The American Deep State

Jon D. Michaels*

Whether cast as insidious or cast aside as fictitious, the American “deep state” is an increasingly compelling concept in the Age of Trump. In a year’s time, a label that had practically no domestic resonance has been elevated to the status of public enemy number one. Indeed, when things have gone badly for the Trump administration—as they often have—the President, his allies, and White House surrogates have been quick to blame the deep state. Such a deep state, characterized by Team Trump as disloyal and undemocratic forces within and around government,¹ has served as an all-purpose scapegoat, diverting attention from the mounting evidence of White House corruption and incompetence, demonizing and delegitimizing critics of the administration, and jeopardizing the long-term health and vitality of the federal bureaucracy and myriad pillars of civil society.

New to the United States,² the concept of a deep state has considerable transnational purchase. Usually any mention of a deep state conjures up images of shadowy and powerful antidemocratic cabals that threaten popular rule. For good reason, one may look at some precariously (or simply nominally) democratic countries’ militaries, key ministries, and state-owned industries with trepidation. Close observers of places like Egypt, Turkey, Pakistan, and Iran have witnessed enough crackdowns on free speech and assembly, electoral subversions, and rollbacks of good governance reforms to know how that movie ends.³

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater, not lesser, depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role in safeguarding our constitutional commitments and enriching our public policies.

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© 2018 Jon D. Michaels. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice

*Professor of Law, UCLA School of Law. For helpful comments and conversations, thanks are owed to Frederic Bloom, Kristen Eichensehr, David Fontana, Aziz Huq, Toni Michaels, Richard Re, David Super, and Christopher Walker. Thanks are owed too to UCLA Law Librarian Jodi Kruger; my research assistant, Brandon Amash; friends and colleagues participating in the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century; Jeffrey Pojanowski, gracious host and architect of this Symposium; and Shelby Compton, Brent Murphy, and their colleagues on the Notre Dame Law Review.

This Article builds on a short contribution penned for Foreign Affairs. See Jon D. Michaels, Trump and the “Deep State,” Foreign Aff. (Sept./Oct. 2017), https://www.foreign affairs.com/articles/2017-08-15/trump-and-deep-state.

1 See, e.g., Daniel Benjamin & Steven Simon, Why Steve Bannon Wants You to Believe in the Deep State, Politico (Mar. 21, 2017), https://www.politico.com/magazine/story/2017/ 03/steve-bannon-deep-state-214935; Daniel Chaitin, Trump Promotes “Deep State”-Focused Episode of “Hannity,” Wash. Examiner (June 16, 2017), http://www.washingtonexaminer.com /trump-promotes-deep-state-focused-episode-of-hannity/article/2626272; Alexandra Glorioso, Rooney Calls for “Purge” of “Deep State” Workers at DOJ, FBI, Politico (Dec. 26, 2017), https://www.politico.com/states/florida/story/2017/12/26/rooney-calls-for-purge-ofdeep-state-workers-at-doj-fbi-161479; Jeremy W. Peters, The Right Builds an Alternative Narrative About the Crises Around Trump, N.Y. Times (May 17, 2017), https://www.nytimes.com/ 2017/05/17/us/politics/trump-scandal-conservatives-media.html; Tom Porter, Deep State: How a Conspiracy Theory Went from Political Fringe to Mainstream, Newsweek (Aug. 2, 2017), http://www.newsweek.com/deep-state-conspiracy-theory-trump-645376; Brooke Seipel, Donald Trump Jr. Shares Tweet He Says Is “Confirmation Deep State Is Real,” Hill (July 7, 2017), http://thehill.com/homenews/news/341074-donald-trump-jr-shares-tweet-he-says-is-confirmation-deep-state-is-real; Z. Byron Wolf, Trump Embraces Deep State Conspiracy Theory, CNN (Nov. 29, 2017), http://www.cnn.com/2017/11/29/politics/donald-trump-deep-state/ index.html.

2 Prior to 2017, references to an American deep state were few and far between, surely because the term was closely associated with institutions and regimes so utterly unlike those in the United States. See David Remnick, There Is No Deep State, New Yorker (Mar. 20, 2017), https://www.newyorker.com/magazine/2017/03/20/there-is-no-deepstate. But see Mike Lofgren, The Deep State: The Fall of the Constitution and the Rise of a Shadow Government (2014).

3 See, e.g., Ryan Gingeras, In the Hunt for the “Sultans of Smack:” Dope, Gangsters and the Construction of the Turkish Deep State, 65 Middle East J. 426 (2011); Anil Kalhan, “Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan, 46 Vand. J. Transnat’l L. 1 (2013); Mehtap S¨oyler, Informal Institutions, Forms of State and Democracy: The Turkish Deep State, 20 Democratization 310 (2013); Charles Levinson & Matt Bradley, In Egypt, the “Deep State” Rises Again, Wall St. J. (July 19, 2013), https://www.wsj.com/articles/ SB10001424127887324425204578601700051224658; Bessma Momani, In Egypt, “Deep State” vs. “Brotherhoodization,” Brookings (Aug. 21, 2013), http://www.brookings.edu/research/ opinions/2013/08/21-egypt-brotherhood-momani; Sanam Vakil & Hossein Rassam, Iran’s Next Supreme Leader, Foreign Aff. (May/June 2017), https://www.foreignaffairs.com/articles/iran/2017-04-09/iran-s-next-supreme-leader; Alex Vatanka, Rouhani Goes to War Against Iran’s Deep State, Foreign Pol’y (May 18, 2017), http://foreignpolicy.com/2017/ 05/18/rouhani-goes-to-war-against-irans-deep-state/.