by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Let’s begin with a series of difficult questions. What should the FBI do when it possesses information that causes trained counterintelligence officials to fear that the president of the United States is — either knowingly or unknowingly — falling under the influence of a hostile foreign power? Should the FBI investigate the man who ultimately runs the agency? Can it investigate a man who has considerable power even to define American national interests?
I’d suggest that these questions, for now, have been asked and answered by the president. Or, more specifically, by the presidency. Executive Order 12333 — drafted in 1981, amended in 2003, 2004, and 2009, and still in effect today — defines the executive branch’s counterintelligence mission and allocates responsibility for carrying out that mission. And under that executive order, the president has defined counterintelligence and has precisely delegated specific tasks to different executive branch agencies. …
… There is no exemption in this order applicable to the actions or conduct of a president or of any other member of the executive branch. If Trump wanted to amend this order to exempt himself and key officials from the FBI’s counterintelligence mission, he could — so long as his order didn’t conflict with any constitutionally valid federal statutes.