Part of the evil genius of President Donald Trump is his persistent ability to force the rest of us to take sides even when we don’t need to. One can both honor the American flag and our military personnel, for example, and respect the rights of football players to take a knee to raise awareness to the many racial injustices of our criminal justice system. One can both believe in the enforcement of reasonable limitations on immigration, for example, and believe as well that the recent actions of federal immigration agents to detain and deport hard-working men, women, and children is disgraceful and un-American.
And one can believe both that federal law enforcement officials can and should do better when it comes to warrants and surveillance and probable cause requirements in FISA courts and criminal cases and believe as well that the Nunes memo is a disgraceful attempt by the Trump and his fellow travelers on Capitol Hill to illegitimately undermine the FBI, the Justice Department and, by extension, the investigation by special counsel Robert Mueller.
There is an earnest, honest conversation worth having today about the ways in which police and prosecutors all over the country, not just federal law enforcement officials investigating tools like Carter Page, ply their tradecraft at the very outset of criminal investigations. It is a conversation worth having about the use and misuse of surveillance and warrants and informants. And it is a conversation worth having even among those of us who believe that the dirty trick President Trump and Rep. Devin Nunes (R-Calif.) just played on federal law enforcement in the end gives aid and comfort only to the Russians.
One need not believe that there are ongoing partisan conspiracies within the FBI and Justice Department to support more stringent civil liberties safeguards on the broad spying authorities the intelligence community has accumulated over the past two decades.
Sanchez rightly focuses on the intelligence community’s role in undermining privacy rights in a time of terror. So does blogger-journalist Marcy Wheeler, who focused over the weekend less on the Nunes memo and more on Congress’s recent reauthorization of sweeping warrantless surveillance powers. Wheeler wrote:
A mere three weeks ago, Nunes and [House Speaker Paul] Ryan were happy to have Americans surveilled with no evidence whatsoever of wrongdoing. Back then, Ryan backed suspicionless, warrantless searches of Americans as a necessary trade off. “This [bill] strikes the balance that we must have between honoring and protecting privacy rights of U.S. citizens, honoring civil liberties, and making sure that we have the tools we need in this day and age of 21st century terrorism to keep our people safe.” Today, however, when a former Trump campaign adviser is at issue, Nunes and Ryan have discovered the due process they personally refused for so many Americans.
Both Sanchez and Wheeler are right to say that our defense of the FBI and the Justice Department in the Nunes scandal should not and cannot be considered an expression of our uniform consent to the many ways in which federal law enforcement officials, and the agents who are the instruments of policy, cross legal and even ethical boundaries in zealous investigatory pursuit. And both are right to identify the rank hypocrisy at work among Republicans, who for years have endorsed and enabled the very practices they say (but do not prove) the feds employed in the case of Carter Page.
Let me briefly take this one step further. The conversation we ought to have about warrants and surveillance and informants ought not be limited to the reform that is needed within FISA courts. It ought to extend as well to regular old criminal cases and the investigations that precede them. Too many police and prosecutors around the country use too many dubious informants to gain convictions in too many criminal cases. Too many police officers exaggerate the truth when applying for a warrant before a magistrate judge. Too many prosecutors rely on this information, even when they shouldn’t, to prosecute people who perhaps should not be prosecuted.
Spend a few minutes today reading R. Scott Moxley’s work on the Orange County, California snitch scandal to get a sense of what can wrong in this shady area of the start of a criminal investigation. Or read Sarah Stillman here. Agents of the FBI and prosecutors at the Justice Department—some, anyway—are guilty of these transgressions as well, despite a litany of rules designed to prevent this kind of chicanery. I am not contending that this is a widespread problem. But it doesn’t have to be a widespread problem to be worthy of reform, or at least a conversation about what that reform would look like. And I am not contending that the FBI and Justice Department violated any rules in the Carter Page case. Certainly, the Nunes memo did not establish that this is so.
The Trump administration’s partisan attack on federal law enforcement, fueled by the president’s lackeys in the media, is unparalleled in American history and if we are to have some semblance of the rule of law tomorrow our federal law enforcement apparatus, warts and all, is worthy today of our most strident defense. The FBI and Justice Department must be allowed to operate in some sort of independent fashion and cannot be allowed to become instruments of an addled president’s will. This is an existential fight. But even as we fight it we cannot lose sight of the fact that we are defending imperfect agencies, run by imperfect men and women, under a system that needs to be fixed not just for Russian stooges like Carter Page but for ordinary Americans caught in its grip.