These actions—and indeed the very determination of the U.S. interest in the conduct of U.S. foreign policy—are presidential prerogatives. The Supreme Court has often affirmed, many times since United States v. Curtiss-Wright Export Corp., that it is the president himself, not the executive branch, who possesses “the very delicate, plenary and exclusive power … as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.” Moreover, the president has plenary control within the executive branch of the intelligence power and classified information, which is defined, by the president, in terms of harm to national security. In short, the president is the person constitutionally charged with determining what constitutes the national security interest and national security threats for the executive branch, which is where the FBI is located.

Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.