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Did the FBI “Overstep” by Investigating Trump?

There's reason to be concerned about the bureau's actions. But there's also reason to believe they made the right call.

Win McNamee/Getty Images

In the chaotic days after President Donald Trump abruptly fired FBI Director James Comey in May of 2017, FBI officials opened an investigation into whether he was a Russian intelligence asset, according to a report on Friday in The New York Times. It’s been reported for some time that special counsel Robert Mueller is pursuing a similar question as part of the broader inquiry into Russian election meddling and the Trump campaign’s role in it. But the account instead sheds new light on how the president’s alarming comments after Comey’s ouster triggered part of the investigation that Mueller took over less than a fortnight later.

Most observers processed Friday’s revelations in the usual partisan manner. The president’s opponents took it as validation of their fears about his alleged obeisance to a hostile foreign power, while some of his supporters saw it as an act of retaliation by FBI officials against the man who had just fired their boss. Perhaps the most interesting analysis, however, came from Harvard law professor Jack Goldsmith, who posed this question: On what grounds can the FBI investigate the president as a counterintelligence threat?

Goldsmith’s own answer was a qualified note of disapproval for the bureau’s actions. He grounded his assessment in the president’s broad constitutional authority to set American foreign policy and command the executive branch, and FBI officials’ parallel lack of authority to override him. “If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize possibly, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent,” he wrote.

In broaching this topic, Goldsmith touches upon a broader discussion that’s worth having about the federal law-enforcement apparatus and how it interacts with the person elected to run it. It’s the president—not the FBI or the Justice Department—that has the electoral mandate to determine what American foreign policy will look like, after all. Trump even campaigned on better relations with Moscow and a more skeptical stance toward traditional U.S. allies like the European Union. So who determines what’s truly in the national interest? And who gets to investigate the president for acting contrary to it?

There aren’t easy answers to this question in this circumstance. Since Goldsmith has already laid out the tentative case for concern about the FBI’s actions, it’s worth considering a similarly tentative case in defense of what the bureau reportedly has done. It’s not the FBI’s job to contradict what elected officials decide is in the country’s best interests internationally. At the same time, it’s never in the national interest for an American president to subordinate himself to a foreign government to win the presidency, and then cover it up.

A debate over when it’s appropriate for the FBI to investigate a president’s loyalty to America may seem straightforward to Trump’s political opponents. Beyond him, however, there’s reason to be uncomfortable. Presidents often make decisions that their critics say will harm American national security: Many on the left opposed George W. Bush’s decision to invade Iraq, while most Republicans challenged Barack Obama’s diplomatic moves with Cuba and Iran. Trusting FBI officials to determine when a democratically elected president is a threat to American interests should not be done lightly, even if one is confident in the integrity of the bureau’s current leadership. The FBI under J. Edgar Hoover, Goldsmith notes, had a history of misusing its counterintelligence functions to quietly shape public policy.

“Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security,” Goldsmith wrote. “The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.”

Bolstering his analysis here is the nuance and humility with which he approaches it. “I am not sure this analysis or this conclusion is right—as I note, the situation [is] unprecedented in many ways,” he adds. “But I am confident that there is an important Article II question lurking here”—a reference to the section of the Constitution that sets forth the president’s executive authority—“and I suspect this question is what underlies what the Times twice said was a controversy among former FBI and Justice Department officials about the appropriateness of the FBI’s step.”

This is the right approach to thinking about this question. Without our having all of the information that was available to the FBI’s senior leadership when they made the call, it’s hard to definitively gauge its justification. The Times article is curiously silent on who exactly ordered the investigation, and whether senior Justice Department officials like Deputy Attorney General Rod Rosenstein were aware of it in advance. Mueller’s eventual report may yet shed more light on this, and historians will be even better positioned to weigh the evidence. Until then, there are some basic principles that can guide our analysis.

First and foremost, the president is not above the law. His constitutional responsibility to enforce it does not reduce his personal responsibility to it. Richard Nixon’s experience during the Watergate crisis clearly established that presidents cannot put themselves beyond the law’s reach. Even the argument that the Justice Department can’t indict a sitting president is largely procedural in nature: The proper course of action, its proponents say, would be impeachment by Congress first.

It’s also a fundamental principle of democratic government that American elected officials serve no other masters than the American public. The Founding Fathers feared above virtually all other things that European colonial powers would try to subvert the nascent American republic for their own ends. During George Washington’s first term, for example, French agents tried to manipulate public opinion and political forces into backing their perennial conflict against the British Empire. Washington himself urged vigilance against meddling by foreign powers in his farewell address in 1796. “Against the insidious wiles of foreign influence ... the jealousy of a free people ought to be constantly awake, since history and experience prove that foreign influence is one of the most baneful foes of republican government,” he warned.

At the same time, Washington also recognized the dangers of overzealousness in stamping it out. “But that jealousy to be useful must be impartial; else it becomes the instrument of the very influence to be avoided, instead of a defense against it,” he added. So at what point would the FBI’s investigation be warranted? It’s hard to imagine a threshold for it that Trump had not already surpassed during the upheavals of May 2017. He told NBC’s Lester Holt on national television that he was considering “this Russia thing” when he made the decision to oust Comey. In private Oval Office conversations that week, he also privately assured top Russian diplomats that he had eased the political burden of the Russia investigation. “I faced great pressure because of Russia,” he reportedly told them. “That’s taken off.”

Top FBI officials also knew from Comey’s then-secret memos that the president had pressured him to abandon an investigation into former national security advisor Michael Flynn, who had lied to investigators about his contacts with the Russian ambassador. They also knew that Trump had publicly encouraged the Russian government to carry out cyberattacks against Hillary Clinton during the summer of 2016, then took advantage of leaked emails from the Democratic National Committee and Clinton campaign chairman John Podesta when they emerged in the months that followed. And they had heard other rumors, including those in British ex-spy Christopher Steele’s controversial dossier, that suggested an even darker conspiracy between the Kremlin and Trump Tower.

Future generations of Americans will have more distance and better context to judge whether the FBI’s decision was justified. Perhaps they will live to see future FBI officials misuse their powers when investigating some future president for a series of innocuous foreign-policy decisions, and thus regret that contemporary officials had set this precedent. They may ultimately decide that these officials did the wrong thing. From this vantage point, however, it’s hard to conclude as much.