High Stakes and No Precedent as Trump Reviles Investigators
Posted May 26, 2018 8:07 p.m. EDT
Updated May 26, 2018 8:12 p.m. EDT
WASHINGTON — At a White House meeting last winter, leaders of the FBI and the Justice Department made an urgent appeal to John F. Kelly, the White House chief of staff, to side with them against Republicans in Congress who were pressing for information about the Russia investigation that would compromise confidential sources.
Kelly seemed to agree. But not long after Rod Rosenstein, the deputy attorney general, and Christopher A. Wray, the FBI director, returned to their offices, Kelly called and reversed himself, according to a former law enforcement official. They would have to hand over the information after all.
What changed? Kelly’s answer: the president.
For more than a year, President Donald Trump has been at war with law enforcement agencies that answer to him, interjecting himself into an investigation in which he himself is a subject. And he has escalated the conflict drastically in recent days by accusing the FBI of placing a “spy” inside his 2016 campaign, pressuring the agencies to reveal secret information and demanding an investigation of his investigators.
The confrontation has no precedent in the modern era and holds great stakes not just for the president but for the relative autonomy for law enforcement investigations established after Watergate. Trump’s allies argue that he has every right to manage the executive branch and every reason to be outraged at possible misconduct aimed at his campaign. But many law enforcement veterans say he is wreaking untold damage on institutions that form the bulwark of a democratic society.
“To turn on the FBI using this loaded language like ‘spy’ and ‘infiltrate,’ President Trump is trying to poison public opinion against the FBI for his own reasons,” said Barbara McQuade, a career federal prosecutor who served as U.S. attorney in Michigan under President Barack Obama. “He may be successful, but I worry about the impact his kind of rhetoric has on the public when the FBI is investigating a case of kidnapping or bank robbery and the president has told them they’re not trustworthy.”
Since even before taking office, Trump has disparaged intelligence agencies that concluded that Russia sought to influence the election on his behalf, at one point in effect comparing them to Nazis. He has publicly badgered law enforcement officials to shut down the Russia investigation and instead open inquiries into his political adversaries. But he went even further last week by effectively ordering an investigation into the actions taken regarding his campaign.
He also summoned Wray and Rosenstein to the White House to insist they turn over details about the FBI informant that he called a “spy” and even sent Kelly and a White House lawyer, Emmet T. Flood, to a meeting that Wray and Rosenstein held with congressional leaders about the confidential information. Although the White House said they did not stay, Democrats called their presence highly inappropriate.
David B. Rivkin Jr., a constitutional lawyer who worked in the White House and the Justice Department under Presidents Ronald Reagan and George Bush, said critics were overreacting. While Trump’s bellicose tweets and direct involvement are unusual, he said, it would not be any different legally had he gone through his White House counsel, Donald F. McGahn II.
“What he did was not only perfectly constitutional but was not unreasonable,” Rivkin said. “He perhaps could have done it more elegantly, maybe he should have used McGahn, but he is who he is and we shouldn’t hold it against him. Just because something isn’t elegant doesn’t mean it’s wrong.”
Rivkin and others said Trump was right to see the use of an informant as an abuse of power, equating it to FBI surveillance of civil rights and anti-war groups in the 1960s. Jonathan Turley, a law professor at George Washington University, said that while the way Trump went about seeking an investigation was “clearly inappropriate,” the emerging facts merited an examination.
“Where I depart from the critics is I think the president has a legitimate point here,” he said. “The extent of this investigation directed against an opposition party’s presidential campaign is unprecedented and it does raise legitimate questions.”
Contrary to Trump’s assertions, no evidence has surfaced that the FBI informant or anyone else was “embedded” inside Trump’s campaign or that his work had partisan origins. The FBI was investigating Russian efforts to influence the U.S. election and had picked up evidence that people around Trump had been in contact with Russians, evidence that has only grown in the nearly two years since then. The FBI informant, a U.S. academic teaching in Britain, was in contact with three Trump campaign advisers. James Clapper., at the time the director of national intelligence, said neither he nor Obama’s White House knew about the informant. Law enforcement officials said there was nothing unusual about using an informant to gather information.
But that has hardly convinced the president, who has characterized the situation as “one of the biggest political scandals in U.S. history” and called it “Spygate.” He has pressed his claim relentlessly, overstating the known facts, misquoting Clapper and, in his latest Twitter barrage Saturday, inflating the single known informant into a whole squadron of imagined undercover agents.
“With Spies, or ‘Informants’ as the Democrats like to call them because it sounds less sinister (but it’s not), all over my campaign, even from a very early date, why didn’t the crooked highest levels of the FBI or ‘Justice’ contact me to tell me of the phony Russia problem?” he wrote.
Trump has wanted to take on his own government more overtly for months despite his lawyers’ warnings. Since bringing on Rudy Giuliani, the former New York mayor, as the face of his legal team, the president has turned more aggressive, willing to push boundaries of law enforcement practices.
He remains deeply mistrustful of the Justice Department, according to people who have spoken with him, nursing his animosity for Rosenstein and Attorney General Jeff Sessions, who recused himself from the Russia investigation. Even reminders that Wray has purged several FBI holdovers have not soothed Trump, associates said.
“I think the president should exercise restraint,” said Christopher Ruddy, his friend and chief executive of Newsmax Media. “He should use the Reagan model. You shouldn’t get involved in these investigations, leave it to the lawyers, leave it to the people outside the White House. Avoid the Nixon model where you get involved in the investigations and you fire prosecutors and the other stuff that could be perceived as obstruction.”
Sam Nunberg, a former campaign adviser, said the president should not fire Sessions, Rosenstein or Robert S. Mueller III, the special counsel in charge of the Russia investigation, because “they’re perfect foils.” They and James Comey, the FBI director fired by Trump last year, have become symbols of the “deep state” that Trump says he is fighting.
“They have given us every single talking point that we have needed,” Nunberg said. “All I need to do is quote them. Their mindset is they know better. It’s this gilded Washington, ‘We know best and you’re just not smart enough to understand.'”
The president’s demand for an investigation into the informant and the release of confidential information stunned Justice Department officials and put Rosenstein in an awkward position. Rather than resist, Rosenstein agreed to an inquiry. The next day, Trump summoned him and Wray to the White House, which then announced that the department and the FBI would disclose information to House Republicans who have been demanding it.
The drama culminated in an unusual pair of meetings Thursday, with the attendee list and venues shifting until the last moment. The Justice Department and the FBI offered essentially the same limited verbal briefing they had offered earlier this month — an offer ignored by Rep. Devin Nunes of California, the Republican chairman of the House Intelligence Committee.
It was unclear whether Thursday’s exercise would satisfy Nunes, who has sought all documents related to the informant. Rep. Adam B. Schiff of California, his Democratic counterpart, said the briefings made clear “there is no evidence to support any allegation that the FBI or any intelligence agency placed a ‘spy’ in the Trump campaign.” Trump’s meeting with law enforcement leaders about an investigation in which he is a subject was all the more striking given his criticism of former President Bill Clinton for meeting in 2016 with Loretta E. Lynch, then the attorney general overseeing an investigation into Hillary Clinton’s private email server. Lynch insisted it was a chance encounter and they never discussed the investigation.
In this case, Trump openly discussed the investigation into his own campaign with officials overseeing it and, unlike Clinton, has the power to take action if his wishes are not accommodated.
“This isn’t any old oversight fight,” said Matthew S. Axelrod, a former Justice Department official. “It’s about information related to a criminal probe that involves the president and his close associates. This is not the White House weighing in on a discrete issue of congressional oversight in which it doesn’t have a deep-rooted, personal interest.”
Trump’s congressional allies said they had no choice but to appeal to Trump to overrule law enforcement agencies stonewalling their requests.
“We’re trying to do our job,” said Rep. Matt Gaetz, R-Fla. “We’re trying to get documents to set up interviews to understand whether norms were violated in terms of the collection of intelligence on a presidential campaign.” Given the resistance, he said, “there has to be some appeal to someone who has been elected. Otherwise this is not a republic.”
Sessions has been an absent figure. As Trump’s order generated a firestorm in Washington, the attorney general embarked on a five-day trip to Bulgaria and Croatia. Left on the front line was Rosenstein, who appeared intent on appeasing Trump without jeopardizing the investigation.
The stakes have been high for Rosenstein. Each presidential lightning bolt hurled at the Justice Department comes with the implicit threat that Trump could fire him and replace him with someone who would impede Mueller. Rosenstein has told colleagues he is trying to protect Mueller’s investigation. Early in Trump’s tenure, Rosenstein worked within established protocols in communicating with the White House. When Trump’s lawyers asked Rosenstein to investigate Comey for perjuring himself and illegally leaking information last year, he left it to a subordinate to respond, which the White House considered an affront, according to people who saw the exchange of letters.
But Rosenstein has since given ground, providing congressional leaders access to sensitive documents with fewer redactions about ongoing investigations. And he is now communicating directly with the president on investigative matters, which historically has been left to the White House Counsel’s Office, to avoid the appearance of presidential interference.
Law enforcement veterans have mixed opinions on Rosenstein’s performance. Some applaud him for mollifying a president who has openly mused about firing Mueller. Others say he has weakened the Justice Department and contributed to Trump’s efforts to undermine Mueller’s credibility.
“In the past week, he tacitly endorsed the idea that it is for the president to demand a counterprobe into an investigation into himself based on zero evidence of wrongdoing and with the clear intent of harming the underlying investigation,” said Matthew Miller, a Justice Department spokesman under Obama. “We don’t know what he’s buying, but he’s giving up a lot for it.”