What do you call a country where the police and the intelligence agencies spy on an opposition party? Russia? Because that’s what we’ve become, and the question is what should be done about it.
For the last two years the media establishment has known that the FBI and the CIA spied on the Trump campaign, and we didn’t hear a peep from them about it. The reason for their silence was the belief that we’d find out that Trump had colluded or conspired with the Russians. Had that been the case, we might now be celebrating the FBI’s Peter Strzok as a hero that saved the Republic. But now that the Mueller Report is out, we know that Trump and the Trump campaign were entirely innocent. With all the tools and threats at his disposal, with all the dead-of-night raids and prosecutions for process offenses, Mueller couldn’t get anyone to lie about Trump.
When something goes so wrong, there would be consequences in a normal country. The people who pushed a collusion story without any evidence to back it up might feel a little ashamed of themselves. They would have come out publicly and admitted they were wrong, and if they were honorable apologized to the president. But if any of that happened, I’m afraid I missed it.
You might also expect people to want to know how a story of treachery and corruption were created out of thin air. Fine, the very politicized people in the intelligence agencies hated Trump and thought he’d be a disaster. They were wrong, of course, but the question is what gave them the right to employ all the powers at their command to unseat a duly elected president?
If we’re now supposed to sweep it under the rug, then wouldn’t it be fair game to unleash a politicized CIA to spy on a Democratic president, or for a partisan FBI to trick his officials into lying to them? Except that then we really would have descended to a Third World rule of law.
It’s hard to define the rule of law, but one thing it has to mean is that there’s a barrier between law and politics. You don’t prosecute political enemies on trumped up charges, and especially you don’t overturn an election because it didn’t turn out the way you wanted. They do that sort of thing in Venezuela and Turkey. I had thought we were better than that.
The FBI and CIA have gotten away with it because they protect their own, and because they’re protected by a media establishment that isn’t a fan of the rule of law when it gets in their way. But the issue is too important to let it rest.
FBI director Christopher Wray has announced that he’s trying to understand how the investigation got started, but in his testimony Tuesday he sounded like he’s circling the wagons. Not that we should be surprised. The Bureau can’t be expected to investigate itself.
Then there’s the Justice Department’s Inspector General, Michael Horowitz. He’s announced that he’s looking at whether the Department and the FBI complied with proper procedures in applications filed with the FISA court. But he’s limited to looking at Justice Department records, and he doesn’t have the power to subpoena witnesses to testify.
That’s why the task of repairing the breach and restoring the rule of law falls on Attorney General Bill Barr. In his first press conference, after receiving the Mueller Report, he announced that he’d be looking at whether the members of the intelligence agencies that pursued the Trump campaign had the proper “predicate” to do so. That’s a legal term meant to insure that Americans can’t be investigated unless there are reasonable grounds for doing so. And what that in turn means is that he’ll have to go back to how the whole thing started.
We now know that there was nothing to the Russian collusion story. We didn’t know that six months ago, which means that investigations launched in 2018 were not improper. But what about how all this got started, in the fall of 2016, when the Democrats were shocked to learn that they had lost and Hillary Clinton joined the “resistance”? When the infamous Steele dossier, bought and paid for by the Democrats, was given to the FBI, who made the sale, who made the purchase, and who in the FBI decided this was something the FISA court should know about?
Barr’s challenge is to show that the intelligence agencies are not permitted to abuse their powers by launching an investigation for partisan reasons. And most importantly, about people who have just been elected President of the United States.
F.H. Buckley teaches at Scalia Law School, and is the author of The Republican Workers Party: How the Trump Victory Drove Everyone Crazy, and Why It Was Just What We Needed.