The appointment power and the integrity of office

The Guardian reports that President Trump has abruptly halted the Senate confirmation of Jay Clayton as Director of National Intelligence, a move the outlet notes will allow an earlier, controversial pick — Bill Pulte — to remain in the role for at least several additional weeks. The stated motive, as The Hill confirms, is to hold the confirmation in suspension until Congress passes legislation touching on warrantless surveillance and elections. Let us examine what is happening here, not as a partisan matter, but as a question of institutional design.

In The Wealth of Nations I observed that the merchant who sits on the board that regulates his own trade will always, if left to himself, bend the regulation toward his private interest and away from the public's. The principle is general: whenever the power to appoint or confirm an officer becomes a tool in a separate negotiation, the office itself is degraded. The confirmation is no longer about the fitness of the candidate; it is a hostage. The public interest in having a competent, lawfully confirmed intelligence director is traded away for a legislative concession that may or may not deserve to stand on its own merits.

This is, in essence, a form of what I would have called mercantile restriction — not on the exchange of goods, but on the exchange of legitimate authority between the branches of government. Just as a monopolist raises the price of corn not by producing more corn but by withholding supply, an executive who withholds a nomination withholds something the public needs, in order to extract a price the legislature would not otherwise pay. The consumer of this transaction is the public, which must make do, in the interim, with an officer whose appointment was already condemned by senators of both parties, according to the New York Times.

I am no engineer of constitutions, and I will not pretend to have lived through the particular statutes and precedents that govern American intelligence oversight. But the moral logic is plain enough. An institution is only as trustworthy as the process that puts its officers in place. When that process is suspended not because the candidate is unfit but because the sovereign wants something else from the legislature, the legitimacy of whoever finally sits in the chair is compromised from the outset. The officer will know, and the public will know, that the seat was filled by coercion rather than consent.

The deeper question is one of sympathy — by which I mean the capacity of those in power to imagine themselves in the position of the governed. The citizen who must be surveilled, the legislator who must cast a vote under duress, the intelligence professional who must serve under a director installed by manoeuvre rather than merit: each of these has a legitimate grievance. A sovereign who cannot take that grievance seriously has lost the moral foundation that makes authority trustworthy. I mark this final point as inference from principle rather than recollection of events I could not have witnessed — but the principle, I submit, is not in doubt.