We have thus far focused on reforms of the presidency to redress inadequate legal and norm-based checks, or accountability constraints, on presidents themselves and on their close aides in the White House and Justice Department. That is the main topic of subsequent chapters as well. In this chapter we focus not on problems for the presidency posed by presidents and their aides but, rather, on problems posed by executive branch officials, and especially by those in the FBI, who may investigate presidents, presidential campaigns, or presidential candidates. These problems have involved both Democratic and Republican presidential candidates and also a president, and all proved very controversial.
The problems fall roughly into two baskets. The first is inadequate guidance for and supervision of the FBI for three types of investigations: criminal investigations of the president, counterintelligence investigations of the president, and both types of investigations of presidential campaigns. All three types of investigations occurred in 2016 and 2017, and they were all unprecedented in one way or another. As we explain, a large part of the controversy resulted from an absence of concrete rules about when such investigations should be opened, who should approve and manage them, and how they should proceed. This is one focus of reform.
The second basket of problems resulted from investigators who defied relevant policies and norms in the course of the investigations. Such behavior—often justified on the ground that “unusual times call for unusual measures”—has been a common phenomenon in recent years. But, as we explain, it has proved to be an especially unfortunate practice when engaged in by executive branch officials in high-stakes contexts.
Background
Unlike in most chapters in this book, here we combine into one discussion the historical background to these problems (much of which has already been discussed in Chapters Seven and Eight) and the events of the Trump era. We first briefly describe the history of FBI investigations in political contexts. We then recount the basic facts of the FBI’s investigations of Hillary Clinton’s use of a private email server, of links between Donald Trump’s campaign and Russian interference in the 2016 election, and of President Trump’s possible obstruction of justice and actions triggering counterintelligence concerns. Along the way, we discuss some of the many problems that arose in these investigations that are relevant to reform.
J. Edgar Hoover’s FBI
The FBI under J. Edgar Hoover long used investigations and secret surveillance against U.S. citizens for political ends, or to serve the Bureau’s interests at the expense or in defiance of public officials. The latter practice—the FBI’s historical use of law enforcement and surveillance techniques to influence or control politicians, including in the executive branch—is the background relevant to this chapter.
“The moment [Hoover] would get something on a senator he’d send one of the errand boys up and advise the senator that we’re in the course of an investigation and we by chance happened to come up with this data on your daughter,” according to William Sullivan, who led the FBI’s domestic intelligence division under Hoover. [387] “From that time on, the senator’s right in his pocket.” Hoover did the same with senior executive branch officials, including presidents, all of whom tended to give Hoover what he wanted and not to cross him. The FBI also covertly leaked its political intelligence to the news media in order “to influence social policy and political action” in accord with its preferences, according to the Church Committee, a Senate intelligence committee formed in 1975 to study intelligence abuses. [388] Sometimes the FBI conveyed “distorted and exaggerated facts” to the media to support its political goals. [389]
These and related practices, when disclosed publicly in the 1960s and 1970s, almost destroyed the bureau. The FBI survived because its powerful investigatory and surveillance powers were made subject to a number of legal and norm-based restrictions. We have in prior chapters mentioned some of these restrictions, including the Foreign Intelligence Surveillance Act (FISA), the Attorney General’s Guidelines for Domestic FBI Operations (AG Guidelines), the FBI Domestic Investigations and Operations Guide (DIOG), various Justice Department law enforcement norms, the White House contacts policy, and restrictions on access to IRS tax records. One point of these arrangements was to assure the American people that the FBI (among other intelligence agencies) did not in fact use its powers for political ends. Another point was to ensure that the FBI did not appear to use its powers for these ends. The appearance of nonpolitical law enforcement is important because if enough people believe that the FBI is a “political instrument of those in power to be used against opponents, it actually doesn’t matter if it’s untrue,” as one of us wrote previously. [390]
FBI Investigations of Presidential Campaigns and the President
The system worked reasonably well prior to 2016—both in fact and in appearance. But 2016 witnessed several discombobulating events that called the system’s legitimacy into question. Here we describe the elements of recent investigations that are relevant to reform: those of Hillary Clinton’s use of an email server, the Trump campaign, and President Trump himself.
Investigation of Hillary Clinton’s Use of an Email Server
On July 10, 2015, the FBI opened an investigation, code-named “Midyear Exam” or “Midyear,” into Hillary Clinton’s use of a private email server located at her home in New York during her time as secretary of state. The investigation was a response to a referral from the inspector general of the intelligence community. It focused on Clinton’s “potential unauthorized storage of classified information on an unauthorized” server in her home in New York and on “Clinton’s intent in setting up and using her private e-mail server.” [391]
The Clinton investigation was a “sensitive investigative matter” (SIM) under the FBI’s DIOG. A SIM is defined to include investigations “involving the activities of a domestic public official or domestic political candidate (involving corruption or a threat to the national security),” as well as “any other matter which, in the judgment of the official authorizing the investigation, should be brought to the attention of FBI Headquarters and other [Department of Justice] officials.” [392] The predicate for a SIM is the same as for any other investigation. But if a matter is designated a SIM, it must be reviewed in advance by senior FBI officials, and an “appropriate” official in the Justice Department receives notification after the fact. [393] The FBI notified Deputy Attorney General Sally Yates about the investigation thirteen days after the bureau opened it, on July 23, 2015.
At 11 a.m. on July 5, 2016, in the middle of the presidential campaign, FBI Director James Comey held a press conference to announce the FBI’s view of the email investigation. Comey informed senior leadership in the Justice Department about the press conference a few hours before it occurred but after they had learned about it from the press. He did not inform them about what he would say prior to the press conference. When Attorney General Loretta Lynch asked Comey to advise her of the conclusions he was preparing to disclose to the press, he declined. Nor did he consult with the career prosecutors on the case.
At the press conference, Comey acknowledged that “the Department of Justice makes final decisions on matters like this” but stated that he would advise the department “that no charges are appropriate in this case.” [394] He then explained why. Despite “evidence of potential violations of the statutes regarding the handling of classified information,” he said, “our judgment is that no reasonable prosecutor would bring such a case.” Comey added that Clinton and her colleagues “were extremely careless in their handling of very sensitive, highly classified information” and that “in similar circumstances, a person who engaged in this activity ... often [would be] subject to security or administrative sanctions.” The day after Comey’s press conference, Lynch announced that she had accepted the recommendation from the FBI and career prosecutors to close the investigation without any charges.
In his subsequent report reviewing the FBI and Justice Department’s conduct of the Midyear investigation, Justice Department Inspector General Michael Horowitz criticized Comey’s July 5 announcement on two grounds. First was “Comey’s decision to depart from longstanding Department practice and publicly announce the FBI’s declination recommendation without coordinating with the Department.” [395] Horowitz concluded that this was an “unjustified usurpation” of the attorney general’s authority that violated several regulations and norms. [396] Comey gave five reasons why he departed from department policy: (1) President Obama had made statements that appeared to prejudge the case, (2) Lynch had acted in ways that made Comey worry she was “carrying water” for the Clinton campaign, (3) Lynch’s twenty-minute meeting with Bill Clinton on a tarmac in Arizona on June 27, 2016, might have tainted the case, (4) Comey feared that “highly classified information” might be released that “would impact [Lynch’s] credibility,” and (5) a Democratic president had appointed Lynch. Horowitz “found none of these reasons persuasive ... as a basis for deviating from well-established Department policies and acting unilaterally in a way intentionally designed to avoid supervision by Department leadership over his actions.”
Horowitz’s second criticism of Comey concerned the content of Comey’s July 5 statement. One problem was that “Comey included criticism of former Secretary Clinton’s uncharged conduct, including calling her ‘extremely careless,’ thereby violating longstanding Department practice to avoid what others described as ‘trash[ing] people we’re not charging.’” Horowitz could not find any basis in a written regulation or policy for Comey’s departure from this “practice and protocol.” Another problem, according to the prosecutors and other Justice Department officials on the case, was that Comey’s statement was “factually and legally incomplete” in ways that caused controversy and confusion in the public.
Midyear might have ended there but for the discovery by the FBI’s New York field office on September 26 of emails on a laptop owned by Anthony Weiner during the FBI’s investigation of Weiner for various sex crimes. Weiner was married to Huma Abedin, one of Clinton’s closest aides, and the laptop contained nearly 350,000 emails, including some from email addresses associated with Clinton. Senior FBI officials—including Comey and FBI Deputy Director Andrew McCabe—were informed about the laptop within several days. But for reasons that Horowitz found “unpersuasive,” the FBI failed to investigate those emails for nearly a month. The bureau finally recognized the potential significance of the laptop to the Midyear investigation on October 26, thirteen days before the presidential election. Two days later, Comey sent a letter to Congress notifying it, and the public, about the emails.
Horowitz concluded that Comey’s letter to Congress violated two “longstanding Department and FBI policies, norms, and practices.” First, Comey violated the department’s “stay silent” principle of not commenting “publicly or to Congress regarding ongoing investigative activity,” which was embodied in several Department instruments. [397] Second, Comey departed from an unwritten “norm against taking an action during the run-up to an election that could impact an election.” [398] Comey’s decision resulted from three concerns, according to Horowitz: (1) “failing to send the letter would harm the FBI and his ability to lead it,” (2) failure to send the letter could render a Clinton presidency—Comey says he assumed she would win—illegitimate, and (3) Comey believed that the investigation could not be completed before the election. Horowitz questioned the trade-offs Comey made in what Horowitz described as “ad hoc decisionmaking.” But his ultimate judgment was that ad hoc decision-making was inappropriate in general in light of established norms, policies, and precedents, which Comey should have followed.
Comey denied to the inspector general that he sent the letter to Congress because of threatened leaks by the FBI’s New York field office, but several other senior FBI officials noted that the threat of leaks was discussed prior to the decision and informed it. Attorney General Lynch informed the inspector general that Comey told her that senior people in the New York field office “have a deep and visceral hatred of Secretary Clinton,” a dynamic that caused Comey to worry about leaks. There were powerful reasons to believe that the New York field office was indeed leaking information about the investigation in October 2016 to Trump’s lawyer, Rudy Giuliani, and his political ally, Rep. Devin Nunes. Both men publicly alluded to elements of the investigation in ways that sought to advantage Trump, and Nunes said that he got his information about the Wiener laptop from “good FBI agents.” [399] Comey told Congress that the FBI investigated the leaks, which violated clear FBI policy, but the results of the investigation were never disclosed.
Horowitz also commented on the poor communication between Comey and senior Justice Department leadership about his decision to send the letter to Congress. The day before Comey sent the letter, he informed the Justice Department about his plan by having his chief of staff tell Yates’s deputy. In response, neither Lynch nor Yates contacted Comey or ordered him to stand down. They believed, according to Yates, that they could not stop Comey. So instead, as Horowitz recounted, Lynch told Yates’s deputy to tell Comey’s chief of staff that “we don’t want this letter to go out.” Comey said that the message he received was that the department “didn’t wish to speak to” him but “recommend[ed] against’” the congressional notification and thought it was “a bad idea.” Comey disagreed with the advice and believed Lynch left the call to him since she did not engage him directly or order him to stop. Horowitz said it was “extraordinary” that Comey chose not to speak directly with Lynch and Yates, and that Lynch and Yates believed “it would be counterproductive to speak directly with the FBI Director” about the issue. “We believe that open and candid communication among leaders in the Department and its components is essential for the effective functioning of the Department,” concluded Horowitz.
Investigations of Russian Interference in the 2016 Presidential Campaign and of the President
The FBI was also investigating the Trump presidential campaign in 2016. The investigation was a response to Russian interference in the 2016 election, which we described in Chapter Eight.
Soon after WikiLeaks released its first batch of stolen documents in July 2016, the FBI learned that, a few months earlier, Trump campaign adviser George Papadopoulos had suggested to an Australian diplomat that the campaign had received outreach from the Russian government offering to release damaging information about Clinton. On July 31, 2016, FBI Assistant Director for the Counterintelligence Division E.W. “Bill” Priestap opened a counterintelligence investigation, “Crossfire Hurricane,” into whether individuals associated with the Trump campaign were coordinating with the Russian government in its interference activities. As Horowitz recounted in a different inspector general report, the stated purpose of the investigation was “to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.” [400] Prior to opening the matter, Priestap consulted with several officials in the Counterintelligence Division, with the FBI General Counsel’s Office, and with Deputy Director McCabe.
The Trump campaign investigation was, like the Clinton email investigation, a sensitive investigative matter because it concerned “the activities of a ... domestic political organization [and] individual[s] prominent in such an organization.” Priestap garnered the appropriate approval up the FBI chain of command and notified the department’s National Security Division in an oral briefing on August 2. In his report evaluating the investigation, Inspector General Horowitz concluded that the investigation was properly predicated under “the low threshold for predication in the AG Guidelines and the DIOG.” Subsequent to the opening of the investigation, the FBI opened individual investigations on Trump campaign manager Paul Manafort, senior adviser Michael Flynn, and two other campaign advisers, Carter Page and George Papadopoulos.
In addition to the counterintelligence investigation of the Trump campaign , the FBI in May 2017 opened up both a counterintelligence investigation and a criminal investigation of President Trump. The details have not officially been made public, but the following can be gathered from newspaper reporting and memoirs.
The criminal investigation centered on Trump’s possible obstruction of justice with respect to the campaign investigation that had begun in 2016. The FBI had apparently been considering such an investigation after Trump twice asked FBI Director Comey to drop the FBI’s investigation of former National Security Adviser Michael Flynn, and in light of Trump’s disparaging references to the investigation. Then Trump fired Comey on May 9, 2017. The next day, Trump told senior Russian officials in the Oval Office that he faced “great pressure” due to the Russia investigation that he had “taken off” due to Comey’s firing. [401] On May 11, Trump explained to Lester Holt of NBC News that his decision to fire Comey was a response to the Russia investigation. The Holt interview apparently triggered both the opening of the criminal obstruction of justice investigation of the president and Deputy Attorney General Rod Rosenstein’s appointment on May 17 of Robert Mueller as special counsel.
The Holt interview also precipitated the counterintelligence investigation of the president. Between January and May 2017, Comey had represented to Trump that he was not under investigation in connection with the investigation of his campaign. According to McCabe, during this period senior FBI officials discussed whether this was an appropriate representation since, “as the leader of his campaign, by definition some of [Trump’s] activity and behavior would be within the scope of the investigation.” [402] The FBI eventually began to see Trump’s perceived interference with the campaign investigation as evidence of possible collusion with the Russians. After the Holt interview, the FBI formally opened a counterintelligence investigation of the president to determine, according to the New York Times , “whether he had been working on behalf of Russia against American interests.” [403]
In congressional testimony in October 2018, James Baker, who was FBI general counsel at the time of these events, explained why the FBI thought it was lawful and appropriate to open the criminal and counterintelligence investigations of President Trump. Part of Baker’s testimony focused on whether the president had the constitutional authority to fire Comey or to end a criminal investigation. Baker answered that Trump could do so under Article II as long as the action “is not otherwise in contravention of his other responsibilities under the Constitution,” including “his oath of office to preserve, protect, and defend the Constitution” and his “solemn obligation under the Constitution to take care that the laws are faithfully executed, all of the laws simultaneously.” [404] Baker did not discuss whether and, if so, when the obstruction of justice statutes could lawfully apply to the president. He said there was a legal analysis of whether the FBI could open up the investigation of the president after the firing of Comey but stated that it took place in “conversations and perhaps some e-mails, that type of thing; not like a formal memo or anything like that.” [405]
Baker also explained the legal basis for opening a counterintelligence investigation of the president. FBI counterintelligence investigations “address threats related to national security” from “espionage and other [related] intelligence activities ... conducted by, for, or on behalf of foreign powers, organizations, or persons.” [406] Baker explained that the counterintelligence investigation was proper because Trump’s firing of Comey constituted a “threat to national security.” [407] When asked to elaborate, he stated:
We were trying to investigate what the Russians did and ... whether there were any Americans or others who had done things in support of those efforts ... so that we could understand the full nature and scope of what the Russians had attempted to do. And so to the extent that this action of firing Director Comey may have been caused by or was the result of a decision to shut down that investigation, which I thought was a legitimate investigation, then that would frustrate our ability to some degree to ascertain what the Russians as well as any other Americans or others had done in furtherance of the objectives of the Russian Federation. So not only ... would it be an issue about 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 the national security. Our inability or our—the inability or the delays, the difficulties that we might have with respect to trying to figure out what the Russians were doing, because our main objective was to thwart them.
Baker appears to be saying here that the FBI believed the president was a proper target of a counterintelligence investigation because his firing of Comey hurt the FBI’s ability to ascertain Russian involvement in the presidential election and was in that sense a “threat to the national security.”
The FBI and Justice Department’s conduct of the Crossfire Hurricane investigation, and its investigations of President Trump beginning in 2017, are well documented in the public record and in three inspector general reports. [408] Inspector General Horowitz identified numerous problems, all of which have been aired extensively. We focus here on three problems that are central to our reform proposals. [409] As we explain, some of these problems also surfaced in ways the inspector general did not address.
First, Horowitz questioned FBI standards for opening and conducting sensitive investigative matters in the context of presidential campaign investigations and investigations of the president. He made four points that are relevant to our proposed reforms. First, he noted that the threshold for opening such an investigation was “low” and did not “provide heightened predication standards for sensitive matters, or allegations potentially impacting constitutionally protected activity, such as First Amendment rights.” [410] Second, he expressed concern that the FBI was not required to notify or consult with the Justice Department “before opening an investigation such as the one here involving the alleged conduct of individuals associated with a major party presidential campaign.” Third, he expressed concern about the FBI’s “limited notice requirements before using more intrusive investigative techniques that could impact constitutionally protected activity” in the presidential election context. And fourth, he noted that the Bureau lacked a policy on whether to notify campaigns, like Trump’s, are targets of an investigation.
Second, Horowitz criticized the erosion of political accountability within the Department of Justice. He focused primarily on the failure by former Associate Deputy Attorney General Bruce Ohr, a career official, to report to his superiors about meetings with the FBI related to the investigation of the Trump campaign, which was an area outside his formal responsibility. Ohr justified his failure to report these activities to his boss, Yates, because she might tell him to stop, and because the matter was best decided by “career people.” Another career official in the Criminal Division, Bruce Schwartz, justified his failure to keep his superiors in the loop on a related investigation on the ground that he was trying to prevent the investigation from being “politicized” and he wanted to protect “the Department from allegations that its investigation of Manafort was politically motivated.” [411]
Horowitz wrote that Ohr and other officials “fundamentally misconstrued who is ultimately responsible and accountable for the Department’s work.” He continued that “Department leaders cannot fulfill their management responsibilities, and be held accountable for the Department’s actions, if subordinates intentionally withhold information from them in such circumstances.”
Political accountability broke down in Crossfire Hurricane in other ways that Horowitz did not examine. The FBI had opened a counterintelligence investigation on Trump campaign foreign policy adviser Michael Flynn in August 2016. It was planning to close the investigation until it learned that Flynn, by then Trump’s designee to be national security adviser, had communicated with Russian ambassador Sergey Kislyak in late December 2016. In January 2017, near the end of the transition, the deputy attorney general, the director of national intelligence, and the CIA director advised FBI Director Comey to notify incoming Trump administration officials about the Flynn-Kislyak communications. Comey refused on the ground that he needed to protect his investigation. Comey and others in the FBI began planning to interview Flynn and did not intend to notify the department or the White House. On the morning of January 24, Yates, then acting attorney general, contacted Comey to demand that he notify the White House about the Kislyak calls. Comey returned the call that afternoon to advise her that agents were on the way to the White House to interview Flynn. Yates was “flabbergasted” and “dumbfounded” because “an interview of Flynn should have been coordinated with [the Justice Department].” [412]
The third systemic problem that emerged from Crossfire Hurricane concerned leaks, including on the part of senior FBI officials or former officials. Horowitz in particular criticized Comey’s handling of seven memoranda that he wrote about interactions that he had with Trump, both as president-elect and as president. One criticism focused on Comey’s providing a copy of one memorandum to an attorney (and a friend), after he had been fired, with instructions to share its contents with a reporter for the New York Times . Comey explained that he did this to put “extraordinary pressure on the leadership of the Department of Justice, which [he did] not trust” to appoint a special counsel to investigate Trump’s actions and statements regarding the Flynn investigation. [413] Comey thought the issue was of “incredible importance to the Nation” and told the inspector general he took the action because of his love for the country, the Justice Department, and the FBI.
Horowitz criticized Comey’s actions and reasoning. He determined that the memos were FBI records and that the leak violated Comey’s employment agreement and prepublication review obligations and was not justified by “Comey’s own, personal conception of what was necessary,” especially “given the other lawful and appropriate actions he could have taken to achieve his desired end.” Horowitz concluded that “Comey set a dangerous example for the over 35,000 current FBI employees” and “failed to live up to” the responsibility of the FBI to protect sensitive information.
There were other leaks in connection with Crossfire Hurricane, including unprecedented leaks of foreign intelligence intercepts. The first leak of this type occurred in February 2017 and was about Flynn’s calls to Kislyak. This was the leak that led to the FBI’s renewed interest in Flynn and ultimately led to his resignation and indictment. Other leaks by what newspapers described as current and former intelligence officials involved intercepts of Russian government officials discussing “derogatory” information about Trump and his campaign staff; of other Russian officials bragging that they could use their relationship with Flynn to influence Trump; of Kislyak claiming to have discussed campaign-related issues with then-Sen. Jeff Sessions; and of Kislyak reporting to Moscow that Trump’s son-in-law, Jared Kushner, wanted to establish a secure communication channel.
We do not know the source of these leaks—though especially this early in the administration, they almost certainly came from the bureaucracy and not Trump appointees. Whoever the source, the leaks threatened to compromise sources and methods of intelligence collection, violated criminal law, and abused the privacy rights of the American citizens involved. But for present purposes the core offense involved in these leaks was the strategic release of intelligence information for political purposes.
Those who leaked the information probably believed they were taking extraordinary action to sound the alarm about Russian influence in the government. But, as happens so often in these situations, these actions inevitably appear to others to be designed to influence democratic politics in what—regardless of whether the leaks came from the FBI or some other agency—seemed like a throwback to the days of J. Edgar Hoover. This perception of political manipulation had galled Democrats who protested leaks and threatened leaks concerning the investigation of Weiner’s laptop in the Clinton email investigation. Republicans who were silent about these abuses were vocal in their complaint about the Crossfire Hurricane leaks. And vice versa. The general point, however, is that the 2016 and 2017 experiences show that the problem of leaks in highly sensitive investigations of this kind, like the problem more generally of FBI norm-breaking, crossed party lines and administrations.
Reform: FBI Investigations of Presidential Candidates and Campaigns
We propose several concrete rules for FBI investigations of presidential candidates or “campaigns,” a term that for present purposes includes all officials, employees, and others who act in coordination with a campaign organization or are authorized to act on its behalf. [414] We also propose rules for FBI investigations of the president. The reforms focus primarily on specific guidance for various aspects of these investigations. If investigations are conducted pursuant to concrete and well-crafted guidance—which the investigations recounted earlier were not—then concerns about politicization and illegitimacy can be tempered. Such guidance can establish a process to ensure that controversial steps are properly vetted in ways that minimize mistakes and maximize political accountability. This, in turn, can help to avoid controversy later, either because the Justice Department and FBI declined to take unnecessarily controversial investigatory steps, or because they took necessarily controversial steps but can point to clear guidance and accountability for legitimation. Such concrete guidance will also redress some of the norm-breaking episodes of the past few years.
The reforms we propose should be implemented by the executive branch with guidance provided by the attorney general. It is possible that Congress will want to weigh in on some of these issues.
The FBI opened a “full investigation” against candidate Hillary Clinton in 2015 and another one on Trump campaign officials in 2016. [415] In a full investigation, the FBI can use all of its prodigious surveillance and intelligence-gathering techniques. It need satisfy only two requirements to open a full investigation. First, it must have an “authorized purpose” (such as detecting a federal crime or threat to national security). Second, it must have an “articulable factual basis” that “reasonably indicates” that a federal crime or threat to national security “may have occurred” or “may occur,” and that the investigation may obtain relevant information. As Horowitz noted, this is a “low” threshold. The FBI thus has enormous leeway in opening an investigation of political candidates and campaigns.
There is one additional rule. As noted earlier, an investigation involving a political candidate or campaign is a sensitive investigative matter. An FBI agent considering opening a sensitive investigative matter must consult and receive approval up the chain of command to various degrees depending on the type of assessment or investigation at issue. This requirement applies to all political candidates and public officials—a presidential candidate as well as a candidate running for local public office. As noted, consistent with the DIOG, the FBI notified the Justice Department about the Clinton and Trump campaign investigations after they were opened. Beyond notice after the fact, the DIOG urges caution in opening such investigations of political candidates, but it does not require any heightened predication beyond the “low” predication needed for other investigations. After an investigation is opened, the DIOG generally does not require the FBI to get senior department approval for its investigative steps in this context.
In the proposals that follow to address the inadequacies in this system, we draw two distinctions: first, between a criminal and a counterintelligence investigation; and, second, between investigations conducted before inauguration and after inauguration (that is, between the end of the campaign and the beginning of the presidential administration).
With regard to the former distinction, the AG Guidelines currently state that “all of the FBI’s legal authorities are available for deployment in all cases” in order to “protect the public from crimes and threats to the national security and to further the United States’ foreign intelligence objectives.” This means that as a general presumptive matter, the FBI need not label investigations and information-gathering activities in those investigations differently or use different rules for different types of investigations. “In many cases,” the guidelines explain, “a single investigation will be supportable as an exercise of a number of these authorities—i.e., as an investigation of a federal crime or crimes, as an investigation of a threat to the national security, and/or as a collection of foreign intelligence.” This “braided” approach to investigations was a post-9/11 innovation that accompanied the lowering of the “wall” between the FBI’s criminal and counterintelligence functions. [416] Although the braided approach makes sense as a general matter, for reasons explained in the discussion that follows we propose to reject it in the context of campaign and presidential investigations.
A final note before turning to reforms. We acknowledge that the procedural and substantive rules and guidelines that follow, taken together, will make it more cumbersome to investigate presidential campaigns than under the current rules, and could invite risk aversion that leaves undetected criminal or adverse national-security activity related to a campaign. This problem requires particularly close attention in an era likely to be marked by increased activity to illicitly influence the political process in the United States. But we believe these risks, which we do not think are large, are justified. The experience of the past three years has exposed the large costs of unguided investigations, which has fueled the weaponization of the law enforcement process. For these reasons, we conclude that the need for greater guidance and more accountability outweighs the introduction of more checks and limits into these investigations.
Preinauguration Criminal Investigations
Any criminal investigation of a presidential candidate or presidential campaign threatens to distort or undermine the electoral process. Word of the investigation can leak out, often misleadingly, from within the government or from witnesses, subjects, or targets. Independent of leaks, the campaign would be required to allocate resources and attention to its legal defense. The individuals under investigation have to arrange legal representation and assume its costs. They will experience disruption in their work for the campaign. This means disruption to the campaign as well. And the investigation can in various ways influence voters and cause outcry over the perceived abuse of law enforcement to affect an election’s outcome.
An investigation may warrant these potential costs, but the costs must be considered in crafting rules for the investigation.
Review and Approval of the Investigation
Horowitz’s 2019 report on the Carter Page FISA applications expressed surprise about deficiencies in the DIOG guidance in the context of opening and conducting investigations related to political campaigns. It noted that for some investigative steps in other sensitive contexts that touch on civil liberties—such as subpoenas to the news media and nonconsensual monitoring of senior executive branch officials—the FBI must get prior approval from a senior Justice Department official. Horowitz recommended that before opening an investigation that implicates “core First Amendment activity and a national political campaign,” the FBI should give “advance notice to Department senior management officials” such as the deputy attorney general.
We agree with Horowitz’s recommendation that the FBI provide notice to senior department leadership of any investigation of a presidential candidate or campaign. But because of the momentousness of such an investigation, we would go further and propose that in addition to notice to senior department officials, the bureau obtain approval from the attorney general prior to proceeding.
We propose review prior to a final decision by the attorney general at two specific levels of the Department of Justice: the FBI director and the assistant attorney general in charge of the Criminal Division. By requiring two layers of review before the attorney general, this reform can strengthen protection against the problem created by the FBI’s unilateralism. The attorney general will have the benefit of multiple perspectives, and the officials who provide him or her with their views will be accountable for the quality and rigor of their analysis and judgment.
Senior Senate-confirmed Justice Department officials will typically take a broader view of the matter than the bureau. They would be, as Horowitz noted, in a better position to “consider the potential constitutional and prudential implications in advance of these activities” and to consider “enterprise risk” to the department and the bureau. The attorney general would make the ultimate call. In the event that the attorney general exercises poor judgment, he or she, and not the FBI, should answer to Congress and the public for the department.
One downside of allocating responsibility in this way is that the department might be accused of bias if a decision either favors a candidate or campaign of the attorney general’s party or disfavors a candidate or campaign of another party. But as we learned in recent years, analogous accusations can fly, with all the connotations and concerns of the Hoover era, if the decision is made within the FBI, including by the director.
The argument for placing the decision in the FBI is that it is independent and professional, and not “political.” We buy this argument in many contexts. But for the same reasons that the DIOG requires Justice Department involvement before taking investigative steps in other extremely sensitive circumstances, we believe that senior department decision-making should be the rule in presidential elections. Legal and prudential judgment from outside the bureau should be brought to bear on these most consequential of decisions. Especially since that judgment touches on the fate of our democracy, the decision, for better or worse, needs to be made by an actor who is more politically accountable than the FBI director. One problem in some of the FBI’s controversial investigative decisions is that the attorney general or acting attorney general appeared to shirk or shy away from making decisions on hard questions. The rules we propose will not permit this in the campaign investigation context.
Review and Approval of Investigative Techniques
We propose reforms to address important gaps that Horowitz identified in FBI guidance about the use of investigative techniques as they apply to investigations of presidential candidates and campaigns. Such techniques include the use of electronic surveillance, confidential human sources, and undercover employees for “consensual monitoring.” As a general matter, the FBI should propose a plan of the investigation to the Justice Department’s senior leadership for the attorney general’s approval, and it should regularly notify senior department leadership about the use of such techniques and the progress of the investigation.
We believe that a more concrete and restrictive rule is needed for using undercover employees in the context of investigations of presidential candidates and campaigns. Horowitz “found it concerning” that undercover monitoring of Trump campaign affiliates, including one who was not a subject of the investigation, was “permitted under Department and FBI policy” with only the approval of a first-level supervisor, without any requirement to notify senior Justice Department officials. These policies, he concluded, “are not sufficient to ensure appropriate oversight and accountability.” Horowitz recommended a requirement that there be “consultation, at a minimum,” with the Justice Department, before using these techniques in the context of presidential campaigns.
We would go further. It would be extraordinary for an administration to use an undercover employee in an ongoing presidential campaign, where the investigation does not involve significant national security concerns. (We propose different investigative standards for counterintelligence threats, as discussed in the next section.) It would be difficult to justify planting a “spy” in any campaign. It would be most difficult do so when the administration is headed by a president of the opposing party. It would also be hard in cases where the administration and the campaign are affiliated with the same party, such as an investigation of a primary opponent of the president.
At a minimum, the Justice Department should establish a rule of attorney general approval, akin to attorney general sign-off for the FBI to seek a FISA warrant from the FISA Court, before using this technique in the context of a presidential campaign. We would accompany this requirement with a presumption against using this technique in this context. There is a powerful argument that the concerns we laid out earlier warrant a stronger rule—an absolute ban on the practice. Whether this step is appropriate would depend on an assessment of whether there are plausible scenarios where the failure to use this technique will present a high likelihood of significant criminal activity going unredressed, and whether the attorney general’s discretion over the use of this technique would suffice to meet this concern.
Public Discussion of the Investigation, or Other Steps Likely to Draw Public Attention
The inspector general’s Clinton email investigation report made three recommendations to protect against the political impact of investigations into an ongoing presidential campaign:
● “We recommend that the Department consider making explicit that, except in situations where the law requires or permits disclosure, an investigating agency cannot publicly announce its recommended charging decision prior to consulting with the Attorney General, Deputy Attorney General, U.S. Attorney, or his or her designee, and cannot proceed without the approval of one of these officials.”
● “We recommend that the Department and the FBI consider adopting a policy addressing the appropriateness of Department employees discussing the conduct of uncharged individuals in public statements.”
● We recommend that the Department consider providing guidance to agents and prosecutors concerning the taking of overt investigative steps, indictments, public announcements, or other actions that could impact an election.”
We propose that given the very high stakes in presidential campaigns and the serious consequences of soft or nonexistent policies in this area in 2016, the department should transform these three recommendations into concrete guidance in the context of investigations related to presidential campaigns.
First, the department should establish an absolute rule against an investigating agency, including the FBI, announcing recommended charging decisions related to presidential candidates or campaigns. This is the normal presumption in law enforcement, and one that has special force in the context of the most important event in our democracy, presidential elections.
Second, in the context of presidential campaigns, we see no reason why any official in the Justice Department, other than the top two department officials, should ever have discretion to discuss publicly the conduct of uncharged presidential candidates or campaign officials. We propose an absolute ban in this context below the level of attorney general and deputy attorney general, and guidance that these top two officials can discuss uncharged conduct in this context only in exceptional circumstances, as the public interest requires.
Third, we propose to make the so-called 60-day “rule” a concrete policy in the context of presidential campaigns. Horowitz defined the rule in this way: “[P]rosecutors avoid public disclosure of investigative steps related to electoral matters or the return of indictments against a candidate for office within 60 days of a primary or general election.” The 60-day rule, however, “is not written or described in any Department policy or regulation,” said Horowitz. Ray Hulser, who was once the section chief of the Justice Department’s Public Integrity Section, told Horowitz that a general codification of the 60-day rule was “unworkable.” Perhaps so, due to the wide array of elections and circumstances in which criminal investigations may intersect with elections. But in the context of presidential campaigns, specific guidance is appropriate.
The 60-day rule should thus be embodied in a firm prohibition, with an exception for only the attorney general or deputy attorney general in exceptional circumstances. Moreover, the rule should be established as a floor, not a ceiling. The department should adopt, as it has in its Federal Prosecution of Election Offenses in the case of voting fraud cases, the “general policy of the Department not to conduct overt investigations … until after the outcome of the election is certified.” [417] The purpose of this requirement is to “minimize the likelihood that the investigation itself may become a factor in the election.” [418]
The Logan Act
The Logan Act is a statute enacted in 1799. It currently makes it a crime for “any citizen” to carry on “any correspondence or intercourse” with a foreign government or officer with intent to influence their conduct “in relation to any disputes or controversies with the United States, or to defeat the measures of the United States.” [419] Most but not all scholars believe that the Logan Act is unconstitutionally vague. The U.S. government has brought only two prosecutions under the act, “in 1803 and 1852, neither of which resulted in a conviction.” [420] In early January 2016, the FBI considered opening up a criminal investigation of designated National Security Adviser Michael Flynn under the Logan Act in connection with his phone calls with Russian ambassador Sergey Kislyak during the presidential transition. The Obama Justice Department’s view at the time was that it would be “difficult to prosecute” Flynn for such conversations. [421]
Given the desuetude of the statute, its uncertain scope, its constitutional problems, and especially its imprecise basis for investigating campaigns, we propose that Congress abrogate the statute, at least as it applies to members of presidential campaigns and transitions. As we explained in Chapter Two, campaign contacts with foreign officials are commonplace and often important. A variety of laws other than the Logan Act regulate relations between campaign officials and foreign governments. And in Chapter Two we have proposed ways to revise the laws to regulate those aspects of these communications and relationships that present particularly serious threats to the American electoral process. Beyond these revised laws, and other laws (such as a criminal conspiracy, for example), communications between campaigns (including transition teams) and foreign governments should not be regulated.
Preinauguration Counterintelligence Investigations of
Presidential Candidates and Campaigns
Counterintelligence investigations of presidential candidates and campaigns raise many of the same issues as criminal investigations in this context, but they also raise different issues. The main difference—and one that requires somewhat different rules—is that a counterintelligence investigation seeks to understand and possibly counteract a threat to national security.
Review and Approval of the Investigation
We propose a multilayered review procedure for opening a counterintelligence investigation in this context, culminating in final approval required by the attorney general. But unlike in the criminal investigation context, the assistant attorney general heading the National Security Division rather than the assistant attorney general in charge of the Criminal Division would be required to review the request. The director of national intelligence should also participate in this formal review to clarify intelligence community equities.
Review and Approval of Investigative Techniques
As with criminal investigations of presidential candidates and campaigns, the FBI should be required to propose a plan of the investigation to the Justice Department’s senior leadership for the attorney general’s approval, and should regularly notify senior department leadership about the use of such techniques and the progress of the investigation. All investigative techniques should be available in a counterintelligence investigation. We mentioned earlier that the executive branch might consider ruling out the use of undercover employees for “consensual monitoring” in criminal investigations of presidential candidates and campaigns. Because of the higher stakes, undercover employees should be available in a counterintelligence investigation, with the approval of the attorney general.
Report to Congress
The executive branch has a general obligation to keep the congressional intelligence committees (or, for very sensitive intelligence activities, their top four members) “fully and currently informed” of U.S. “intelligence activities,” including “significant anticipated intelligence activity.” [422] This obligation probably includes significant counterintelligence activities, but Congress should clarify the matter and craft special rules for counterintelligence activities involving presidential campaigns.
The main aim of notice, in our view, is to inject discipline and accountability into the attorney general’s decision whether to open and how to conduct a counterintelligence investigation of a campaign. The notice should be triggered either by the opening of such an investigation, or by the failure to do so upon the recommendation of either the director of national intelligence or the FBI director. In the case of an opened investigation, the notice should explain its basis, including any disagreement in the recommendation to open it between the FBI director and the director of national intelligence. In the case of an attorney general’s refusal to open an investigation, the notice should explain what the director of national intelligence and the FBI director recommended, and the basis for the attorney general’s decision.
Notice to the Campaign
We propose reforms that will clarify the question of whether and when a campaign subject to a counterintelligence investigation should be so notified. The FBI gave the Clinton administration a defensive briefing on the Russian threat to its campaign, but it did not give the Trump campaign a defensive briefing on the possible counterintelligence threats in or related to its campaign. The judgement not to notify the Trump campaign came from an assistant director, who concluded that informing the campaign might prohibit the Bureau from “finding the truth.” [423] The different approaches on the surface perhaps made sense, since the Clinton campaign was the target of the threat and members of the Trump campaign were subjects of the counterintelligence investigation. But matters are more complex than that.
In our view, the question turns on whether the investigation plausibly includes the candidate or senior management, or is instead directed toward an individual employed by or associated with the campaign, and there is no evidence that the actions under investigation were directed by the campaign or the candidate. That distinction will not always be easy to discern, and the final call should rest with the attorney general in consultation with the FBI director and the director of national intelligence. In this latter case, the campaign should be afforded the opportunity to cooperate with the investigation. It should also be able to protect itself against any infiltration or similar activity presenting legitimate security concerns. An example would be a campaign notified that an individual on the campaign’s payroll or closely associated with it in an advisory capacity is reporting directly to a foreign power interested in influencing the outcome of the election.
Reform: FBI Investigations of Presidents
A decision to open and conduct a criminal or counterintelligence investigation of a president is obviously a momentous and difficult event. We have already explained in Chapter Eight why such a criminal investigation would need to be conducted by a special counsel, and we proposed a series of reforms in that chapter to improve that process. One reform concerned the need for legal clarity about when and how the president can obstruct justice. Another reform, offered in Chapter Six, addressed the need for clarity on the circumstances in which the president is liable for bribery in the doling out of pardons. A president can of course be investigated for other crimes, including crimes unrelated to officeholding, such as violence against another person or financial improprieties. All of these investigations must take place within the framework of a special counsel, which we have already analyzed.
A counterintelligence investigation of a president is a much trickier proposition, for many reasons. The special counsel regulations do not even contemplate counterintelligence concerns as a jurisdictional trigger. They are currently limited to situations where a “criminal investigation of a person or matter is warranted” but presents a conflict of interest or other extraordinary circumstance. [424] That is why, as we noted in Chapter Eight, the Mueller investigation of Russian contacts with the Trump campaign was technically not opened pursuant to the special counsel regulations. Rather, Acting Attorney General Rod Rosenstein opened the investigation pursuant to the attorney general’s broader authority to appoint legal counsel for special purposes, and he incorporated the special counsel rules by reference to govern the matter.
One hopes that a situation never again appears where the FBI has plausible reasons to suspect a president as a counterintelligence threat. But after the events of recent years, and given the likelihood of increased efforts at foreign interference in U.S. elections, the government must contemplate the possibility. Our initial proposal in this context is thus to expand the special counsel regulations to include as a jurisdictional trigger counterintelligence investigations of executive branch officials that present a conflict of interest or other extraordinary circumstance. The investigation of a president would be deemed to satisfy these criteria and require the appointment of a special counsel. However, any system for investigating the president for counterintelligence concerns must face at least three hard questions.
The first question is about the precise criterion for opening a counterintelligence investigation of the president. The FBI defines its counterintelligence responsibilities as “countering actions of foreign intelligence services and organizations that employ human and technical means to gather information about the U.S. that adversely affects our national interests ’” (emphasis added). The bureau sees its counterintelligence mission as “identifying and neutralizing ongoing national security threats ” (emphasis added). Based on news reports and testimony, it appears that the FBI opened a counterintelligence investigation of the president because, after Trump fired Comey, the FBI feared that Trump was a threat to the national security interests of the United States, likely because he was opposed to the investigation of Russian interference in the election.
This is a fraught judgment for the FBI to make about the president of the United States. It is fraught because of the FBI’s history of secret intelligence operations against the president and other elected officials to influence the behavior of those officials and democratic politics. And it is fraught because under the U.S. Constitution, the president is charged with determining what constitutes the national security interest and national security threats, at least for the executive branch and subject to valid congressional restrictions. Because the president defines what a national security threat is, it is hard for a subordinate agency like the FBI to determine that he or she is a national security threat for purposes of opening a counterintelligence investigation. Presidents often engage in controversial contacts with foreign leaders that lead to sharp changes in the direction of U.S. foreign policy, and some critics charge that these contacts constitute a threat to national security. Think of how some critics viewed Nixon’s opening with China or Obama’s with Iran and Cuba.
To be sure, Trump was an extreme and unprecedented case. Among other things, he often showed apparent fealty to Russian President Vladimir Putin, he disclosed classified information to the Russian ambassador in the Oval Office, he persistently refused to acknowledge what his director of national intelligence described as Russia’s “ongoing, pervasive efforts to undermine our democracy,” he fired Comey because of the Russia investigation, and he took many other controversial and sometimes bizarre—and, some also believed, suspicious and troubling—actions and postures toward Russia. These are all presidential prerogatives, but in the aggregate they present understandable concern. And it is easy to imagine evidence that would make the president appear very much like a Manchurian candidate—for example, unambiguous evidence that the president is compromised, and acting on behalf of a foreign power, and has pledged to that foreign power to expose U.S. intelligence methods or assets.
It is hard to specify the precise trigger for opening a counterintelligence investigation of a president, but the criterion must be more specific than a mere conclusion that the president presents a threat to U.S. national security interests. The criterion must be specified in advance, after a thorough legal analysis by the Justice Department about where the outer bounds of presidential prerogatives to determine the national security interests of the United States end and where unjustifiably harmful collusion or collaboration begins.
The decision to open such an investigation should not be made by the FBI alone, as happened in 2017. FBI leaders understood the predicament they faced, and they notified the acting attorney general and relevant congressional leaders. As with counterintelligence investigations of campaigns, we would take this decision out of the hands of the FBI and place it in the hands of the attorney general after input from the director of national intelligence, the FBI director, and the head of the National Security Division.
We also believe that such a multilayered and contextualized review, more than a precise definition of what constitutes a presidential counterintelligence threat, should result in more rigorous consideration of the factors supporting an investigation. We also believe that mandatory reporting to the congressional intelligence committees, akin to the reporting outlined for counterintelligence investigations of presidential campaigns, is vital in this context. As in that case, the reporting requirement should include any decision by the attorney general to reject the advice of either the FBI director or the director of national intelligence to open a counterintelligence investigation of the president, along with the attorney general’s reasons for the declination.
Norms and Accountability
The concrete rules and procedures we prescribe in this chapter will go a long way toward preventing the most harmful types of norm-breaking or under-guided decision-making that have occurred during the past few years in investigations of presidential candidates and campaigns and the president himself. For example, the following would be expressly prohibited under our proposals: Comey’s announcement of his recommendation not to prosecute Clinton for the email matter; Comey’s decision to send a letter to Congress within weeks of the election about reopening the investigation; the FBI’s failure to coordinate with the acting attorney general before interviewing incoming National Security Adviser Michael Flynn; and the FBI’s opening of a counterintelligence investigation of the president without a greater showing of counterintelligence threat, more thorough legal analysis, and ex ante approval by the attorney general. Our proposals would tamp down on unaccountable actions by the FBI not just by regulating certain investigative steps more heavily but also by making clear that the attorney general cannot eschew responsibility for these steps, since these calls would necessarily be his or hers, and not the FBI’s.
Specific guidance can help avert some of the controversies of recent years, but compliance with even clear rules depends on norms, culture, and threats of punishment or termination. In the post-Trump era, it will be vital for leaders in the Justice Department to reemphasize the norm of rule-following even in crisis situations. This was a common theme in all of Horowitz’s reports. Horowitz quoted from a Justice Department veteran whose views we share on this point:
[The Justice Department] has principles and there’s always an urge when something important or different pops up to say, we should do it differently or … we might want to deviate because this is so different. But the comfort that we get as people, as lawyers, as representatives, as employees and as an institution, the comfort we get from those institutional policies, protocols, … is an unbelievable thing through whatever storm, you know whatever storm hits us, when you are within the norm of the way the institution behaves, you can weather any of it because you stand on the principle. And once you deviate, even in a minor way, and you’re always going to want to deviate. It’s always going to be something important and some big deal that makes you think, oh let’s do this a little differently. But once you do that, you have removed yourself from the comfort of saying this institution has a way of doing things and then every decision is another ad hoc decision that may be informed by our policy and our protocol and principles, but it’s never going to be squarely within them.
One element of norm-breaking that will not be solved by the preceding reform proposals, and that we do not propose to address through reforms, is the problem of leaks. Leaks from the executive branch, including leaks of highly classified information, did not begin with the Trump administration. Authorized or semiauthorized leaks have long been deployed opportunistically by presidential administrations to shape the political environment. And unauthorized leaks of various sorts have long plagued the presidency. Unauthorized leaks can expose an embarrassing comment, document, or email that a government official did not intend for the light of day—perhaps with the purpose of diminishing his or her influence or inducing a firing or resignation. They can affect or influence a policy deliberation by alerting potential critics of an option under consideration and giving them time to mobilize opposition to it. And, of course, leaks can also function as vital acts of whistleblowing and accountability by bringing to the attention of Congress and the press questionable or illegal conduct that would otherwise remain concealed.
Whether a leak serves a salutary or harmful purpose can be the subject of intense disagreement. This is especially so when the leaks involve classified or sensitive national security information. Depending on the observer’s standpoint, such leaks can be a heroic blow struck for civil liberties and executive branch accountability, or the reckless endangerment of the public. Unauthorized leaks of classified national security information have grown much more prevalent since 9/11 due to several factors: a bloated secrecy bureaucracy, the huge growth in secrets, controversial secret actions in a seemingly endless war, and the digitalization of secrets. Every presidency bemoans the problem of leaks, especially national security leaks. The Bush and Obama administrations took novel steps to stem the flow of such leaks, and largely failed. The Trump administration tried even harder, and also failed.
This is not the place to try to fix the general problem of leaks. But even accepting that leaks are commonplace and can serve salutary purposes, the past four years have presented two new, related concerns about leaks that warrant special attention.
The first is the perception that bureaucrats are leaking information in ways that aim to shape the outcomes of democratic electoral politics. Most leaks aim to shape politics, and unauthorized leakers tend to be confident that they are justified in doing so. But leaks since 2016 have involved unusually high political stakes related to presidential elections. The first were the leaks by the FBI’s New York field office concerning the Hillary Clinton investigation in 2016, and the worries about further such leaks, which informed the FBI’s decision to notify Congress about its reopened investigation of Clinton weeks before the election. The second were the leaks by FBI Director Comey with the aim of forcing appointment of a special counsel, and leaks by other unnamed officials in 2017 that suggested that Trump and his senior advisers were colluding with the Russians.
Whether these leaks were “justified” invariably depends on where one sits, and we do not here adjudicate that question. We simply make two points. First, these leaks demonstrate the extraordinary power that leakers have over the fate of democratic politics, and over the political agenda that informs presidential electoral choice, both before and after the election. The strategic release of executive branch secrets at this level calls to mind the Hoover era at the FBI and should at least give pause to the frequent glorification of leaks as a bulwark of a free society. Second, and relatedly, an important impact of these leaks is to discredit the legitimacy of career officials who are widely perceived, justifiably or not, to be the source of the leaks. This is another underappreciated cost of leaks of this sort.
The second and related concern involves the sheer scale of the “daily barrage of leaks that [have] poured out of Trump’s executive branch.” [425] The leaks have been extraordinary in volume and in kind beyond the point just noted. Sensitive intelligence information secretly gleaned from the conversations of foreign officials leaked for the first time during the Trump administration—not once, but several times. Some of these leaks breached a different taboo against revealing information about U.S. citizens “incidentally collected” during surveillance of a foreign agent. Even in an era when leaks were commonplace, leaks of these types of information were unprecedented. Other unprecedented types of leaks included the disclosure of the transcripts of Trump’s telephone calls with foreign leaders, and the September 2018 op-ed by a “senior official” of the Trump administration that proclaimed that many like him or her in the executive branch “are working diligently from within to frustrate parts of his agenda and his worst inclinations.” [426] This official argued that this extraordinary venture—a “resistance inside the administration”—was imperative in defending against a presidential “leadership style” that was “impetuous, adversarial, petty and ineffective.”
As we have noted, Trump’s erratic, feckless, and self-regarding behavior; his proclivity for brazen norm-busting; and his disdain for institutional norms and constraints undoubtedly provoked these extreme responses from within the executive branch—presumably, but not necessarily, from bureaucrats as opposed to Trump political appointees. Under these conditions, it is not surprising that executive branch officials developed the view that, as the anonymous op-ed author put it, the “deep state” was really the “steady state.” It was widely believed that desperate times called for desperate measures. The concern, however, is that once the norms shift dramatically to address the exceptional case, it is possible, if not predictable, that the shift will become more of a transformation, and a different “resistance” to a different president will believe itself justified to adopt the same course. Donald Trump will always bear a fair measure of the responsibility for what one of us (Goldsmith) has called a bureaucratic “immune response” to his most outlandish conduct. [427]
But the immune response could become uncontrolled and set a new, even more permissive and accepted standard for leaking, with corrosive impacts on the presidency. At some level, the presidency cannot serve its constitutional role in fashioning and successfully executing policy without significant confidentiality. Setting aside the difficult and highly controversial legal questions presented by leaks and executive branch responses to leaks, particularly in national security affairs, the question of concern is whether a heightened respect for confidentiality can be recovered and restored to a more commanding position in the ethos of federal government service. We hope, but are not confident, that the novel forms of leaking witnessed in the past four years will dissipate in a presidential administration that is more respectful of widely accepted norms.
In closing, we note that the Code of Ethics for Government Service sets out as a core ethical principle that a “person in government” should “never use any information coming to him confidentially in performance of his official duties as a means of making a profit.” [428] Congress passed the code unanimously, and President Jimmy Carter signed it, in 1980. It provides that “each agency shall display [a copy] in appropriate areas of Federal buildings[.]” [429] A modest step, certainly short of a major reform, would be a revision to this principle, broadening it beyond the misuse of confidential government information for financial return, to include an emphasis on the observance of confidentiality more generally as a vital element of the conception of “public office [as] a public trust.”