This needs to be clarified b/c this is where Dan is getting lost in the weeds. The FBI does not investigate all illegal activity, it only investigates criminal activity.

President Obama's recess appointments to the NLRB were illegal, but not criminal. The FBI did not investigate and did not have the authority to do so. When a company fires an employee because the employee is a member of a protected class, that conduct is illegal, but not criminal. The FBI does not investigate and does not have the power to do so.

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

Maybe more central to this discussion, not every attempt by the Executive to increase that branch's power is illegal or criminal. Power seems to have been shifting significantly to the Executive under both Presidents Bush and Obama, and not all of that has been illegal. It's incumbent on the other branches to "check" those reaches for power. Not the FBI.

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Slowguy

(insert pithy phrase here...)

there are two elements to the "hedge" the FBI (and justice more broadly) represents on the executive. (at least this is my theory though i'm always eager to be taught out of a bad notion.)

first, the justice dept is a hedge against criminal behavior perpetrated by those in the executive branch, not just in the white house but those in other agencies. if the IRS commissioner executes the will of the president to the best of his or her knowledge but breaks the law in so doing, the FBI might find itself at odds with the president even if the president doesn't feel the activity was criminal. i would imagine JAG could operate similarly, prosecuting a soldier for torture or murder even if the president considered the behavior lawful. i think we got pretty close to that during bush's presidency because of his reliance on john yoo's torture memos. the threat, or the outright statement, from the justice dept that a particular policy is or would likely precipitate illegal behavior (maybe even criminal behavior) seems to me not just a possible but a necessary hedge on the executive. to me having an independent FBI sitting out there bends the policy trajectory of the executive.

then there is independence. when sally yates refused to defend the travel ban she was exercising what many see as appropriate independence. i suspect what clapper was referring to in his weekend interview was his fear that the FBI would lose the independence necessary to hold the executive in check (er... hold the executive to a standard).

the president can fire the person who refuses to carry out your wishes, but that comes at a price. firing preet bharara said to a lot of people that trump was going to go soft on wall street. firing comey, i think it's self-evident trump spent "bigly" on political capital when he did that. just about everybody agrees that the point congress was making by deciding on 10-year terms for FBI directors, rather than directors changing commensurate with a new administration taking office, was to keep that agency independent of politics.

the ability of the FBI to investigate and build a criminal case, and to decide on its own what legal and illegal activity is and looks like, regardless of the political fallout (even if its employer gets hit by shrapnel) is what makes the justice dept concurrently a tool of and a hedge on the executive (at least from my civilian amateur perspective).

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Dan Empfield
aka Slowman

Exactly.

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

The problem with this statement is that you seem to suggest there is something "special" about those in the Executive Branch that requires the FBI to monitor their potential criminal activity. That's not the case.

This boils down to a determination of whether a public official is acting within or outside the scope of his/her official office. Assume the IRS Commissioner shoplifts a pack of Canadian back bacon - that act would be outside the scope of his/her official office. The local police would handle the matter. The FBI would not be called in to investigate simply b/c the perp was a member of the Executive Branch.

Another real-life example is when a US Attorney refuses to prosecute a clear violation of the law (e.g., refuses to prosecute illegal aliens). The US Attorney is acting within the scope of his/her official authority and may, simultaneously, be breaking the law. The FBI will not investigate that simply b/c the US Attorney is a member of the Executive Branch.

When Nixon recorded people without their knowledge, he violated federal criminal law. In doing so, he was acting outside the scope of his official position as President. In so doing, he became a "regular citizen" with regard to that act. Therefore, the FBI investigated just like they would any other criminal activity. Once the lines between Presidential power and personal conduct became blurred, a special prosecutor was elicited.

When Obama recess appointed the NLRB member, he violated federal law, but it wasn't criminal law. Thus, the FBI had no authority to investigate or take any action b/c Obama did this in his official capacity as POTUS.

Nope. We went over this. Sally Yates failed to adhere to her official duties and deserved to be fired. She did not have to enforce an unlawful act, but she swore an oath to provide a legal review and detailed report to the President. She did not. She broke her oath. Breaking one's oath is disgraceful and warrants termination.

Team Donkey was screaming for Comey's termination about 10 minutes before Trump fired Comey. I believe Trump foolishly believed he would be praised for this action by the people who were calling for it 10 minutes prior. I'm being serious here. I think the dope and the clown parade around him actually believed he would get props for doing this.

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

except that the white house is the FBI's employer, making it especially necessary that the FBI remain independent of the white house, and uniquely able to investigate it, even while the white house is above it on the org chart.



obviously there are different interpretations ;-) she also swore an oath to protect and defend the constitution too. but about that legal review and detailed report, two things come to mind. first, do you think trump would have been okay with yates delaying the implementation of the travel ban until said legal review and detailed report was finished? second, i think a lot of people wanted trump to wait for the IG's report on comey. sauce for the goose.

but i hear you. i think your points are strong.

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Dan Empfield
aka Slowman

Wait ... what??? If the White House is the FBI's employer, then the FBI owes a duty of loyalty to the White House, just like one of your employees owes a duty of loyalty to you. So, if you take the position that the White House is the FBI's employers, then, no, it should NOT remain independent of the White House. An employee is not independent of his/her employer.



Of course Trump would have still fired her. But, in that case, she could actually be the martyr Team Donkey tried to portray her as because she would have actually honored her oath.

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

Except the White House is not the FBIs employer.

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Slowguy

(insert pithy phrase here...)

the world is not a tidy place. it's full of antinomies. free will and predestination. it's bread and wine and concurrently the body and the blood. he's god and he's man. he's 3 and he's 1.

and the chief of police, when asked by the mayor, his employer, to lay off busting the son of his biggest campaign contributor, must obey both his fealty to the law and his fealty to his employer.

sally yates felt trump's travel ban was not just unwise but unlawful. i guess we'll never know if the original travel ban was unlawful because, after courts initially sided with yates' view, trump replaced it with another travel ban (we'll see if that's lawful).

and that's why the FBI must remain independent while, slightly more than nominally, under the white house in the org chart.

you should be happy the world is untidy. if law was like math there wouldn't be any disagreement over its lofty concepts and you wouldn't be able to laser convincing prose to a jury.

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Dan Empfield
aka Slowman

I see you are back on the pain killers ...

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

you're confusing me with tibbs. but now that you bring it up, that's not a half bad idea.

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Dan Empfield
aka Slowman

I dunno man, you are waxing poetic like a man feeling NO pain!

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR

This is why there's a discussion of the unwritten norms being violated. There's no one else that can investigate the president except the DOJ, so there's an inherent conflict of interest. That's why Sessions agreed to recuse himself, to put some space between the president and the investigation. Now Trump has violated an unwritten rule, that you don't interfere with an investigation of yourself. It remains to be seen if the rest of the government will effectively push back.

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“Read the transcript.”

And if any Dems actually believed he fired for his poor treatment of Hillary they'd still be applauding.

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“Read the transcript.”

Team Donkey got what it wanted, so:

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If there are no dogs in Heaven, then when I die I want to go where they went. - Will Rogers

Emery's Third Coast Triathlon | Tri Wisconsin Triathlon Team | Push Endurance | GLWR