alone in placing itself in a position that appears to be hostile to a chief executive who has expressed contempt for the power concentrated in the hands of petty bureaucrats.

Consider, for example, the case of the Consumer Financial Protection Bureau (CFPB), which recently went to court to deny President Trump his constitutional prerogative to appoint the director of the agency that is, at least in theory, subject in some capacity to the jurisdiction of the administrative branch.  The CFPB, seeking to maximize its power to carry out its mission, rejected the constitutional authority vested in the chief executive.  And in so doing, it precipitated a constitutional crisis.  Interestingly – but not surprisingly – this is precisely what the Democrats who designed the CFPB were hoping it would do.  Writing just yesterday at The Weekly Standard, Make Hemingway explains:

Last week brought news that “the resistance” — in the form of faceless, unaccountable federal bureaucrats — are actively fighting the legitimate assertion of presidential authority by CFPB’s new head, Mick Mulvaney.  This represents a legitimate threat to constitutional order and rule of law.  These bureaucrats are acting in defiance of two unequivocal federal court rulings, and they are going to battle against the Trump White House to defend their own prerogatives….

The Consumer Finance Protection Bureau is the embodiment of all these problems.  Created as part of the Dodd-Frank financial legislation, the agency was supposed to be a federal consumer watchdog guarding against predatory mortgage and auto lending practices, unfair credit card terms, and the like.  It was brainchild of progressive darling Senator Elizabeth Warren.  What made the CFPB so troubling, though, wasn’t its mission.  It’s the fact that it was intentionally created to be a dictatorial technocracy answerable to no one.

Congressional Democrats wrote a law creating the agency so that it was not accountable to Congress or even governed by the congressional appropriations process.  Nor was the CFPB accountable to the executive branch.

Unlike other independent regulatory agencies, such as the SEC and FCC, the CFPB is not governed by a bipartisan board.  It’s governed by a single director, who, once appointed, cannot be fired by the president unless the president demonstrates cause.  This means the CFPB has the power to assess literally billions of dollars in fines against private entities that do not go into the federal treasury and are dispersed according to the caprice of the CFPB director.  The CFPB is accountable to no one but itself….

After the agency racked up a troubling list of regulatory abuses in its relatively short existence, a federal court finally stepped in and imposed some degree of constitutional order.  The judge was unsparing in just how grossly unconstitutional the structure of the CFPB was:

The Director enjoys significantly more unilateral power than any single member of any other independent agency.  By “unilateral power,” we mean power that is not checked by the President or by other colleagues.  Indeed, other than the President, the Director of the CFPB is the single most powerful official in the entire United States Government, at least when measured in terms of unilateral power.

Long story short:  the dictator director of the CFPB retired and presumed to name his successor.  The Trump administration fought the CFPB’s power grab and named its own director of the bureau.  CFPB lost in court, and Trump chose Mick Mulvaney, also the director of the Office of Management, to head the agency.  Nevertheless, the CFPB “resistance” continues, and in the nerdliest way possible, according to the New York Times:

Some employees, including a few of the bureau’s top officials, have welcomed their new leader.  Others, pointing to Mr. Mulvaney’s earlier hostility toward the agency and its mission, are quietly resisting.  One small group calls itself “Dumbledore’s Army,” according to two of the people who were familiar with their discussions.  The name is a reference to a secret resistance force in the Harry Potter books.  An atmosphere of intense anxiety has taken hold, several employees said.  In some cases, conversations between staff that used to take place by phone or text now happen almost exclusively in person or through encrypted messaging apps.

If you think all of this is nuts, then you’re not alone.  What the CFPB refuses to acknowledge is that in our constitutional order, bureaucratic agencies’ authority comes now from the legislation that created it, but ultimately from the people, to whom it must answer regardless of legislative wording.  Or at least that’s the way it’s supposed to work.  In the age of Trump, the bureaucracy seems to have forgotten this one little detail.  And that applies to the FBI as much as it does the CFPB.

For decades, people like us have been warning that the administrative state is out of control and will grow more so.  Now, finally, there is so much evidence of this in the dustup between the FBI and its critics in Congress and the White House that it cannot be ignored.  And while this will could lead to a rare occurrence of bureaucratic agency losing a fight, it will no put an end to the problem of the administrative state.

Bureaucracies and bureaucrats are and will continue to be concerned primarily with the accumulation and expansion of power – whether wittingly or not.  The FBI is demonstrating this every day in the Trump-Russia investigation, and that’s a bad thing.   At the same time, people are paying attention, and that’s a good thing.  Max Weber was wrong about an executive’s ability to control the bureaucracy, but he was right about the imperative for democratic societies to keep a close watch on the bureaucracies, lest they grow too big and powerful.  As a nation we haven’t kept an eye on anything for a long time.  Hopefully, the Trump investigation will change this.


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