Sunday, January 8, 2017

No, a Palace Guard at the White House is not American, Why do you Ask?

Trump leaving One World Trade Center
with his security team on 1/6/17
Lucas Jackson/Reuters
In 1999 Donald Trump hired a part time body guard, Keith Schiller, for his brief Presidential run with the Reform Party. He soon quit the party, saying: "So the Reform Party now includes a Klansman, Mr. Duke, a neo-Nazi, Mr. Buchanan, and a communist, Ms. Fulani. This is not company I wish to keep." NYT February 14, 2000.  Today, as President Elect, it is the company he keeps. And Schiller is still with him.

Schiller has stayed with Trump for the past 17 years. During the campaign Schiller headed a private  security force for Trump and this week Trump hired Schiller to oversee Oval Office operations. 

Schiller oversaw more than $1 million of private Trump security operations during the campaign, compared to $360,000 spent by the Clinton campaign.  See Politico. It's unique. Several experts consulted by Politico could not recall any instance when a presidential candidate maintained a separate security force past election day; on election day Secret Service security is expanded dramatically for the winner. Yet Trump's private security team "has been present at each of the seven rallies on Trump’s post-election 'Thank You Tour' and has removed protesters — sometimes roughly — at many stops," said Politico. 

No president has ever maintained his own private protection force while in office, but Schiller's appointment to an Oval Office position this week suggests Trump aims to do so. A private security force for the President, however, is a bad and dangerous idea because such a force would be beyond the control of Congress. Such a force is outside the normal governmental checks and balances; it would be accountable to no one but Donald Trump. 

It may also be illegal. The hiring of a private security force by the president would run afoul of the Anti-Deficiency Act (31 USC 1342). This statute provides that an officer or employee of the United States Government (e.g. the President) may not accept or employ services exceeding that authorized by law. "The Executive may not raise or spend funds not appropriated by explicit legislative action," explains Yale law professor Kate Stith. "Congress has a constitutional duty to limit the amount and duration of each grant of spending authority," she says. 

Jon D. Michaels, law professor at UCLA, has written at CNN about The Folly of Trump's Palace Guard. He points out that Trump's moves to bring his own security detail to the White House is consistent with his overall efforts to undermine trust in government.  "His message is clear," says Michaels: "We should not trust the feds." 

The Secret Service, however, has been in the business of protecting presidents a long time, and they are good at it. They are the "best of the best" says Michaels.  And crucially, they also have an appreciation for balancing the competing needs of serving a particular president, and serving the presidency.

Maintaining a balance between the president as an individual and the presidency is critical "to the project of American constitutional government," says Michaels.
"We are, as Abraham Lincoln reminds us, a government of the people, by the people, and for the people. Such a reminder is particularly important today as the President-elect indicates a desire to remain (somewhat) involved in his business interests and expresses a particularly low tolerance for dissent and criticism. The Secret Service cannot and will not be enablers of these decidedly unpresidential predilections. The same cannot be said of private contractors."
The members of Trump's security team have been partisan campaigners. Schiller frolics on Trump's golf courses and in his steak houses. He has a two decades long relationship of personal fealty to Trump. A private security team lead by Schiller would be loyal to Trump the man--and whatever he's up to--not the presidency.

"It has already been well documented that Trump's security detail conceives of its role very differently from that of the Secret Service," says Michaels.  "Its members are campaign boosters, partisan combatants, and confidantes to a celebrity businessman who is about to be President," he says. "Even assuming these aides were as well-trained (and as well-integrated into the larger world of federal law enforcement, diplomacy, and intelligence agencies), they present themselves as approaching their responsibilities and loyalties very differently." 

A private security detail paid for by the Trump Organization, the President himself, or some wealthy donors, "may sound appealing to those clamoring for lower taxes and greater fiscal responsibility. But it is a problem," says Michaels. "Congress appropriates funds to the Executive branch with the expectation that those will be the only funds spent." As part of our system of checks and balances between Congress and the Executive, it is Congress that retains complete control over the purse strings.  "Absent this restriction," says Michaels, "the President could hire a phalanx of support staff to do more -- or different -- work than what Congress authorized, thereby creating fiefdoms of unchecked, unrivaled bureaucratic power."
"Congressional appropriations dictate the size and scope of Executive activity. Imagine, for instance, a Congress concerned that a presidential administration might go to extremes in enforcing federal immigration law. That Congress might intentionally restrict funding available to the Department of Homeland Security, limiting the latter's enforcement capabilities. Now imagine an independently wealthy Homeland Security chief committed to the zealous enforcement of immigration laws. Were that chief permitted to draw upon her personal fortune to hire hundreds of additional immigration agents, she would be thumbing her nose at Congress and the federal appropriations power."
Such unchecked spending powers would lead to unaccountable action not subject to the safeguarding checks and balances of our governmental system. An unchecked and unaccountable security force threatens to turn into a vanguard for an authoritarian security state.
"Circumvention of the Anti-Deficiency Act opens the door to truly big, scary, and unaccountable federal power. It invites a certain plutocratic tribalism, where loyalties run to benefactors (in and out of government) and where Congress loses control over the shape, reach, and complexion of government."
A president with a private palace guard is un-American. And it is illegal. Congress must remain watchful. They should not permit Keith Schiller to run a private security force from the White House that is loyal only to Trump and not the presidency or the American people.

[I ran across the Michaels article at CNN via Sasha Volokh at Volokh Conspiracy]

Follow me on Twitter @RolandNikles

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