Our System of Government Is Under Attack From the Inside

This article first appeared on the Just Security site.

Those old enough to remember Watergate will recall that “we are a government of laws, not men” became a mantra. It was repeated so often as to risk banality.
But we are a nation of laws, unique in the world, held together not by ethnicity or religion but by an idea – that we are free men and women who govern ourselves and are treated equally under the law regardless of station in life. In other words, we are held together by our Constitution.
The Constitution is not self-executing. It is given life and sustained by our institutions of government, by checks and balances so as not to become the tyranny we overthrew in our revolution.

These institutions – the congress, the agencies of government, the courts, and the media who watch over them – are not buildings. They are the men and women who work in them and devote their professional lives to the rule of law and keeping us secure.
When these institutions are threatened, as they now are, we must speak up.
James Clapper, one of the most respected intelligence officers of our time, has warned us of these threats. On CNN he said our institutions are “under assault” not only by actions of the Russians but also by our own president.

And he recently said, as quoted in Fortune, that the “Watergate scandal pales in comparison to events in Washington surrounding U.S. President Donald Trump and alleged links between his campaign and Russia.”
The threat coming into sharpest focus is whether the president sought to interfere in the FBI’s investigation of possible links between his campaign and the Russians, including the activities of his former National Security Adviser, Michael Flynn.

GettyImages-693473394 Dan Coats, director of national intelligence, left, and Michael Rogers, director of the National Security Agency (NSA), at a Senate Intelligence Committee hearing in Washington, D.C., U.S., on Wednesday, June 7, 2017. Two top U.S. intelligence officials during the hearing refused to say whether they were asked by President Donald Trump to help impede an FBI investigation into Russia's role in the 2016 election. Andrew Harrer/Bloomberg via Getty

The press has reported that the president asked Director of National Intelligence Dan Coats and Director of the NSA Admiral Mike Rogers to issue statements that he was not under investigation. According to the same press reports, Director Coats and Admiral Rogers refused to do so.

Their courage and judgment is admirable and it is regrettable that in their recent testimony before the Senate Select Committee on Intelligence (SSCI) they refused to confirm or deny that the president had made such a request.

They will surely be asked about these reports in a closed session of the SSCI and by Special Counsel Robert Mueller.  I am confident they will tell the truth when questioned.
If the president seeks to muzzle them by asserting executive privilege, he will have set a course toward possible impeachment.  Recall that the first article of impeachment of President Nixon was for obstruction of justice.
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And we have the remarkable testimony of former FBI Director James Comey. His powerful recitation of the facts as he recorded them contemporaneously is compelling and persuasive. His thoughtful and detailed responses to every question added enormous weight not only to his own credibility but also to his conclusions, namely that Mr. Trump often lies and was trying to influence the Bureau’s investigation of Russian activity associated with the Trump campaign.
For example, when Senator James Risch (R- Idaho) raised the theory that when the president said “I hope you can see your way” to drop the investigation of Flynn, it was not an order and therefore not obstruction, Comey demolished the theory.

Even his candid and remarkable admission that he leaked a copy of his memorandum of the conversation with the president added to his credibility. A less honest person would have conjured up some way of avoiding the truth.
Furthermore, Comey’s conclusions are made more credible by comparison to the president’s tweets that are self-serving and conclusory. The president’s frequent referral to the investigations as “witch hunts” and leaks as “fake news” – that later often prove to be true – only add weight to the case that he did, in fact, seek to interfere improperly in the investigation.
Perhaps most persuasive is that the president has acknowledged he fired Mr. Comey because of the Russia investigation. The president has been characteristically jumbled in his explanations as to precisely what about the investigation he didn’t like. But surely it was not because Mr. Comey was being insufficiently vigorous or professional.
President Trump’s lawyer, Marc Kasowitz, has denied that Mr. Trump demanded “loyalty” from Mr. Comey and then added, “of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration.” Mindful of the consequences of claiming that president Trump is entitled to expect loyalty from government employees, he tried to draw a distinction by saying the “Office of the President” is entitled to loyalty.

Neither assertion is right.  Government employees have a duty to follow the lawful orders of the president, but their loyalty is to the Constitution. Unquestioned loyalty to a leader belongs to an alternative form of government.
The president’s actions raise fundamental questions about his commitment to the rule of law and his understanding about his role in assuring the fair and impartial execution of our laws.
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There are three institutions that are part of the executive branch but whose independence from political manipulation is sacred. They are the law enforcement and intelligence agencies and the armed forces. Each of them work for the president and must execute his policies; but they must not be used for his political purposes.
Nothing angers an intelligence officer more than efforts by political leadership to shape their analysis to favor a pre-determined political outcome. After the CIA’s faulty analysis of Saddam Hussein’s WMD program, many reforms were adopted to assure rigorous analysis that was free of any political influence.

Nothing angers an FBI Special Agent more than efforts by politicians to interfere in their investigations. Indeed, any effort to do so inevitably leads to an even brighter light being shined on possible crimes committed by the interfering foolish politician. And soldiers, sailors, airmen and marines will fight and die for the Constitution, but they will not do so out of loyalty to any given president.
As they should, these great institutions fiercely protect their independence and honor their heritage and culture. Their politically appointed leadership must understand one of their key roles is to insulate the institution from improper political influence.

These efforts, and the institutions themselves, must be supported by all Americans, beginning with their oversight committees in the Congress. In that regard, the chairman of the SSCI, Senator Richard Burr, (R-North Carolina), and his colleagues repeatedly praised the professionalism and dedication of the FBI and the Intelligence Community. Well said. Well deserved.
Does the president understand why the independence of the law enforcement agencies and the intelligence community is vital to our democracy?

Does he now understand he has overstepped in trying to stop the investigation of General Flynn or get the Russian “cloud” off him by prematurely shutting down the investigation?  

Sadly, the answers to these questions are not clear.
It is not clear how this ends, but it is not likely to end well.
In 1974, I was an Army JAG lawyer assigned to the Office of the Deputy Under Secretary of the Army for International Affairs, who was a Foreign Service Officer and career ambassador.

In the days before President Nixon resigned, he called me into his office and said, “I am not supposed to show you this, but you should see it. It’s important.” It was a message from the Chairman of the Joint Chiefs to the four-star Commanders-in-Chief, as they were then known, saying that if they received any “execute orders” from the NCA (the National Command Authority, i.e. the President), they were not to carry them out unless the order was verified by the Chairman of the Joint Chiefs and the Secretary of Defense.

This episode is now being recalled as an example of how our institutions responded in a responsible way at an extraordinary and  critical time.
In Watergate, our institutions – the courts, congress, the FBI, the CIA and the media – responded as they should. It was deliberate and professional. They understood our democracy requires preserving the rule of law, that we are a nation of laws. Ultimately, they put nation over party and deserve our undying admiration.
It is now the turn of the current generation of political leadership to do the same.
Jeffrey H. Smith is former General Counsel of the CIA, and served as General Counsel of the Senate Armed Services Committee. He heads Arnold & Porter Kaye Scholer's National Security practice.