An Open Letter to the Honorable Chuck Grassley

"History shows that the ten-year term limit isn't there to protect the FBI Director from politicians or politics; it's there to protect–to help prevent the FBI Director from overreaching or abusing power."

Dear Senator,

I directly quote you above to highlight a serious factual error in your statement. I'm not sure what history text you're consulting for this position, but I would suggest you find another source, perhaps documents from your own Senate.

Case in point, from the 2nd Session of the 93rd Congress, Report No. 93-1213, Calendar No. 1151, Ten-Year Term For FBI Director:

"The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive."

As Chair of the United States Senate Committee on the Judiciary, the same position you now occupy, Senator Robert Byrd would be an excellent source for you to reference. As I think should be clear from the above citation, you are clearly incorrect in stating that the ten-year term limit for the FBI Director isn't meant to insulate the Director from undue political influence.

I would further argue that you fail to comprehend the meaning of the plain English language in the amendment itself:

"(b) Effective with respect to any individual appointment by the President, by and with the advice and consent of the Senate, after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section."

—S. 2212 (94th): Crime Control Act, Sec. 203 (emphasis mine)

I highlighted the relevant language so that we might operate from the same set of facts. The law says clearly that the term of the Director "shall be ten years." This reminds me of other language that seems familiar, i.e. "Congress shall pass no law…" within the text of the Bill of Rights. I draw this parallel for a reason.

We take the language in the Bill of Rights to mean what it says, so when we read:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

We understand it to mean that Congress will never, ever, do any of these things. The words "shall make no" carry weight & force. While the auxiliary verb "shall" denotes future action, its connotation is that of expressing an assertion or a command. This is the function of these words in general, but the example helps to elucidate their gravity.

In a like manner, S. 2212, Sec. 203, states in few words that the FBI Director's term "shall be ten years." There is no equivocation nor qualification in the words chosen. There is nothing suggesting that its authors meant for the term to be "up to" ten years. They say quite simply that the term will be exactly ten years.

We could argue that they could have been more clear about how the Director functions under the umbrella of the Office of the Executive, under what specific conditions the Director can be fired, etc. However, while such debate might be relevant to the esoteric discussions of the future, it has no bearing on this issue.

The notion of FBI independence is not about to whom the FBI reports or under whose office they are organized. At its core, FBI independence is about ensuring that, when the coercive powers of the State are moved en masse against an individual or a group, those coercive powers are brought to bear with absolute regard for Constitutional Rights & the demands of Justice, without being colored by political motivations.

That you fail to grasp this simple concept is unconscionable. In my mind, it borders on negligence. Your apparent ignorance about important, relevant legislation would drive me to distraction were I an Iowan; as an American I'm simply incensed. You made these statements in public, on the record, opening the confirmation hearing for the nominee for the position of Director of the FBI!

I'd like to say that history will judge you unkindly, but I have little faith that many people will pay any attention to this whatsoever. I suggest that contravening such an opinion as yours is of great importance. If allowed to proliferate, your notions could easily lead to a situation in which every incoming president will simply appoint his or her preferred director, a situation the 94th Congress sought to avoid at all costs.

I won't attempt to address further remarks you made disparaging Andrew McCabe, James Comey, & the FBI for carrying the ugly legacy of J. Edgar Hoover, as if the very fact of the ten year term doesn't already address Hoover. To suggest that a politically independent FBI is somehow a threat to liberty is not just foolish, it is irresponsible.

Sincerely

The Last Letter of Thomas Jefferson, on the 50th Anniversary of the Declaration of Independence

Shortly before his death, July 4, 1826, Thomas Jefferson wrote the letter that would be the last of his life. He was declining the invitation to pass the anniversary in Washington DC, & he took to the moment with his usual prosaic vigor.

As we celebrate our 241st Anniversary, it would be good to reflect on what brings us to the occasion.

Monticello June 24. 26

Respected Sir

The kind invitation I receive from you on the part of the citizens of the city of Washington, to be present with them at their celebration of the 50th anniversary of American independance; as one of the surviving signers of an instrument pregnant with our own, and the fate of the world, is most flattering to myself, and heightened by the honorable accompaniment proposed for the comfort of such a journey. It adds sensibly to the sufferings of sickness, to be deprived by it of a personal participation in the rejoicings of that day. But acquiescence is a duty, under circumstances not placed among those we are permitted to controul. I should, indeed, with peculiar delight, have met and exchanged there congratulations personally with the small band, the remnant of that host of worthies, who joined with us on that day, in the bold and doubtful election we were to make for our country, between submission or the sword; and to have enjoyed with them the consolatory fact, that our fellow citizens, after half a century of experience and prosperity, continue to approve the choice we made. May it be to the world, what I believe it will be, (to some parts sooner, to others later, but finally to all,) the Signal of arousing men to burst the chains, under which monkish ignorance and superstition had persuaded them to bind themselves, and to assume the blessings & security of self-government. that form which we have substituted, restores the free right to the unbounded exercise of reason and freedom of opinion. All eyes are opened, or opening, to the rights of man. The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of god. These are grounds of hope for others. For ourselves, let the annual return of this day forever refresh our recollections of these rights, and an undiminished devotion to them.

I will ask permission here to express the pleasure with which I should have met my ancient neighbors of the City of Washington and of it’s vicinities, with whom I passed so many years of a pleasing social intercourse; an intercourse which so much relieved the anxieties of the public cares, and left impressions so deeply engraved in my affections, as never to be forgotten. with my regret that ill health forbids me the gratification of an acceptance, be pleased to receive for yourself, and those for whom you write, the assurance of my highest respect and friendly attachments.

Th. Jefferson

People Doing “Studies” Need To Get Their Facts Straight.

This won’t be long. In researching why the GOP is claiming that premiums have more than doubled under the ACA, I found this Forbes article.

The Brookings Institute took issue with a study showing that insurance premiums dropped under the ACA. Their contention with the previous study was that it didn’t account for the money from tax incentives going toward premium costs. When factored in, premium costs seem to have doubled.

I contend that this is a false measure, first of all. No individual accounts for subsidies, either from the government or from an employer, as part of their premium costs. In offering this “premiums have doubled” number, they’re putting out facts without context. Context matters.

Further, it appears the study didn’t take into account the risk-corridor payments the GOP reneged on (ultimately Congress reneged, but it was the GOP measure that stripped funding & caused the mass exodus of insurers from the marketplace, reducing competition & driving up costs).

Further, by not enforcing the mandate, they pull healthy people from the system. It’s like having car insurance for only bad drivers: that insurance becomes very expensive. As a good driver, your premiums go toward subsidizing bad drivers. How do you think insurance companies get the money to pay claims? It’s a burden-sharing system. By not recognizing the importance of diversity in the insurance markets, they make those markets untenable.

Additionally, let’s not forget that the original ACA bill included a public healthcare option on the marketplace. That would have placed Medicaid-type plans on the individual markets. With this additional competition, insurers would have been forced to put their private products against lower cost public options. They were terribly afraid that such a move would have been the death of their industry.

Do not take things at face value, ever. Read & listen critically. Define the terms & the jargon being used to understand what someone is really saying. While the words sound like English, they’re usually all speaking American Politician. Further, statistics & data sets can say a lot of seemingly competing things, but that’s because the interpreters often wear colored lenses to view the data. Look at methodology & see how people arrive at conclusions. If their methodology is flawed or results are presented out of context, they can often lead to wholesale misinterpretations & a general decline in the way facts & truths interact within our discourse.

In What Is The Supreme Court Interested?

Caveat emptor: I am not now nor have I ever been a lawyer.

The Supreme Court today allowed parts of the Executive Order (EO) that restricts travel from 6 largely Muslim nations to be enforced in part. Essentially, the Court did two things. It acknowledged concerns by opponents & is allowing those with direct ties to United States citizens to continue to enter the country. Additionally, the Court is allowing enforcement of the EO against those who have no ties to United States citizens.

That’s all well & good, but the larger question should be framed differently: what is the Court’s interest in hearing this case?

It seems the case should be moot. The 90 days originally requested by the EO are gone, even from the second EO effective date. Further, it seems the Administration’s claims have little merit, i.e. these EOs speak directly to important national security concerns, but the Administration has not moved forward with the extreme vetting they requested back in January.

POTUS originally claimed (& still does claim) that this EO would:

“[F]or a brief period of 90 days, while existing screening and vetting procedures were under review, the entry into the United States of certain aliens from the seven identified countries — each afflicted by terrorism in a manner that compromised the ability of the United States to rely on normal decision-making procedures about travel to the United States — would be detrimental to the interests of the United States.”

It seems to any casual observer, however, that this statement by the White House is false. This EO has been mired in the courts for five months at this point, yet the Administration has not rolled out any enhanced or “extreme” vetting procedures.

Either the White House is being disingenuous when it says that this EO is temporary “while existing screening and vetting procedures were under review,” or it completely lacks concern for national security.

One would assume that, this being an incredibly important issue for the Administration, regardless of the position of the various federal courts, the Administration would have began the review of existing screening & vetting procedures immediately. This “extreme vetting” was said to be entirely necessary for the security of our nation & the safety of its inhabitants.

As we all know, however, this Administration has not rolled out any enhanced or extreme vetting procedures whatsoever. They haven’t even indicated that they’ve begun the process!

According to The Weekly Standard, no such policies or procedures are forthcoming, despite repeated claims that the EO is temporary to allow time to implement these extreme vetting policies that are (allegedly) so crucial to our security. The tweets from POTUS himself seem to also suggest that the EO itself is the device that will enhance our security, as he continually says that we need this ban to be removed from the courts so that we can be safe.

The White House has had ample time to implement extreme vetting if that were truly what this is about. Having apparently done absolutely nothing to institute extreme vetting, the argument that the EO is necessary for the security of the county doesn’t hold. 

Regardless, the case before the Court should be a moot issue because the time requested by both the original and the second EO has come & gone (additionally, the 120 days ‘pause’ requested for the refugee program has passed regarding the first EO). The lawyers responding to the government cited this issue in brief. The government responded further by having the White House change the effective date of the EO so that it doesn’t go into effect until the injunction is lifted. In their decision, the Justices noted:

The memorandum further provided that, to the extent necessary, it “should be construed to amend the Executive Order.” Ibid. The Government takes the view that, if any mootness problem existed previously, the President’s memorandum has cured it.

Further, the Court directed both parties to respond to the question of whether or not the case is moot as of June 14, 2017, to be heard during argument in October (this because the second EO is what’s under consideration, with an effective date originally in March).

The concerning issue for me is their interest in hearing this case at all. The case, on its face, seems to have no relevance anymore. However, the Justices will only hear argument about the moot question in October. Further, in a separate “concurrence,” Justice Thomas, joined by Justice Alito & Justice Gorsuch, is of the opinion that the government has a likelihood of succeeding on the merits of the case, i.e. The Court will ultimately strike down all challenges & decide for the government. 

I’m not sure how the government’s case does succeed on the merits. As I argued above, the behavior of the Administration belies any real interest in national security. The Court further notes in the decision that the Administration is free to conduct its review of vetting procedures, “if it has not already done so.” It seems to me the Court is cognizant of the national security issues, but I don’t believe they’ll brook any attempt to play in this area. If the Executive hasn’t competed & implemented their review or tries to expand the timeframe of the EO, I don’t see the Court being pleased.

As an aside, I think there is an argument to be had with the finding regarding refugees. The Court applies the same standard for visa waivers to the refugee program. It seems unlikely that people seeking refugee have bona fide relationships with US citizens, & while no one questions that no alien has a constitutional right to enter this country, one might still suggest that human beings fleeing inhuman treatment at least might have the right to be heard.

Regardless, I’m very interested to see where this goes. If the courts go too far toward Thomas & Gorsuch, we will see a further erosion of public trust in the institutions of democracy. These justices trend toward syssiphean feats of logical acrobatics to turn the law away from the People & towards corporations & moneied interests. At least that’s my opinion. 

The clock starts June 29, 2017. Mark your calendars for September 26, 2017. We’ll see what happens in the 90 days & beyond.

This Is Another Argument Republicans Make.

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Here we have Representative Steve Russell, Republican from Oklahoma, discussing the CBO figure regarding the number of uninsured should the current tax bill gut Medicaid:

“Well, I think the first thing we have to examine is that 23 million figure. It’s not a hard figure. In fact, it’s probably only roughly a third of that that’s actually enrolled. The numbers & projections are those who might enroll at current rates at some time in the future.”

Now, of course he’s correct about the fact that the CBO number is based, in part, on future behavior. However, the good gentleman from Oklahoma is being disingenuous. He ignores two things: the actual number of people who gained healthcare under Medicaid expansion & are currently enrolled is 10.7 million people, according to the Kaiser Family Foundation, as reported by PolitiFact, and the numbers of insured have been the most reliable & accurate projections made by the CBO.

First, the numbers of the enrolled reflect the latest available data, counting through the end of 2015. We’ve surely added many, many more people since 2015. Second, even just counting the numbers of those who gained coverage under expansion, that number is already closer to half of the CBO estimate of those who will lose coverage.

Given that the CBO estimates that 14 million people who are covered by Medicaid will lose healthcare. 10.7 million of those are currently enrolled as of 2015. Factor in that the program continues through 2020, & you’re likely to see the actual number become much larger. If anything, the CBO number of uninsured from Medicaid cuts is conservative.

Further, I think it bears noting that, while initial CBO estimates from 2010 found more people in the exchanges than actually are but less people in Medicaid than actually are, the CBO ultimately predicted 22 million would gain healthcare; some 24 million actually did gain healthcare. Overall, the CBO score seems far more reliable than the gentleman would have us believe.

He goes on to say that “Obamacare is failing” & insist that something has to be done. Of course, rather than address the real issues of implementing the ACA, the “do something” remedy for all republicans is to eliminate anything Obama at all costs, regardless of consequences.

I think it seems fair to call “bullshit” on the congressman’s claims. He tries to minimize the damage his Party’s bill will cause by discrediting the CBO. This tactic has been tried, but to anyone who looks at the facts it should be obvious that these claims are, at best, half-truths in service of a larger mendacity.

I would also suggest that if this is how we are going to debate, that we may already be lost. We cannot continue to “spin” facts to a partisan cause. In doing so, we make the lie worse because it creates discord & division within the body politic, most of whom won’t look for the facts themselves.

Where Do These Numbers Come From?

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The following transcript is a paraphrase of the conversation in the video, heavily edited for length & clarity. 

Joy Reid: Millions of people gained Medicaid coverage under expansion. 

If you cut the expansion, those people will no longer be eligible.

You’re saying that these individuals won’t lose their coverage but rather trade it in for other coverage.

If that’s true, then where does the CBO find 20 million people losing coverage?

Avik Roy: Well, the people who never signed up for coverage in the first place, under the Obamacare mandate that has never resulted in large numbers of healthy people actually getting insurance, there are 18 million of those people who are counted in the CBO score.

Joy Reid: Are you fucking high?

An Open Letter To Any Senators Who Can Listen

Dear Senator, 

I’m gong to be succinct, here paraphrasing Milan Kundera:

True human goodness, in all its purity and freedom, can come to the fore only when its recipient has no power. Mankind’s true moral test, its fundamental test (which is deeply buried from view), consists of its attitude towards those who are at its mercy: the poor, the sick, the old. 
How do we instead choose to act? We eliminate Medicaid to give profits to corporations & the wealthy before care to the poorest patients.

Onward Christian Nation! 

Way to go!

Can You Smell The Irony?

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I’m honestly not going to say much about this here. I just want to point out that the entire compendium of Rights he lists as necessary for Cuba are the very things he would love to get rid of in the United States (read here, here, here, & here to make up your own mind).

Also, let’s not forget, the burgeoning hospitality investment by U.S. companies in Cuba does NOT include Trump businesses because as long as he is POTUS he’s legally shut out of those markets. One has to wonder if he’s not actually attempting to hamstring his competitors while he sits out of the market.

Let’s at least be clear about one thing: this policy has absolutely nothing to do with freedoms for Cuba & everything to do with pandering to a miniscule subset of Americans who can’t let go of the past, as should be evident by the number of times POTUS said, “Bay of Pigs.”

Motherfucker, please! 

An Open Letter to Senator Jeff Flake regarding the shooting in Washington D.C. the morning of June 14, 2017

I sent the following to one of my Senators who was apparently at the baseball field that was shot up this morning. I’m frankly horrified that anyone would shoot at any government official, but I can’t say that I didn’t see this coming.

Before last year’s election, I said that it would not matter who won, someone would get shot. I saw nothing but extreme & excessive vitriol from both sides regarding each candidate, though I have to say without hesitation that the conservative displays were the most egregious (like Michael Flynn leading chants of “Lock Her Up” & candidate Trump’s open mocking of his opponents, using debasing & demeaning language at every opportunity).

The complete disgust each has for “the other” has been coupled with outright hatred of the people viewed as other. It was once assumed that we are all Americans first, but that certainly doesn’t seem to be the case now. Apparently, we are all Party first, unless you’re Christian, in which case, god chooses the GOP for you.

It is time to put away the guns, the swords, the long knives. We should instead sharpen our wits & use ideas as ammunition. I doubt very much that Senator Flake will ever see my words. I further wonder how much meaning they will have for him since, it’s obvious to me, they come from a liberal before they come from a human being & a constituent.

I guess all I can do is put the words out there & hope. Not a very comforting action.

The Honorable Jeff Flake:

Dear sir, 

I just wrote to you concerning a policy matter but didn’t want to bring up this incident in the same communication.

I have learned of the shooting at a baseball field where you & other Republican members & representatives were practicing softball. I want to express my sincerest apology to you & every other individual who was terrorized in this manner.

That this is what politics in America has become saddens me to no end. Everything we do seems to be driven by a continuous cycle of contempt, one side for the other. Like this ridiculous, ludicrous notion offered by Mr. Gingrich that career lawyers, whose interest is serving Justice before anything else, can’t properly investigate a President because at some point they made a campaign donation for “the other side.” The problem isn’t helped by this President’s animosity for facts, if not the truth itself. All of that is further complicated by 24-hour “news” organizations, like MSNBC & Fox News, who editorialize everything, viewing the world through their lens rather than presenting the facts for the people to make their own judgments.

None of this serves the administration of Justice. Make no mistake, I mean Justice in the fullest philosophical definition of that word, encompassing the dual aims of Justice: fairness & equality of liberty & opportunity for all.

The center has gone from American politics, and it results in the incredibly callous, stupidly dangerous, & viciously cruel act of violence perpetrated this morning. I wish my voice were bigger, louder. There are so many of us citizens crying out from the hollow core of American social & political life. We desperately long for a time when a person is judged on the content of their Ideas & not the color of their Party’s banner. However, it appears that the middle ground is now occupied by a flagging minority, & now we’re shooting representatives in public places (I point out that I use “we”in the royal sense, & add that I also include the shooting of Representative Gabrielle Giffords in this current thought).

I am continually discouraged by American politics. There arose a notion that we shouldn’t discuss politics or religion at the dinner table. I’m not sure from where this comes, but I’m sure that it is the most dangerous idea to hit the mainstream since slavery, perhaps. There is nothing more crucial than discussing these matters, as families, as groups gathering in communion anywhere for any reason. If people who are supposed to have affection for one another cannot manage to find a way to discuss important things meaningfully, how are we as a society supposed to maintain any dialogue whatsoever?

Instead, there is the resort to disdain, contempt, disgust, & violence, usually in that order. Marriage counselors generally say that the most dangerous thing in a marriage is contempt. If contempt reaches into the heart of just one party in the relationship, the relationship is dead unless it’s addressed quickly. The problem is that we constantly fail to recognize contempt in ourselves & therefore mistake it in others.

This constant back & forth where one “side” disagrees with the “other side” is damaging in the highest regard. It does nothing but breed contempt, derision, & enmity. 

I am truly delighted that you are unharmed, but completely inconsolable that such an incident even happened in the first place. Please share my best wishes with Rep. Scalise for a speedy recovery. I can only offer these words. Unfortunately, there is not more that I can do, except to pledge that I will continue to irritate & agitate my friends & family until they come to the table to find the center again.

We can only affect change in ourselves, however. Still, I don’t think it’s a fruitless endeavor to try. Maybe the notion of our elected officials being shot will alter the mood, but I’m not going to be overly optimistic.

Sincerely & with heartfelt sadness.

Addendum for this blog: I certainly do not think MSNBC is responsible for the dissolution of discourse. The good people there do their level best to be objective, even when editorializing. They are nowhere near the level of Fox News, which has recently become an extension of Russia Today, apparently, based on some extremely similar reporting of late.

What is this Florida International University Constitutional Law Professor saying?

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Er, perhaps I should correct that to simply say, “What the Fuck?!”

This is Professor Elizabeth Foley Price on MSNBC Live , which aired Sunday, June 11, 2017. To be as accurate as possible, I want to transcribe the part of her statement that contains the central argument offered in answer to the question posed by Ms. Witt regarding whether or not the POTUS can order the FBI to back off an investigation of Michael Flynn because Flynn is the President’s friend, i.e. that POTUS obstructed justice:

“To the extent people want to make this obstruction of justice, there’s a million reasons why this is not technically obstruction of justice, either as a statutory matter or a constitutional matter. But this point in particular about corrupt intent is even worse because, think about it, the President also has the authority, under Article II of the Constitution, to pardon people. But we don’t say, for example, that the President can’t pardon cert…er…a certain person because he has a corrupt intent. ‘He, he likes the guy, he’s known him for a long time; therefore, he can’t pardon him.’ The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.”

Wow. I’m going to state immediately that I am not a lawyer of any kind. Even our host only seemed to be able to attempt a rebuttal, making an honorable effort. Because I find this whole thing to be laden with words that sound like specific legal jargon, I’m going to look for terminology that could have a particular meaning within the law. I want to make sure that I don’t conflate any jargon-laden meaning with the plain meaning of the colloquial language, so I’m going to post the relevant material I find that might lead to understanding.

Obstruction of Justice: there’s a well covered federal statute that defines this legal term, 18 USC sec. 1505. Stated in the most simplistic manner, the first part of this statute deals with anyone withholding or destroying or concealing or lying about information requested in compliance with an investigation or proceeding. The second part deals with the act of interfering, by any means or manner, with the administration of the law, sought through inquiry or investigation, by any federal judicial or congressional proceeding.

Corrupt Intent: this one is pretty simple. Committing an act despite knowing it is illegal is corrupt intent. This is a broad definition, however. It should be noted that the above referred 18 USC sec. 1505 also contains language that suggests that anyone who seeks, “corruptly or by threats of force,” etc,  to impede said proceedings, is obstructing.

Plenary Power: again, this seems pretty straight forward. A plenary power gives complete authority over a particular area. Cornell University Law chooses an example from the Constitution, Article I, Section 8, Clause 3, which grants Congress authority over Interstate Commerce. The courts have viewed this as a plenary power, holding that State’s do not have the right to pass laws governing interstate commerce without the consent of Congress. Prof. Price is also correct that Presidential Pardon is considered a plenary power. There is some argument surrounding this; however, it has nothing to do with the POTUS’ power to direct the Offices of the Executive Branch.

(As an aside, here is an interesting article in the William & Mary Law Review that argues that it might be time to restrict the pardon power, giving an extensive history that begins with the concept in English Law. Of course, the paper does not argue that pardon power currently has limits. It just suggests that pardon power ought to be limited.)

Let’s take all that we’ve discovered so far & see if we can’t state her argument in syllogistic form.

Premise 1: POTUS cannot commit obstruction of justice with regard to directing FBI investigations because obstruction in this sense requires corrupt intent.

    Sub 1: The POTUS has “plenary power” to pardon people.

    Sub 2: The power to head the Executive Branch of government, including the FBI, is like the power to pardon, i.e. it’s a plenary power.

    Sub 3: Therefore, POTUS has plenary power to head the FBI.

Premise 2: Because POTUS has plenary power to head the FBI, he can direct investigations in any manner he sees fit, regardless of motive.

Conclusion: The POTUS cannot commit obstruction of justice with regard to directing FBI investigations. 

It’s a fairly neat argument. Her assertions seem all to be represented, & the order I have given her premises seem to follow the logic…
Who am I kidding? I can’t possibly take this seriously. Logic was thrown out the window the second she started down her “plenary” road.

If we simply examine that singular statement about plenary authority, we’ll find the flaw as well as one of the most insane statements I’ve ever heard a lawyer utter. 

First, she provides no relevant citation from the text of the Constitution or any legislation demonstrating that any plenary power to direct the Executive Branch en bloc exists. She speaks only generally to “Article II of the Constitution,” indicating no specific section or clause. Article II is concerned with establishing the Office of the President & delineating the powers of the Office in general, but the Constitution is mute on the subject of the FBI & its director.

The FBI exists simply by force of will. In 1908, Attorney General Charles Joseph Bonaparte, just decided to hire his own team of DOJ investigators without request, without permission, & without objection. With tacit congressional & executive consent, his successor dubbed this new investigative arm the Bureau of Investigation.

The FBI is organizationally under the Department of Justice (it was created out of whole cloth by an Attorney General, after all), & so far as I can tell the original directors were simply appointed by the Attorney General with no oversight or consent from any other governmental party required. It was in response to Hoover’s extremely long reign, & the incredible amount of power he had amassed from the information he’d gathered through often illegal or questionable means, that on his death the President & Senate assumed the authority for appointment & consent of the Director of the FBI respectively.

It isn’t until 1976 that Section 203 of the Crime Control Act establishes that the person who fills the position of the Director of the FBI will serve a term of ten years & is appointed by the President with the advice & consent of the Senate. While the legislation doesn’t specifically state its purpose for creating this ten-year term, it didn’t arise in a vacuum.

I refer here to a really fantastic piece in LawfareBlog by Andrew Kent, Susan Hennessey, & Matthew Khan, a brief history of the Crime Control Act of 1976. Essentially, it comes down to these small paragraphs:

“When recommending enactment of the ten-year term, the Senate Judiciary Committee wrote a comprehensive report of its rationale, including:

‘The purpose of this bill is to achieve two complementary objectives. The first is to insulate the Director of the Federal Bureau of Investigation from undue pressure being exerted upon him from superiors in the Executive Branch. The second is to protect against an FBI Director becoming too independent and unresponsive.’

As Chairman of the Judiciary subcommittee overseeing the FBI, Senator Robert Byrd said during a hearing on the ten-year term legislation that the FBI director must not use the Bureau as ‘a political action agency for the President,’ but cannot be allowed to turn the Bureau into a personal ’empire.’”

I’m not sure I could or should add anything. It seems exceedingly obvious that this particular legislation was intended, as evidenced by the clear and convincing statements of the Judiciary Committee & its chairman during the crafting of the bill, to act as an affirmative check on the power of the POTUS to “direct” the FBI in any regard.

Ultimately, Prof. Price’s point was to say that we really want to avoid thinking of indicting the POTUS in the usual way of criminal indictments. She wanted to alarm us about the Court having to “constrain the power of the POTUS,” though that is, ostensibly, the very role of the Courts in the practice of Judicial Review, a cornerstone principle unique to American jurisprudence (you might think a Con-Law Prof would know that).

While I don’t disagree that criminally prosecuting a sitting President in courts of law is problematic at best & potentially unconstitutional, I have to again fault her for her words.

Rather than point out the liquefied ground on which such a prosecution might rest–who would arrest & detain a sitting President, who would prosecute, & who would adjudicate?–she again retreats to language that belies her assertion by later stating that it would somehow be problematic for the Courts to perform their integral function of constraining the powers of the POTUS as a co-equal branch of government, especially given she believes these powers to be plenary, an assertion she also fails to prove as her premises fail to establish her conclusion.

This is enough for me to question her fitness as a Professor of Law & a Juris Doctor, but I’m not quite finished.

Let’s revisit the clear, plain language meaning of what Professor Elizabeth Foley Price of Florida International University said:

“The pardon power, like the power to head the investigative, or, er, rest of the executive branch, like the FBI, like the DOJ, is a plenary discretionary authority of the President. He can pardon anybody for any reason he wants to, ‘corrupt motive’ or no. And he can direct the investigation or non-investigation of anyone, ‘corrupt purpose’ or no.“

Her final affirmative statement says, without equivocation, that the POTUS has absolute, unchallenged authority to command the FBI to investigate or not to investigate any person for any reason whatsoever, even if the motivation for ordering the commencement or cessation of the investigation is itself known to be illegal, immoral, or unethical!

I’m going to rephrase that in case it stunned you into a fugue state: an American professor of American Constitutional Law at an American university apparently believes that the United States Constitution gives our POTUS the unassailable authority to use the FBI as his personal Gestapo!

I’m not sure that a more clearly stated paraphrase can be cobbled together from any other language. Frankly, I’m pretty sure anyone stopping on a blog about “political & social philosophy” would have easily discerned this meaning immediately. I’m sure the one individual reading this already gleaned for him- or herself exactly what the professor was saying.

Still, it is important to recognize that the reduction to absurdity isn’t The only thing fatal about her argument. The fact that her entire assertion reduces to, “POTUS can use FBI indiscriminately & without remorse or consequence, so he can’t obstruct justice” is a bonus to me. Her argument fails, both on its merits & on the fact that it renders an absurd subconclusion, i.e. that the power of POTUS over the FBI is plenary. Either way, she makes a case that she might not be fit to train young minds in the vagaries of United States Constitutional law.

Does anyone have an email address for the President of Florida International University? I’d really like to ask him or her, “What the fuck?!”