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