This post is a couple days late, and the news cycle is moving on at its typical lightning speed, but I still wanted to reply to Rich Lowry’s response to my argument that it was proper and prudent for the FBI to open a counterintelligence investigation of the president. I fear that we’re going to have to agree to disagree. Rich gets the practical problem mostly right. It does present obvious difficulties when the FBI investigates its ultimate boss — even when that investigation is directly supervised by someone else. But I still think he misses the law, and the law is what defines the FBI’s mission.
A combination of statutes (passed through Congress, obviously), regulations, and presidential orders have created a specific counterintelligence mission and structure. This counterintelligence mission has been carefully defined, the FBI’s role in domestic operations has been carefully defined, and prior presidents have provided additional precise guidance. Here’s the crucial consideration — neither the Constitution nor the relevant statutes exempt the president from their scope. A president can be a threat to national security as that term is defined in the relevant policy guidance. A president — as a human being who is subject to potential corruption and foreign influence — can indeed act “on behalf of foreign powers.” Congress can and should investigate the president, but so can and so should the agency that Congress created and abundantly-resourced for precisely the purpose of conducting counterintelligence activities.
Congress holds presidents accountable by conducting investigations, overriding vetoes, and potentially through impeachment, but we can’t forget its lawmaking and funding power. It hems in a president with laws, and it creates and funds a law-enforcement apparatus that holds every American accountable. The Constitution grants a president considerable power, but it does not exempt him from the operation of law. Yes, the president can take action to shut down an investigation, but that requires a positive act on his part — an act he can be held accountable for by Congress and the public. He doesn’t have the inherent constitutional or statutory right to be free of FBI inquiries if such inquiries have sufficient evidentiary basis.
Moreover, let’s not exaggerate what the FBI has done. Rich asked whether the it’s the FBI’s job to “check and balance the president,” but an investigation isn’t a check on the president. It’s an inquiry. It’s a fact-gathering exercise. It’s not a prosecution. It’s not an impeachment proceeding. The question is whether the FBI can fulfill its legally defined role (as approved by Congress) when even the president is the target of the investigation? And the answer is that it can — absent a proactive exercise of presidential power.
Of course to say that the FBI can investigate the president is different from arguing whether it should in any given instance. My own view is that there should be a very high bar to clear before an attorney general should approve an investigation. If it turns out — once the facts are fully known — that the FBI’s decision to open a counterintelligence investigation turned largely on such acts as firing James Comey or giving erratic interview questions to Lester Holt, then I’ll retract my initial assessment that the investigation was prudent and judge that the FBI grotesquely abused its power. If, however, the decision (as I believe) turned on a number of additional factors — crucially including the multiplicity of troubling Trump team contacts with Russian operatives — then I’ll stand by my initial assessment.
Finally, I don’t want to go line-by-line through Rich’s piece, but a couple items did stand out. Rich says this:
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.
I’m puzzled by this point. Focus on foreign actors frequently involves investigating how they interact with American citizens. That’s a fundamental part of counterintelligence. If the FBI believed that Russia was attempting to induce Trump to act on its behalf, that would necessarily expose Trump to scrutiny.
Rich also says this:
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.”
I took nothing back. The policies, by their own terms, still apply to the president. We may prefer that the authors of the relevant statutes and executive orders had the foresight to outline a separate set of procedures for our commander-in-chief that could answer some of the thorny questions raised by any presidential investigation (like the DOJ did when it published its analysis of presidential indictments), but we’re left with the language we have, and any good textualist knows that’s the language you apply.
The president is a powerful citizen, but he’s still a citizen. When the Constitution doesn’t exempt him from the scope of the law, when statutes don’t exempt him, and when he hasn’t used those powers he possesses to exempt himself, then legal processes should work on him much like they do with anyone else. That’s one of the virtues of a constitutional republic. A president can be held accountable by his own government.