On Sunday, President Trump tweeted a “demand” that the Justice Department investigate political spying in the 2016 campaign. This replays the political-spying controversy that surfaced in late February. Right now, the issue involves the Obama administration’s use of at least one confidential informant — a spy — to snoop into the opposition party’s presidential campaign; back in February, the issue was the Obama administration’s electronic surveillance — by FISA eavesdropping warrants — for the same purpose.
Just as he did last time, Attorney General Jeff Sessions responded to the president’s agitation by referring the political-spying issue to Inspector General Michael Horowitz. This was the right thing — or, at least, a right thing — to do. Our editorial regarding the previous case explained the guiding principles:
When there are allegations of wrongdoing by Justice Department or FBI officials, federal law and Justice Department protocols require an internal investigation by the units that exist for that purpose — the Office of the Inspector General or the Office of Professional Responsibility.
Sessions was correct to comply with these standards. Arguably, a referral to OPR, rather than the IG, may be warranted. Under federal law, OPR has jurisdiction over allegations of misconduct involving “the exercise of authority to investigate, litigate, or provide legal advice.” There is no doubt, though, that evidence of official malfeasance must be referred to one of these offices. Given that OPR reports directly to the attorney general, while the IG reports to both the attorney general and Congress, Sessions may well have calculated that the IG referral would have more credibility.
These same principles apply now, in the wake of last week’s disclosure that the FBI, under circumstances that remain obscure, used a longtime CIA informant to establish ties with and pry information from three Trump campaign officials, beginning in July 2016.
To elaborate, the president’s Sunday tweet demanded that the Justice Department “look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes,” including whether such monitoring was pushed by “people within the Obama administration!” Trump vowed to follow up this tweet with a more formal directive today.
Attorney General Sessions did not announce a referral of the new spying allegations to Horowitz until after the president’s tweet. I suspect the attorney general waited because he believed a public announcement was unnecessary. The newly disclosed spying allegations are so closely tied to the FISA-abuse allegations addressed several weeks back that they are obviously within the scope of investigations Sessions has already ordered.
I am sympathetic to Sessions’s obvious desire to restore norms that the FBI and Justice Department resist speaking publicly about ongoing investigations. But here, he needs to be public and vigorous about his determination to get to the bottom of what happened. The Justice Department has stonewalled congressional requests for information in connection with the Russia investigation (from which Sessions recused himself). Sessions needs to assert himself, making clear that the Department will scrutinize credible allegations of political spying and will cooperate with congressional committees. With his top subordinate, Deputy Attorney General Rod Rosenstein, likening congressional oversight to “extortion,” the boss needs to do more.
President Trump is right to order that action be taken. And unlike in the last brouhaha over FISA surveillance, the president did not imply that a referral to the inspector general would be problematic. As we observed in the March 1 editorial, Horowitz “has earned a reputation for probity and fact-driven independence.” As we await his much-anticipated report on the FBI’s performance in the Clinton-emails investigation, it should be noted that, since our editorial, Horowitz has issued a comprehensive report on the misconduct of the FBI’s former deputy director, Andrew McCabe, which resulted in a criminal referral. (See my April 21 column, here.)
Predictably, knee-jerk Trump critics are exercised over the president’s giving an order to the Justice Department, claiming political interference in law-enforcement. Quite apart from the fact that the Justice Department is subordinate to the chief executive in our constitutional system, the criticism overlooks two distinctions we have repeatedly stressed, between (a) counterintelligence and criminal investigations, and (b) official misconduct and ordinary crime.
Though carried out by executive officials (i.e., investigators and prosecutors), criminal investigations are governed by congressional penal statutes and overseen by the courts. By contrast, counterintelligence is an investigative activity undertaken entirely in support of the president’s constitutional responsibility to protect the nation from foreign threats. It is not “interference in law-enforcement” when the president directs the Justice Department and FBI to take action in connection with their counterintelligence mission, and to ensure that this mission is being conducted properly. If counterintelligence authorities were exploited to spy on a political campaign in the absence of strong evidence that the political campaign was in a traitorous conspiracy with a hostile foreign power, that would be a major abuse of power. The buck stops with the president, and he has a duty to see that this question is investigated.
Moreover, presidents do not entirely delegate to inferior executive officers their responsibility for running the executive branch. When we say there must not be political interference in law enforcement, we mean that the political leadership of the executive branch should allow criminal cases against those suspected or accused of crimes to proceed under the controlling constitutional and statutory provisions; we want it to be clear that Americans are protected by the rule of law, not threatened by the whims of politics. On the other hand, the president is accountable for the actions of the executive branch — including malfeasance. If there are credible allegations of misconduct by executive-branch officials, the president has a duty to ensure that action is taken. He is not obliged to stand by idly until the Justice Department announces that it will investigate.
Finally, as we’ve emphasized before, there is nothing inconsistent in both calling for an inspector-general probe and directing that Justice Department prosecutors investigate allegations of official misconduct. The latter must be done here, as it is being done in connection with FISA-abuse allegations.
In a March 29 letter to chairmen of three relevant congressional committees, Attorney General Sessions explained that he had assigned Utah U.S. attorney John W. Huber to investigate actions and decisions by federal prosecutors and the FBI in connection with the 2016 election and its aftermath — including possible FISA abuse. This was in response to calls by some in Congress for the appointment of a special counsel (i.e., a second one, in addition to Robert Mueller). The assignment of a well-respected Justice Department prosecutor is preferable to the appointment of a special counsel — an institution with a history of excess and abuse.
In his letter, Sessions explained that the misconduct allegations raised by the committee chairmen fell “within the scope of [Huber’s] existing mandate.” That being the case, it is virtually certain that the new allegations of political spying, which arise out of the same counterintelligence probe against the Trump campaign that resulted in the controversial FISA surveillance, would also fall within Huber’s investigative jurisdiction.
Lest there be any doubt about the matter, though, Attorney General Sessions should be proactive: Make a public announcement that U.S. attorney Huber is on the case, perhaps in the form of a publicly released letter to update the same congressional committee chairmen. No need to wait for a tweet from on high.