Four congressmen claimed in a Sept. 18 letter to former deputy attorney General Rod Rosenstein that President Trump (remember, he’s the elected Article II head of the executive branch) was about to commit a “brazen abuse of power” by “selectively” disclosing classified information that “he believes he can manipulate publicly to undermine the legitimacy and credibility of the Special Counsel’s investigation.” They also wrote that release of this information would “grossly violate our system of checks and balances.”
The congressmen claimed to have extracted a promise from the Rosenstein that he would “not provide the White House or any of Trump’s attorneys with access to sensitive information briefed to a small group of designated members” of Congress. This letter raises some important questions about where abuse of power is really happening. Here are ten.
1. How would Robert Mueller’s Russia probe be affected by this release?
The election is over. The Trump campaign is over. Whatever collusion the Trump campaign committed with the Russians to rig the 2016 election (if any) is likewise over. It’s not as though Mueller could construct an undercover sting operation at this point. Trump knows about the investigation.
So why would releasing any of this information impair Mueller’s progress? Investigations are supposed to be a pursuit of truth. Yet after 18 months, Mueller’s Russia investigation seems to be a tool to achieve the opposite.
2. If Trump is not in charge of what’s classified, who should be?
The president and his vice president are the only elected members of the executive branch. If the president does “abuse” his power by releasing this information, then he’s accountable to the voters. If any Department of Justice official intercedes to prevent the public from learning the dubious origins of the investigation, how do voters hold him accountable for defying their elected representatives?
3. Did these congressmen really extract a promise from Rosenstein to withhold classified information from Trump?
If so, then we are in the midst of a constitutional crisis as all of this intelligence is being kept out-of-reach of any official accountable to the voters. It’s as though the congressmen saw Rosenstein as running his own separate un-elected government. If true, on this basis alone, Rosenstein deserves to have been relieved of duty.
4. Why would releasing information undermine the legitimacy of Mueller’s probe?
If there’s secret information that shows the special counsel probe is an illegitimate power grab by Rosenstein or others, then isn’t the probe already illegitimate?
5. Why does the Mueller probe need secrecy to maintain credibility?
If the authors are correct that Trump wants to undermine the credibility of the Russia probe, then how would revealing these documents accomplish that end? If Trump ends up misleading the American public by “selectively” releasing information, the solution is more information, not more secrecy.
6. Why does the Mueller probe need to be perceived as credible?
Mueller is not accountable to the voters, and until Rosenstein leaves his position Mueller is accountable only to him. Eventually, Mueller’s probe is supposed to result in some kind of report that will or will not lead to the impeachment of the president. The evidence relied upon in this report should speak for itself. Mueller’s credibility should be irrelevant.
7. Shouldn’t these congressmen want these documents out?
The documents could dispel conservative “conspiracy” theories that the Justice Department and intelligence agencies used the Russia hoax to interfere with the 2016 presidential election. If the Justice Department didn’t spy on a presidential campaign and selectively leak the existence of the investigation to interfere in the 2016 election, then the American people need to have their confidence restored. Otherwise, embarrassment of bureaucrats is not a basis for maintaining secrets.
8. Exactly what checks and balances would be violated by Trump controlling material within the executive branch?
This is an extraordinarily disturbing claim by a member of Congress — that the Justice Department is a constitutional check on the president. Nowhere in the Constitution do the founding fathers designate the Justice Department or intelligence agencies as separate, or superior branches of government. There are countries where the intelligence or police apparatuses have seized power from the people. But they’re not nice places to live.
9. Who was Rosenstein’s real boss?
It should bother us that the congressmen have been negotiating directly with an unelected official within the executive branch to withhold information from the elected president. Rosenstein was not supposed to be the final authority on this question.
The letter confirms what some already suspect: From the first day of the Mueller probe, Rosenstein appears to have slipped any real constitutional controls. He laughed at and obstructed congressional oversight and ignored the president’s demands to cooperate with Congress. He engineered the recusal of the president’s confirmed U.S. attorney in the Southern District of New York for the purpose of launching a raid on the president’s private attorney (which he personally authorized).
This led to the forcible seizure of more than 12,000 privileged attorney-client files. He threatened and intimidated congressional staffers in order to thwart congressional oversight. When those staffers blew the whistle, he escalated by demanding the staffers submit to an investigation.
10. How would they respond to the assertion the Justice Department is just trying to avoid embarrassment?
If this feels like déjà vu, it might be because the current controversy replays the fight earlier this year over the release of the Rep. Devin Nunes memo claiming to expose Justice Department malfeasance. In that instance, Assistant Attorney General Stephen E. Boyd wrote the a letter warning that a release of the House Permanent Select Committee on Intelligence memo summarizing Justice Department abuses of the FISA process would be “extraordinarily reckless,” because of the potential “damaging impact that the release of the classified material could have on national security and our ability to share and receive sensitive information.”
The “grave concerns” the Justice Department expressed that the memo would expose “sources and methods” turned out to be totally unfounded and the opposition was clearly exposed for what it was: a ferocious campaign to block revelations of apparent misconduct.
Rosenstein led the charge to block release of the HPSCI memo and it is he that the four congressmen asked to stop this latest release. If he does, he would have been shielding his own actions. He signed one of the applications to the FISA court to spy on Carter Page, which some believe intentionally deceived the FISA court. It would be serious misconduct if Rosenstein was a party to deceiving the FISA court, which is why he shouldn’t have been in charge of deciding whether evidence of this misconduct will be released to the public.
In a republic, the government is supposed to be accountable to the voters for abuses of power. Article II of the Constitution established the elected commander in chief as the final authority over what is best for national security. One can certainly understand why bureaucrats might feel alarmed by the prospect of their misconduct being exposed to public scrutiny.
Sunlight is the best disinfectant, and the most effective deterrence against the corruption of intelligence and law enforcement for political purposes. History has shown that unaccountable government is the greatest threat to a democratic republic.