Campaign 2016

Trump and the Powers of the American Presidency, Part III

By Benjamin Wittes
Monday, July 25, 2016, 3:21 PM

Here’s an idea for a marriage of man and institution: Take a man who openly advocates criminal activity by American forces, who promises retaliation against his political enemies and against media that criticize him, who pronounces people guilty of crimes for which they have never been indicted despite lengthy investigations, and who scorns legal compliance as “political correctness.” And let's put that person at the head of intelligence agencies with awesome powers to collect information on Americans and foreigners, to conduct covert actions, to detain people, even to kill them.

What could go possibly go wrong?

I began this series of articles by arguing that Donald Trump’s likely abuses of power, should he ever assume the presidency, would probably not begin—as many observers seemed to expect—with the intelligence community. They would begin, rather, with the mundane domestic enforcement powers of the U.S. Department of Justice and the regulatory agencies of the government. In the second installment, I looked at Trump in connection with the president’s powers of war and peace. But this emphasis on other, non-intelligence powers of the presidency as the front lines of the likely confrontation between Trump’s personality and the nature of the office he seeks does not mean that I think the intelligence community would be safe from the man’s predations.

I emphatically do not think that.

So in this final installment, I want to return to the intelligence community and take a sober look at how a Trump presidency could be expected to abuse it.

This question is complicated because the intelligence community has actually developed unusually thick and multi-layered institutional defenses against political abuse. This fact gets lost amidst both the hysterical shrieking of the post-Snowden era and against the perfectly legitimate controversies over the scope of intelligence community activity. But unlike law enforcement, where the prosecutor’s discretion concerning whom to target and under which of thousands of criminal laws is almost entirely unreviewable, the activities of the intelligence community are highly regulated. And they regulation has gotten thicker in recent years, making abuse even harder. Much of US electronic surveillance takes place under a carefully (even neurotically) elaborated statutory scheme, for example. The CIA is walled off from domestic activity. Courts supervise wide swaths of collection. Compliance architectures exist within the agencies, and those include both legal compliance systems and also technical compliance systems that make it difficult to violate the rules without being detected. A huge range of intelligence activities are reported to congressional oversight committees.

What’s more, as Carrie Cordero has pointed out, there just aren’t that many political appointees in the intelligence community. So while if a president wants to corrupt the Justice Department, he has a lot of appointments with which to get a lot of his own people in key places, he has many fewer opportunities to do this in the intelligence agencies. One can argue, and people do every day, about whether these defenses are as strong as they should be. For present purposes, the relevant point is that they exist—and that stands in notable contrast to other areas of federal power, where we simply haven’t built formal architectures to prevent abuse.

This architecture produces several important challenges for an abusive president—challenges that exist to a much lesser degree when that same president confronts the Justice Department or domestic regulation or his powers as commander in chief of the military. Consider only two:

First and most importantly, in some areas, it simply is not possible to behave too abusively without violating the rules. FISA, for example, is not everyone’s cup of tea, but it is a dense set of rules that prohibits certain types of abuses we’re particularly afraid of. You can’t target for collection domestic political dissidents in the absence of a solid evidentiary base connecting those targets with a foreign power without violating FISA, for example.

Second, the compliance and reporting mechanisms to which the intelligence community is subject make it at least somewhat harder to violate the rules without tripping over one or another kind of mandatory notice to the courts or to Congress. If President Trump started launching drone strikes on his political enemies, there are any number of paths by which the intelligence committees would find out about it. And if he started using the intelligence community as an instrument of political repression, it is very likely that numerous whistles would get blown. Conversely, as I have argued before, I think it’s very possible to target political opponents using the awesome powers of the Justice Department without violating any rules—except, of course, the most fundamental norms there are—and without triggering any oversight mechanisms.

But challenges are meant to be overcome, and a major party presidential candidate who actively promises to violate the rules, as Trump does, should certainly be taken at his word about his intentions. So let’s think about where the intelligence community is vulnerable and what the pressure points are on which a lawless thug in the White House would press.

One critical pressure point is that the thicket of statutory law I have described is not complete, and probably cannot constitutionally be completed. Huge areas of discretion remain to the president, mostly but not exclusively related to overseas activity. For example, all of the intelligence activities authorized by Executive Order 12,333 are defined not by some elaborated statutory scheme like FISA but—as the name of the document makes clear—by presidential order, which has the force of law within the executive branch but is changeable by a single person. There are some very big policies contained in 12,333 and not contained in statute, most dramatically the ban on assassinations. Moreover, the only things limiting the intelligence community’s authority to collect on foreigners abroad are the strictures of 12,333; so if President Trump wanted to give the intelligence community carte blanche to harass his overseas critics, he could sign an order doing so. A whole raft of policies could be changed by a president would wished to change them. And if he didn’t want to take the political heat for violating 12,333, he could simply supersede it in individual cases with individual orders, probably in secret.

On the domestic front, there’s the so-called Levi Guidelines, which regulate when and under what circumstances the FBI can open and conduct criminal or national security investigations. Again, these guidelines bind the FBI, but they are not law. They are policy documents that constrain the executive branch. An administration that wanted to free itself up to harass its political enemies could, with no congressional or judicial involvement, relax key requirements of the Levi Guidelines and expand the list of authorized purposes for investigations. The following sentence, for example, could be removed: “These Guidelines do not authorize investigating or collecting or maintaining information on United States persons solely for the purpose of monitoring activities protected by the First Amendment or the lawful exercise of other rights secured by the Constitution or laws of the United States.”

Then there’s covert action. The process the President must follow for covert actions is specified in law: he must issue a finding and notify the intelligence committees, for example. The substance of covert actions, however, is almost entirely a matter of presidential discretion. Covert actions must be lawful under U.S. law, but that is not an onerous restriction, since they take place overseas, where U.S. law does not, generally speaking, prevent the President from doing what he wants to do. He can’t torture anyone (any more). Wanton murder would probably be a problem. But there are a lot of things the President could order the CIA to do if he is willing to issue a finding and brief the intelligence committees on it. Particularly if you combine this observation with previously-discussed alterations to EO 12,333, you get into scary-stuff land pretty fast. Foreign leader getting you down? Why not pull a Putin and poison his tea?

Most subtly but perhaps most importantly, the nation’s intelligence priorities are the President’s alone to decide. We don’t notice this effect, because there’s such a broad political consensus about what sort of information the intelligence community should be providing to the President. But that consensus is itself a function of a pretty broad consensus about what threatens us internationally. We disagree about the weight of the threats caused by a resurgent Russia, cyber attacks, China, and terrorist groups. And we disagree about what to do about those problems. But the list of things about which the President should be informed are pretty well agreed upon.

But now imagine that the President is Donald Trump, who identifies a completely different set of security anxieties that we should be worried about. Trump is unafraid of Vladimir Putin and Kim Jong Un. On the other hand, he’s terrified of Mexican civilians, Syrian refugees, NATO allies who don’t pay their dues, and everyone we trade with. Even without abusing the intelligence services, it’s easy to imagine him tasking them to spend irrational amounts time and energy and resources on all the wrong questions, while relaxing focus on what sensible people of all political strips regard as the real threats. What’s more, in the particular case of Trump, who has such an uncommon fixation on his own business deals, we need to consider whether the man might task the intelligence community so as to advantage himself or his friends commercially. And more generally, given his obsession with the way American companies are being taken advantage of by foreign actors, we should at least wonder whether he would jettison the long-standing U.S. commitment to not using the intelligence apparatus to advantage specific U.S. firms at the expense of foreign competitors.

All of this is what Trump could do within his lawful powers as president. But rules can also be broken, and the rulebooks that govern the intelligence community can, unusually within American law, be broken in secret. They can be broken directly and frontally, of course, but that’s hard. To do that, you have to have willing accomplices up and down the bureaucracy. And I don’t believe Trump will find many willing accomplices in the intelligence community for a frontal attack on the rules. Many will disagree with me about this, I’m sure, but I actually think the intelligence community bureaucracy will be a bulwark against its own abuse. If he wants to break the rules, he will have to trick people.

The more likely approach is to denude rules of their content with aggressive interpretation. There are countless questions that come up all the time where the law is unclear and what guides the community in practice is good faith interpretation. Interpretation, in fact, does a huge amount of the work of defining what people can and can’t do. And lots of people who would never knowingly violate the rules will follow legal guidance as to what they may do, even when that guidance is aggressive. An extreme example of this is the CIA’s interrogation program in the wake of September 11; a less extreme example is the interpretation of Section 215 in this administration. My point is not that either of these interpretations was right or wrong, defensible or indefensible. It is, rather, that we put an enormous weight on good faith legal interpretation and that the bureaucracy takes the interpretive guidance handed down through channels extremely seriously. If you corrupt those mechanisms, you can make a huge difference in what an agency will and will not do.  

Finally, all of those many reporting mechanisms to Congress and the courts can be undermined. Again, this can be done frontally or just by treating them minimally. A report can be a few non-communicative sentences or it can be rich with information. If the executive branch decides to give Congress the minimum amount of information it has to give to comply with reporting obligations, it can greatly decrease the transparency with which it operates.

All of this puts a huge premium on people. As long as Jim Comey is FBI director, I won’t worry too much about the corruption of the FBI. I will worry, however, about the corruption of the CIA the moment Trump names someone of his own to the director's position and that person is corrupt enough to serve under him. Ditto the Attorney General. And Comey won't be around forever.

Ultimately, the entire executive branch is corruptible by one person because constitutionally, the executive branch is one person. Everyone else is just his arms, hands, and fingers. That means that over time, the executive branch under Donald Trump becomes Donald Trump.

In the American political system, you have to believe that the President who swears an oath to preserve and protect the Constitution means it. Yesterday, on Face the Nation, President Obama began answering a question about his predecessor by saying—quite movingly, actually—that “first of all, George W. Bush, despite obviously very different political philosophies, is a really good man.” I don’t think he could or would say that about Trump, and to me, that difference is everything.

We don’t have to believe that the person who occupies the White House is right or even that he is using the powers of the presidency appropriately. We don’t even have to believe that he is not damaging the fabric of the country. But we do have to believe that he is not willfully and corruptly abusing his powers.

I don’t believe that about Donald Trump. I don’t believe it, because I do believe Trump when he promises, over and over and over again, to use his powers in fashions that are not merely unconstitutional but anti-constitutional.

To end this series where I started it, that’s why I believe there is a fundamental incompatibility between Donald Trump the man and the powers of the American presidency.