Not long ago, the standoff now consuming Washington would have been unthinkable. The Trump White House and Justice Department are sharply at odds over releasing a memo prepared by Representative Devin Nunes, alleging misconduct by the FBI and Justice Department. The president seems poised to approve the release of the document in order to seek his own vindication. The House Intelligence Committee is engaged in an increasingly bitter civil war. And Republicans and Democrats alike are questioning the integrity of federal law enforcement.
Most remarkable of all is the all-out assault by Trump and his allies on the independence of the Department of Justice and the FBI. On Tuesday, House Speaker Paul Ryan joined the chorus of critics calling for the release of the Nunes memo. “Let it all out, get it all out there. Cleanse the organization,” he told Fox News.
This crisis may have arrived suddenly, but the conditions that allow for this moment have been building for some time. While there’s great concern about Donald Trump destroying longstanding norms, this is the latest example of how the Trump presidency has hastened the demolition of norms that began eroding long ago.
Consider the Nunes memo. Nunes, the chairman of the House Intelligence Committee, prepared the memo along with staffers. The four-page document reportedly suggests that DOJ and FBI officials relied upon information from Christopher Steele, a former British intelligence official who investigated Trump on the Democratic Party’s dime, in applying for a warrant to surveil Carter Page, a former Trump foreign-policy adviser. The committee voted along party lines Monday to release the memo to the public, but the White House must first review it and sign off.
Democrats and the Justice Department contend that the memo is a misleading olio of decontextualized facts, and that there’s no wrongdoing involved. (The committee rejected a Democratic request to release a minority response memo.) The Justice Department calls the release “extraordinarily reckless,” and says Nunes has not read the underlying intelligence, which was made available to Representative Trey Gowdy and two staffers for the majority. Nunes’s recent record suggests that some skepticism about allegations he makes is warranted.
Seldom has a congressional committee launched such a frontal assault on the FBI and Department of Justice. It’s been more common for oversight panels to be criticized for excessive coziness with the executive-branch agencies they regulate. A rare exception is the mid-1970s Church Committee, which investigated intelligence-community abuses. Yet that committee conducted lengthy investigations following standard procedures; the rush to push out a short memo that seems mostly to serve the president’s political purposes is rather different. And at the time of the Church Committee, the Ford administration clashed with Congress, defending the executive branch’s prerogatives. The White House and other conservative commentators contended that Congress would endanger the country by undermining the intelligence establishment.
Not this time around. The White House is reportedly leaning toward release, despite the strenuous objections of the Justice Department, although the president has not read it, deriving his understanding from press coverage and statements of congressional Republicans. The presumed release will not likely end the controversy. It will make the debate a little more straightforward, since all sides will have the actual text of the memo to work with, but the battle lines are unlikely to shift. For Trump and his defenders, the memo will prove there’s a vast deep-state conspiracy against him. Democrats and the Justice Department will say it’s misleading, and perhaps engineer leaks to undermine the memo. Voters and pundits will choose sides largely based on their pre-existing views of Trump.
It didn’t used to be like this. Debates like this would be hammered out behind closed doors in the House Intelligence Committee; or the Justice Department’s word would be taken as essentially trustworthy; or failing that, the press would adjudicate the matter. All of these institutions are now viewed through the prism of partisanship, or consumed by it—destroying broad faith in their pronouncements.
This is not to say that any of these institutions were ever beyond reproach. As I wrote last week, the FBI and the intelligence community make for imperfect vessels for the hopes of those who see them as defenders of rule of law against Trump. The FBI has at various moments in history wielded its powers to persecute political opponents. But the FBI, and the Justice Department, were granted a presumption of some objectivity. This, like the delicate diplomatic concepts that Trump has casually destroyed, was a fiction, but it was a fiction that allowed the system to function by presenting procedures and rules. Institutions provided a framework, and while there might be differences of opinion about the conclusions reached, there was a process for reaching them.
Now, however, the various factions can’t even reach an agreement on what the rules are. The Republicans and Democrats on the intelligence committee don’t agree on the rules, much less the outcomes. The White House is attacking its own Justice Department; Trump expresses puzzlement at why “my guys” in the department don’t care of his dirty work, while the Department of Justice puzzles over why Trump is endangering their procedures and reputation.
Though Trump is pushing this tendency to its apotheosis, he did not create it. It dates back to at least Watergate and to the Church Committee. While no Justice Department has ever been so harried by its own president, the Justice Department is not new to political warfare. Congress held Attorney General Eric Holder in contempt; the George W. Bush Justice Department operated in deeply politicized ways, including its dubious firings of U.S. attorneys. Before Trump undertook his campaign against Robert Mueller, Bill Clinton and other Democrats led a campaign to discredit independent counsel Ken Starr. Before Republicans accused the FBI of trying to subvert the Trump presidency, Democrats accused the FBI of trying to create it by tanking Hillary Clinton.
The genius of attacking these institutions is that if they try to defend themselves, they only seem to validate the charge that they have become partisan actors. If the Justice Department and FBI rebut the claims leveled by Nunes or the White House, that encourages the impression that they are working against the president. The press has already found itself drawn into a similar sort of hand-to-hand combat with Trump, with the result that many of his supporters now treat it as a hostile, partisan force.
It’s important for Americans to question the FBI and the Justice Department, and to criticize the press. Accountability is essential in a democracy, and none of these institutions has ever been perfect. But in the present case, those leading the assault seem to be doing so for cynical reasons. Trump is attacking the Justice Department and FBI because of an investigation that threatens his presidency; he has repeatedly made charges (remember the “wiretapping” claim?) that proved to be false. Nunes and other House Republicans claim overreaches by the intelligence community, yet just voted against reforms of the surveillance process.
Meanwhile, other bad actors see an opening to take advantage of the moment. Former Representative Michael Grimm, a New York Republican, is attempting a comeback after a jail sentence. Even though he pleaded guilty to tax fraud, he now says he fell victim to the “same politically corrupt team of players” working on the Russia probe.
There’s a second problem that is more abstract. Jonathan Rauch has written for The Atlantic about the unintended consequences of another post-Watergate phenomenon. Americans became concerned about corruption, and made an effort to stamp out the trading of favors in all its forms. It turns out that those favors were the lube that kept many parts of the system working, and without them, the government has struggled to operate quite as smoothly. The current assault on institutions is having a parallel effect. Critics, acting out of both good and bad faith, have succeeded in pointing out the failures, biases, and shortcomings of our present system of administering justice.
But there’s no system or process to take its place.
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