‘Deep State’ and Donald Trump

If Donald Trump wins a second term as U.S. President, his primary target will likely be what he describes as “the Deep State” in America. According to him, the Deep State comprises the Justice Department, the CIA, and the FBI. Last week, American magazine ‘Politico’ noted that “regaining control of the Justice Department is most vital to his [Trump’s] agenda, both political and personal.”

The U.S. Justice Department has a unique history, as it can be considered even older than the fully ratified U.S. Constitution. Although the Constitution was initially signed by 39 of the 55 delegates on September 17, 1787, it took an additional two years and seven months for all states to ratify it, with the final ratification occurring on May 29, 1790. Meanwhile, Congress passed the Judiciary Act on September 24, 1789, recognizing the importance of establishing a judicial system for peace and security. This was technically possible as the Confederation Congress, established on March 9, 1789, marked the start of the Constitution’s operation.

The final clause of the Judiciary Act addressed the appointment of the Attorney General, stating that they “shall prosecute and conduct all suits in the Supreme Court in which the United States shall be concerned, and give advice and opinion upon questions of law when required by the President of the United States.”

Following the Civil War (1861–1865), the need for a full-fledged department became apparent. In 1870, the Department of Justice (DOJ) was established, with the Attorney General designated as the Federal Government’s chief law enforcement officer.

The Attorney General serves a dual role, acting as the legal representative of the executive branch to the Supreme Court and advising the President and heads of executive departments.

Over time, more powers have been delegated to the Attorney General. Under the Independent Counsel Act, the Attorney General is responsible for conducting preliminary inquiries whenever they receive sufficient information to justify investigating potential federal law violations, including those involving the President and Vice President.

This was the process that led to President Bill Clinton’s impeachment in 1994. Janet Reno, whom President Clinton appointed as Attorney General in 1993, selected Robert Fiske as an independent counsel in January 1994 to investigate the Whitewater controversy, which scrutinized Bill and Hillary Clinton’s real estate investments. Fiske was later replaced by Ken Starr.

This suggests that Trump, even if re-elected, would face limitations in reshaping the Justice Department to serve his personal needs. While he may have the power to dismiss the current Attorney General and appoint new personnel, Senate approval would be required for certain key positions. Furthermore, any new appointees would find it challenging to alter existing evidence, as the DOJ operates under rigorous judicial and Congressional oversight.

The next two entities within Trump’s ‘Deep State’ are the FBI and CIA. Established in 1908 under Title 28 U.S. Code 533, the FBI, like the Attorney General, is supervised by the DOJ and other federal law enforcement agencies, operating independently of any president’s personal preferences. While the President requires Senate concurrence for high-level appointments such as the Attorney General and FBI Director, other appointments are within presidential purview. However, all must operate within the law and remain accountable to the courts.

The CIA, created under the Central Intelligence Act of 1949, also requires Senate confirmation for its Director. With a Democratic majority currently in the Senate, Trump may encounter challenges in appointing his preferred candidate if this composition remains unchanged.

Historically, presidents attempting to install their own choice of CIA Director to “teach a lesson” to the agency have often met with limited success. Despite Senate approval, these directors have found it challenging to implement reforms inconsistent with the agency’s statutory mandates under Congressional Intelligence Committee oversight. A New York Times report dated December 22, 1974, noted that James R. Schlesinger, brought in by President Richard Nixon, struggled to enact reforms within the CIA and served only six months.

Conversely, Admiral Stansfield Turner, whom President Jimmy Carter appointed to “sanitize” the CIA, fired 820 agents from the CIA’s Clandestine Service in the so-called “Halloween Massacre.” Reflecting in 2005, Turner admitted he might have overreached in taking such a drastic step.

In fact, Turner’s actions inadvertently fostered cooperation between the CIA and Chinese intelligence services against the Soviet Union, which, as French investigative journalist Roger Falligot detailed in ‘Chinese Spies,’ opened opportunities for Chinese penetration into the Western world—a story I reviewed for Indian readers in 2019.

For the American electorate, the upcoming election will not just be a referendum on Trump’s leadership but a pivotal moment in defining the nation’s commitment to democratic norms and the independence of its institutions. In a time of escalating division, the resilience of these pillars of democracy may be the most crucial battleground of all.

(The writer is a former Special Secretary, Cabinet Secretariat. Views are personal)