As a former Department of Justice detailee to the National Security Council, I fully appreciate the value that rule of law brings to this country. Lately, however, I’m finding it harder and harder to watch as our collective rule of law comes under attack by a truth-challenged President, his enablers on Capitol Hill, and a right-wing media.
In trying to understand the mess of words and accusations surrounding the Russia investigation, it’s important to understand that within the Department of Justice, the country has a team of professionals who have dedicated their lives to finding the truth, and to protecting us from enemies foreign and domestic. It’s not merely the political fortunes or the personal freedom of those caught up in the investigation that are at risk, but rather one of our most important democratic foundations: the rule of law.
When presented with evidence that the Russian government was waging a persistent active measures operation, including an information campaign, to sow discord and influence the outcome of our 2016 presidential election, the FBI did exactly what Americans should want. It opened an investigation, and it followed the evidence wherever it led in an effort to understand the nature and scope of Russian activities and look for opportunities to disrupt them.
There is no indication of political motive in the FBI’s investigative steps. To the contrary, the information available shows that they scrupulously followed their procedures. As David Kris recently Tweeted, “FBI has rules for ‘sensitive’ investigations of a U.S. ‘political candidate (involving corruption or a threat to the national security)’ or ‘political organization or individual prominent in such an organization…’” For those who have worked in, or overseen the activities of, the Justice Department, it is common knowledge that those very procedures are designed to, among other things, protect against even the perception of political influence. Nor is there any basis to believe that senior Obama Administration officials were even aware of these particular investigative steps (as explained by Avril Haines, President Obama’s Deputy National Security Advisor at the time) or attempted to use the investigation for political purposes.
Together, adherence to these two norms – the laws and policies governing sensitive investigations and the independence of our law enforcement and intelligence professionals – is the reason there are no credible allegations that the Bureau’s focus strayed from the Russian intelligence operation, including those who may have been working on their behalf (witting or unwitting). This is not an indication of any impropriety; it is investigators and prosecutors doggedly focused on protecting the American people and our democratic institutions from our adversaries, and free from political interference.
To the degree that the evidence led the FBI to senior Trump campaign officials, that speaks more to the unprecedented and disturbing nature of their conduct – their contacts with Russian intelligence officials before, during and after the campaign – rather than any nefarious political motive. Had investigators refrained from pursuing any of these leads at the time, they would rightly be criticized for two reasons. First, leaving a presidential campaign vulnerable to penetration by the intelligence service of a foreign adversary would, to put it bluntly, mean investigators failed to live up to their oaths to protect and defend the Constitution. Second, nobody – not the president nor any candidate for office nor any campaign worker – is above the law. To say otherwise is to advocate for the very kind of political favoritism that the President and his allies are currently decrying.
Though it’s difficult to decipher who is leading and who is following, President Trump and the right-wing media are waging their own active measures information campaign against the American people. The goal, and the tactics deployed in their effort to achieve them, remain remarkably consistent, and were perhaps best captured in the President’s reported remarks to Lesley Stahl during a 2016 interview when he allegedly said, “I [attack the media] to discredit you all and demean you all so that when you write negative stories about me no one will believe you.” Their aim is fairly obvious: to create an alternative reality that politically insulates the President from the inconvenient truths emerging from credible sources, in the investigation by Special Counsel Mueller.
In normal times, this would be a textbook example of what our constitutional system of checks and balances was designed to guard against. These are not, however, normal times. In one house of our bicameral legislature, Devin Nunes, the Chairman of the House Permanent Select Committee on Intelligence (HPSCI) – a committee once revered for its ability to check partisan politics at the door of its secure facilities in the Capitol – seems to have focused his oversight responsibilities on enabling rather than curtailing this effort. In several recent dustups related to HPSCI’s so-called Russia investigation, the common thread appears to be a chairman focused more on misusing his oversight authority to cherry-pick and manipulate facts to fuel or complement the President’s narrative of an investigation run amuck than getting to the bottom of Russia’s efforts to interfere in our election, let alone preventing it from happening again.
The President’s recent decision to disregard the independence of the Justice Department by ordering (via Twitter) a politically-motivated investigation without factual predicate is no different. It is another step in an unrelenting campaign to undermine the credibility of the Mueller investigation, and the Department of Justice more broadly, in the eyes of the American public. Though President Trump has never been one to be deterred by a risk that he will be perceived as hypocritical, there is more than a little irony to his current efforts to take this to a new level by engaging in the very behavior for which he baselessly maligns his predecessor.
Attacks on objective facts and the insertion of politics into our system of justice are, without a doubt, attacks on the rule of law. In light of recent events, one cannot help but worry about the long-term repercussions. No matter which candidate you voted for, we all have the same goal: to leave the world in better shape than the one we inherited. When it comes to a functioning democracy, it is worth remembering one of its essential ingredients is adherence to the rule of law. For that reason, the President’s sustained assault on the rule of law poses a direct threat to the future of the American system of government.
