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Extending the FBI Director’s Term

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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11 Responses

  1. Shag from Brookline says:

    I wonder if the concept of an extension had surfaced earlier? Was this self-initiated by Pres. Obama? Did members of Congress come up with the idea, in the form of suggestions that the confirmation process in the Senate might stall a successor, making this carry over to 2012 and becoming a political issue in the 2012 Presidential campaign? In other words, might there be a suggestion of blackmail to keep in office a Director appointed by a Republican President? Surely the spade work for an extension did not just start; perhaps it was precipitated by the 2010 election results. If there is a two year extension, Republicans might be salivating that they can beat Obama’s bid for reelection. Or is Obama trying to co-opt such issues?

  2. Orin Kerr says:

    Gerard: “But once the term is set, it should not be changed for one man.”

    Can you elaborate a bit on why? Mueller has been considered an outstanding FBI director, and outstanding FBI directors don’t exactly grow on trees.

  3. Gerard Magliocca says:

    Orin,

    Are you saying that nobody else can do an outstanding job?

    Perhaps we should not have a term limit for the Director. Any change, though, should not be made just to keep a particular person in office. That suggests that the man is more important than the institution. And that mentality was what got the FBI into trouble under Hoover.

  4. Orin Kerr says:

    Gerard,

    If you’re asking me if I think nobody can do the job as well as Mueller, I would say yes, I suppose that’s pretty much my sense of things. The job of FBI Director is probably the hardest job in Washington to fill, and my sense is that Mueller is probably considered the best Director in the history of the Bureau.

    I agree with you that you don’t want to fiddle with the 10-year rule lightly. And maybe you’re right on the bottom line that it shouldn’t be fiddled with here. That may be right. But at least for me, it’s actually a serious question, not something as easily dismissed as you suggest.

  5. Gerard Magliocca says:

    That raises a further question. If you’re right, why only extend his term for two years? Won’t the same problem present itself in 2013?

  6. TJ says:

    Orin, I think you are missing the problem. The whole point of preset terms is as a Odysseus-mast binding device, to remove outstanding incumbents. If the incumbent was lousy, there would be no need for a term limit to ouster him. And to change the term limit because the incumbent is outstanding is thus to contradict the very premise of having the term limit in the first place.

    The underlying tension is that an outstanding incumbent is also more likely to become entrenched in the office and lead to abuses down the line. Resolving that tension is difficult. But the whole point of a preset term limit is that the ex ante judgment on this question, made before the incumbent is entrenched and looking for a term extension, is systematically superior to an ex post judgment.

  7. Orin Kerr says:

    TJ,

    With respect, no, I don’t think I’m not missing the problem. The problem is understood by everyone, I think, and you have restated it well. The question is what to do with it. Perhaps everyone is completely convinced that the only possible solution is a preset term that should not be adjusted in any way, but I guess it’s not as obvious to me that this is the best answer. Again, perhaps it is the best answer: That may be right. But I guess I’m behind everyone else in not yet being convinced of it quite yet.

  8. Orin Kerr says:

    Ack, make that “I don’t think I’m missing the problem.” Sorry about that.

  9. TJ says:

    Orin,

    My point is that “the incumbent is outstanding” (which seems to be your basic point) is a very good argument for not having the particular term limit in the first place, or having a longer term before the limit kicks in. It is not, however, a very good argument for changing the term limit once imposed. There is no relevant new information, in the sense that we knew ahead of time what the tradeoff was and made the choice then, and revising the decision now will undermine every term limit in the future. For lawyers, this really should be quite easy, since we strictly adhere to final judgments for the same reason. Surely in some individual cases a later revised judgment would be superior to the original, but we still don’t do it.

  10. TS says:

    Does a statutory term extension present any difficulty from an appointments clause perspective? I recall (vaguely) an OLC opinion re: term extensions and the appointments issue.

  11. Shag from Brookline says:

    I read Charlie Savage and Jackie Calmes’ NYTimes report (5/13/11) “Obama Seeking Extension for Director of F.B.I.” well after submitting my earlier comment. It seems from this report that Pres. Obama initiated this. But this may be the tip of the iceberg. I think more what and when inquiries may reveal much below the surface.

    I have been thinking back to 1944 when at the age of 14 I had no reason to think that FDR should not run for a 4th term as President. WW II was still ongoing. I was not then fully aware of the two-term informal rule, which had been “violated” by FDR 4 years earlier with his reelection to a third term. But even at the tender age of 10, I had an awareness of the problems in 1940. Being much older but perhaps not wiser today, I wonder if the Amendment limiting a president to two terms had been in effect in 1940, would America have been in better shape? Or even in 1944, when at least insiders were aware of FDR’s medical condition and were concerned with Henry Wallace? Truman was not that well known back then.

    Jumping ahead, what if Clinton could have run for reelection in 2000? He might have won, as the economy was pretty good. Should there have been an exception to the rule?

    Granted, the rule is prescribed in an amendment to the Constitution, whereas the rule for the FBI Director is statutory. Is this in any way a necessary – as opposed to a political – exception? Years from now what I suggest above that is below the surface might surface with who knows what challenging the appropriateness of the exception proposed for Mueller.

    Assuming that the proposed extension would NOT require Senate approval, what sort of a precedent might that set? In this instance would the exception prove the rule?