David R. Henderson  

Trump's Security: Government or Private

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DECEMBER 20, 2016 --President-elect Donald Trump is breaking with tradition yet again, this time by retaining his own private security force.

In what security experts are calling an unprecedented move, Mr. Trump has continued to employ a private security and intelligence team at his post-election "thank you" rallies around the country and is expected to keep at least some members of the team after his inauguration, according to Politico. He's said to be the first president or president-elect in modern history to do so, as all others have relied solely on the Secret Service for personal security and local law enforcement for event security.

The decision has come under fire from some security experts who say that using private security personnel may be a risky move that could hurt both the president-elect and his team as well as protesters. Over the course of Trump's campaign, dozens of protesters have accused his private security personnel at rallies of racial profiling, undue force, or aggression, with three lawsuits currently pending against Trump, his campaign, or its security. Meanwhile, some Trump supporters have applauded the move as a sign of Trump's loyalty and commitment to shaking things up in Washington.

"It's playing with fire," Jonathan Wackrow, a former Secret Service agent who worked on President Obama's protective detail during his 2012 reelection campaign, told Politico. Having a private security team working events with Secret Service, he continued, "increases the Service's liability, it creates greater confusion and it creates greater risk."


This is from Gretel Kauffman, "Trump could set new precedent with private security force," Christian Science Monitor.

A libertarian friend on Facebook commented as follows:

Shades of imperial* Rome, and what that entailed: being surrounded by armed men who are pledged, *not* to defend the United States Constitution (and only secondarily charged with keeping the president safe), but who are pledged to and take orders from the specific person of the president, is frightening. (I am all for "private security" for private persons, but not for the president. It inaugurates a distinction between his interests and the Constitution and backs it with armed force.)
*Not republican.

I'm not so sure. I'm not completely tied to one side or the other, but I lean to private security.

Here's how I think about it.

I generally believe in private solutions to problems rather than government subsidies. The payments to the Secret Service are a huge subsidy. If Trump wants to pick up the tab for even part of this, and if that saves hiring, or replacing, even one or two Secret Service employees, good for him--and good for us.

Moreover, I can understand, and sympathize with, why Trump would want to do this. He wants people who are protecting him to be loyal to him, to have his well-being as their primary goal. I would bet that Secret Service employees are pretty much the same--their main goal is to protect the President--but there could be some slim margins on which the Trump people would do better. Recall the Colombian scandal. It's not clear that this threatened presidential security--it probably didn't--but one could imagine plausible situations in which it would.

My Facebook friend argues above that Trump would be "surrounded by armed men who are pledged, *not* to defend the United States Constitution (and only secondarily charged with keeping the president safe), but who are pledged to and take orders from the specific person of the president." That's true about the U.S. Constitution. I would bet, though, that keeping the President safe, given that he's paying them out of pocket, would be primary, not secondary.

Moreover, when the Secret Service forcibly removed some protestors away from the Oregon hotel where George W. Bush was dining during the 2004 campaign, they did not have protecting the U.S. Constitution on their mind. Indeed, the U.S. Supreme Court, 10 years later, affirmed this restriction on their freedom of speech.

Kauffman writes above:

Over the course of Trump's campaign, dozens of protesters have accused his private security personnel at rallies of racial profiling, undue force, or aggression, with three lawsuits currently pending against Trump, his campaign, or its security.

In which case are you more likely to win for a given amount of undue force: a case against a Secret Service agent or a case against a private bodyguard? I would think it's the latter. So this argues for, not against, private guards hired by Trump.


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CATEGORIES: Cost-benefit Analysis




COMMENTS (21 to date)
Peter H writes:
In which case are you more likely to win for a given amount of undue force: a case against a Secret Service agent or a case against a private bodyguard? I would think it's the latter.

This is a complicated legal question. In particular, there are some advantages the Secret Service has in litigation, but also some disadvantages.

The biggest advantage one has in suing the Secret Service or the Government more generally is that the government is bound to abide the Constitution in ways that private parties are not. In Wood v. Moss which you cited above, the Court noted that while the particular actions of the Secret Service in that did not violate the 1st amendment as viewpoint discrimination, the Secret Service is still bound not to discriminate based on viewpoint.

On the other hand, private guards can explicitly violate free speech and free assembly provisions of the Constitution.

Additionally it is far easier to get non-monetary relief (such as a permanent injunction not to do a certain illegal act) against the government than against a private party, since the government can be reasonably expected to persist in its activities in a way private parties usually aren't.

The principal disadvantage one has in suing the government is the doctrine of "qualified immunity" which shields government officers from liability in cases where there is not "clearly established" law indicating that their actions would be unlawful.

---

With regard to private guards more broadly, there are a few other things I would find objectionable that are not mentioned here.

First, there's a strong case that they're illegal under the anti-deficiency act. That law prohibits this sort of arrangement. And for reasons of rule of law alone, the President should not violate the law.

Specifically 31 USC 1342 provides that:

An officer or employee of the United States Government or of the District of Columbia government may not accept voluntary services for either government or employ personal services exceeding that authorized by law except for emergencies involving the safety of human life or the protection of property.

Secondly, there is the issue that private guards are much more likely to overstep their legal authority (which is almost none) and to not face criminal prosecution for that because of their close ties to the President. There are good reasons we constrain the powers of arrest and detention to people employed by the government and authorized by it to do so.

David R. Henderson writes:

@Peter H,
If you establish, as you seem to have done, that this would be illegal, then that settles it. Of course, we could discuss whether the law should be changed, and that’s a discussion worth having. But given that law, you seem to be correct.
I don’t find this statement of yours persuasive though:
Secondly, there is the issue that private guards are much more likely to overstep their legal authority (which is almost none) and to not face criminal prosecution for that because of their close ties to the President.
I would bet that there would be prosecutors just itching to go after them.

Peter H writes:

Prof Henderson,

Related to prosecution of Trump's guards. Obviously I think Federal prosecution is unlikely due to their boss being in charge of the Federal government's executive branch. If you're referring to local prosecutors, that would be a tricky question. Let's assume that Trump coordinates with the USSS to permit his guards to act as guards within a security perimeter. E.g. they can carry guns within the perimeter whereas you or I would be tackled and arrested for carrying a gun within the perimeter.

In that context, where their actions are being coordinated with a federal agency, they may be subject to the supremacy clause principles of the Constitution which would preclude local regulation of any kind pursuant to the line of cases beginning with McCulloch v. Maryland.

Relevant here is 28 US 1442 (a)(1) which says:

A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending:

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.

It's a weird case, but inasmuch as they were acting under the federal officer Donald J. Trump under color of his legal authority, they might be able to remove the proceeding to federal court.

It's hard to say exactly what would happen though, mostly because the law simply does not envision this particular scenario at all. The closest case study I could find was this piece about a homicide prosecution of an ICE officer in california.

Andrew_FL writes:
Moreover, when the Secret Service forcibly removed some protestors away from the Oregon hotel where George W. Bush was dining during the 2004 campaign, they did not have protecting the U.S. Constitution on their mind. Indeed, the U.S. Supreme Court, 10 years later, affirmed this restriction on their freedom of speech.

This is silly. They are guaranteed freedom of speech, not a right to proximity to the President.

MikeP writes:

Am I deluded in thinking that a Secret Service agent would take a bullet to protect his charge, but that a private security person would be significantly less likely to?

I wonder if this arrangement won't end up being: Secret Service cases and clears venues, Secret Service takes highest proximity positions to President most likely to be life-threatening, private security does crowd control.

David R. Henderson writes:

@Andrew_FL,
This is silly. They are guaranteed freedom of speech, not a right to proximity to the President.
Wrong. Just because the president happens to be in a restaurant, that doesn’t give him property rights over the street in front. They have the right to free speech on government property.

David R. Henderson writes:

@MikeP,
Am I deluded in thinking that a Secret Service agent would take a bullet to protect his charge, but that a private security person would be significantly less likely to?
I think so, but I’m not sure.

MikeP writes:

Maybe I've watched In the Line of Fire too many times.

"I normally prefer not to get to know the people I'm protecting... You never know, you might decide they're not worth taking a bullet for."

Pajser writes:

It is not about president's safety. It is about safety from president. What if president wants to use his guard to make credible threat, or even liquidate his political enemies, rival politicians, prosecutors, judges? I guess that Secret Service, CIA and literally all organizations formally commanded by president would reject such order. But carefully chosen private guards wouldn't.

Steve J writes:

How long can Trump pay for private security using his campaign finances? I would be surprised if we was willing to pay for extra security with his own money.

David R. Henderson writes:

@MikeP,
Maybe I've watched In the Line of Fire too many times.
I bet that’s right. It’s kind of like the fact that most of us probably imagine what a real courtroom looks like until we go there. A few years ago, I accompanied a friend to a courtroom in Arizona. My friend was charged with a crime and we met with his criminal defense lawyer the evening before. I asked if I could come, and his high-priced lawyer, someone who had won a lot of cases, said, “Yes, but whatever little vestige you have in your mind of the majesty of the law will disappear in a few minutes.” He was right. I saw people milling around while the judge was talking; I heard another criminal defense lawyer talking loudly to his client about their strategy. The level of noise was similar to that when I coached a girls’ basketball game at the Boys and Girls Club in Monterey a few years earlier.

David R. Henderson writes:

@Steve J,
How long can Trump pay for private security using his campaign finances? I would be surprised if we [sic] was willing to pay for extra security with his own money.
Problem solved.

Rich Berger writes:

Given all the scandals involving the Secret Service recently, I'd say this is simple prudence on the part of Mr. Trump.

James writes:

Pajser,

You seem to believe that the people in the CIA and Secret Service would not be willing to liquidate political opponents. You seem to believe that a president could identify unethical people who would be willing to liquidate political opponents and hire them as private security personnel.

Let's assume you are right on both points. What difference will it make if the president is precluded from hiring private security?

If the president is not legally able to hire these unethical people as private security personnel, he could either hire them in secret or use his position to get them into positions in the CIA, Secret Service, etc. where they will have greater access to dangerous weapons and greater ability to legally conceal their activities.

mbka writes:

Politicians that employ private armies? That's so third world. But hey, if you think central government ought to be distrusted as a matter of principle, then of course the monopoly on violence should also be defanged. And, what could possibly go wrong when the other political factions decide to react accordingly and build their own militias? I mean, it's not like armed factions within a country that disagree with each other would suddenly, like, start shooting at each other? Oh well...

James writes:

Prof Henderson:

Part of your friend's comment seems odd coming from a libertarian. Does your friend think law enforcement personnel take their oath to the Constitution to be legally or morally binding?

Andrew_FL writes:
Wrong. Just because the president happens to be in a restaurant, that doesn’t give him property rights over the street in front. They have the right to free speech on government property.

So it'd be fine then, if the President simply communicated to the owner of the hotel that the President would not patronize a business that did not have them removed from the premises, and then hotel security had them removed?

Because that doesn't sound like a free speech issue anymore.

David R. Henderson writes:

@Andrew_FL,
So it'd be fine then, if the President simply communicated to the owner of the hotel that the President would not patronize a business that did not have them removed from the premises, and then hotel security had them removed?
Of course it would be fine. The hotel is private property. That doesn’t relate to this case though.

Michael Byrnes writes:

Color me skeptical that the US government will not somehow end up footing the bill for Trump's "private" security.

Phil writes:

Given his very public criticism of the CIA

I think he's smart not to totally entrust his personal safety to what must seem to him to be an opaque bureaucracy

who knows what the deep state has in mind for him

Tatiana writes:

I think it is an excellent idea for him to have his own trusted security. The disagreement from SS is only bec their nose is out of joint. I say too bad, his life is more important than their "liddo hurt fee-wings'. He has had so many death threats from all the demented leftists and others that it would be very foolish not to protect himself. He has a family to live for. I am relieved and delighted he is taking this precaution. Smart man! If one of the insiders decide to assassinate him he can't trust anyone but his own.

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