Yes, the President May Fire the FBI Director

As readers of my columns know, I am a fan of Peter Schweizer, who runs the Government Accountability Institute and is author of the crucially important Clinton Cash: The Untold Story of How and Why Foreign Governments and Businesses Helped Make Bill and Hillary Rich. The book is an exhaustively researched account of the Clinton Foundation scheme, and media reporting indicates that it triggered the FBI’s investigation of the Foundation’s pay-to-play scheming.

Mr. Schweizer is the first to admit (maybe I should say, to brag) that he is not a lawyer or a constitutional scholar. He’s a first-rate investigative journalist. In that spirit, I want to rebut a legal error I’ve heard him make in a couple of interviews over the last few days, most recently when interviewed by Rush Limbaugh this afternoon. Apparently making some errant assumptions based on the fact that the FBI director, by statute, has a ten-year term, he has opined that the FBI is an agency independent of the executive branch; therefore, he concludes, the FBI director does not work for, and may not be fired by, the president.

This is incorrect.

In our system, law enforcement is an executive power. The FBI is thus an executive branch agency. Indeed, far from independent, it is a part of the Justice Department; the FBI director is subordinate to the attorney general in the chain-of-command.

Under the Constitution, all executive power is endowed in one official, the president of the United States. Every official who wields power in the executive branch thus wields it at the pleasure of the chief executive. The president may terminate any executive officer, even those who have been confirmed by Congress, for any reason or no reason. The FBI director is no different.

It is true that Congress has given the FBI director a ten-year term, but it is best thought of as a presumptive ten-year limit. There are two explanations for it.