The folly of Trump's palace guard

Story highlights

  • Jon D. Michaels: US Secret Service members have a reputation for being the best trained
  • Trump's private security detail is a bad idea for various reasons, he writes

Jon D. Michaels is a professor of law at the UCLA School of Law, where he teaches and writes about administrative law, national security law, privatization, and the separation of powers. He is currently working on a book, tentatively titled "Still No Angels: America's Enduring Commitment to Separation of Powers from Madison to FDR to Trump" (forthcoming, Harvard University Press). Unless otherwise noted below, facts reflect research for his scholarly projects. The views expressed in this commentary are his own.

(CNN)Reports are swirling over President-elect Donald Trump's apparent decision to bring a private security detail with him to the White House. Given America's checkered experience with private military forces in Iraq and Afghanistan, Trump's anti-government rhetoric, and his apparent comfort with commingling state and commercial power, the last thing we need is a Blackwater on the Potomac.

Though the analogy to Blackwater is hardly perfect, we do have a recent and sordid history of private security contractors advancing sensitive government responsibilities. The number of contractors deployed to Iraq and Afghanistan often rivaled the number of uniformed military personnel. Many served admirably, and quite a few paid the ultimate price for their service. Still, trouble abounded. Often, the contractors weren't as well trained; they weren't as sensitive to the communities they were policing; and they weren't as scrupulous when it came to the laws, practices, and customs of civilized military engagement. It is therefore not surprising that allegations of criminal and civil misconduct attached to many of the biggest contractors and that the US-backed governments in Kabul and Baghdad regularly pleaded with the State Department to rein these contractors in.
Jon D. Michaels
Trump's palace guard is a bad idea for a variety of cultural, operational and legal reasons.
    Culturally speaking, a private security force further broadcasts Trump's mistrust of the government he's been elected to lead. The US Secret Service remains the envy of governments around the world. Headline-grabbing scandals aside, its personnel are the best of the best, and the office has a longstanding reputation for professional excellence. Yet, suddenly, they're not good enough?
    This doesn't make sense, unless you already harbor profound doubts and distrust of the federal government, as Trump seemingly does. Marginalizing the Secret Service constitutes yet another battle in Trump's apparent war against Washington. His message is clear: We should not trust the feds. This campaign of delegitimization -- recall his repeated promises to "drain the swamp" and his insistence that the system is "rigged" -- will no doubt come in handy whenever federal officials challenge the incoming administration on everything from climate change denial to conflicts of interest to the coziness with the Kremlin.
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    Operationally, when it comes to protecting a president, there's just no way private security guards can bring to the table what the Secret Service does. They aren't just the best security detail. They're also the best at balancing the competing demands of serving a particular president and the presidency. Maintaining that balance is critical to the project of American constitutional government. We are, as Abraham Lincoln reminds us, a government of the people, by the people, and for the people. Such a reminder is particularly important today as the President-elect indicates a desire to remain (somewhat) involved in his business interests and expresses a particularly low tolerance for dissent and criticism. The Secret Service cannot and will not be enablers of these decidedly unpresidential predilections. The same cannot be said of private contractors.
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    It has already been well documented that Trump's security detail conceives of its role very differently from that of the Secret Service. Its members are campaign boosters, partisan combatants, and confidantes to a celebrity businessman who is about to be President. Even assuming these aides were as well-trained (and as well-integrated into the larger world of federal law enforcement, diplomacy, and intelligence agencies), they present themselves as approaching their responsibilities and loyalties very differently.
    Finally, having a private security force for the President-elect raises thorny legal issues. A private security detail paid for by, I suppose, the Trump Organization, the President-Elect himself, or some wealthy donors, may sound appealing to those clamoring for lower taxes and greater fiscal responsibility. But it is a problem. Congress appropriates funds to the Executive branch with the expectation that those will be the only funds spent. Indeed, one of the provisions of the Anti-Deficiency Act prohibits government officials from employing voluntary labor or drawing on alternative funding sources to support an unauthorized supplemental workforce.
    This restriction on out-of-pocket spending is important because it ensures Congress retains complete control over the government's purse strings, as the Constitution requires. It also keeps the size of government in check, preserving our constitutional system of checks and balances. Absent this restriction, the President could hire a phalanx of support staff to do more -- or different -- work than what Congress authorized, thereby creating fiefdoms of unchecked, unrivaled bureaucratic power.
    Congressional appropriations dictate the size and scope of Executive activity. Imagine, for instance, a Congress concerned that a presidential administration might go to extremes in enforcing federal immigration law. That Congress might intentionally restrict funding available to the Department of Homeland Security, limiting the latter's enforcement capabilities. Now imagine an independently wealthy Homeland Security chief committed to the zealous enforcement of immigration laws. Were that chief permitted to draw upon her personal fortune to hire hundreds of additional immigration agents, she would be thumbing her nose at Congress and the federal appropriations power.
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    Such developments should be especially alarming to those most taken by the Trump messaging. Circumvention of the Anti-Deficiency Act opens the door to truly big, scary, and unaccountable federal power. It invites a certain plutocratic tribalism, where loyalties run to benefactors (in and out of government) and where Congress loses control over the shape, reach, and complexion of government.
    At the end of the day we might conclude that the private security detail isn't that big of a deal -- it satisfies the President-Elect's princely pretensions and gives him an excuse to keep his buddies close by. But make no mistake: There is much at stake when it comes to tolerating such a detail. Acquiescence signals a willingness to credit arguments that an elite federal institution such as the Secret Service is unreliable, that armed contractors acting somewhat under the color of state law are acceptable, and that self-funded bureaucratic fiefdoms insulated from congressional control are anything but constitutionally offensive.