Since last week I posted to Twitter about Michael Flynn’s case. The latest set of comments appears below. Updates fall into three sections: (1) compare FBI to CIA; (2) NSA and Edward Snowden; (3) Trump Derangement Syndrome (TDS). Common theme for the first two: when do we give some pattern of action by a federal agency a pass, and when do we not? Point for the last one is a bit harder to develop, but it’s worthwhile.
For the CIA, we do not give it a pass for all the things it has done. On the contrary, we denounce its actions, and the people who commit them, vigorously. That goes especially for obvious crimes, such as torture. Its defenders, like Dick Cheney, tried to argue that torture was justified for the sake of security. When it finally sank in, what was really going on, Cheney and company were soundly defeated. We saw that when John Brennan offered a wan defense of the CIA when the Senate Intelligence Committee published its report on torture. Brennan looked terrible.
As for Edward Snowden and the NSA: even though Snowden drew the curtain back on NSA’s intrusive domestic surveillance, actually exposed government crimes, a mob of government law enforcement agents drove him out of the country as a traitor. It took away his passport in the hope that, as a stateless person, he would wind up in their eager hands. They even promised not to torture him! So he winds up living in Russia – of all places, the land of the free.
An interesting thing happened after these events of seven years ago. Snowden became honored worldwide for his courage, and for revealing the truth about an agency and government that, as spies would say, had gone totally rogue. NSA violated all of its own practices, rules, constraints, and policies for no better reason than that it could. It wanted to see what it could get away with. It gained no useful information from this self-destructive behavior. It gained only contempt, suspicion, and a general sense that we knew all along what it was doing, and now we had the proof.
Was that a worthwhile price to pay? NSA clearly wanted to test its so-called cutting edge tools for surveillance and data analysis. It wanted to snoop around where it did not belong. It did not think it would get caught. Was it worth it?
No one thinks so now. Snowden became a hero. At the time, President Obama and all the resources he could muster tried to round Snowden up. As skepticism about what government agencies do in secret mounted, Obama remarked, “That’s a conversation worth having,” another of his throwaway lines as he yearned to throw this nemesis into the same cell as Chelsea Manning. The entire intelligence community wanted Snowden’s head on a pike. Individuals even said in public they would like to assassinate him if they could. Former Secretary of State Clinton denounced him as a traitor.
You don’t hear anyone call Snowden a traitor now – looks bad when you talk that way about someone who has won at least half a dozen awards for journalistic integrity. After Snowden’s disclosures, we do not give NSA a pass for breaking the law and violating the Constitution. Why would we want to give the FBI a pass for behavior that, in some ways, is even worse?
Now we come to Trump Derangement Syndrome. This constellation of symptoms manifests in a variety of ways. The most common derangement in early years was obsessive attention to Trump’s twitter feed. People could not believe the stuff this guy could produce before breakfast. It seemed like he barfed on his keyboard, then described the mess as he cleaned it up. It was ugly. Now we realize we do not have to let this coarse, narcissistic fount of garbage into our minds if we do not want to. We can wait till after breakfast to digest little bits of it, if we like.
More recently, we have another manifestation of TDS. People who analyze his verbal brawls, political fights, and – let’s call them what they are – pissing contests assume that his opponents must be good guys. On this view, anyone who wants to vanquish Trump cannot be bad. If ultimate victory weakens or destroys the president, so we can be rid of him as soon as possible, anything that causes a problem for him or runs counter to his interests must be valuable. Thus the supposition that FBI agents and Justice Department attorneys – sturdy, reliable, and resourceful defenders of justice – must wear the white hats in their contest with Donald Trump.
That is thoroughly bad, wrong-headed reasoning. We see bad guys struggle and spit and fight each other in political warfare all the time. Bad guys fight for spoils – including power – because they rightly do not trust each other, and because they apparently like to pit their own cunning against people who are equally cunning and underhanded. When drug lords launch a war to gain or defend territory, you may want to watch in order to protect yourself and your family. You do not, however, need to pick a side, unless someone appears at your door to force you to do so.
The same goes for fights in Washington. These are not good people. You do not need to pick a side simply because you dislike one side more intensely than the other. In the case before us, the FBI was around a long time before Trump came on the scene, and it will remain around a long time after he leaves. The bureau has proven it is capable of far more harm than Trump can ever inflict during his four to eight years in Washington, no matter how feverish his Twitter finger becomes.
In fact, you could argue that the chaos Trump brings to the executive branch, his incompetence and total disinterest in governance, is a boon for all of us who want to see a weaker federal establishment. For a recent example, consider the Trump-and-CDC show that went on for weeks, before people realized this parody of government and leadership wasted their time just as assuredly as the president’s Twitter feed. If you want a federal government that looks like vaudeville, but vaudeville that does not even try to make you laugh, how could you do better than Trump and his cronies?
If you see long-term benefits in a government that weakens itself, you have the potential right in front of you. Meantime, the FBI does not voluntarily weaken itself. It is conscious of its power to intimidate, coerce, threaten, and otherwise strong-arm its way to anything it wants. It husbands its resources in order to maintain these capabilities. It knows it has some residual degree of prestige, and understands the value of public relations, though its anti-terror stunts are particularly laughable. These people do not know when to stop.
The main point is that the FBI, by contrast to the president, poses a longstanding threat to our republic. Trump, on the other hand, will be an old man by the time he leaves office. The Peter Strzoks, James Comeys, and Andy McCabes, however, will run around Washington forever if we let them. They have one thing in sight – protection of their own: their own agency, their own power, their own ability to do what they like. They are proud people, and they do not care about little people without power. They crush little people without power. That’s how they define their job. You can see it in the way they act.
So please, do not defend the FBI because they set themselves as opponents of Donald Trump. Do not attack Donald Trump because he or the attorney general criticize the FBI. This contest is interesting in its way, because we rarely see two formidable forces within the executive branch go after each other this way in public. So many of these fights remain hidden. In fact, a lot about this contest between Trump and the FBI, now over four years old, remains hidden. Historians won’t be able to untangle this one easily, but you could say they need not. Generally people are interested in stories that pit good against evil. The only good that can come out of this contest occurs if Trump can plant seeds that contribute to the FBI’s fall after he departs.
Comments in the New York Times
The article linked below opens with these paragraphs:
“Criminal law specialists and members of the law enforcement community are tough to really shock. But the Justice Department’s announcement that it would drop criminal charges against Michael Flynn, President Trump’s former national security adviser, has provoked, in addition to outrage, a sense of utter demoralization among them. They’ve never seen such a thing before. After all, Mr. Flynn twice pleaded guilty to lying to the F.B.I.”
“But it’s important to understand why all Americans should be not just shocked but outraged. It’s not just because Mr. Flynn won’t go to jail or offer any service toward justice.”
“It’s because this move embeds into official U.S. policy an extremist view of law enforcement as the enemy of the American people. It’s a deception that Americans must see through — and that the federal judge overseeing Mr. Flynn’s case, Emmet Sullivan, can reject by examining the Justice Department’s rationale in open court and by allowing a future Justice Department to reconsider charges.”
I still cannot read these words without thinking, how did we come to this? How did we come to a place where law professors tell us we should be shocked and outraged when soaked-in-hubris, cocky, overreaching, careless, and heedless law enforcement officials, whose contempt for law and custom is apparent in almost all they do, are brought to rights? How can they tell us that? Do they want to wave that flag in our faces in order to to persuade us the FBI actually works for good in our community? That it defends people’s rights, or protects us from criminals? They do not protect us from criminals. They are criminals.
I know the word criminal conveys more contempt than one would like, but crimes include blatant violations of the Constitution, and of the rights we hold under the Constitution. Is that not what a crime is: a violation of law? Is violation of our fundamental rights not one of the most serious violations you can commit? So I actually use the word for its precise meaning.
Remember, these people wanted to force Apple and other companies to build back doors into their devices, to help the FBI snoop without a warrant. They pressed for that openly. For them, that kind of pressure amounts to a routine day’s work. For others, it shows an agency out of control, so sure of itself, it does not recognize how far off the path of justice it has strayed. To protect yourself from them, stay out of their way.