Has Donald Trump trod upon “the most treacherous constitutional ground of his term so far”? CNN thinks so, even though its report on Trump’s demand for a look into whether the FBI spied on his campaign is within his constitutional authority. Exercising that authority, they argue, puts him on “shaky ground”:
Trump on Monday delivered his order for an inquiry into claims that the FBI infiltrated a “spy” into his campaign — first touted in conservative media — to the bureau’s director, Christopher Wray, and Deputy Attorney General Rod Rosenstein in an Oval Office meeting.
In a deft maneuver, Rosenstein may have defused Trump’s fury for now by asking the department’s inspector general to look into the President’s claim, and top Justice Department officials will share highly classified information with lawmakers related to the Russia investigation.
But the fact the conversation took place at all reflects the extraordinary times in Trump’s Washington — when a President has turned on his own Justice Department and is exhorting his loyal political followers to do the same in a way that can only provoke a greater confrontation.
True enough, but might it not also reflect the extraordinary times that preceded Trump? After all, the circumstances which Trump wants investigated hardly qualify as normal, either. According to multiple media reports, retired professor Stefan Halper is a contractor who received over a million dollars in the past five years alone for federal government work. Halper had worked with both the FBI and CIA as an intelligence source for decades, again according to an avalanche of media leaks ironically arguing for keeping his identity secret, along with serving in various administrations since Richard Nixon. During the Reagan campaign of 1980, Halper was caught up in a scandal over alleged spying on Jimmy Carter’s campaign, which didn’t prevent Halper from becoming a State Department official tasked with “politico-military affairs.”
Halper knew the intelligence and political fields better than most, and the trouble that could arise when the boundaries between them blurred. So why was he attempting to curry contacts with Trump campaign officials while reporting back to the FBI in 2016? And why did the FBI allow him to do it?
Page was one of three Trump advisers whom the FBI informant contacted in the summer and fall of 2016 for brief talks and meetings that largely centered on foreign policy, according to people familiar with the encounters.
“There has been some speculation that he might have tried to reel me in,” Page, who had numerous encounters with the informant, told The Post in an interview. “At the time, I never had any such impression.”
In late summer, the professor met with Trump campaign co-chairman Sam Clovis for coffee in Northern Virginia, offering to provide foreign-policy expertise to the Trump effort. In September, he reached out to George Papadopoulos, an unpaid foreign-policy adviser for the campaign, inviting him to London to work on a research paper.
That’s not the act of a mere internal whistleblower. Halper (whose identity is now widely reported) was getting paid by the federal government for “research” during this period, making him not just a source but an asset. In Papadopoulos’ case, it appears that Halper may have used his government contract for research as a means to snare the Trump adviser into closer view. It doesn’t mean the FBI, CIA or other agency directed him to probe the Trump campaign, but at the very least it sets up that possibility. And if the FBI or especially the CIA directed or even tacitly allowed an intelligence asset to conduct an operation involving a domestic political campaign, then that’s much more than “shaky ground” legally as well as constitutionally.
In my column for The Week, I note that Trump probably jumped out in front of an action the Inspector General was likely to take anyway. However, the need for a transparent investigation far exceeds any concerns over optics:
The DOJ’s inspector general had already begun probing the investigation itself for any irregularities. This sequence of events would eventually have fallen within IG Michael Horowitz’ purview, regardless of whether he received specific direction on the “plant.” Rather than allow that to unfold organically, however, President Trump threw gasoline on the fire this weekend after the Post‘s revelations by demanding (on Twitter, naturally) that the DOJ open a probe into the use of this informant.
That put Rosenstein in the difficult position of having to respond publicly to a demand that likely would have already been met. He announced — ahead of a formal demand — that the IG would expand the scope of his current probe to include concerns over any “irregularities” involving the informant. Critics from all sides attacked the move; Trump opponents claiming that the president had abused his power by forcing the DOJ to investigate its investigation, while Trump supporters accused Rosenstein of dodging the issue by assigning it to an office without subpoena power.
Former DOJ prosecutor Andrew McCarthy argues at National Review that Rosenstein got it right, at least as a start. Potential misconduct gets addressed by either the IG or the Office of Professional Responsibility, neither of which has subpoena power, but that doesn’t have to be the only effort. Along with the expansion of the IG probe, McCarthy advises that another probe of the FISA issues being conducted by U.S. Attorney John Huber be expanded to include these allegations too. “It is virtually certain that the new allegations of political spying,” he concludes, “which arise out of the same counterintelligence probe against the Trump campaign that resulted in the controversial FISA surveillance, would also fall within Huber’s investigative jurisdiction.”
And should. Perhaps nothing untoward took place in this FBI investigation, and the steps taken can be shown to be both prudent and responsible. However, the use of long-term intelligence sources to actively engage political campaigns for the purpose of investigating them raises all sorts of dangers of politicization of both law enforcement and intelligence. That kind of activity should only be undertaken if it can survive the highest levels of scrutiny afterward — and that’s precisely why it requires that level of scrutiny now. Otherwise, these kinds of activities will become a permanent fixture in our electoral processes, setting up irresistible incentives for those in power who wish to remain in power.
USA Today’s James Robbins agrees, writing let’s get this all out on the table now, no matter who orders it. Denials by the FBI and DoJ no longer carry much credibility, he argues:
The FBI and Justice Department could help matters at this point with radical transparency, releasing all the information about every aspect of what they dubbed Operation Crossfire Hurricane. But at every turn the DOJ has raised national security objections to revealing practically anything important. This is harmful to the DOJ and the country. The department leadership needs to understand that a considerable number of Americans believe that the DOJ itself has become a national security threat.
Besides, how could the FBI’s spying on the Trump campaign not have been for political purposes? We have FBI special agent Peter Strzok’s private texts to his paramour FBI lawyer Lisa Page reviewing an Aug. 15, 2016, meeting in then-deputy director Andrew McCabe’s office with top FBI officials, saying the government “can’t take (the) risk” that “Trump gets elected” and the Russia investigation was their “insurance policy” against a Trump presidency. If the Strzok-Page texts were not still heavily and strategically redacted we would know much more. And the fact remains that a major party candidate has never been subjected to such a bizarrely concocted and systematic official investigation during and after an election. Derailing this bastardized process and the Mueller investigation it spawned is not obstruction of justice, but obstruction of injustice.
The best way for Trump to proceed would be to order the declassification of all materials involved, as Kimberly Strassel argued yesterday:
4) The cleanest way out of this is for the WH to declassify everything. The DOJ/FBI/Intelligence community has forfeited its arguments about classification, given its willingness to blow a source so that it could spin a story. Let the chips fall.
— Kimberley Strassel (@KimStrassel) May 22, 2018
That’s also fully within the purview of the president. In fact, it’s curious why Trump hasn’t acted to declassify the FISA warrant that apparently resulted from Halper’s activities, or at the very least took place in parallel to them. If we really want to get to the truth and “let the chips fall” where they may, that’s the best path. And the longer everyone waits to move in that direction, the more it looks like everyone has something to hide on all sides of this equation.