The con­sent of the gov­erned

Amer­i­cans need to know whether gov­ern­ment is still ac­count­able

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

Last week, when for­mer FBI Di­rec­tor James Comey gave his lon­gawaited pub­lic tes­ti­mony about his ap­par­ently rough-and-tum­ble re­la­tion­ship with Pres­i­dent Trump, he painted a bleak pic­ture. The essence of Mr. Comey’s tes­ti­mony was that the pres­i­dent asked him to drop an in­ves­ti­ga­tion of re­tired Lt. Gen. Michael Flynn — Mr. Trump’s for­mer na­tional se­cu­rity ad­viser — and then asked him to do so in re­turn for keep­ing his job as FBI di­rec­tor and then fired him for not obey­ing his or­der.

On the other hand, Mr.; Comey con­firmed that the pres­i­dent per­son­ally, as of the time of Mr. Comey’s fir­ing, was not the tar­get of any FBI crim­i­nal in­ves­ti­ga­tion. It was not clear from the Comey tes­ti­mony whether this ex­on­er­a­tion was re­fer­ring to sala­cious al­le­ga­tions made by a for­mer Bri­tish in­tel­li­gence agent of highly in­ap­pro­pri­ate and fiercely de­nied per­sonal be­hav­ior a few years ago in a Moscow ho­tel room or whether the ex­on­er­a­tion was with re­spect to widely re­ported al­le­ga­tions that the 2016 Trump cam­paign may have helped Rus­sian in­tel­li­gence agents in their ef­forts to ma­nip­u­late the out­come of the pres­i­den­tial elec­tion.

Nev­er­the­less, there is no doubt the pres­i­dent is now a tar­get of a fed­eral in­ves­ti­ga­tion with re­spect to his deal­ings with the then-FBI di­rec­tor. So how could the ta­bles have turned so quickly on the pres­i­dent, and who turned them? Here is the back story.

Prior to the Water­gate era of the mid-1970s, the gen­er­ally ac­cepted the­ory of man­age­ment of the ex­ec­u­tive branch of gov­ern­ment was known as the uni­tary ex­ec­u­tive. This the­ory in­forms that the pres­i­dent is the chief ex­ec­u­tive of­fi­cer of the fed­eral gov­ern­ment and is the sole head of the ex­ec­u­tive branch. He is also the only per­son in the ex­ec­u­tive branch who is ac­count­able to the vot­ers, as he, and he alone (along with the vice pres­i­dent, who is largely a fig­ure­head), has been elected by the vot­ers.

As such, this uni­tary ex­ec­u­tive the­ory in­forms, ev­ery­one in the ex­ec­u­tive branch of the fed­eral gov­ern­ment works at the plea­sure of the pres­i­dent. Were this not the case, then vast ar­eas of gov­er­nance could oc­cur and vast gov­ern­men­tal re­sources could be spent by peo­ple who are un­ac­count­able to the vot­ers. And when the gov­ern­ment is un­ac­count­able to the vot­ers, it lacks their con­sent. The con­sent of the gov­erned is the linch­pin and bedrock of pop­u­lar gov­ern­ment in Amer­ica.

There are, of course, to­day vast ar­eas of gov­ern­ment that are not re­spon­sive to the peo­ple and that lack the con­sent of the gov­erned. The ad­min­is­tra­tive agen­cies that write, in­ter­pret and en­force their own reg­u­la­tions and the deep state — the se­cret parts of the fi­nan­cial, in­tel­li­gence and law en­force­ment en­ti­ties of the gov­ern­ment that never change, op­er­ate be­low the radar screen and have bud­gets that never see the light of day — defy the no­tion that the con­sent of the gov­erned is the sole le­git­i­mate ba­sis for gov­ern­ment in Amer­ica.

Yet the FBI is not in the ad­min­is­tra­tive state or the deep state. It is front and cen­ter as the pre­mier law en­force­ment agency of the United States gov­ern­ment. It is far from per­fect, and its lead­ers are as fal­li­ble as the rest of us, but we have hired the folks who work there to en­force the fed­eral laws that im­pli­cate our free­doms and our safety. And we have hired the pres­i­dent to ex­er­cise his dis­cre­tion as to which laws shall be en­forced and against whom.

Thus, un­der this the­ory, the pres­i­dent is con­sti­tu­tion­ally, legally, morally and eth­i­cally free to di­rect any per­son in the ex­ec­u­tive branch as to how he wants that per­son to per­form his or her job. And the re­cip­i­ent of such di­rec­tion is free to re­sign if the di­rec­tion ap­pears un­law­ful. That is at least the the­ory of the uni­tary ex­ec­u­tive.

Af­ter the Water­gate era, Con­gress al­tered the pub­lic pol­icy of the coun­try to re­flect the in­de­pen­dence of the Depart­ment of Jus­tice, in­clud­ing the FBI. It did so in re­ac­tion to Nixo­nian abuses. Thus, the post-Water­gate the­ory of the Depart­ment of Jus­tice’s role ar­tic­u­lates that fed­eral law en­force­ment is in­de­pen­dent from the pres­i­dent.

The Comey tes­ti­mony re­vealed se­ri­ous ef­forts to re­ject the pub­lic pol­icy of in­de­pen­dence and re­turn to the uni­tary ex­ec­u­tive. Mr. Comey re­vealed a Jus­tice Depart­ment un­der for­mer At­tor­ney Gen­eral Loretta Lynch in lock­step with the Obama White House and de­ter­mined to ex­on­er­ate Hil­lary Clin­ton in the es­pi­onage in­ves­ti­ga­tion con­cern­ing her emails, no mat­ter the ev­i­dence. He also re­vealed his own view that Pres­i­dent Trump’s or­ders and quid pro quo of­fer with re­spect to Mr. Flynn were un­law­ful. Where does this leave us to­day? To­day we have a White House un­der siege. The new Jus­tice Depart­ment crim­i­nal in­ves­ti­ga­tion that the pres­i­dent is no doubt the sub­ject of will at­tempt to dis­cover whether he cor­ruptly at­tempted to in­ter­fere with the work of an in­de­pen­dent FBI and whether he at­tempted to bribe its then-di­rec­tor. The White House is also the sub­ject of five con­gres­sional in­ves­ti­ga­tions in­volv­ing the Rus­sians and the 2016 elec­tion, the fir­ing of Di­rec­tor Comey, and the re­cusal of At­tor­ney Gen­eral Jeff Ses­sions from much of this. And the in­ves­ti­ga­tion of Mrs. Clin­ton is back from the grave for a third time to de­ter­mine whether she was ex­on­er­ated be­cause of a lack of ev­i­dence, a lack of will or an Obama po­lit­i­cal im­per­a­tive.

These are per­ilous times for men and women of good­will and in­tel­lec­tual hon­esty who are charged with en­forc­ing our laws and run­ning the gov­ern­ment. The gov­ern­ment should not be ter­ri­fy­ing. But it must be fair and trans­par­ent. And it must al­ways en­joy the con­sent of the gov­erned. For with­out that con­sent, it is il­le­git­i­mate.

Mr. Comey re­vealed a Jus­tice Depart­ment un­der for­mer At­tor­ney Gen­eral Loretta Lynch in lock­step with the Obama White House and de­ter­mined to ex­on­er­ate Hil­lary Clin­ton.

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