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The Consent of the Governed
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Last week, when former FBI Director James Comey gave his long-awaited public testimony about his apparently rough-and-tumble relationship with President Donald Trump, he painted a bleak picture. The essence of Comey’s testimony was that the president asked him to drop an investigation of retired Lt. Gen. Michael Flynn — Trump’s former national security adviser — and then asked him to do so in return for keeping his job as FBI director and then fired him for not obeying his order.

On the other hand, Comey confirmed that the president personally, as of the time of Comey’s firing, was not the target of any FBI criminal investigation. It was not clear from the Comey testimony whether this exoneration was referring to salacious allegations made by a former British intelligence agent of highly inappropriate and fiercely denied personal behavior a few years ago in a Moscow hotel room or whether the exoneration was with respect to widely reported allegations that the 2016 Trump campaign may have helped Russian intelligence agents in their efforts to manipulate the outcome of the presidential election.

Nevertheless, there is no doubt the president is now a target of a federal investigation with respect to his dealings with the then-FBI director. So, how could the tables have turned so quickly on the president, and who turned them? Here is the back story.

Prior to the Watergate era of the mid-1970s, the generally accepted theory of management of the executive branch of government was known as the unitary executive. This theory informs that the president is the chief executive officer of the federal government and is the sole head of the executive branch. He is also the only person in the executive branch who is accountable to the voters, as he, and he alone (along with the vice president, who is largely a figurehead), has been elected by the voters.

As such, this unitary executive theory informs, everyone in the executive branch of the federal government works at the pleasure of the president. Were this not the case, then vast areas of governance could occur and vast governmental resources could be spent by people who are unaccountable to the voters. And when the government is unaccountable to the voters, it lacks their consent. The consent of the governed is the linchpin and bedrock of popular government in America.

There are, of course, today vast areas of government that are not responsive to the people and that lack the consent of the governed. The administrative agencies that write, interpret and enforce their own regulations and the deep state — the secret parts of the financial, intelligence and law enforcement entities of the government that never change, operate below the radar screen and have budgets that never see the light of day — defy the notion that the consent of the governed is the sole legitimate basis for government in America.

ORDER IT NOW

Yet the FBI is not in the administrative state or the deep state. It is front and center as the premier law enforcement agency of the United States government. It is far from perfect, and its leaders are as fallible as the rest of us, but we have hired the folks who work there to enforce the federal laws that implicate our freedoms and our safety. And we have hired the president to exercise his discretion as to which laws shall be enforced and against whom.

Thus, under this theory, the president is constitutionally, legally, morally and ethically free to direct any person in the executive branch as to how he wants that person to perform his or her job. And the recipient of such direction is free to resign if the direction appears unlawful. That is at least the theory of the unitary executive.

After the Watergate era, Congress altered the public policy of the country to reflect the independence of the Department of Justice, including the FBI. It did so in reaction to Nixonian abuses. Thus, the post-Watergate theory of the DOJ’s role articulates that federal law enforcement is independent from the president.

The Comey testimony revealed serious efforts to reject the public policy of independence and return to the unitary executive. Comey revealed a DOJ under former Attorney General Loretta Lynch in lockstep with the Obama White House and determined to exonerate Hillary Clinton in the espionage investigation concerning her emails, no matter the evidence. He also revealed his own view that President Trump’s orders and quid pro quo offer with respect to Flynn were unlawful.
Where does this leave us today?

Today we have a White House under siege. The new DOJ criminal investigation that the president is no doubt the subject of will attempt to discover whether he corruptly attempted to interfere with the work of an independent FBI and whether he attempted to bribe its then-director. The White House is also the subject of five congressional investigations involving the Russians and the 2016 election, the firing of Director Comey, and the recusal of Attorney General Jeff Sessions from much of this. And the investigation of Clinton is back from the grave for a third time to determine whether she was exonerated because of a lack of evidence, a lack of will or an Obama political imperative.

These are perilous times for men and women of goodwill and intellectual honesty who are charged with enforcing our laws and running the government. The government should not be terrifying. But it must be fair and transparent. And it must always enjoy the consent of the governed. For without that consent, it is illegitimate.

Copyright 2017 Andrew P. Napolitano. Distributed by Creators.com.

 
• Category: Ideology • Tags: Donald Trump, FBI 
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  1. Judge,
    Why are you not on his team?
    Where is your crystal ball?
    When will you tell us what you really think?
    What needs to happen?
    Who can do it?
    THANKS

    Read More
    • Replies: @Jim Christian
    The Judge cares not what we think...He never replies back here on UNZ. But I still love the guy except for his "What if?" columns.
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  2. Agent76 says:

    Feb 1, 2017 Secrets Of The FBI Finally Revealed and Leaked

    In this video, we go over the latest FBI leak of thousands of documents to the intercept that revealed their secret rule book and operations. We go over what was found in those documents and the dangers of these powers that the FBI has.

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  3. log says: • Website

    Dear Judge:

    The existence of state secrets means the consent of the governed can never be informed.

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  4. themann says:

    So when exactly did any of us, or our representatives, vote on the income tax? Because I certainly don’t remember consenting to it.

    Or twelve years of public schooling.
    Or the TSA.
    Or the entire history of Civil Wrongs laws.

    Hyperventilating about the actions of one set of corrupt public officials vs. another is a bit far down the list of non consent issues any of us should be concerned about.

    Read More
    • Replies: @Reg Cæsar

    So when exactly did any of us, or our representatives, vote on the income tax?
     
    You didn't, your great-grandfather did. When he elected his state legislator in one of the at least 38 states (only 36 were necessary) which in turn ratified the Sixteenth Amendment.
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  5. Agent76 says:

    I was expecting an article more related to this video and its content and narrative.

    Dec 3, 2012 Murray Rothbard – The Government Is Not Us

    Professor Rothard examines the irrational implications of the premise “we are the government.”

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  6. willem1 says:

    “After the Watergate era, Congress altered the public policy of the country to reflect the independence of the Department of Justice, including the FBI…The Comey testimony revealed serious efforts to reject the public policy of independence and return to the unitary executive.”

    The above quotes imply that these two policies are just “theories” of executive authority, and not really enshrined in hard law. However, the article is never clear on whether or not that is the case. If these are just two competing theories, and no law or clear court precedent exists, then what is the legal basis for any investigation/lawsuit? Inquiring minds want to know….

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  7. “Yet the FBI is not in the administrative state or the deep state. It is front and center as the premier law enforcement agency of the United States government. ”

    And just where is it mentioned in the Constitution?

    The first police force wasn’t created until the 1820′s or so.

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  8. @goldgettin
    Judge,
    Why are you not on his team?
    Where is your crystal ball?
    When will you tell us what you really think?
    What needs to happen?
    Who can do it?
    THANKS

    The Judge cares not what we think…He never replies back here on UNZ. But I still love the guy except for his “What if?” columns.

    Read More
    • Replies: @David
    I loath him for supporting open borders. How are those working out for our constitutional republic? Crappy, but the judge doesn't care about results when he can write luminous prose about principles. ("The government should not be terrifying. But it must be fair and transparent. And it must always enjoy the consent of the governed. For without that consent, it is illegitimate.")

    Remember this "judge" really likes John Stewart. Doesn't sound like a discerning judge to me.
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  9. Anonymous says: • Disclaimer

    Frankly this whole unitary executive thing—the Big Man answerable only to the people— smacks of third-world caudillismo.

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  10. Miro23 says:

    These are perilous times for men and women of goodwill and intellectual honesty who are charged with enforcing our laws and running the government. The government should not be terrifying. But it must be fair and transparent. And it must always enjoy the consent of the governed. For without that consent, it is illegitimate.

    The US electorate was presented with different policies by Trump and HRC and voted/gave their consent to 1) America First 2) reduced immigration 3) infrastructure spending 4) no more foreign wars 4) control of Wall St.

    The legitimacy of the Trump presidency therefore depends on him doing these things.

    So far he has done little or nothing. Immigration is in the slow lane, he has increased tension in the ME by encouraging Saudi Arabia in its economic blockade of Qatar (and their attack on the excellent Al Jazeera TV station), bombed Syria and threatened Iran and Russia. He has also surrounded himself with Wall St people while going quiet on the FED.

    So he’s non-performing, and elected Congressman and Senators are also non-performing – apparently only able to block vote in favour of the dictates of Washington Zionists.

    In these circumstances it is entirely legitimate for citizens at the county/state level to organize their own local governance, with local voting /legislation/taxation and spending as envisaged in the Constitution. It was never intended that the Federal Government become the vast behemoth of unaccountable power that it is today.

    Trump could then take a break since he would be mostly irrelevant.

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  11. Anonymous says: • Disclaimer

    “Comey revealed a DOJ under former Attorney General Loretta Lynch in lockstep with the Obama White House…”.

    I’m not a Trumpeter but it looks like the so-called “unitary executive” conveniently worked for Obama while he was in office. But his would-be successor was beaten by Trump, so suddenly we’re back to the “independent” DOJ.

    This is the sort of thing that breeds mass cynicism among the citizenry.

    Read More
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  12. David says:
    @Jim Christian
    The Judge cares not what we think...He never replies back here on UNZ. But I still love the guy except for his "What if?" columns.

    I loath him for supporting open borders. How are those working out for our constitutional republic? Crappy, but the judge doesn’t care about results when he can write luminous prose about principles. (“The government should not be terrifying. But it must be fair and transparent. And it must always enjoy the consent of the governed. For without that consent, it is illegitimate.”)

    Remember this “judge” really likes John Stewart. Doesn’t sound like a discerning judge to me.

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  13. @themann
    So when exactly did any of us, or our representatives, vote on the income tax? Because I certainly don't remember consenting to it.

    Or twelve years of public schooling.
    Or the TSA.
    Or the entire history of Civil Wrongs laws.


    Hyperventilating about the actions of one set of corrupt public officials vs. another is a bit far down the list of non consent issues any of us should be concerned about.

    So when exactly did any of us, or our representatives, vote on the income tax?

    You didn’t, your great-grandfather did. When he elected his state legislator in one of the at least 38 states (only 36 were necessary) which in turn ratified the Sixteenth Amendment.

    Read More
    ReplyAgree/Disagree/Etc. More... This Commenter This Thread Hide Thread Display All Comments
  14. In this age of “manufactured consent,” what is the meaning – or, should it be asked, what is the worth – of “the consent of the governed”?

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  15. Wonder how Judge Nap is feeling about those Second Amendment Solutions, now that Steve Scalise got one.

    One man’s hero is another man’s tyrant.

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