Showdown: Dems make demands against rule of law, on Kavanaugh and FISA declassification

Showdown: Dems make demands against rule of law, on Kavanaugh and FISA declassification
The minority leaders of Congress at the 2018 State of the Union address

A showdown has been set in motion, with two actions on Tuesday by congressional Democrats.  How Republicans and the Trump administration respond will have profound consequences for America’s future.

Because of the Supreme Court confirmation drama, the Trump order to declassify and publish portions of the Carter Page FISA application package, along with Justice Department and FBI correspondence relating to the Russiagate investigation, was bumped out of the limelight this week.

So we’ll start with the declassification order.  Trump issued it on Monday.  It applies to a relatively small portion of the FISA package, which comprises all four applications for FISA authority to conduct surveillance of Carter Page.  Trump’s order will result in unredacting only a limited amount of the fourth application, submitted in June 2017.  It will also require release of emails and texts among key principals in the Russiagate investigation in the DOJ and FBI, along with interview records for witnesses (mainly, it seems, Bruce Ohr).

The challenge to the declassification order

Democratic leaders in Congress have now sent a letter to the agency chiefs who will be involved in complying with Trump’s order, making a demand they don’t have the authority to make. They base this demand on a premise that has all along been denied.  In other words, they’re using a lie to justify an attempt to intimidate the chiefs of three executive agencies.

Although there is overheated language in the letter, exaggerated claims about “brazen abuse of power” and “grossly violat[ing] our system of checks and balances” are not the real issue here.  The issues are (a) the demand that the agency chiefs not comply with the president’s order until they have briefed Congress first, and (b) the point used to justify that demand: that Trump and his campaign and associates are subjects of the investigation.

The points are captured in these two paragraphs:

Screen cap of Democrats’ letter.
Screen cap of Democrats’ letter.

Neither point is about upholding the rule of law.  Specialists would have to argue over which is the most fundamentally controlling issue, but there are two.  One is that it has never been stated by a due-process instrument that Trump and his campaign associates are under investigation.

That has been insinuated in the media for nearly two years.  But no information communicated by an accountable instrument has indicated it to be the case.  President Trump himself was told by former FBI Director James Comey that he was not under investigation, and there has been no signal of a change in that status, from the FBI or Robert Mueller.

Robert Mueller’s special counsel charter, which is to investigate “Russian interference in the election,” doesn’t address who is or may become a subject of investigation.  Mueller has indicted witnesses for making false statements – e.g., Flynn, Papadopoulos, van der Zwaan – but he has not actually indicted anyone (other than the phone-book list of Russians) who was a “subject of investigation” in the matter of “Russian interference in the election.”  Paul Manafort is under by far the biggest load of charges, but none of them is related to Mueller’s special counsel charter, nor are they related to the FBI’s “Crossfire Hurricane” probe.  (And in any case, Manafort is already entitled to discovery, and is about to make a plea agreement.)

The Democrats apparently want to dangle Trump and the people with secrecy, on the pretext that at some point, Trump or his associates might become the “subjects” of the investigation – a counterintelligence investigation against Russia, remember – whose documents are actually at issue here.

That leads us to the second fundamentally controlling issue, which is that Trump’s office – the presidency – owns the executive correspondence in question.  It may be a legitimate question whether or how long members of Congress can interfere in the president’s exercise of his constitutional authority to release that correspondence – but if so, it is a question.  The Democrats can’t pretend they have the “answer,” with what they’ve written in their letter. They have simply made an assertion, and taken it as a premise.

What they’ve done is set up a showdown.  They want to pressure the agency heads – DNI Dan Coats, Deputy Attorney General Rod Rosenstein, and FBI Director Christopher Wray – to cave.  Rosenstein is probably the weak link for Trump and the congressional Republicans, in terms of getting the redaction done.

But this is a showdown that must come to a resolution, and that resolution is going to have far-reaching implications for the rule of law and America’s future.  The Democrats want to railroad the agency heads with accusatory language and a weak case.  That must not be the basis for government in America.

The diversion on the accusation against Kavanaugh

The other showdown being set up this week is over Brett Kavanaugh’s confirmation.  After his accuser, Christine Blasey Ford, came forward by allowing her identity to be made known, Senator Chuck Grassley (R-IA), chairman of the Judiciary Committee, set a date of Monday, 24 September for the committee to hear from her.  He postponed the vote on Kavanaugh’s confirmation to accommodate that hearing.

Now Ford has stated, just on Tuesday, that she doesn’t want to speak to the committee until after the FBI has conducted an investigation.

This is an unreasonable and ill-founded demand, like that of the Democrats on the document declassification.  It violates the rule-of-law point that Ford’s allegation is not something the FBI would investigate.

It would be up to the jurisdiction in the state of Maryland to investigate it, if the statute of limitations hasn’t run out.  (It may have, since Kavanaugh was a minor at the time, going by the general timeframe of “1982.”)

There’s no federal crime for the FBI to look into.  Christine Ford should make a complaint in a court in Maryland, and if she wants to delay testifying to the Senate while that process is underway, that would at least be a valid invocation of the law.

My guess is that she won’t do that.  The point here is not to claim that she has suffered nothing; it’s to clarify that nothing is proven against Kavanaugh, and although we have a rule-of-law approach for trying to bring such proof, the accuser is not using it.

Instead, Ford, her lawyers, and their supporters among the Senate Democrats are proposing an arbitrary, extracurricular use of the FBI as a sort of taxpayer-funded PI agency for whatever they want investigated.

Think about the danger that portends, if we just stand by and allow it to be done.  Would you want it done to you?  To have the FBI sent to “investigate” you, based on allegations that haven’t even been lodged in the terms of a statutorily defined crime?

You’re fooling yourself, to a tragic extent, if you think it couldn’t happen because you’ll never be a Supreme Court nominee, with the FBI doing national security background checks on you, and maybe sort-of being the agency senators would reach for if they wanted to do politically leveraged “background checks.”

No.  If a precedent like this is established, it’s the millions of us who won’t be Supreme Court nominees who will have the least protection against unrestrained misuse of law enforcement agencies.


That brings us to the alarming implications in these moves by the Democratic leaders.  Think about two things here.  One, these demands are beyond the pale.  They show that the Democrats and the activist lawyers making them do not act from a rule-of-law understanding in common with the expectations of American philosophy on government.  And they’re prepared to turn it into a showdown, starting this week.

Two, this is who they are.  It will not settle them down to win a majority back, or win back the White House.  If they can regain a majority in Congress, they will do more of this, not less.

This is how you will be governed, if these folks have the power to do it.  Constitutional restraints and rule-of-law expectations will be ignored at will.  Instead of living within constitutional boundaries, we’ll be subject to the outcomes of arbitrary partisanship and naked power struggles.

Michael Moore “warns” in his latest film that Trump could be America’s “last president.”  Think about what that means.  It means Michael Moore – not you, not me – is already thinking in terms of moving beyond the peaceful transfer of power.

That’s not coming from the political right, or the center – including many legacy Democrats who don’t have the more radical views of authoritarian progressives.  It’s coming from people on the left who are chafing under the peaceful transfer of power, because sometimes, peacefully transferring power means they have to give it up.

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J.E. Dyer

J.E. Dyer

J.E. Dyer is a retired Naval Intelligence officer who lives in Southern California, blogging as The Optimistic Conservative for domestic tranquility and world peace. Her articles have appeared at Hot Air, Commentary’s Contentions, Patheos, The Daily Caller, The Jewish Press, and The Weekly Standard.

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