Can an Independent Counsel Be Truly Independent?

A4490-20

J. Edgar Hoover

I hope so.  But, as Yale historian Beverly Gage argues, history reminds us that partisanship is difficult to overcome.

Here is a taste of her New York Times piece “Can Anyone Be Truly ‘Independent’ in Today’s Polarized Politics“:

In colonial America, “independence” meant something relatively simple: freedom from economic dependence, or the ownership of land and wealth. By the 18th century, though, the word had acquired a more explicit political meaning: Men needed to be “independent” in order to think clearly about the common good and thus to rule themselves. For the founders, this came with many limitations of race, gender and class. As a political vision, though, it communicated a higher purpose: Officeholders would have to reject the temptations of partisanship and personal interest lest, as George Washington warned in his farewell speech, “cunning, ambitious and unprincipled men” use the white-hot animosities of party politics to “usurp for themselves the reins of government.”

This ideal of the selfless federal servant was always partly a noble fiction; as “Hamilton” fans know, the founding era’s hostilities were vicious enough that a vice president killed a former Treasury secretary. The aspiration to meet that ideal nonetheless held sway well into the 1820s, creating what became known as the “Era of Good Feelings.” It was as debates over slavery and territorial expansion heated up that party warfare returned. The Civil War itself erupted in the aftermath of a partisan event: the election of the country’s first Republican president.

Two decades later, the assassination of President James Garfield brought a new round of national soul-searching. The deranged assassin, Charles Guiteau, said he committed the deed in order to unify the Republican Party and because he felt he had deserved a patronage appointment as a European ambassador. A couple years later, in 1883, Congress passed the Pendleton Act, the nation’s first comprehensive Civil Service law, designed partly to calm the roiling political waters. Under these new rules, many federal jobs would be parceled out according to “merit” rather than party patronage, ensuring the independence and integrity of at least some of the people serving in government.

As the 20th century dawned, and Americans embraced the promise of apolitical government expertise, administrative agencies and bureaus proliferated — among them the tiny Bureau of Investigation. Founded in 1908, the bureau started out plagued by the very problems Civil Service law was designed to eliminate: incompetence, corruption and crony appointments. Then, in 1924, a bustling young director named J. Edgar Hoover set about whipping the bureau into shape. Hoover is often seen today as a tyrant and a violator of civil liberties, but when he came to office, he was considered a reformer and an enemy of “politics,” a man who could be relied upon to tell the truth when everyone else seemed to be lying for partisan ends.

He was no political naïf, however. Despite his fealty to the idea of nonpartisan professionalism, Hoover fought to keep his agents out of the Civil Service, sure that its rules and regulations would limit his autonomy as director. This sleight of hand gave Hoover’s F.B.I. its peculiar character, at once a respected investigative body and a personal fief. It also helped to insulate Hoover from the fate visited upon James Comey. As the Times journalist Tom Wicker noted two years before Hoover’s death in 1972, the F.B.I. director achieved “virtually unlimited power and independence.” No president, Republican or Democrat, ever dared to fire him.

This is one example of how bureaucratic independence can go awry. In the mid-1970s, alarmed by abuses of power during Hoover’s nearly 48-year directorship, Congress decided that future F.B.I. directors should be subject to a 10-year limit. The policy effectively split the difference between autonomy and accountability: The president still had the right to fire an F.B.I. director, but the law established a standard period of service longer than any president’s two terms. One of several things Trump’s showdown with Comey calls into question is whether this arrangement is still enough to ensure a reasonable level of F.B.I. independence — especially under a president disinclined to observe political norms.

Read the entire piece here.