The more I think about it, the more it rankles me that President Obama wants to extend FBI Director Robert Mueller’s term by two years, and that the opposition to this proposal has been so muted. On principle, the extension is an awful idea (even apart from the bitterness of longtime agents, as reported in today’s WashPost), and principle should not take a back seat to admiration for the person of Mueller.
Here’s the deal: By almost all accounts, Mueller has done a superb job as FBI Director. Because of that record, Congress seems to be assessing Obama’s extension request in terms of whether Mueller should be kept on. But that’s the wrong standard. The question should be not about Mueller, but about whether Mueller should be kept on. Or, better, whether an FBI Director — any FBI director — should be kept on beyond the statutory ten-year limit. So far, only Sen. Charles Grassley, Iowa Republican, has spoken up from the Hill to raise this point. Ever so hesitantly, Grassley said the re-appointment might set a “risky precedent.”
Might? Try “would.” There are excellent reasons why, by law, the FBI chief is limited to a single, ten-year term. Those reasons are laid out in this statement by the ACLU (yeah, I know, an oft-suspect organization). Take out the tendentious second paragraph (except the first sentence of it, which is fine) of the official statement, and I agree with every word of what remains. This is the key point:
It was for good reason that Congress chose to limit the tenure of future FBI directors. By setting a 10-year term, Congress sought to protect both the FBI director from undue political influence and our democratic institutions from allowing an unelected official to hold the power to examine the lives of Americans, including political leaders, for longer than is appropriate.
The rampant abuses under J. Edgar Hoover showed the dangers of letting one, unelected man gain such a major foothold in a position with great power, and with so much public acclaim, that elected officials are loathe to dismiss him. Yes, of course there is oversight authority to which the FBI Director answers in theory, but congressional oversight can be notoriously weak and executive oversight can be obviated by the very fact that the director serves the executive and can therefore use his own accumulated power to the executive’s political (or other) benefit.
It made perfect sense to create a term of up to ten years for the director, so he would be semi-immune to the politics that comes with Cabinet-level appointments by every incoming president. It made even more sense to limit that term, by law, so that the separation from democratic accountability would not be impregnable.
The CNN story linked above ends with the statement that Mueller is “on the cusp of being officially irreplaceable.” That statement should give every Madisonian cringe. One of the understandings that underlie a republic is that no man is irreplaceable. It is not merely a cliché to say that we are a nation of laws and not of men. Any time any man, even a Mueller or a Petraeus or a MacArthur, becomes seen as irreplaceable, the dam against over-accumulation of executive power is broken. (I myself don’t worry much about accumulation of legislative power, because by its very nature it is dispersed and because frequency of elections allows the public to weigh in.)
Conservatives who do not object to Obama’s request for a new law giving him this “one-time” term extension for Mueller are failing to remember their basic principles.
Finally, on a practical level, allowing a potentially re-elected Obama to appoint the new FBI director right after his re-election could shift a huge power to a president newly unmoored from electoral pressures Do we really want to give Obama such carte blanche? Forcing Obama to appoint a new director this year, as scheduled, would ensure that he appoint somebody moderate and competent because he and Congress both would know that the public that will vote on their own campaigns just over a year later would punish anybody who had okayed the appointment of a political hack.
Mueller has been a wonderful director. Surely, though, he’s not the only person, among 300 million Americans, who can do the job.