The New York Times reported on Jan. 11 that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017.
In other words, the FBI opened a counterintelligence investigation on the president.
Former FBI General Counsel James Baker said during testimony to House investigators in October 2018 that “Not only would [firing Comey] be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.”
The Times paraphrases Baker’s testimony as follows: “If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved.”
If the story is accurate, then what the FBI did was unprecedented and possibly — since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent.
The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.
The Times suggests that the FBI took this investigation in a different direction based on the premise that the president was a threat to the national security interests of the United States.
It is not unusual for a president to make controversial policy decisions that could, in some quarters, be viewed as causing harm to the national security interests of the United States. For example, many saw George W. Bush’s decisions in the war on terrorism, or Barack Obama’s rapprochement with Iran and Cuba, as harming U.S. national security. But the FBI obviously would not open a counterintelligence investigation for these matters.
They would not do so because these actions—and indeed the very determination of the U.S. interest in the conduct of U.S. foreign policy—are presidential prerogatives. The Supreme Court has often affirmed, many times since
United States v. Curtiss-Wright Export Corp., that it is the president himself, not the executive branch, who possesses “the very delicate, plenary and exclusive power as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress.”
Moreover, the president has plenary control within the executive branch of the intelligence power and classified information, which is defined, by the president, in terms of harm to national security.
In short, the president is the person constitutionally charged with determining what constitutes the national security interest and national security threats for the executive branch, which is where the FBI is located.
Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security.
The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.
Those actions, therefore, cannot pose a threat to a national security as a justification for a counterintelligence investigation. Not accepting this conclusion leads to equally if not more problematic consequences.
The FBI cannot act in a way that is legally premised on second-guessing the president’s national security bona fides. The FBI can fully investigate Russia’s interference with the 2016 election, including matters involving the president. But it cannot cross the line of taking investigative steps premised on the president’s threat to national security. The Constitution leaves crossing that line up to Congress.
I am confident that there is an important Article II question lurking here, and I suspect this question is what underlies what the Times twice said was a controversy among former FBI and Justice Department officials about the appropriateness of the FBI’s step.
In this light, the question arises: What turned on the step the FBI took? Did the bureau need to take that step? Was the FBI empowered to do something more and different by opening up a counterintelligence investigation against the president? Did it do so for a practical reason called for by the investigation, in order to ensure that it better understood what happened in 2016? Or was it just a formal bureaucratic step on which nothing of substance turned?
None of my colleagues could say that anything at all of substance turned on the designation.
First, presidents and their delegates engage all the time in controversial contacts with foreign leaders and with their intelligence agents that sharply change the direction of U.S. foreign policy concerning matters that some critics believe shows undue fealty towards a foreign power. Think of some critics’ view of Nixon’s opening with China or, again, of Obama’s with Iran and Cuba.
One danger in the what the FBI apparently did is that it implies that the unelected domestic intelligence bureaucracy holds itself as the ultimate arbiter—over and above the elected president who is the constitutional face of U.S. intelligence and national security authority—about what actions do and don’t serve the national security interests of the United States.
It further suggests that the FBI claims the authority to take this step on the basis of the president’s exercise of another clear presidential prerogative—the firing of the FBI director in connection with the Russia investigation, which the Times says was the final predicate for the FBI’s action. And it took this step did without any formal guidance on the books for applying counterintelligence rules to the president, akin to the special counsel regulations. Beyond the organizational and legal questions raised by these steps, if the FBI can open up a secret counterintelligence investigation of the president based on its belief that his actions threaten national security, it would chill controversial presidential foreign policy actions that the Constitution says are solely the president’s decisions to make, for better and worse.
Second, you’d much rather live in a country where elected branches are a check on the national security establishment than the other way around. At one time, under J. Edgar Hoover, the FBI secretly collected intelligence information on the president and other elected officials and used that secret information to influence the behavior of those officials. This is an ever-present danger with any intelligence bureaucracy in a democracy.
A second adverse effect of the FBI’s counterintelligence investigation of the president is that it gives credence to these types of concerns about the contemporary FBI—especially if the FBI opened a counterintelligence file on the president and did not notify him, as happened in the Trump case.
In light of these implications, the question is whether the FBI’s step outlined in the Times’s story achieved any affirmative investigative goal. If it did not—if the investigation of Trump could have proceeded as a component of the Russia investigation without the FBI purporting to determine that the president is a national security threat—then this step strikes me as deeply imprudent.
I hope that there is less to this story than meets the eye: that the story highlights a minor procedural step in a time of perceived crisis that was quickly deemed unnecessary or inappropriate and was reversed or dropped, and that the Times is now making it into a bigger deal than it was and is.
The Times story raises other hard questions. But these questions highlight the fraught position the FBI adopted in opening a counterintelligence investigation of the president based on its leadership’s judgment that he is a threat to the national security.
The dangerous point comes if the FBI opens an investigation of the president, unbeknownst to him, based on its perception of his threat to national security.
If indeed the FBI took the unprecedented step of opening a counterintelligence investigation directed at the president premised on his threat to national security, I hope the bureau had much stronger evidence for doing so than the Times story provided—and I hope that something of investigative substance actually turned on it. Otherwise, the step strikes me as deeply imprudent.
https://www.lawfareblog.com/what-grounds-can-fbi-investigate-president-counterintelligence-threat
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