Enough: The DOJ Must Show Its Cards to the American Public

The country is heading for a constitutional crisis, and only clarity can resolve the two competing Russia narratives tearing us apart.

By ROBERT W. MERRY • June 11, 2018

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Many have raised concerns over the constitutional crisis that would ensue if President Trump tries to exercise his presidential authority, as he has threatened, to undermine special counsel Robert Mueller’s investigation of possible Trump-Russia political “collusion.” Those concerns are well-founded.

Other voices warn of a constitutional crisis if the Justice Department and the FBI continue to stonewall congressional committees exercising their oversight function in seeking information on the origins of that investigation. Again, the expressed concerns are entirely apt.

But the fact is that the country is already in a constitutional crisis, spawned by the Russia investigation and all of its surrounding swirls and eddies. It is a crisis of two narratives. One is the narrative of possible collusion and what is perceived as the legitimate investigation that ensued after evidence of that collusion reached the FBI. The other is a narrative of out-of-control law enforcement officials who sought to drum up what is seen as a phony investigation to thwart Trump’s campaign and then to undermine his presidency.

The battle between the political and journalistic adherents of these two narratives is so intense, bitter, and brutal that a fundamental reality of the controversy has been missed—whichever narrative proves to be the more accurate, the American political system has been polluted in ways that can’t help but erode citizen confidence in it. Here we have official Washington and nearly all of its figures, high and low, divided into two factions that define themselves by their allegations of bad action and evil intent on the part of the other faction.

In other words, we seem to have moved into a new era in which our political system is subject to insidious manipulation of a magnitude never before seen or suspected. We just don’t know yet which faction is the more culpable. For ordinary Americans, it’s a case of “pick your poison,” not a very palatable choice.

The two fundamental challenges facing any polity based on the consent of the governed are the succession challenge and the legitimacy challenge. The two are intertwined. Regular and peaceful power transfers, based on elections, have given Americans a strong sense of stability and a sturdy faith in their system. That’s translated into a strong sense of legitimacy throughout the American experience. But now a large segment of official Washington is pushing the notion that Trump and/or his minions stole the election through an unholy alliance with a foreign power. Another large segment argues that, no, the investigation into that whole thing is a sham, begun with a stealthy resolve to undermine and perhaps destroy a duly elected president.

This isn’t a debate about what level of immigration we should allow or what should be federal policy on late-term abortions or even whether we should go to war in Syria. It’s about who’s trying to subvert American democracy—and the subversion of American democracy is a given. When the ordeal finally ends, however it ends, Americans’ faith in their national succession regimen and the legitimacy of their regime will almost surely be eroded to some extent and possibly to a considerable extent.

Indeed, American politics has sunk to a level at which this isn’t really a debate at all. It is a kind of combat of political destruction—akin, one might note ominously, to what emerged in the Roman Republic as it entered its long crisis of the regime that eventually snuffed it out. The end game here isn’t focused on winning a congressional debate by mustering a majority of votes in Congress. It’s about putting people in jail. But how do we ever reclaim the national ethos of old if the two factions can’t even talk to one another and refuse to consider any arguments that don’t bolster their particular narratives? And when the stakes are defined in terms of prison time?

Those clinging to the collusion narrative, for example, are so convinced of malefaction on the part of Trump that they refuse to see anything amiss in the FBI initiating an investigation into the presidential campaign of the opposition party—even when the impetus for the probe seems rather sketchy. It strikes them as the most natural and necessary thing in the world. And when the FBI sends an “informant” to insinuate himself into the opposition campaign to gather evidence through sly means, and perhaps to even induce wrongdoing in the process, what’s the problem with that?

Meanwhile, the anti-FBI faction refuses to take seriously any evidence—and there are plenty of disturbing signs—that gives rise to concerns about the Trump campaign’s association with Russia, including a meeting held by top campaign officials with a Russian lawyer billed as someone who could provide dirt on Hillary Clinton.

And so on cable TV we have Sean Hannity’s breathless rants countered by Rachel Maddow’s snide rants. Nobody seems interested in a neutral, dispassionate pursuit of the truth.

We have, of course, the independent counsel. Former FBI director James Comey tells us he leaked a story to the press about a conversation he had with Trump specifically to get Justice Department officials to appoint such a special prosecutor. If we embrace the collusion narrative, perhaps this was a justifiable action aimed at getting to the bottom of those allegations and suspicions.

But this probe has been going on for two years now, and we still can’t seem to get to the bottom of it. The current national ordeal has only crystallized the reality that independent counsels almost always exacerbate the crises they are appointed to resolve. The reason is that there are so few limits on how much time and money they can expend in pursuing nearly endless leads in investigations that always seem to expand inexorably in scope. The all-important principle of prosecutorial discretion goes out the window. As the American Founders understood so well, unchecked power often leads to power abuse.

Consider the case of Patrick J. Fitzgerald, who was appointed independent counsel (by James Comey, by the way) to investigate who leaked to columnist Robert Novak the fact that Valerie Plame, wife of a Bush administration antagonist, was a CIA agent. Almost immediately he discovered the identity of the leaker, but withheld action against him for nearly two years in order to set his sights on Vice President Dick Cheney. To get Cheney, he needed Cheney’s chief of staff, Scooter Libby. And to get Libby—not for the leak, as often happens, but for perjury—he withheld material information from New York Times writer Judith Miller, who subsequently, because she was operating under a false understanding, testified against Libby in ways that she wouldn’t otherwise have done. That sealed Libby’s fate. In the meantime, Fitzgerald had instructed the real leaker to maintain silence on the matter so the prosecutor could continue his expansive gotcha crusade. It was a stunning bit of malfeasance perpetrated by an independent counsel.

Whenever such open-ended investigations are directed at a president, a constitutional crisis almost always ensues. A president, whatever his culpability, has to protect his office so he can do his job, but when an independent counsel is involved any effort to do so just gets him more and more tethered in legalisms and accusations of wrongdoing. It becomes a vicious cycle. The presidential office is inevitably attenuated.

How will this thing end? It’s difficult to see an outcome even approaching that of Watergate, when Richard Nixon finally realized his options had narrowed down to one: resignation. In that context and in that time, the country generally accepted the justice of it all. Today the narratives are both too powerful and stark, and too fervently embraced by the two factions involved, for any such national acceptance of that kind of an outcome.

Without embracing either of these competing narratives, I will declare myself in one area: I decry the actions of Justice and FBI officials in withholding from Congress the information that has been subpoenaed by relevant congressional committees. That information could likely get to the heart of which narrative may have the most veracity. The country needs those answers.

Thus Trump should declassify as much of the relevant documents on the matter as possible, consistent with genuine national security considerations, strictly construed. Some have questioned what those Justice and FBI officials are trying to hide when they stonewall legitimate congressional oversight inquiries. The same could be said of Trump if he doesn’t move to get that information out to the American people.

Such a move wouldn’t resolve the crisis now besetting the nation, but it might alleviate it a bit. In these times, that may be all we can ask for.

Robert W. Merry, longtime Washington, D.C. journalist and publishing executive, is editor of The American Conservative. His latest book is President McKinley: Architect of the American Century.

http://www.theamericanconservative.com/articles/mueller-or-trump-pick-your-poison/