Trump Is Winning. The Rule of Law Is Losing.

It is likely that by the time you read this post, a classified memo put together under disputed circumstances, will be released to the public.  The entire process and related story is long, arcane, a little bit of “inside baseball” and dangerous to the rule of law.

In short, Representative Devin Nunes (R-CA) as the Chair of the House Intelligence Committee had his staffers compose a memo accusing the Federal Bureau of Investigation (FBI) and the Department of Justice (DOJ) of misusing the Foreign Intelligence Surveillance Act (FISA) in the investigation of the Russian interference in our 2016 election.  In contrast, the Democrats on the committee, the DOJ and the FBI argue that Congressman Nunes misused the data that was reluctantly turned over to him to present a misleading portrayal of how the system was used and indeed to condemn the system itself.  As the story unfolds, remember that the protesting members of the DOJ and of the FBI, including Director Chris Wray are appointees put in office by the current president.

The DOJ and FBI are concerned on two fronts.  First, the memo could reveal sensitive “sources and methods” to our adversaries.  (Sources meaning where intelligence comes from and methods meaning the ways in which the intelligence is collected.)  It is not hyperbole to say that this could easily put lives at stake.  Second, they are concerned that the memo will inaccurately portray the way that the FISA warrants (issued by a special court for wiretaps and other methods of collecting information on suspected foreign operatives and their collaborators) are obtained and thereby undermine the confidence of us, as citizens, in the process and in the results.

Mr. Nunes is using an arcane rule of Congress to release the information.  The rule has never — never — been used before.  The intent of the rule is to provide a method for revealing relevant information when there is a gross misuse of intelligence that provides a clear and present danger to the nation.  Mr. Nunes is using it for purely political purposes.  At best, he is attempting to sow doubt about the investigation into Russian interference conducted by Special Counsel Robert Mueller, thus undermining possible damaging information about the president.  At worst, he is aiding and abetting the president in providing a rationale for ending the investigation entirely.

As background I point out that this week the president refused to implement sanctions against Russia under a law passed with overwhelming bipartisan support and signed by him.  In a show of sloppy staff work or lack of seriousness (you choose), individuals on the sanctions list were reportedly lifted by administration staffers from a list published annually by Forbes magazine naming the richest people in the world.  Anyone from Russia with over a billion dollars in assets was placed on the Forbes list which was transcribed to the administration’s list — even though some are known to be anti-Putin.  Although I suppose it doesn’t really matter because Mr. Trump will not implement the sanctions. Perhaps this is a quid pro quo?  Who knows, but there certainly have been a bizarre list of actions and statements by the president regarding President Vladimir Putin and Russia.  As someone said, there is a long list of the “whats” that have occurred but there is still no answer as to the “why”.

How serious is this possible breach of national security?  Representing the DOJ position, Assistant Attorney General Stephen Boyd wrote to Mr. Nunes and the committee asking that the information not be released.  In the letter he said that to release it would be “extraordinarily reckless” and that the department had reviewed its processes and found no wrongdoing regarding the FISA process.

An official FBI statement concerning the possible release states:

The FBI takes seriously its obligations to the FISA Court and its compliance with procedures overseen by career professionals in the Department of Justice and the FBI. We are committed to working with the appropriate oversight entities to insure the continuing integrity of the FISA process.

With regard to the House Intelligence Committee’s memorandum, the FBI was provided a limited opportunity to review this memo the day before the committee voted to release it. As expressed during our initial review, we have grave concerns about material omissions of fact that fundamentally impact the memo’s accuracy.

Mr. Nunes and the president also know that there is a Catch-22.  Several in fact.

The Democrats wrote a memo telling “the rest of the story” to put Mr. Nunes’ memo in context.  He refuses to release it and the Democrats are trying to follow the rules and therefore won’t release it without committee approval.  More importantly, the DOJ and FBI cannot refute the memo without themselves using classified information that would do further harm to the nation.  By following the rules and taking national security seriously they find themselves in a bind that allows the president and his enablers to get away with their shenanigans.

Further complicating the response is that Congress has, and should have, over sight responsibility for the DOJ and the FBI.  They should exercise that responsibility fully.  Speaker of the House Paul Ryan (R-WI) contends that that is what is happening.  (A further question for another day is why the Speaker did not step in, as he could do, and stop the release of the memo or at least allow a fully vetted process determine its viability.  He abdicated his responsibility.  I had hopes for Mr. Ryan as a buffer to the worst tendencies of the president, but apparently my hopes were misplaced.)

To fully understand how shady this entire undertaking is, read the unclassified transcript of the committee meeting where the issue was discussed.  (You will find it here.)  Among other things, it is apparent that Mr. Nunes never read the supporting information from which his memo was crafted.  You will also note that Mr. Nunes never denies that the his staff may have worked with White House staffers as to the content of the memo.  You will also find that the FBI and the DOJ requested to come in and explain the impact of releasing the memo and the harm it will do to national security but the request was denied.  And on and on.  One might think that the fix was in.  Oh, and by the way, Mr. Nunes would not release the memo for review by the Republican Chairman of the Senate Intelligence Committee Senator Richard Burr (R-NC).  Why?

Additionally, under normal circumstances, should the FBI concerns be ignored, “grave concerns” not-with-standing, and the administration releases the memo, FBI Director Wray should resign.  I hope that he stays and continues to fight for what is right.

The word “unprecedented” gets used a lot these days.  This event is truly unprecedented.  The House and Senate intelligence committees are historically known for their bipartisanship, concern for the safety of our country, very, very careful in their use and review of sensitive information and generally known as a model for how the government should work.  Well, that’s over.

I cannot over emphasize how critical this is to the norms of honest government and the impact on our leading law enforcement agency and the intelligence community as a whole.  The politicization of intelligence is a dangerous precedent.  Once the genie is out of the bottle, there will be, inevitably in my opinion, other instances of one or both parties (“paybacks are hell”) undertaking similar political use of sensitive information.

One must also think of the willingness of future potential sources of information to put themselves on the line knowing that what they do covertly could be blasted to the public for political reasons.  Think also of foreign intelligence agencies and their willingness to work with the United States if they also think that sensitive sources and methods could be compromised.  Some reports already indicate that other nations’ intelligence agencies have significantly cut back on the information that they share with us because they are wary of the ability of this administration to keep a secret — as evidenced by the president sharing such intelligence in the Oval Office with the Russian Foreign Minister and Ambassador last year.

Credible reports indicate that the president has been pushing for the release of the memo — even without having read it until last night — since last week.  He reportedly thinks that it will “prove” that the “deep state” is out to get him (remember that those opposing its release are his own political appointees).  More ominously, it has been reported that he may use this memo as an excuse to fire Deputy Attorney General Rod Rosenstein.  This is significant because Mr. Rosenstein, following the recusal of Attorney General Jeff Sessions, oversees Mr. Mueller in the conduct of the Russian investigation.  Mr. Rosenstein has repeatedly said that he would never fire the Special Counsel barring egregious and unlawful actions on his part.  This infuriates the president.  By removing the Deputy AG, Mr. Trump would look for a replacement willing to fire Mr. Mueller or at least inhibit and undermine the investigation.  That would be a travesty of justice.

As I’ve said many times over the last year or more, whatever one thinks of Mr. Trump, we should all be livid and concerned that the Russians clearly interfered (as even Mr. Trump’s own appointees to lead the intelligence community concede).  And yet, not only will Mr. Trump not say that there was interference, more importantly there is not one federal agency or inter-agency task force looking into it or planning how to counter it for this year’s elections.  In a recent interview with the BBC, CIA Director Mike Pompeo said that the Russians continue to interfere in our internal policy and that he fully expects that they will try to interfere with our next elections and continue to do so as long as they can.  And we sit on our hands?  Apparently this administration, abetted by Republicans in the House, would rather investigate the FBI and the DOJ rather than the Russians.

The sanctions that this administration is refusing to implement were designed specifically to punish the Russians for interfering in 2016.  What they hey?

If Mr. Trump has nothing to worry about (even though two of his aides pleaded guilty and two others are under indictment — hardly a “nothing burger”) then why not let the investigation continue without interference and come to a quick conclusion exonerating him?  In my mind it is because he is afraid of what will be found.  Each event unto itself could be dismissed, I suppose.  But it is compelling when one looks at all the things we already know happened between the Trump campaign and the Russians.  I am positive that what we know is only the tip of the iceberg compared to what the Special Counsel already knows.

There are many more twists and turns behind this unfolding sordid episode.  Because it is happening in slow motion, and involves arcane House and DOJ rules, I suspect many Americans are unaware of the details and even more than that are unaware of the implications behind this unprecedented action.  Perhaps Mr. Trump and Mr. Nunes are counting on that.  Meanwhile, the DOJ and FBI are under attack as independent protectors of the nation.  The rule of law is in danger.

We are on the verge of a Constitutional crisis.  It has been creeping up on us for several months.  Soon its full-blown existence will make it so that no one can ignore what is happening.  Mr. Trump will not do the right thing when the time comes.  As he said last week at an impromptu meeting with the press when asked about the investigation, he said he is “fighting back.”  One can only imagine what that will bring.

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