Federal Law Enforcement Council Act¶
Policy Rationale¶
Published February 2026¶
Based on Rev 1.0 of the Federal Law Enforcement Council Act
Design Philosophy¶
The Federal Law Enforcement Council Act applies two core institutional design principles: structures over norms, and passive enforcement over active prohibition.
The independence of federal law enforcement from presidential interference has historically rested on norms -- informal expectations that Presidents would not direct prosecutions of political enemies, shield allies from investigation, or condition career advancement on political loyalty. Norms work only when all powerful actors voluntarily comply. A single bad-faith actor can break norm-based systems because enforcement depends on collective commitment to informal rules. The FLECA replaces the norm of Department of Justice independence with structural independence: a multi-member body with staggered terms, partisan balance requirements, for-cause removal protections, and supermajority thresholds for consequential decisions.
The Act's communication protocol applies passive enforcement. Rather than prohibiting informal presidential pressure on law enforcement -- which would require detection, investigation, and punishment after the fact -- the Act defines undocumented communications out of legal existence. Only formally documented communications transmitted through a single authorized channel carry legal standing. Informal pressure does not need to be caught and punished; it simply has no effect. This is the institutional equivalent of traffic calming: the environment itself prevents the undesired outcome without requiring active enforcement.
Problem Analysis¶
The current structure of the Department of Justice conflates two fundamentally distinct functions in a single officer who serves at the pleasure of the President. The Attorney General is simultaneously the President's policy voice on law enforcement and the nation's chief prosecutor. These functions require different loyalties -- one to the President, the other to the law -- and concentrating both in a single politically dependent officer creates an inherent conflict that no individual, however principled, can structurally resolve.
This vulnerability is not theoretical. The historical record demonstrates repeated episodes of political interference in federal law enforcement, ranging from pressure to investigate political opponents to efforts to shield allies from accountability. The system's dependence on individual character rather than institutional structure means that the quality of federal law enforcement governance fluctuates with the personal integrity of whoever holds the office -- precisely the kind of variability that institutional design exists to eliminate.
The career workforce bears the operational consequences. When the Attorney General's independence depends on norm rather than structure, career prosecutors, investigators, and professional staff face implicit and explicit pressure to align their professional judgment with political preferences. The absence of structural protections against political purges, retaliatory reassignment, and loyalty-conditioned advancement leaves the career workforce exposed to the very pressures that independent law enforcement requires them to resist.
Alternatives Considered¶
Several alternative approaches were evaluated and rejected on structural grounds.
Strengthened Attorney General with statutory independence mandates. This approach would keep the single-officer structure but add statutory language requiring independence from presidential direction on specific cases. The fundamental problem is that a single officer remains a single point of failure. Statutory language creating an expectation of independence is itself a norm -- a written norm, but still dependent on voluntary compliance by both the President and the Attorney General. A President determined to capture federal law enforcement needs only to appoint a willing Attorney General, and no statutory language will prevent a willing appointee from complying with presidential direction. Multi-member governance eliminates the single point of failure: no President can control a body with staggered terms, partisan balance requirements, and for-cause removal protections, because no single appointment cycle gives any President a majority.
Enhanced Inspector General oversight without structural change. A stronger IG can detect and report political interference after it occurs but cannot prevent it. Oversight is a reactive mechanism: it identifies violations, produces reports, and relies on political actors to impose consequences. When the political actors who would impose consequences are the same actors engaged in interference, the oversight loop fails. The FLECA includes a strengthened IG -- selected through a nominating committee, serving a single ten-year term, removable only by supermajority Council vote with judicial concurrence -- but as one component of a structural architecture, not as a substitute for it.
Congressional oversight reforms alone. Congress already possesses substantial oversight authority over the Department of Justice. The difficulty is not authority but exercise: congressional oversight is politically contingent, varying with partisan alignment between Congress and the White House, committee leadership priorities, and the political costs of confrontation. Structural independence does not depend on any external actor choosing to exercise oversight; it operates continuously regardless of political conditions.
Provision Rationale¶
Multi-member governance with staggered terms. The seven-member Council with seven-year staggered terms ensures that no single President can appoint a majority during a single term. Partisan balance requirements (no more than four members from the same party) provide a structural floor for ideological diversity. The rotating chair prevents concentration of agenda-setting power. These are proven mechanisms: the Federal Reserve, the Federal Trade Commission, and the Securities and Exchange Commission demonstrate that multi-member governance produces institutional independence while remaining within constitutional constraints.
Separation of policy from prosecution. The Law Enforcement Secretary provides the President with a legitimate, cabinet-level voice on enforcement priorities -- but with no prosecutorial, investigative, or enforcement authority and no access to case-specific information. This separation acknowledges that the Executive has a legitimate interest in law enforcement policy while structurally preventing that interest from reaching specific cases. The Secretary communicates priorities; the Council decides whether and how to implement them. The separation is functional, not merely organizational.
Documentation protocol and the Authorized Communication Channel. The Act's most distinctive structural mechanism is the requirement that all Executive-Council communications pass through a single documented channel. This is not a transparency measure layered on top of existing practice; it is a definitional constraint. Undocumented communications have no legal standing. They create no obligation, duty, or expectation. Department personnel who receive undocumented communications must report them to the Inspector General. Personnel who act on undocumented communications have acted without lawful authority. The structure is self-enforcing: compliance requires no monitoring because non-compliance produces no result.
Automatic vacancy succession. The Senior U.S. Attorney mechanism prevents deliberate understaffing -- a strategy that has been used against multi-member bodies to render them inquorate and dysfunctional. When a vacancy occurs, it fills automatically from the career ranks. If the President fails to nominate or the Senate fails to confirm within defined deadlines, the acting member's status converts to an interim appointment for the remainder of the term. The structure removes the incentive to create vacancies as a method of control.
Tiered voting thresholds. The three-tier system (simple majority, enhanced majority, supermajority) calibrates the difficulty of a decision to its consequence. Routine operational decisions require four votes. Senior personnel actions require five. Politically sensitive decisions -- including investigations of senior officials and refusals to implement presidential policy direction -- require six. This ensures that the most consequential decisions reflect broad consensus within the Council rather than narrow factional control.
Career workforce protections. Titles IX and X create structural protections that go beyond existing civil service law. The DOJ-specific prohibited personnel practices address the particular vulnerabilities of law enforcement professionals: case-based reassignment, politically motivated performance evaluations, coerced resignation through undesirable transfers, and conditioning career advancement on willingness to act on undocumented communications. The duty-to-advise provision protects candid professional advice as a structural feature of the institution, not merely a cultural expectation. Whistleblower protections with criminal penalties for retaliation ensure that reporting channels function under pressure, not just under favorable conditions.
Addressing Concerns¶
Executive power and the unitary executive theory. The Act preserves presidential appointment of all Council members with Senate confirmation, maintains a cabinet-level Law Enforcement Secretary as the President's policy voice, and retains presidential removal authority for documented cause. The multi-member governance structure operates within the constitutional framework the Supreme Court has upheld for independent commissions since 1935. The Act does not remove presidential influence over law enforcement policy; it channels that influence through documented, transparent, accountable mechanisms.
Decisional efficiency. Multi-member governance introduces deliberation costs. The Act manages this through the Director of Operations, who handles day-to-day department management without requiring Council-level votes. The tiered voting system reserves Council deliberation for decisions that warrant it. The structure accepts modestly slower high-level decision-making as a reasonable cost for institutional independence, while maintaining operational responsiveness through the Director.
Accountability. In the current structure, the Attorney General is accountable to the President, who is accountable to voters -- but this chain of accountability is precisely the mechanism through which political capture operates. The FLECA substitutes direct democratic accountability for structural accountability: mandatory congressional testimony, annual prosecution pattern reporting, biennial GAO audits, and scheduled public disclosure of all Executive-Council communications. The Council is accountable to the public through transparency, to Congress through oversight, and to the law through judicial review of removal decisions.
National security coordination. Title XII preserves national security coordination through a designated liaison, with all communications documented through the Authorized Communication Channel. The Council retains final prosecutorial authority in national security matters. The Act explicitly provides that there is no national security exception to the prohibition on case-specific communications -- preventing the use of national security as a pretext for political direction of specific prosecutions.
Revision History¶
Revision 1.0 (Current)
- Initial publication based on Rev 1.0 of the Federal Law Enforcement Council Act
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Prepared by Albert Ramos for The American Policy Architecture Institute