Ambition checked by ambition. The assumption that political
ambition can be counted on is the key to the “checks and balances” feature of
the U.S. Constitution. Each of the three “arms,” or “branches,” of the federal
government is checked by at least one other. This is not to say that the other
arm takes over the function or even
has greater competence; rather, the other arm is oriented here to providing
accountability on abuses of power and investigating cases of gross negligence
or incompetence. An offended branch should thus not be permitted to claim that
oversight is not appropriate because it interferes with the function the
branch. Treating oversight by another arm of the federal government as
inherently partisan or illegitimate eviscerates the vital “check and balance”
aspect of the U.S. Constitution.
In disputes on oversight between two branches,
the benefit of the doubt ought to go with the overseeing branch because it is
only natural for human beings to resist being held accountable and so
accountability itself needs a boost. I have in mind the case the director of
national intelligence, Joe Maguire, blocking the inspector general from sharing
an intelligence-whistle-blower’s complaint with Congress in September, 2019.
The contents of the
complaint included a phone call between President Trump and another national
leader in which Trump made a commitment. Ukraine was relevant. Rep. Adam Schiff,
chair of the House Intelligence Committee, had been concerned that Trump’s
delay in assistance to Ukraine had been politically motivated. The Democrats
had planned to investigate whether Trump’s withholding of military assistance
was not to get the Ukrainian government to reduce corruption, but, instead “to
coerce the Ukrainian government into pursuing politically motivated
investigations” into Joseph Biden, President Obama’s former VP and a contender
to run against Trump in 2020 for president.[1]
Providing the U.S. House Intelligence committee with the
contents of whistleblower complaint was “generally required by law.”[2]
The executive branch insisted that the requirement must involve the funding,
administration or operations of an intelligence agency, whereas Democrats
maintained that the law did indeed apply. Regardless, Congressional oversight
of the executive branch goes beyond particular statutes mandating the providing
of whistle-blower complaint information to Congress. Nevertheless, the
inspector general, Michael Atkinson, wrote to the committee that the complaint
fell within the jurisdiction of the director of national intelligence and “relates
to one of the most significant and important of the D.N.I.’s responsibilities to
the American people.”[3]
Atkinson was conflating a jurisdiction within
the executive branch with oversight by
another branch of the government. Put another way, oversight does not in itself
rid the director of his jurisdiction; rather, oversight investigates the contents within that jurisdiction. Furthermore,
that the director of national intelligence has an important job does not mean that
it is immune Congressional oversight of the executive arm. I submit that the
importance of the job is an argument for a greater need for oversight—not less.
It is as if Atkinson believed that the
intelligence agencies were immune from such oversight, and thus from the vital
checks-and-balance feature of the U.S. Constitution. For oversight to be
viable, the branch of the government being overseen cannot decide whether
oversight is allowable. Rather, the branch doing the overseeing can make that
assessment and the other branch can contest it in the courts. The judiciary arm
would serve as a check against the overseeing arm. In other words, the
prerogative in the executive branch of somehow being beyond Congressional
oversight stands in the way of the functioning of the checks-and-balances constitutional
design. Ambition should not be allowed to bar contending ambition. What
employee of a company would claim, “I can’t do my job if there is any
supervision of my work!”? What department would claim that it is exempt from
oversight from the company’s management because of the nature of the work being
performed? Rather than cohere, such a company would eventually break apart.
1. Julian
E. Barnes et al, “Whistle-Blower
Complaint Sets Off a Battle Involving Trump,” The New York Times, September 19, 2019.
2. Ibid.
3. Ibid.
