There’s a tension built into the constitutional system—and the president is pushing it to the limit.
In March 2004, Attorney General John Ashcroft entered George Washington University Hospital with severe pancreatitis. Ashcroft had designated Deputy Attorney General James Comey as the acting attorney general while he was incapacitated.
Meanwhile, at the White House, top officials in George W. Bush’s administration were hoping to approve a terror-related surveillance program as part of the War on Terror. But Comey and Jack Goldsmith, the director of the Office of Legal Counsel—which advises the president on what he can legally do—were both resisting, viewing the program as illegal. Seeking to bypass them, White House Chief of Staff Andy Card and White House Counsel Alberto Gonzales went to Ashcroft’s hospital room, hoping he would overrule the decision. Comey and Goldsmith, getting wind of the plan, rushed to intercept them.
The officials found themselves in a standoff in the hospital room. Goldsmith recounted what happened to my colleague Jeffrey Rosen in 2007:
Ashcroft, who looked like he was near death, sort of puffed up his chest. All of a sudden, energy and color came into his face, and he said that he didn’t appreciate them coming to visit him under those circumstances, that he had concerns about the matter they were asking about and that, in any event, he wasn’t the attorney general at the moment; Jim Comey was. He actually gave a two-minute speech, and I was sure at the end of it he was going to die. It was the most amazing scene I’ve ever witnessed.
The harrowing tale illustrates the central tension for political appointees in the federal government. On the one hand, they are just that: political appointees, people chosen by the president to serve, presumably because they have some sense of affinity, politically and ideologically, with him and loyalty to him. On the other hand, they are expected to serve the people of the United States, defending and upholding the Constitution, and many of them are subject to Senate confirmation.
Ideally the goals of serving the president and serving the people and the Constitution do not conflict, but the important moments are the ones when they do. The departure of Director of National Intelligence Dan Coats, and the troubled selection of Representative John Ratcliffe, a Texas Republican, to replace him lays bare how acute this tension has become in the Trump administration.
Ashcroft was no one’s idea of a softie or a RINO. Democrats had howled when he was appointed attorney general—just weeks after losing his Senate seat to the deceased Democrat Mel Carnahan—and continued howling about his actions as attorney general. Goldsmith and Comey (and for that matter Gonzales and Card) were also lifelong Republicans. Yet when faced with tension between what the White House’s top lawyer wanted and what they believed the Constitution mandated, Ashcroft, Goldsmith, and Comey were clear that their ultimate obligation was to the latter.
Although the Trump administration hasn’t produced any scenes quite as dramatic as the hospital-room showdown—as far as we know—there have been plenty of cases in which political appointees have found themselves caught in similar conflicts. It’s not a coincidence that these same appointees have found themselves heading for the exits, often pursued by a bear.
Homeland Security Secretary Kirstjen Nielsen blocked a Trump plan to prevent migrants from seeking asylum, because she concluded that it violated laws passed by Congress. She was soon fired. White House Counsel Don McGahn refused to fire Special Counsel Robert Mueller, because he thought Trump would be obstructing justice in doing so. Attorney General Jeff Sessions came into the Justice Department as a radical outsider but nonetheless proved to be far too faithful to the institution for Trump’s taste. When he refused to un-recuse himself from the Russia investigation, Trump complained that Sessions had not “protected” him. The attorney general was eventually pushed out, though only after Trump refused his resignation and repeatedly humiliated him.
In the place of permanent appointees, Trump has become a great aficionado of acting appointments. It’s a clever, if devious, maneuver that represents an end-run around the Constitution’s requirement that the Senate advise and consent on appointees. Because these officials are only acting, they owe their loyalty entirely to Trump and depend on his indulgence to remain in the job. Based on examples like the sycophantic tenure of Acting Attorney General Matt Whitaker, this approach allows Trump to appoint officials who might never make it through the confirmation process, and encourages them to toe the line.
The latest victim of this tension is Coats. As my colleague Kathy Gilsinan has written, Coats was an unusual pick for the DNI job, because he was a career politician rather than an intelligence veteran. But Coats, following in the footsteps of previous politicians elevated to Cabinet roles, took the job seriously, and on occasion disagreed—quietly and politely, but unmistakably—with the president. That is a cardinal sin in Trumpworld, and while Coats held on longer than many people expected, he finally reached the end of the road on Sunday, when Trump said he was resigning.
To replace him, Trump has announced plans to nominate Ratcliffe, who gained national attention last week with critical questioning of Mueller. He’d been rumored as a contender for the DNI job earlier, but it hardly seems coincidental that Trump announced the change just days after Ratcliffe’s prominent defense of Trump against a federal investigator. The president praised Ratcliffe not as someone who would lead the nation’s intelligence agencies in protecting America but rather as someone who would protect the president from the intelligence agencies. “We need somebody strong that can really rein it in, because as I think you’ve all learned, the intelligence agencies have run amok,” Trump said.
The tension between serving the president and serving the country seems especially acute in this case. The president is clearly angry at intelligence agencies that have not followed his every harebrained notion and have repeatedly emphasized Russian interference in the 2016 election, and the DNI is a post that concerns sensitive matters of national security. But what’s especially interesting is that the post-9/11 legislation that created the job specifically mandates that “any individual nominated for appointment as Director of National Intelligence shall have extensive national security expertise.”
The law is vague about what constitutes “extensive national security expertise,” and it’s tough to imagine a court battle on the matter, but it’s also hard to say Ratcliffe fits the description. His résumé, as described when Trump announced the pick, would have made him the least experienced holder of the job, with just six months on the House Intelligence Committee and a few terrorism prosecutions as a federal prosecutor.
As it turns out, he wasn’t entirely honest about even that. As The New York Timesreported, Ratcliffe
said on his House website and in campaign material that he had tried suspects accused of funneling money to the Hamas terrorist group. But instead, an aide said, Mr. Ratcliffe had investigated side issues related to an initial mistrial, and did not prosecute the case either in that proceeding or in a successful second trial.
Though he said he “put terrorists in prison,” Ratcliffe didn’t even work in the same district as the case. It’s not a personal failing that Ratcliffe didn’t work lots of terror cases—unsurprisingly, the Eastern District of Texas was not a hotbed of such cases—but it does mean he may not be qualified, statutorily or practically, for the DNI job. His dishonesty about it is disturbing as well.
In keeping with the president’s approach for other appointments, there’s also a brewing controversy over who will serve as acting DNI once Coats leaves and until his successor is confirmed. Trump tweeted, “The Acting Director will be named shortly,” but as Lawfare notes, federal law dictates that the principal deputy fill that role. The career official who currently serves as principal deputy is apparently not who Trump wants. This pattern has occurred before, as Trump maneuvered to appoint loyalists as the acting leaders of the Justice and Homeland Security Departments.
There is no clean way, short of constitutional overhaul, to resolve the tension between serving the president and serving the people, which is built into the American system. At its best, it protects both the Constitution and the president. Ashcroft, Goldsmith, and Comey acted not out of disloyalty to Bush but because they sought to protect his administration from an act that would be illegal. (You might call it, um, a higher loyalty.) Trump has often harmed himself when he doesn’t listen to advisers who are giving him good-faith advice. Perhaps the greatest political error of his administration was firing Comey, the FBI director, because he would neither pledge loyalty nor act on Trump’s notion of it. (Trump may be paranoid about accepting advice, since there are self-professed saboteurs in the administration—though that is itself a reaction to his erratic judgment.)
Like many of Trump’s abuses of the system, his approach to appointments is worrisome because it is likely to persist after he leaves office. Imagine that Trump loses the 2020 election and a Democrat wins, but that Republicans maintain control of the Senate. A future President Harris or President Booker may lament Trump’s violations of norms now, but what happens when she or he faces the prospect of trying to get nominees past the intransigent Senate majority leader, Mitch McConnell? The temptation to resort to acting appointees will be strong—particularly because Trump has done it so extensively, and with so little pushback from McConnell.
In the specific case of Ratcliffe, the president has remained publicly supportive, but Republican senators have been muted in response to the nod, which often indicates that they are privately pushing back. The only personnel move that Trump loves as much as using acting secretaries and appointing lackeys is launching trial balloons. Time and again, from Federal Reserve candidate Herman Cain to Pentagon chief Patrick Shanahan, Trump has announced a nomination but dragged his feet on actually sending a nomination to the Senate. So far, Trump hasn’t formally nominated Ratcliffe, and perhaps he never will. Even if the Texan ends up backing out, or being backed out, it will be clear what Trump is seeking in his next DNI: Whatever the statute says, intelligence experience and fidelity to the Constitution always rank far behind personal loyalty to Trump.