To Restore Democracy Trump Will Have To Overcome Administrative State Tyranny
The second Trump administration was elected as the antidote to the administrative state — to make radical changes in personnel and policy.
President-elect Donald Trump's nominations so far have generated significant backlash from establishmentarians, confirming the picks' strategic value as disruptors.
While Trump has yet to disclose who, if anyone, he wants to replace FBI Director Christopher Wray — whose term does not expire until 2027 — the old guard's pre-emptive attacks on former National Security Council official Kash Patel signal that he might be the prospect most threatening to the dysfunctional status quo.
Senior officials at the highly politicized bureau are preparing for a thorough housecleaning. Meanwhile, former FBI Special Agent Daniel Brunner has gone to the liberal media with his concerns, blasting Patel as "dangerous" and insinuating that his housecleaning may prove to be more thorough than that executed by others.
When speaking to CNN's Jessica Dean on Sunday, Brunner parroted the talking points that have been recycled by others in Washington, D.C., in response to each of Trump's appointment announcements: Patel is supposedly inexperienced, revenge-driven, and keen on littering a sacrosanct federal agency with pink slips.
'He will conduct a massive amount of damage to the interior of the FBI.'
"It's really important to understand that the person who is leading the FBI, who is the director and then the deputy director, those are two very important positions," Brunner told Dean. "You're in charge of tens of thousands of employees, both special agents, analysts, everyone that is enforcing the law, federal law that is on the books and supporting the Constitution of the United States. Putting someone like Kash Patel in the position of director of the FBI is, I believe, extremely, extremely dangerous."
Brunner unwittingly continued his commercial for Patel, noting, "His resume isn't traditional. There is nothing on his resume other than three years as a line U.S. attorney at the DOJ."
Patel previously served as chief of staff to former acting Secretary of Defense Christopher Miller; as deputy assistant to the president and senior director for counterterrorism at the National Security Council; principal deputy to the acting director of national intelligence; as national security adviser for the House Permanent Select Committee on Intelligence; as a terrorism prosecutor at the Department of Justice; as a public defender; and as a hockey coach.
After downplaying Patel's experience, Brunner highlighted what was apparently his greater concern:
He has clearly stated that he wants to exact revenge upon those that have investigated President Trump and those who have investigated those that are around him. He will conduct a massive amount of damage to the interior of the FBI ... and employees who have put their names on certain documents because they were just working the case. There will be hundreds of employees who will be unjustly fired or have their security clearances removed only because he feels that it’s something he needs to do. So I think he'll be very, very dangerous.
Elements of the liberal media appear to be singing the same tune.
The leftist blog New Republic blasted Patel as an "intellectual lightweight," warning that "if Trump installs Patel at the FBI, it would certainly further Trump and his MAGA allies' goal of purging the federal workforce of disloyal employees."
Another prospect, former Rep. Mike Rogers (R-Mich.), has not been subject to the kind of attacks that Patel has faced in recent days.
Semafor reported that the "MAGA wing" of the Republican Party is keen to see Patel as FBI director, whereas "more conventional Republicans" are pushing for Rogers, the former chair of the House Intelligence Committee who defended warrantless surveillance of American citizens.
"If they aren't bloody, if they don't have scars from one of the get Trump 'scandals,' then they're for Rogers," an unnamed source close to the transition team told Semafor.
"I am a big fan of Mike Rogers, and should there be an opening, he would be my choice," said Maine Sen. Susan Collins (R).
Sen. John Cornyn (R-Texas) said, "Mike Rogers is a terrific guy. I don't know Kash Patel."
While Sen. Tommy Tuberville (R-Ala.) said Rogers "might be good," he stressed that Patel would "be great."
"Smart, knows a lot about law enforcement," said Tuberville. "He's loyal to the president. And those are pretty much the top requirements."
Toward the end of his first term, Trump considered installing Patel as deputy director at the FBI or CIA, reported the Associated Press. The plan fell apart when then-CIA Director Gina Haspel and former Attorney General Bill Barr made a stink.
In his book "Goverment Gangsters," Patel called for an elimination of "government tyranny" within the FBI and the removal of anyone who "in any way abused their authority for political ends," reported ABC News.
"The FBI has become so thoroughly compromised that it will remain a threat to the people unless drastic measures are taken," wrote Patel.
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An estimated 2.2 million civilian federal workers serve at the pleasure of the president, despite only 4,000 being designated as political appointees. Donald Trump’s first priority as he prepares to retake office must be to establish that he can fire any of them. Whether they hold political appointments, Senate-confirmed positions, or civil service roles, all federal employees are subject to the president’s authority to terminate their employment. This includes workers in any department or so-called “independent” agency. If a congressional statute conflicts with his authority to fire someone, that statute is unconstitutional and must yield to the president’s plenary firing authority.
Ironically, Trump’s biggest failure in his first term was his reluctance to say his famous line, “You’re fired!” To succeed in a second term, he must remove anyone who does not share his campaign vision. His primary promises are to reduce inflation and eliminate the deep state. Federal Reserve Chairman Jerome Powell is already challenging both promises, presenting Trump with an early test of his resolve.
'If any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.'
When a Politico reporter on Thursday asked Powell if he would comply if Trump asked for his resignation, Powell responded flatly, “No.” When pressed on whether he is legally required to resign, he tersely repeated, “No,” asserting his belief that no legal basis exists for firing him.
Legally, Powell has no foundation to stay in his post if the president fires him, which Trump must do. While the legislature dominates in setting public policy and the federal budget, the president decides who serves in executive positions. The Senate can confirm high officers and may refuse to confirm a new appointee after the president removes someone senators support. However, the Senate cannot force the president to keep any personnel he wishes to dismiss, even if it passes a law granting tenure to that individual, as in the case of Powell, whose term doesn’t expire until 2026.
The Supreme Court ruled in Ex Parte Hennen (1839) that the president’s power to appoint executive officials includes the power to remove them. This authority was upheld in Myers v. United States (1926) in a 70-page opinion by the chief justice, former President William Howard Taft. If a president can appoint anyone to head an agency within reason, Congress cannot restrict him to choosing or retaining any specific individual.
Some argue that the Federal Reserve must remain independent, but that is a political stance, not a legal one. Constitutionally, there are only three branches of government. Since the Fed is neither legislative nor judicial, its governors are subject to the president’s authority to remove them.
Congress can defund or abolish an office and refuse to confirm the president’s nominee, but it cannot impose a tenure law on the president. James Madison explained this separation of powers in a letter to Thomas Jefferson:
[Congressional tenure laws] overlook the important distinction between repealing or modifying the office and displacing the officer. The former is a legislative, the latter an Executive function; and even the former, if done with a view of re-establishing the office and letting in a new appointment, would be an indirect violation of the theory and policy of the Constitution.
For example, although Congress passed a law entitling the FBI director to a 10-year term, President Bill Clinton, at the recommendation of Attorney General Janet Reno, fired FBI Director William Sessions in 1993 during his sixth year in office.
No executive branch figure operates outside the president’s authority. If an individual is not subject to the president’s authority, that individual is, by definition, not part of the executive branch. Therefore, the president can fire any civil service worker within main agencies and terminate anyone serving in independent commissions, such as the Federal Trade Commission, the Federal Election Commission, the Federal Communications Commission, the Securities and Exchange Commission, and the Merit Systems Protection Board. Based on his campaign promises, Trump has an obligation to exercise this authority.
Although the Supreme Court once deviated from the originalist view espoused by Chief Justice Taft — in cases like Morrison v. Olson (1988) involving the independent counsel — that era has ended. The current Supreme Court is likely to support Trump’s power to fire executive officials. Just four years ago, the justices ruled 5-4 that the president has full authority to remove the director of the Consumer Financial Protection Bureau. With Amy Coney Barrett now on the court, Trump would likely have six votes in favor of a decision to fire someone like Powell.
The president may not be a king, but he is the CEO of the executive branch. As James Madison said in 1789, “If any power whatsoever is in its nature Executive, it is the power of appointing, overseeing, and controlling those who execute the laws.” It’s time to exercise that power to the fullest.
In the United States, the ultimate check on the growth of power was the realization that, through elections, one side would eventually hand over whatever it had built to its political opponents. This seemed like a reasonable way to prevent tyrannical abuse. Trouble is, America’s founders did not anticipate the emergence of a distinct ruling class capable of maintaining power by capturing institutions.
Elections come and go, but institutions remain. Progressives realized that by controlling the expert class staffing the permanent bureaucracies, they could vest significant power within them without worrying about the fluctuations of democratic politics. A weak and complacent Republican Party, content just to be included, also became invested in the perpetuation of these institutions. This allowed progressives to sprinkle a few “bipartisan” appointments into the mix while ensuring these institutions stayed under progressive control.
Progressives, perhaps unconsciously, know they’ve crossed a line they can’t walk back from and fear that conservatives would be just as ruthless if given the chance.
The state could continue to grow, and Democrats could grant nearly unlimited power to these institutions without fear of reprisal — until Donald Trump arrived.
Trump, though deeply flawed and unable to deliver many of his promised changes, was treated as a mortal threat by the system for good reason. As an outsider, he was not heavily invested in the machinery of governance or the authority of the institutions that progressives rely on to maintain control. At times, particularly during moments of crisis like the pandemic, Trump defaulted to the authority of these institutions, leading to some of his failures. But the mere fact that he was willing to question the system shook the ruling elite to its core.
Figures like Mitt Romney will dutifully maintain the status quo until the left regains official power. But a leader like Trump was never supposed to get anywhere near the levers of that machine. An incredible amount of authority has been placed in the administrative state, and that power was never intended to be handed over to a true political opponent.
When Trump entered office, the institutions declared all-out war on his administration, breaking rules and disregarding norms to limit the billionaire’s ability to affect the system. The media, already hostile to Republicans, unleashed unprecedented vitriol toward Trump. A perfect storm of pandemic lockdowns, riots, and election-related changes forced the real estate tycoon out of office, and the establishment vowed to never let a populist candidate like Trump gain power again.
With Democrats back in the White House, the institutions took swift revenge. January 6 protesters faced extreme prosecution from the federal government. Anti-abortion activists encountered similarly politically motivated charges and sentencing. Those who served in Trump’s administration had to spend hundreds of thousands of dollars defending themselves in court, while even Trump’s lawyers feared facing jail time.
Trump faced numerous legal challenges, aiming first to bankrupt him, then to remove him from the ballot, and finally to imprison him. When those efforts failed, some Democrats resorted to assassination attempts. The FBI increasingly acted like a Praetorian Guard serving the interests of the Democratic Party, and the weaponization of the Justice Department escalated. Under the Biden administration, opposing the institutional power of the left has become increasingly illegal.
Progressives, terrified at the idea that social media might break the hegemonic control on information that the left had previously enjoyed, launched a giant censorship industry under the banner of fighting “misinformation and disinformation.” Democratic politicians, worried that they may no longer be able to convince the existing American population, accelerated their ongoing project of replacement migration. The number of immigrants was so outrageous and the process so indiscriminate that even the leaders of major blue cities started to complain.
Trump probably did not deserve to strike that level of terror into the heart of the system, but he did, and the immune response almost killed the system itself.
Journalists now regularly draft breathless screeds warning that Trump might weaponize the Justice Department and prosecute his political enemies if he is allowed to return to office. This seems like rank hypocrisy to conservatives who have watched the Democrats treat the rule of law like a battered housewife.
But the left is doing more than just projecting its own behavior. Democrats have created an incredibly powerful leviathan and unleashed it against their political opponents. Intelligence agencies spy on regime critics, secret police harass and arrest them, and the media incites its audience to violence, sometimes even encouraging the killing of political opponents. Progressives, perhaps unconsciously, know they’ve crossed a line they can’t walk back from and fear that conservatives would be just as ruthless if given the chance.
Unfortunately, many conservatives still don’t grasp the current reality. They continue to act as if American politics follows a strict set of rules where the most convincing argument prevails and power is peacefully transferred. Their calls for civility and compromise fall on the deaf ears of a political movement that knows it has passed the point of no return.
The Democratic Party has taken the American people hostage. It has built a leviathan of immense power and recklessly aimed it at its enemies, shattering norms and undermining the rule of law. Progressives know they’ve broken the rules and fear that if they ever lose control, they will face consequences for their actions. This fear may be misplaced — many on the right lack the appetite for revenge, and Trump alternates between calls for retribution and offering the FBI a shiny new building.
Nevertheless, the possibility of a right-wing willing to stand firm still haunts the nightmares of Democrats. Like any hostage-taker, the regime’s paranoia grows by the day, and its desperation to maintain control is pushing the nation ever closer to disaster.