The law is above the president (for now)

Kash Patel, Billy Long, Hunter Biden, and the personalization of law enforcement

On the surface, Kash Patel and Billy Long are pretty different news stories.

There are so many things to say about Kash Patel, Trump’s choice to be FBI Director, it’s difficult to know where to start.

There’s his promise to “come after” journalists and his threats of litigation against news outlets who criticized him. The fact that he has already published an enemies list of executive branch officials from the Obama and Biden Administrations as well as Trump’s first term. That he is already threatening legal retaliation against Olivia Troye for her on-air criticism of his nomination.

Billy Long, Trump’s preferred choice for IRS Commissioner, is a bit more run-of-the-mill. Yes, he’s a longtime Trump loyalist who went all-in trying to get Trump’s endorsement to run for Senate in 2022, but it didn’t work (he lost the primary). Arguably Long’s most notable moment was when he, a former auctioneer, went viral drowning out a Laura Loomer protest with an impromptu auction call in 2018.

And yet, together, Patel and Long represent a dangerous escalation in the fight over law enforcement in America and who reigns supreme: the law? Or the president?

That’s because Trump intends to install Patel and Long at two agencies that he has long sought to wield (including in his first term) against his enemies. To do so, he will need to fire the two people who currently hold those jobs, Chris Wray and Danny Werfel, even though their terms are each supposed to run until 2027.

In firing Senate-confirmed public servants like Wray and Werfel and replacing them with loyalists like Patel and Long, Trump aims to transform the FBI and the IRS from semi-independent agencies that uphold and implement the law into tools of political enforcement. His goal is to, functionally, make the FBI Director and IRS Commissioner no different than the White House press secretary or political affairs advisor. Just with the ability to wield the awesome power of their agencies over the American people.

Political footsoldiers. That’s what these two are intended to be. Full stop.

It’s the firing, not just the nominating

The thing, though, is unlike the press secretary or chief of staff or even really most of the cabinet nominees, the IRS Commissioner and FBI Director aren’t supposed to come and go with each new president.

Congress gave the roles five and 10-year terms, respectively, precisely to create a sense of public service, independence, and removal from politics. Because the agencies these officials oversee carry extraordinary powers. In contrast to many other parts of the federal government — say, the Small Business Administration or the Environmental Protection Agency — which work mostly in a big-picture, regulatory realm, these two agencies have significant power to intrude into the minute private spheres of every American. Even if an FBI investigation or IRS audit doesn’t find evidence of wrongdoing, it still can be a pretty massive intrusion.

When a person oversees an agency that can arrest you or pull apart every detail of your financial life, it’s pretty nice to know that person isn’t a political footsoldier.

Ironically, the very FBI Director that Trump now aims to fire — Christopher Wray — is the same one he nominated after he fired the last FBI Director, Jim Comey, in 2017. Biden, for his part, respected the 10-year norm and kept Wray (again, a Trump-appointed Republican) in office these past four years.

If Trump succeeds in firing Wray and Werfel and installing hand-picked loyalists like Patel and Long in their stead, you can pretty much guarantee that the fixed-term norm is dead going forward. The next Democratic president would likely be quick to exercise the same option to remove them. And that may not be the only response in-kind we see.

Put differently: If law enforcement or tax collection becomes personalized — once being investigated or audited has more to do with your politics than your behavior — it’s very difficult to bring it back to something more neutral. To take politics back out of the thing.

Personalistic law enforcement is a dangerous escalation game

Which brings us to the other big law-enforcement news of the week: President Biden’s broad pardon of his son, Hunter.

To be clear, this pardon was a broken promise and a disappointment. As Grant Tudor and Amanda Carpenter explain:

Biden’s decision to pardon his son was unquestionably personal in nature and strays from the intended purpose of the president’s clemency powers. Even though it may have been understandably motivated by a father’s love, it constitutes an abuse of power.

I don’t want to dwell on Biden’s choice per se. (If you want to know more about what the pardon power was intended to be used for and how it has strayed from that core function, read Grant and Amanda’s piece. Seriously, it’s really good and much more nuanced than a lot of the debate on the Hunter pardon.)

But I will note how this was pretty obviously motivated by a belief that Hunter would be further targeted by people like Patel in the coming administration.

And it shows how the path towards legal politicization is a one-way street. Once political actors get it into their heads that they could be legally targeted by their opponents, they’re going to respond with further actions that undermine the rule of law. And whether it’s abuses of power or anticipatory obedience, it’s not always going to be pretty and it’s never going to be good for our democracy.

Congress can stop the escalation

The good news though, is that we’re still mostly just teetering on the edge of politicized rule of law. It’s much less of a done deal than many people may fear.

And while there are obstacles remaining to law enforcement becoming the personalistic domain of the president — civil servants and courts and so on — the biggest one is Congress. Congress still gets a say over whether the law is above the president or vice-versa.

To start, it can and should stand up for the FBI and the IRS and refuse to confirm nominees lack the independence from the president required to run these agencies according to law, not loyalty. And that includes only confirming nominees whose record has earned them broad-based public trust to perform these roles independently (for these agencies to be able to do their work effectively, maintaining that trust is critical). Congress should be particularly skeptical of confirming nominees in situations where the president fires a person serving in a congressionally set statutory term, for no reason other than lack of personal loyalty.

Congress can also make it harder for future presidents to abuse the pardon power — and attempt to return it to its intended purpose within the framework of the rule of law, not as an exception to it. In fact, Speaker Johnson hinted this week that Congress may attempt to do so (details, of course, still to come).

Regardless of what Johnson means, reform could happen in a variety of ways.

Grant Tudor and Justin Florence spelled out many of them in a report we published in April: Checking the Pardon Power: Constitutional Limitations & Options for Preventing Abuse.

In all cases, reform starts with identifying the types of pardons that go beyond what the Constitution intended — by placing the president above the law, by undermining other parts of the Constitution, by violating criminal law, or by licensing future lawbreaking on the president’s behalf.

All of these should be the starting ground for reform.

Read more: Preventing and responding to pardon abuse.

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How do you fix a democracy that doesn’t want to be fixed?

In The Bulwark yesterday, Drew Penrose and I had some thoughts on the disappointing reality that so many attempts at electoral reform lost in so many states in November. (Seriously, it was a grim election.)

Our conclusion is not that we need to scale back our reform ambitions, but rather the opposite. We need to significantly expand our efforts and design big reforms that go more directly to the crises our country faces:

If this is the core problem—an uncompetitive, two-party system that’s easily captured by personalistic politicians—how do we fix it?

The place to start isn’t with the White House. Yes, the presidency is vitally important, but it’s just the top of the volcano—or, if you prefer, the end product of the doom loop in our political and party system that extends all the way down. According to political scientists, we could break this cycle from the bottom up.

We propose a new way of designing our elections that you’ve probably never heard of but that — spoiler — is one of the most common systems used around the world. Political scientists call it “open list,” but it definitely needs a new and more marketable name. So if anyone has ideas, we’d love to hear them.

Read our whole piece here: Tossing out the reform handbook.

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Come work for our If you can keep it team!

Protect Democracy is hiring for a communications specialist and a communications associate who will, among other things, help write and edit this briefing. If you know any brilliant writers — especially for the specialist role — who want to help explain, interpret, and catalogue these next four years, please encourage them to apply.

We’re also hiring for other roles and open new positions regularly. Get on our careers mailing list here.

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What else we’re tracking:

• Big news yesterday. A federal appeals court rejected Virginia officials’ latest attempt to dismiss our lawsuit challenging the State’s lifetime voting ban for anyone with a felony conviction. Ruling here. Background here: A voting rights game-changer in Virginia.

• Two excellent pieces on authoritarianism and gender you should read this week. First, Erica Newland, Kristy Parker, and Michael Angeloni explain why it is that anti-authoritarian movements that elevate women in leadership roles are, empirically, more likely to succeed: How democracy survives through elevating women.

• Second, the Carnegie Endowment’s Saskia Brechenmacher explores why autocratic movements around the world — not just in the United States — tend to advance restrictive gender norms.

• South Korea’s failed self-coup attempt this week mostly drew attention for the much more united, swift, unequivocal, and decisive response than ours on January 6th. But it also raises questions about similar scenarios in the U.S. going forward. David French asks the big question: Can martial law happen in America?

• Another sign that anticipatory obedience is coming to the mainstream media near you, from David Frum: The sound of fear on air. (Read our pre-election summary of the existential struggle between a free press and authoritarianism here.)