Breaching Norms Has a Price

If Donald Trump was elected with any mandate, it was to shake up the orthodoxy—to challenge the establishment and its established ways of operating. To drain the swamp. What he actually delivers, however, may be transformation that even many of his supporters come to regret.

Nowhere has the mandate for change been more forcefully exercised than in the field of criminal and counterintelligence investigations of the president and his closest associates. His last tweet of the day on May 20 sounded more like a proclamation:

I hereby demand, and will do so officially tomorrow, that the Department of Justice look into whether or not the FBI/DOJ infiltrated or surveilled the Trump Campaign for Political Purposes - and if any such demands or requests were made by people within the Obama Administration!

— Donald J. Trump (@realDonaldTrump) May 20, 2018

The tweet provoked complaints that the president was breaching norms essential to the functioning of our democracy: As The New York Times wrote, it “ratcheted up his willingness to impose direct political control over the work of law enforcement officials.” And yet it seems that much of America shrugged, apparently either supportive or tolerant of the president’s efforts to stick it to the man. One person’s hallowed tradition is another’s hidebound ritual. Why should they care?

Here’s why you should care. The current tradition of congressional oversight of intelligence is only 40 years old, having started in 1976. Hallowed, perhaps, but too fresh yet to be venerable or invulnerable. And the abuses of Watergate that precipitated the new tradition, including a White House eager for ways to “use the available federal machinery,” like IRS audits, “to screw our political enemies,” are still too recent to be dismissed as ancient history. Keeping the intelligence community operating under the law and preserving the apolitical nature of law enforcement helps to preserve perhaps the most important value underlying any functioning democracy—the idea that no one, not even the president, is above the rule of law. Today, with the enormous and powerful machinery of federal law enforcement and intelligence, these principles are more important than ever. But they are not self-reinforcing; they need care and feeding to remain vital.

By law, the president and his subordinates must keep the congressional intelligence committees “fully and currently informed” of intelligence matters. This is a standard that has been given more specific meaning by an evolving process of accommodation between the committees and the Intelligence Community. But both branches have tended to reserve their rights, and the executive branch in several internal opinions and briefs filed in the Supreme Court has repeatedly taken the position that the president ultimately controls the flow of classified information to Congress. This position is rooted in separation of powers doctrine, a cornerstone of the American constitution.

Oversight is absolutely essential, but to function properly it must operate honestly, and in reasonably good faith. The House Intelligence Committee, under the leadership of Chairman Devin Nunes, has fallen far short of that mark, particularly in its treatment of the FISA surveillance of Carter Page, as I’ve written, where “it tried to deceive the American people in precisely the same way that it falsely accused the FBI of deceiving the FISA Court.”

The executive branch has also protected the rule of law in part by limiting disclosures to Congress about open investigations. The reasons for this are simple and powerful, as the Department of Justice has previously explained. First, “Congressional inquiries during the pendency of a matter pose an inherent threat to the integrity of the Department’s law enforcement and litigation functions.” In other words, Congress is inherently political, and congressional oversight of ongoing investigations risks enabling political influence—members pressuring investigators and prosecutors to go after this particular Democrat, or this particular Republican.

Second, Congress leaks: “In addition to the problem of Congressional pressure and the appearance of such pressure, disclosure of documents from our open files could also provide a ‘road map’ of the Department’s ongoing investigations,” and Congress could release them to the targets of an investigation either “through inadvertence or a deliberate act.” At present, DOJ and the FBI believe, the New York Times has reported, that “some lawmakers [are] using their oversight authority to gain intelligence about [the Mueller] investigation so that it could be shared with the White House.”

The searing experience of Watergate also gave rise to limitations within the executive branch itself. Since Nixon, every president, from Carter to Trump, has adopted policies limiting interactions between the White House and the Justice Department to protect the independence of prosecutorial decisions. The president may set law-enforcement priorities and policies—but regardless of who is president, a bank robbery is still a bank robbery, and the American people have a reasonable expectation that crimes will be investigated and prosecuted in keeping with the president’s constitutional obligation to “take Care that the Laws be faithfully executed.” The Federalist Papers’ famous warning about the dangers of factionalism, which also recognized that “enlightened statesmen will not always be at the helm,” expressed the principle that “no man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity.” And the same is true, of course, of prosecutors: We do not trust anyone to investigate herself.

Whether these limitations survive beyond Trump’s tenure may depend less on him and more on what follows after him. He will do as much as he can for as long as he can to advance his own interests. If his term ends in disgrace, and the American people look back on this period as a mortifying moment of temporary insanity, the net result may be a backlash that produces even stronger protections for the rule of law. This is what happened after Nixon. If not, however, we should expect to see the sincerest form of flattery from future occupants of the highest office in the land.

For now, the core of the problem is that a substantial number of Americans believe, to one degree or another, that Trump is being railroaded. They so deeply mistrust the establishment, including establishment institutions like the FBI and establishment figures like Robert Mueller, and they so strongly support Trump’s iconoclasm, that they will side with him on almost anything. It may be only a slight exaggeration to say, as the president has, that they would be with him even if he shot someone on Fifth Avenue.

Whatever the origins of this mistrust—years of denigrating government by the Republican Party, the constant striving of the news media for Pulitzer-worthy tales of government malfeasance, the decline in life expectancy and standards of living for some Americans—it has propelled Trump to the presidency and it is ultimately what protects him now. Democrats have pinned their hopes on the Mueller investigation, in hopes that a compelling and complete account of grotesque malfeasance will cause the bottom to drop out from under the president. In the meantime, however, he continues to chip away at the foundations of American democracy.