Keep the FBI out of politics
Undated Still image of Richard Nixon from a video clip submitted by Hofstra University Law profesor Brian Frye and his wife, Penny Lane, a filmmaking prof. at Bard College. Credit: HANDOUT
The American people have a right to know if their president is a Russian agent.
Richard Nixon delivered a version of this line in November 1973, as the Watergate scandal gathered steam. Now President Donald Trump has had to tell reporters he is not a spy after the New York Times reported that the FBI had launched a counterintelligence probe into the president himself in May 2017. As former FBI general counsel James Baker told House lawmakers in October, the president’s obstruction of the bureau’s Russia investigation “itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.”
Since the Times story hit, some of the president’s critics have interpreted the investigation itself as evidence of the president’s guilt. If the FBI believed in May 2017 that Trump may have been a Russian asset, the theory goes, then it must know something we don’t. And we already know a lot: that Trump has pressed his aides to withdraw from NATO, for example, and that his campaign manager shared polling data with a former business partner suspected of having ties to Russian intelligence.
Even if you find these facts disturbing — and I do — it must be said that Trump campaigned for the presidency openly seeking greater cooperation with Russia, and he never hid his affinity for Russian President Vladimir Putin. From this perspective, the bureau’s inquiry raises profound questions about who gets to decide questions of national security in a democracy.
Jack Goldsmith, who served as an assistant attorney general for President George W. Bush, argues that the bureau’s actions were unprecedented and a possible overstep of its authority. Goldsmith is careful: He concedes that there may be much stronger evidence, not included in the Times report, that influenced the FBI’s decision. And he allows that the FBI can have defensible reasons for opening an investigation into the president — namely, that a probe into Trump campaign officials and their contacts with Russia would involve Trump himself.
That said, Goldsmith also argues that the implication of the bureau’s decision is that the “domestic intelligence bureaucracy holds itself as the ultimate arbiter” of what serves the national security interest. Trump’s decision to fire the FBI director, after all, was an exercise of his constitutional authority. That action alone cannot be the basis of such an investigation.
Still, these points of constitutional principle do not address a practical question: What was the FBI’s senior leadership supposed to have done when Trump fired Comey, then went on national television and declared that he had axed their old boss because of their Russia investigation?
It depends. If the FBI has real evidence — say, receipts of Russian payoffs to Trump — then it should share this evidence with the one branch of government empowered by the Constitution to remove him from office: Congress.
True, Congress has not exactly distinguished itself with its probing and insightful investigations into this affair. And with Democrats now in the majority in the House, there is little reason to believe its investigation will get less partisan. Nonetheless, if a government official truly believes Trump is a foreign agent and should be removed from office, then he has no choice.
Now suppose that the FBI does not have any receipts. Instead, the bureau’s leadership believes Trump’s firing of Comey obstructed its efforts to investigate Russian interference in the campaign. In that case, the proper course would be for senior officials to resign and go public.
In the American system of government, oversight of the executive is the prerogative of the legislature. It is ultimately up to Congress to decide whether Trump’s decision to fire Comey was a “threat to national security,” as Baker said in his testimony before the House. It is not up to the FBI.
As it now stands, the counterintelligence investigation is in the hands of Special Counsel Robert Mueller. The American people will have to wait for his report to find out what became of the FBI’s frenzied decision to investigate the president for firing its director. It may well be that Mueller’s investigation is nearing its end, and this state of suspended speculation won’t last much longer. And of course he must be allowed to continue his investigation and to go where it leads.
Make no mistake, however: This is not something that can be left in the FBI’s hands. It may be tempting for Democrats to use the FBI’s suspicions of Trump’s treason as a political weapon now. But it also makes for a terrible precedent. Democrats, especially, should be attuned to the danger of allowing the FBI undue influence in electoral politics.
Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
