The Volokh Conspiracy

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The dangers of Trump's private guard


In the Rhetoric (1357b), Aristotle talks generally about inductions and examples:

The "example" has already been described as one kind of induction; and the special nature of the subject-matter that distinguishes it from the other kinds has also been stated above. Its relation to the proposition it supports is not that of part to whole, nor whole to part, nor whole to whole, but of part to part, or like to like. When two statements are of the same order, but one is more familiar than the other, the former is an "example."

The argument may, for instance, be that Dionysius, in asking as he does for a bodyguard, is scheming to make himself a despot. For in the past Peisistratus kept asking for a bodyguard in order to carry out such a scheme, and did make himself a despot as soon as he got it; and so did Theagenes at Megara; and in the same way all other instances known to the speaker are made into examples, in order to show what is not yet known, that Dionysius has the same purpose in making the same request: all these being instances of the one general principle, that a man who asks for a bodyguard is scheming to make himself a despot.

See, the danger was well-enough known even in Aristotle's time that he could use it as a generic example of "example".

Along these lines, my friend Jon Michaels of UCLA Law School, has a CNN op-ed on "The Folly of Trump's Palace Guard". Jon's work is invaluable in showing how privatization can potentially be used to circumvent various valuable legal and institutional constraints—see, for instance, his article Privatization's Pretensions and his article Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War.

Jon and I don't always see eye-to-eye on particular privatization questions. In particular, where Jon tends to see some "privatization workarounds" as being hidden and undesirable, I might tend to see them as both understood and desirable; and where Jon tends to see the potential for undermining constraints as an argument against privatization, I tend to see it (where undesirable) as an argument for intelligent design of better privatization. These sorts of privatization issues will doubtless crop up in the current administration, with talk of privatization (much of which I might favor, depending on the details) in education, veterans' services, Social Security, etc., as well as continuing federal contracting with private prisons.

But in this case, Jon is right. I don't think there's anything magical about the currently existing Secret Service: the case for using those sorts of employees (a particular type of contractor) versus another type of contractor depends on various issues including cost and effectiveness. But presidential security does law-enforcement tasks and has the potential to violate people's rights, and it matters what resources they have and how their deployment is constrained.

And perhaps particular presidents might be entitled to the benefit of the doubt as to whether they're likely to abuse these powers; I'm not a big fan of extending that sort of benefit of the doubt to anyone, but to the extent it's ever warranted, any situation involving this particular president is not one of those cases. So however presidential security is designed, it's important that before changing providers, one be explicit about where the money and control is coming from. As a first approximation, any providers should be funded and controlled by Congress to the same extent as the current Secret Service.

Here's an excerpt from Jon's article:

Finally, having a private security force for the President-elect raises thorny legal issues. A private security detail paid for by, I suppose, the Trump Organization, the President-Elect himself, or some wealthy donors, may sound appealing to those clamoring for lower taxes and greater fiscal responsibility. But it is a problem. Congress appropriates funds to the Executive branch with the expectation that those will be the only funds spent. Indeed, one of the provisions of the Anti-Deficiency Act prohibits government officials from employing voluntary labor or drawing on alternative funding sources to support an unauthorized supplemental workforce.

This restriction on out-of-pocket spending is important because it ensures Congress retains complete control over the government's purse strings, as the Constitution requires. It also keeps the size of government in check, preserving our constitutional system of checks and balances. Absent this restriction, 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 developments should be especially alarming to those most taken by the Trump messaging. 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.

At the end of the day we might conclude that the private security detail isn't that big of a deal—it satisfies the President-Elect's princely pretensions and gives him an excuse to keep his buddies close by. But make no mistake: There is much at stake when it comes to tolerating such a detail. Acquiescence signals a willingness to credit arguments that an elite federal institution such as the Secret Service is unreliable, that armed contractors acting somewhat under the color of state law are acceptable, and that self-funded bureaucratic fiefdoms insulated from congressional control are anything but constitutionally offensive.

As they say, read the whole thing.