Below is my column in the Hill newspaper on the decision to investigate the alleged informant targeting Trump associations and the criticism from former Acting Attorney General Sally Yates. As noted below, I believe that Deputy Attorney General Rod Rosenstein did the right thing in referring this issue to the Inspector General for investigation. That does not mean that a finding of wrongdoing is likely. To the contrary, my expectation is that the use of the informant will be viewed as appropriate absent additional unknown facts. However, as this piece discusses, there is a strong public interest in resolving this question either way.
Here is the column:
Last week, former acting attorney general Sally Yates denounced President Trump for his tweet “demanding” an investigation into allegations of spying on his campaign. Yates is correct that the president, again, crossed a long-honored separation between the White House and the Justice Department. Yates, however, is hardly a compelling voice on the maintaining of proper institutional roles in such cases.
Indeed, her controversial record is a case study of how officials, not just presidents, can exceed their authority in the handling of federal cases. Yates was fired for good cause by Trump after ordering the Justice Department not to defend the president’s travel ban at the start of his administration. Ironically, both Trump and Yates assumed that they had far too much inherent authority, yet, where Trump’s harm was rhetorical, Yates’s harm was institutional.
One of the most interesting aspects of Trump’s controversies over presidential power is the line between the rhetorical and the actual. If you take away Trump’s often jarring language, his actions are not that dissimilar from other presidents. Trump has complied with court orders and he has not fired special counsel Robert Mueller or others associated with the Russia investigation, at least following his disastrous decision to fire FBI director James Comey. President Obama advanced even more sweeping claims of executive authority in federal court and took equally sweeping unilateral actions.
That does not excuse Trump’s traumatizing tweets or his failure to respect lines of separation within the executive branch. The latest controversy is a good example: An investigation by the Justice Department is left to the discretion of DOJ officials who must independently determine that there is a legal and ethical basis for the investigation. The president can certainly fire someone like Deputy Attorney General Rod Rosenstein, but starting an investigation remains Rosenstein’s decision so long as he holds his office.
Ultimately, however, the controversy over the reported use of an informant to target Trump presidential campaign officials was addressed correctly. Rosenstein referred the matter to Justice Department’s inspector general, who already is looking into possible bias or misconduct by the FBI. Rosenstein took that action because he independently concluded that it was in the interest of justice. He made the same judgment when, over the objections of Trump, he appointed Mueller as special counsel and later expanded his mandate.
In this instance, Rosenstein apparently concluded that the controversy over the informant was a legitimate concern given the overall record of anti-Trump internal emails, alleged false statements by former FBI deputy director Andrew McCabe, controversial secret warrants, and the use of a dossier funded by Hillary Clinton and the Democratic National Committee. It does not mean that the use of an informant was improper but, rather, that the allegations warrant an investigation by career officials.
Yates is the inverse of Trump in that her rhetoric is reassuring but her actions were ruinous for her institution. There was no ethical or legal basis for her actions during her short term as acting attorney general. Yates showed a fundamental misunderstanding of her role in shutting down Justice Department in defiance of Trump. She simply declared that, “At present, I am not convinced that the defense of the executive order is consistent with [my] responsibilities nor am I convinced that the executive order is lawful.” In other words, convince me.
Our system does not work that way. In taking her unprecedented action, Yates seemed to confuse her personal and her professional judgment on the defense of this federal policy. Absent a clearly unconstitutional act, she had a duty to defend the policy. This is not a judgment call where reasonable minds could disagree. It must be an act that is so clearly and demonstrably unconstitutional that no good-faith argument can be made in court. That clearly was not the case with the travel ban litigation, in which good arguments were presented on both sides.
The respected Office of Legal Counsel had concluded that the president’s order was lawful. Yates chose to disregard those career Justice Department lawyers. Many legal experts believed the existing precedent favored Trump’s right to take the action despite personal reservations over the policy itself. Ultimately, judges divided on the question, though most courts ruled against the administration. The issue is now pending a decision from the Supreme Court, and is likely to divide the justices.
Former Democratic and Republican Justice Department officials have said Yates did not state a compelling basis for her unprecedented action. She could have resigned but, instead, she elected to obstruct the White House and force her inevitable termination just days before she was planning to leave the Justice Department. It made her an instant hero but her actions will remain a troubling chapter in the agency’s history.
None of this changes the dilemma for citizens trying to make sense out of these controversies. While each side claims the other side is undermining our democratic traditions, the truth is that both parties are doing so in seeking to undermine these investigations. If Trump officials colluded with a foreign government in our election or obstructed justice, that is a serious matter for the integrity of our political system. If the Obama administration improperly used national security powers to investigate the campaign of its opposing party, that is obviously no less a serious matter.
Both sides often manifest a similar purpose to delegitimize or even derail investigations that could prove embarrassing for their party or helpful to their opponents. We are constantly given secondhand information or leaks filtered through a thick screen of partisan advocates. The public would be wise to reject the cyphers on both sides and focus on the factual over the rhetorical. That requires the completion of the investigations of both the Trump campaign and the FBI with a full public disclosure of the unvarnished and unedited facts.
This country is facing a crisis of faith. We have never been more divided or more unsure of our institutions. Washington thrives on getting people to take sides: Pick the red or the blue. There is a third option: No sides. We can instead pick the truth and demand the right to decide for ourselves.