National Review Online
Sunday, October 11, 2020
So, what crime would you charge, Mr. President?
The closing weeks of the campaign find President Trump
berating William Barr, the attorney general who has served him and the country
well. Trump’s increasingly strident complaints relate to the probe of his 2016
campaign, launched by the Obama administration. At Barr’s direction, the
genesis and conduct of that probe have been under investigation since early
2019 by Connecticut U.S. attorney John Durham, a well-regarded career
prosecutor.
Trump is ballistic that Barr and Durham have not
prosecuted top Obama-administration officials, not least Vice President Biden,
Trump’s opponent in this election, as well as the former president and Secretary
of State Hillary Clinton, Trump’s opponent in the last election.
It is increasingly clear that Clinton had a large hand in
driving the Trump-Russia narrative, which Obama intelligence and
law-enforcement officials inflated into a counterintelligence and criminal
probe. She accused Trump of engaging in a cyberespionage conspiracy with the
Kremlin to sabotage her campaign. The allegation was based largely on Russia’s
suspected hacking of Democratic National Committee emails, to which no evidence
tied Trump.
Even before the DNC hacking, Obama’s CIA director, John
Brennan, had joined Clinton in beating the Trump-Russia “collusion” drum; and
after the hacking, Obama’s FBI director James Comey formally leapt in to
investigate. The probe relied heavily on bogus political opposition research
generated by the Clinton campaign — specifically, by its retention of
Christopher Steele, an incompetent and stridently anti-Trump former British
spy, who churned out a “dossier” rife with unverified innuendo, obvious
material errors, and, quite likely, Russian disinformation.
Attorney General Barr has described the Trump-Russia
probe as a “travesty” because it was triggered on the thinnest of predication
and carried on long after the lack of proof was manifest. The probe continued
well into Trump’s presidency, forcing him to endure the appointment of special
counsel Robert Mueller and govern under a cloud of suspicion until Mueller
finally cleared him, 27 months into his term. Democrats cited the existence of
an investigation as grounds against allowing Trump to exercise normal powers of
his office, such as nominating Supreme Court justices. To this day,
congressional Democrats comb Mueller’s report for grounds for another
impeachment.
The Obama administration and federal investigators
clearly abused their powers in this matter. Yet, abuses of power do not often
translate into prosecutable offenses codified by the federal penal code. That
fact was illustrated to the president’s advantage during his Ukrainian
misadventure in 2019, when he exploited his authority over the conduct of
foreign relations to pressure an ally to undertake an investigation politically
favorable to him. Congressional Democrats were frustrated in their effort to
find a crime that fit the abuse.
In “Russiagate,” the Justice Department can’t seem to
find one either, at least not fast enough or high enough up the political food
chain for Trump. The president ranted on Twitter last week about the “TREASONOUS
PLOT,” and inveighed against Barr in friendly talk-radio interviews over the
failure to indict Obama officials.
Trump’s wayward invocation of treason brings the problem
into sharp relief. Besides being unhinged political rhetoric, as a legal matter
— which is what Barr has to consider — it is sheer nonsense. The presidency is
not the nation. A president is a public servant, and a presidential candidate a
mere public figure; neither of them is the United States, on whom war
must be waged to trigger treason. Under federal law, treason’s close cousin
sedition, also touted by Trump supporters as a potential charge, similarly
requires proof of conspiracy to use force against the nation and its
government.
There’s a reason that the checks against abuses of power
in our system are predominantly political, not legal. The discretion to
exercise government’s police and intelligence-collection powers must
necessarily be broad because the potential threats to national security and
public safety are infinite. If a presidential candidate actually was conspiring
with a hostile nation against vital American interests, an incumbent
administration would have not only the legitimate authority but the duty to
investigate, regardless of political considerations. Fear of prosecution after
the fact would paralyze an administration, to the nation’s peril. If the
executive’s awesome powers are abused, the Constitution arms Congress with the
means to discipline an administration and even remove wayward officials from
office.
Prosecution is obviously appropriate only if there have
been unambiguous violations of the law. The one official thus far prosecuted by
Durham is a former FBI lawyer who tampered with a document critical to the
Bureau’s sworn application to the FISA court for a surveillance warrant.
Correctly, Barr has insisted that only such “meat and potatoes” crimes will
meet the Justice Department’s standards; there will be no extravagant reaches,
no prosecutorial “creativity” to sweep Obama officials into the net. Weeks ago,
in fact, Barr announced that Obama and Biden are not subjects of Durham’s
criminal investigation.
Barr, meantime, has vowed that there will ultimately be a
narrative report about the Trump-Russia investigation. That is appropriate in
accounting for government misconduct, particularly where the Justice Department
and FBI are implicated. It is consistent with the attorney general’s duty to
oversee the conduct of law enforcement, which in the case of the Hillary-email
investigation was carried out by DOJ’s inspector general in issuing a public
report.
The attorney general remains admirably mindful of his
role within our system of government and determined to honor the norms that
inform that system. We wish the same could be said of the president of the United
States.
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