Bureaucratic Resistance and the Deep State Myth

The last three years have been a time of great crisis for the U.S. executive branch bureaucracy, and for the U.S. presidency. Career officials have fled their agencies in record numbers, taking their lifetime of expertise and institutional memory with them. Political positions are hard to fill with qualified candidates, and even the highest levels of the President’s own political appointees have seen unusually high turnover, including those advisors — like the President’s first Secretary of Defense — who have resigned in protest. Fanning the flames further, leaking has been rampant in this administration, often from within the President’s own inner circle itself. And what of the President? For his part, the President has alternatively sought to weaponize, to delegitimize, or to dismiss the work of the public servants who keep the many offices and agencies of the modern-day administrative state running. The President’s abuse of the human beings populating the executive branch bureaucracy has become inextricably linked with his abuse of the power of his office and, furthermore, his defense to it. His response to charges of malfeasance is an approach he has honed through crisis after crisis and will continue to use again, one that threatens the continued functions of good government: the claim that any threat to or constraint on his power is the working of a “deep state” seeking to undermine the will of the people.

The reports of the Ukraine affair, the riveted focus by many on a secret “whistleblower” inside the deep reaches of the intelligence community, and the tussling between career foreign services officers and political appointees at the State Department and Office of Management and Budget certainly give the President much to work with. The involvement of career officials inside the government possibly working at cross purposes to the President’s desires, seeking to disclose information about the President’s activities to his political foes in Congress, and ultimately sparking an impeachment inquiry that could threaten his entire Presidency is the stuff of the President’s greatest fever dreams. And right on cue, the President and his supporters have sought to paint the Ukraine whistleblower as a “deep state operative” working to effectuate a “coup,” and will likely levy similar accusations as details emerge regarding the work of foreign service officers and others in the White House who appear to have questioned the withholding of security assistance to Ukraine in exchange for investigating the President’s opponents.

This part of the saga is a reprise of the President’s playbook during the Mueller investigation: paint any constraint on the President — whether it be legal, bureaucratic, or political — as not only disloyal, suspect, even treacherous, but also part of a broader “deep state” conspiracy to overturn the will of the people.

We can also expect a reprise of the reaction we saw to the Mueller investigation from those seeking to hold the President accountable. Throughout that saga, the President’s political opponents and veterans of the executive branch came together—in some cases the oddest of bedfellows—to hail bureaucratic constraints on the President and independence of law enforcement as critical to presidential legitimacy. Some academics and pundits took that support to another level, fanning the “deep state” paranoia by calling (rightly or wrongly) for the bureaucracy to rise up and resist the President. These calls to resist became such a salient topic that the U.S. Office of Special Counsel produced guidance for civil servants forbidding discussion of “#Resistance” as a violation of the Hatch Act’s prohibition on political activity.  So how are we to think about these fears of bureaucrats as well as the calls for their resistance?

The right questions to ask about the existence of the “Deep State”

These events and perceptions raise countless questions both practical and theoretical, both for observers of the executive branch and for those holding or considering careers in government. Does the “deep state” exist, and can it save the country from the President? Is resistance inside the bureaucracy a subversion of the democratic system? And what power do bureaucrats actually have—legal, moral, practical—to defy the President’s will?

I explore these questions in a recent article, Bureaucratic Resistance and the National Security State, in which I argue that while the bureaucracy can be a force for continuity and a real constraint, it is neither the threat some fear, nor a cure to a President who poses such a threat. Nor should we wish for or seek to engender a bureaucracy that itself is capable of “saving” us from our electoral decisions.

Anatomy of the administrative bureaucracy and resistance within

The executive branch bureaucracy is not a “deep state”—in part because it does not have the organizational capacity or motivation to hold the reins of the state. It is both more functionally constrained, and more formally tethered to accountable sources of power, than either the deep state or the #Resistance approach generally conceives. It is also far more multilithic—and resistance within it more multidirectional. Unlike the stark image created by both deep state and #Resistance rhetoric, the bureaucracy is not a polarized dichotomy between a sharply defined civil service on one hand and the President on the other. And that divide is certainly not the focal point at which most bureaucrats tend to experience regular conflict.

Consider, in addition to the divide between the career and political bureaucracies, an axis along which to classify executive branch officials according to their expected taint from partisan politics. Where would you place the President’s own, politically appointed Attorney General on that spectrum, and other political appointees throughout the law enforcement bureaucracy? Jeff Sessions, Rod Rosenstein, Chris Wray, Geoffrey Berman (the U.S. Attorney for the SDNY), even James Comey—many officials who have wielded real power to enforce a buffer between the President and his law enforcement agencies have been political appointees, not civil servants. The shock by many government watchers in Attorney General Bill Barr’s embrace of the erosion of DOJ independence itself demonstrates how emphatically that norm has long been revered.

The normal, daily experience of most bureaucrats does involve conflict, not with the President, nor even necessarily with the politically appointed boss, but rather with other bureaucratic actors across the administrative state. These disputes are generally longstanding and survive from presidency to presidency. In fact, despite perceptions of the significant power that is wielded by “unelected bureaucrats” on the “front lines”—and despite the ambitions of Presidents during campaigns where they promise to bring swift change to government—most actors at every level of the federal bureaucracy, from the line officer to the President, have reason to feel quite hemmed in from all sides, much of the time.

Resistance, too, generally takes more nuanced forms than the mythical power wielded by either the “deep state” or the #Resistance. The fact that the entire architecture of the state does not reverse course on a tweet does not mean that the public servants dispersed throughout the government have conspired to undermine the President. I define resistance broadly, steeped in the empirical (if more mundane) reality of bureaucratic service. Resistance includes asking questions, insisting on normal process, voicing dissent to superiors, and trying to convince others of one’s view. “I think it’s crazy to withhold security assistance for help with a political campaign,” is a fine example. All of these actions can slow down the works. They may even result in a change of course; but rather than evidence of mutiny, this is the bread and butter of bureaucratic life—though the scenarios in which they arise these days appear to have unusually dramatic facts.

And what of more aggressive pushback: refusal to change facts, refusal to violate laws, insistence on documenting directions or acts of malfeasance, using statutory whistleblower mechanisms to raise concerns internally, such as with one’s inspector general, or externally, to Congress? The deep state decriers view such acts as undemocratic attempts to undermine the elected President. This view fails to take into account that the mechanisms and protections permitting — or even requiring — bureaucrats to take such actions are themselves created by an elected Congress. To the extent they are regulated further by elected Presidents and their appointees, Presidents can change those regulations, tweak the guidelines, and reshuffle internal players to suit their own agendas.

Leaks are a dicier matter than other acts of resistance, and I devote significant discussion to their consideration in Bureaucratic Resistance. I conclude that unlike the weaponization of information via blackmail, in which the purpose was to influence action without releasing the information, and which should sound “deep state” alarms, as it did during the Hoover era, actual leaks derive their power from transparency and public engagement. While not without their own problems and repercussions, the leaks we see today, made for the purpose of disclosing information, even if made to sway a debate, are not generally indicative of a deep state, which is characterized by unaccountability to the public, and empowered by secrecy, not disclosure.

Formal and functional power to resist

Whatever one’s view on “deep state” rhetoric, many accounts of bureaucratic action tend to imbue bureaucratic actors with significant practical power to act to resist the President, despite not necessarily having the formal authority to do so. In other words, under these accounts, the bureaucrat can just drop that set of orders from her boss in the waste basket (or, as the case may be, snatch it off the President’s desk) even if she may not disregard such commands. My article turns this orthodoxy on its head. I conclude that bureaucrats at every level have significant formal authority to engage in many kinds of resistance, and that this authority stems directly from traditional sources of power—Congress, the Executive itself, and also the courts. But, unlike the views of both deep state decriers and those who are hoping for a more mutinous #Resistance, the practical power of bureaucrats to steer the ship is heavily circumscribed. 

Misplaced faith and fear: lessons from the Mueller saga for this moment and beyond

Ultimately, widespread embrace of either view of the bureaucracy—the “deep state” version or that of the #Resistance—may, at least in their extreme forms, create problems for the balance of power between the branches of government, and specifically, for a constrained President. In stoking fears of the bureaucracy, those pushing deep state rhetoric may encourage lawmakers and judges to erode protections of civil servants, to punish those who report abuse, to relax or cease reliance on bureaucratic fact-finding authority, or to undervalue the norms of independence and professional ethics among executive branch technocrats and national security officials. With those protections eroded or suspended, the bureaucracy will turn into precisely the partisan weapon that this President both seeks and accuses it of being. And Congress will lose the ability to extend its oversight into the vast reaches of the executive branch by empowering nonpartisans and technocrats to question their superiors, to follow the laws in the face of orders to the contrary, and to report malfeasance.

On the other side, over-reliance on bureaucratic constraints in the belief that some #Resistance—or even just normal government attorneys—will save the country from a tyrannical President can lead to abdication of authority by actors like the courts and Congress, who perform an essential check in the separation of powers that cannot be replaced by intra-executive constraints.

We have been watching this balancing act play out in real time during this Administration. The Mueller investigation and the reactions to it by supporters and foes of the President was one glaring example. Throughout the investigation, the President stoked old fears of the national security bureaucracy, painting it as a cabal of all-powerful actors working in the shadows to undermine the elected government, and weaponized those fears for his political gain. His outrage at the investigation into his campaign’s connections to Russian election interference, his demands that the investigation end, and his accusations of politicization of the law enforcement agencies, not to mention his own calls for investigation of his political opponents—which we now see have turned into actual investigations in the hands of his Attorney General, and attempted compulsion of foreign states to do so as well—have all served to undermine faith in the ability of executive branch officials to conduct impartial investigations divorced from politics. And these actions have emboldened actors within Congress and elsewhere to seek to formalize that erosion through, for example, calls on the DOJ to investigate political opponents, attempts to undermine civil service protections, and accusations of treachery aimed at executive branch actors who implement the constraints on the President created by Congress or the Executive itself, including Mueller and the unknown whistleblowers.

On the other side, the two-year saga of the Mueller investigation allowed members of Congress to evade their responsibility for ensuring the security of the country and our elections in the face of a possible threat. Members of the President’s party who might otherwise have felt some pressure—as a simple matter of good government if not politics—to consider evidence of foreign interference in our elections, were instead able to wave off questions by pointing to the Mueller investigation. The investigation was a useful lightening rod for which politicians could profess vague, substantively neutral support—“let the process continue”—without the political costs they might have incurred from challenging the President more directly. Ultimately, by painting the matter in legal terms, the investigation allowed Congress to abdicate their responsibility of presidential oversight to the courts and to executive branch actors themselves, actors who cannot alone constrain an unwilling President without congressional help.

Over-reliance on the bureaucracy’s ability to resist presidential overreach, however, can be as much a threat to the bureaucracy as is fear. Without external support, its strength will eventually give out. At the end of the day, there are few hard mechanisms to rein in the President. Those remaining include political costs imposed by the public and pushback from Congress, which actors within the President’s circle have historically factored into their constraining advice. The President is fully capable, as we have seen, of removing officials who constrain him, including his Attorney General. The belief that there would be political repercussions to doing so is what ultimately held the President back from ending the Mueller investigation. But over time the lack of external consequences for his rampant norm breaking has evidently weakened the force of those within the executive who might seek to rein him in. And thus there are few internal hurdles that now stand between the President and the abuse of his power, including politicized prosecution of his enemies, whether through personal demands of our own Department of Justice, or of foreign states, as the Ukraine saga highlights.

As for the constraints posed by career bureaucrats, these are significant features of continuity inside the executive, even in entirely mundane times. And in the face of abuse, career bureaucrats can be canaries in the coal mine, possibly alerting Congress, the courts, and the public that something is awry, but they aren’t going to “take down the President” in some vigilante dream of the hashtag Resistance. Bureaucratic constraints are important and legitimizing precisely because they will not do that. Career bureaucrats will ask questions, they may even write memos to the boss or to the file, a few (but note how very few!) brave souls may take advantageous of statutory means of disclosure of abuse to Congress, and some lone wolves may even leak information, thus multiplying their force but still leaving the ultimate power in the hands of the people. And, of course, some individuals may act corruptly, as human beings sometimes do in every profession. But career bureaucrats in the U.S. executive branch bureaucracy are neither sufficiently organized nor powerful nor constitutionally inclined to take over the reins of the state for themselves.

Politicians and the public taking these internal constraints on the President for granted while simultaneously abiding attacks on the legitimacy of the bureaucracy may ultimately find that the internal constraints have been eroded or washed away entirely. The relationship between external checks on the President and the internal checks from within the bureaucracy is a symbiotic one and a delicate balance. This does not mean Congress and the public should offer the bureaucracy their blind faith. On the contrary, the balance requires healthy inquiry, oversight, and support—not myths about bureaucratic power or abuse. Both fear of and over-reliance on bureaucratic resistance each risk upsetting that balance. The result of either may be an insufficiently checked President.

Presidential Power – not the “deep state” – is a genuine threat

To the extent fears among the public of a “deep state” are in fact based in concern that the U.S. Executive as a whole has accumulated significant power at the expense of Congress, the courts, and perhaps even the public itself – this is a real and present danger. To the extent the “deep state” is just a symbol for the idea that the rich and powerful wield significant influence in Washington and elsewhere, I won’t argue with that, though I cannot say it applies to most career bureaucrats, whom the deep state myth purports to describe. And to the extent people are concerned with the government’s surveillance powers, or ability to use force, or overreliance on secrecy: yes, these are genuine issues that demand our vigilance. All of these concern the President’s potential infringement on the rights of individuals, not the other way around.  Individuals, and in particular the most vulnerable among us, are the potential victim of the state’s abuses, not the President, who sits at its helm.

The term “deep state” is intended to describe regimes in which the elected government does not wield the actual power of the state, which is instead run by a body whom the public cannot see and has no power to control.  Let us hold up the Ukraine saga to this lens. In this case one or more whistleblowers, as well as other actors inside the executive branch, have been trying to disclose to us, the people, in accordance with laws our elected Congress has passed, information about what our government is doing in our name. And it is our President, not some unelected, faceless bureaucrats, who is trying to keep this information from us, the people, who need it so that it can inform our decisions about whom to support, both in Congress and in the White House. Our elected President, wielding the enormous power of the executive branch, powers that our elected officials in Congress have over the years delegated to it, is the threat that should concern us. The deep state bogeyman is not. But it is not going to save us, either.

  

About the Author(s)

Rebecca Ingber

Associate Professor of Law at Boston University Law. Currently Non-Resident Senior Fellow, Reiss Center on Law and Security at NYU School of Law. You can follow her on Twitter (@becingber).