White House

When Did It Become the FBI’s Job to Act as a Check and Balance to the President?

The FBI’s headquarters building stands in Washington, D.C., December 7, 2018. (Yuri Gripas/Reuters)
A reply to David French

I  appreciate David’s response to my column on the FBI counterintelligence investigation of Trump, but unfortunately don’t find it persuasive.

David emphasizes how the regulations governing a counterintelligence investigation focus on the activity of the foreign power. Yeah, sure. But that’s why the Times story was so explosive. It reported on a counterintelligence investigation of Trump himself, who is obviously not a foreigner, but the duly elected president of the United States.

The Times story says that the FBI feared Trump might have been a witting or unwitting agent of the Russians. I’ll come back to witting, but what does an unwitting asset of Russia even mean? It sounds to me like someone who is foolishly giving cover to Vladimir Putin and inclined — even if he doesn’t usually follow through — to favor policies congenial to Russia’s interests. This is all bad and I oppose it (while welcoming all the measures Trump has taken that aren’t congenial to Russia’s interests). But what is this, at bottom, other than having flawed instincts toward Russia, which is Trump’s perfect right? I’m guessing I agree with Lisa Page’s basic view of Russia more than Trump’s, and I believe she should get a chance to act on those views just as soon as she, too, is elected president of the United States.

The proximate cause of the FBI investigation, if the Times reporting is correct, wasn’t any new information about Russia’s activity. It was Trump acting entirely within his powers to fire his FBI director. This might be the first time that a FBI counterintelligence investigation was triggered by a lawful domestic action. This is crazy. Perhaps you believe that Trump’s firing of Comey was ill-intentioned and abusive. That’s a reasonable view, but it is Congress’s job to take this up, not the job of a subordinate law-enforcement agency within the executive branch. The regulations David cites say nothing about the FBI starting a counterintelligence investigation of a president acting pursuant to his legitimate powers.

Now, perhaps something truly monstrous is going on. This brings us back to the scenario of Trump being a witting agent of foreign power. What if the FBI had evidence of that? What should it do then? Well, I believe in that extreme scenario that Trump’s fundamental transgression wouldn’t be violating whatever criminal statute might be implicated; instead, he would have committed an offense against our republic, a political offense that should be dealt with by our political leaders, not by the FBI.

So, in that extreme scenario, the FBI officials should have taken their evidence to Congress or resigned and revealed it publicly. This would allow a political offense to be taken up by other politically accountable players, namely Congress, which could further investigate the offense as appropriate and impeach the president if warranted.

If Trump is guilty of something less than this, which seems the much likelier scenario (although I expect more unpleasant surprises in the Mueller report), the case is even stronger that the question should be left to Congress to handle.

It’s worth considering, by the way, the disproportion between what we know of Trump’s conduct and the guidelines David cites to justify the FBI’s action: a “threat to national security,” David notes, is defined to include “espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers.”

If Trump is acting in concert with the Russians to assassinate people, yes, all bets should be off, obviously. But, per the Times, one justification for the FBI probe was Trump’s Lester Holt interview, which even if you accept the conventional interpretation of it, was hardly a confession of working with the Russians to sabotage the United States or spy on us, let alone carry out assassinations.

It’s also worth remembering that the FBI is our domestic intelligence service, and as such has to be mindful of its limits. It is bound by the Constitution and a raft of civil-liberties protections, spelled out in various guidelines and statutes. It is not supposed to investigate people on the basis of things they say publicly — and the bill of particulars against Trump in the Times story includes a bunch of public statements — even if these things are outrageous or wrong.

David asks: “At the very least, if we’re concerned about negative precedents, shouldn’t we be also concerned — perhaps even more concerned — by a presidential campaign that featured such extensive clandestine ties (including financial ties) with a hostile foreign power than we are by a federal agency fulfilling its president-defined legal mandate, under president-designated Department of Justice oversight?”

This is an entirely false choice. I’m all for being “concerned” about the Trump campaign’s shady actors and questionable judgments. But you can be “concerned” about this and still think the FBI shouldn’t have undertaken an investigation of the president of the United States as a national-security threat.

Finally, the main contention of David’s piece is that since the FBI is authorized to undertake such a counterintelligence investigation by regulation, the president has in effect authorized the investigation of himself. Then, he takes back, or at least significantly vitiates, this point at the end of his piece by conceding: “It is quite fair to say (and obvious as you read the relevant guidelines) that counterintelligence responsibilities were not allocated with a potential investigation of the president in mind.”

Right. It’s completely obvious. Which is one reason why it wasn’t “prudent and proper,” to borrow the words of the headline of David’s piece, for the FBI to stretch a commonsensical interpretation of its counterintelligence mission under the regulations to investigate Trump as a national-security threat.

Again, this is the role of Adam Schiff and Co., not the FBI. I’m sure I’ll disagree with how the congressional Democrats handle these matters going forward. But there’s no doubt under our system about the legitimacy of their taking them up. The same can’t be said, and shouldn’t be said by constitutional conservatives, of how the FBI conducted itself after the firing of James Comey.


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