President Trump’s norm-defying “demand” that the Justice Department “look into” whether it infiltrated or surveilled the Trump campaign “for Political Purposes” at the behest of the Obama administration threatens less damage to Justice Department independence than to larger executive branch prerogatives that any president other than Trump would want to protect.
Trump’s tweet-order came just after noon on Sunday, May 20, in angry response to stories about an FBI informant who approached Trump campaign officials in 2016 and to the Justice Department’s refusal to accede to congressional demands for information about the informant.
Trump’s tweet crossed an important line of Justice Department independence, but it is not quite the sacrosanct boundary it has been made out to be.
The president has constitutional authority to order the Justice Department to investigate a particular matter, or to cease investigating one. But after Richard Nixon abused that power spectacularly, every subsequent administration, including Trump’s, has issued guidelines about contacts between the White House and Justice Department to prevent abuse.
Technically those guidelines bind the president’s subordinates, not the president. But the memos and the practices and cultural understandings that have grown up around them have created the expectation that presidents should not comment on law enforcement matters, much less direct them, absent very special circumstances.
We should not be naïve about the extent to which presidents strictly comply with these norms. For example, President Obama breached them when he twice commented publicly, in the midst of the Hillary Clinton email investigation, that she had done nothing to endanger or intentionally harm national security. These statements “jeopardized the Department of Justice’s credibility in the investigation,” wrote former FBI Director James Comey in his memoir.
Beyond public influences, presidents have let their attorneys general quietly know their preferences on particular prosecutions and investigations. It is not intrinsically bad that a president exercise this influence, so long as he does so responsibly. The Constitution gives the president ultimate control over investigators and prosecutors because he is accountable for their actions, and they are unelected and cannot always be trusted to act properly.
In our post-Watergate constitutional world, however, we worry especially about presidents who seek to influence investigations of their own behavior or that of their close associates. And this is how Trump’s blustery order was interpreted: as his latest tactic to try to derail Special Counsel Robert Mueller’s investigation.
This is an apt interpretation of the order, given the background of the president’s year-long effort to undermine the Russia investigation’s credibility through vicious, abusive, threatening tweets and other statements accusing the Justice Department and the FBI (including Trump’s own appointees and Mueller) of bias, witch hunts, and other turpitude.
And yet Trump’s order to the Justice Department to “look into” possibly inappropriate government actions toward his campaign is not a crazy idea. One of the FBI’s central responsibilities is countering the activities of foreign spies. The FBI had a professional duty to pursue the significant evidence—based on the limited information we have thus far—of Russia’s attempts to infiltrate the Trump campaign.
But the FBI’s resulting secret investigation of that possible infiltration was also highly unusual and maybe unprecedented. And like any exercise of power by any government actor, it was potentially subject to abuse.
I do not believe that the FBI or the Obama Justice Department did anything inappropriate in conducting this investigation. All of the evidence I have seen is to the contrary. And it is hard to see how an investigation kept secret during the 2016 presidential campaign could have been motivated by a desire to hurt Trump in that campaign.
But many people of good faith believe that the FBI and Justice Department acted inappropriately, and they are especially worried since the investigation took place under the auspices of an administration of one party against the campaign of a candidate from another party. No government officials are beyond review and reproach. It is unusual to investigate the investigators in the midst of an investigation. But given where we are now, and the large stakes for the country, it would be useful and potentially healing to have a credible public accounting of precisely what happened in the investigation of the Trump campaign in 2016.
Ironically, Trump’s norm-defying tweet created just such an opportunity. Deputy Attorney General Rod Rosenstein—the person in charge of the Mueller investigation and a frequent target of the president’s ire—deftly responded to the president’s tweet by asking the Justice Department’s independent Inspector General, Michael Horowitz, to add to his related ongoing investigation the question of whether the FBI acted with “impropriety or political motivation” in its counterintelligence investigation during the 2016 election.
“If anyone did infiltrate or surveil participants in a presidential campaign for inappropriate purposes, we need to know about it and take appropriate action,” Rosenstein said, with an alacrity and confidence that suggests he knows the answer. By asking Horowitz to gather facts on the matter in his ongoing related investigation rather than opening a new criminal investigation, Rosenstein minimized the president’s attempted blow to Justice Department independence and at the same time set in motion a process that will let the American people understand what the FBI did in the 2016 election.
Horowitz is the most credible person in the government to look into this matter. He was appointed by President Obama but has a well-deserved reputation for independence. Horowitz issued a damning report in 2012 on the Obama administration’s “Fast and Furious” program. He recently released another that was critical of someone Trump dislikes, former FBI Deputy Director Andrew McCabe. He is about to issue a new report on the Justice Department’s and the FBI’s actions during the Hillary Clinton email investigation that is also expected to be unfavorable. Trump will be hard pressed to question Horowitz’s bona fides if he issues an exonerating report on the FBI performance in the Russia investigation.
Horowitz is certainly better positioned to investigate the FBI investigators than his most likely rival for the task, chairman of the House Intelligence Committee and Trump henchman Devin Nunes. Nunes has, for a year and with Trump-like vigor, violated norms of honesty and trust that undergird legitimate intelligence oversight. He has been an open ally to the president in his effort to discredit the Mueller investigation. And he has made unusual demands on the Justice Department for information about the ongoing Russia investigation to which Rosenstein, under pressure from the White House, has largely acceded.
Rosenstein has balked, however, at giving Nunes and his congressional allies information about FBI informants in connection with the Russia investigation. This is standard executive branch practice that is necessary to attract and safeguard informants who are vital to law enforcement and counterintelligence.
But the call on this issue is ultimately the president’s because it is the president’s prerogative that Rosenstein is protecting. On May 21, Trump convened a highly unusual meeting at the White House with Rosenstein, FBI Director Chris Wray, Director of National Intelligence Dan Coats, and White House Chief of Staff John Kelly. At the end of the meeting the White House announced that it would allow congressional leaders to review at least some of the “highly classified and other information” they had requested.
While the scope of this concession remains unclear, any revelation of informant information to Congress would constitute the worst sin committed during these recent events. Presidents are typically keen to protect the powers of the presidency and the vital tools of law enforcement and national security. Here, President Trump appears instead to be exercising his constitutional discretion to give them away for the personally self-serving end of discrediting the Russia investigation.
Whatever the impact this action may have on the Russia investigation, the harm to the executive’s prerogatives vis-à-vis Congress, and to the government’s ability to develop and recruit sources and informants, will be long-lasting. Rosenstein and Wray understand this. They are balancing their duties to the president for whom they work with their commitments to the norms of the Justice Department and the FBI. And more than anything else, they are trying to protect the integrity of the Mueller investigation that the president so despises.
They have thus far succeeded in that important task and last week bought Mueller more time to carry on with his work. Whatever other blows Justice Department independence may have suffered from Trump’s onslaught, it remains a remarkable testament to that independence that a president who has constitutional control over the department has nevertheless not yet been able to stop it from investigating him and his associates.
