The case involves a complaint by an intelligence official about communications between President Trump and a foreign leader and a “promise” Trump made, which the intelligence official found alarming enough to notify the inspector general about it. People familiar with the case told The Washington Post that it centers on Ukraine, whose president, Volodymyr Zelensky, spoke with Trump two and a half weeks before the complaint was filed. Trump, reportedly, pressed Zelensky to investigate former vice president Joe Biden’s son Hunter Biden, at a time when the U.S. was weighing whether to send millions of dollars in military aid to Ukraine, though the aid allegedly didn’t come up on the call.
Presidents have, of course, acted inappropriately in the past, and our constitutional system has a framework in place for addressing misconduct by the chief executive. But it’s designed to deal with straightforward criminal activity, not national security threats. The special counsel regulations, for example, were created to deal with a Watergate-like situation as a worst-case scenario. So they take into account the need for an investigation insulated from political influence and give special counsels the ability to make prosecutorial decisions independently of the rest of the Justice Department or the attorney general. The rules even envision a report that might be made public.
This approach is appropriate when an investigation involves collecting evidence that can hold up in a court of law. But it is inadequate to address potentially noncriminal conduct that may nevertheless endanger the national security of the United States.
This split was evident in the report on the Trump campaign’s possible collusion with Russia in the 2016 election, submitted by then-special counsel Robert S. Mueller III. Although Mueller’s mandate was broad, and potentially encompassed a counterintelligence investigation, he narrowed the scope of his inquiry to criminal matters. The final report lays out only the decisions to charge or not charge individuals based on the evidence collected, noting only briefly that counterintelligence information was shared with the FBI for use in its (presumably ongoing) classified investigation. As a result, the public remains in the dark on whether Trump may be wittingly or unwittingly compromised in his dealings with Russia, or if the FBI and the intelligence community have information to explain his oddly submissive behavior with world leaders like Russian President Vladimir Putin.
Very few people seem to know what’s going on with the counterintelligence investigation: Rep. Adam Schiff (D-Calif.), the House Intelligence Committee chairman, has said that his panel doesn’t know the status of the probe, or even if it’s still going on, even though the law requires the administration to keep the lawmakers up to date.
But counterintelligence investigations are stymied if they involve the president.
In a criminal investigation, the public can get glimpses into its stages: Search warrants, subpoenas for documents and interviews of witnesses typically make it into the press. Counterintelligence investigations, though, differ in that they do not ultimately end up in a courtroom. Rather, they seek to monitor and neutralize national security threats behind the scenes, which means the public has no way of tracking their progress. And the normal ways of resolving counterintelligence threats — like blocking a compromised subject’s access to classified information — don’t work with the president, who controls what is and isn’t classified and is the ultimate consumer of the intelligence the government collects.
The current showdown shows how the president’s position and powers work at cross-purposes to the law. In a typical whistleblower scenario where the inspector general determines a complaint to be credible and urgent, there would be no colorable legal basis for the complaint to not reach Congress. In fact, Schiff says there has never been a previous instance when the inspector general’s decision to forward a complaint to Congress has been blocked by the director of national intelligence, as has happened this time.
In a normal case not involving the president, the inspector general’s conclusion that a complaint was credible and urgent would make it to Congress, with commentary from the director of national intelligence if he chose to add it. Congress would review the complaint and decide whether to take action: Lawmakers could hold hearings, request additional information from the agency involved in the complaint, and ensure that any misconduct is addressed or corrected within the agency.
When a case involves the president, however, it enters a constitutional thicket: The president enjoys wide latitude in conducting foreign affairs on behalf of the United States under his Article II authority. Congressional oversight in this instance becomes necessarily intertwined with separation-of-powers concerns. If a call is about official foreign policy positions of the executive branch, for example, the president might have strong grounds to keep the content confidential — part of the president’s job is negotiating with foreign leaders, and to do that he must be able to assure his counterparts that their discussions won’t be made public. Even George Washington refused to turn over diplomatic communications to Congress.
And because the procedure for handling whistleblower complaints related to intelligence doesn’t address — or really even contemplate — what might happen if the president is endangering national security, there’s plenty of room for the chief executive to cloak unlawful actions in presidential authority, making them harder to detect. The president, by virtue of his office, can easily “go dark” when it comes to conversations with foreign leaders, even if he makes promises or assurances that run contrary to the interests of the United States or even place the country in danger. Without oversight or accountability, neither Congress nor the public has a way to know, for example, if the president is using his powers as leverage for a country to confer a benefit to him personally or to undermine the integrity of our democratic processes in his favor.
The president’s foreign affairs powers are certainly not absolute, and if the case ends up in court, invoking privilege on these grounds is not a slam dunk for the White House. But the judiciary does not have a precedent for determining the limits of presidential power when the occupant of the office may be using those powers in a way that creates a national security threat. And if Trump wins any litigation, that might mean that even the ultimate check on presidential abuse — impeachment — would be nearly impossible on national security grounds: Congress isn’t likely to bring articles of impeachment if it is prevented from obtaining the evidence that would form the basis for them.
The framers of the Constitution did foresee the possibility of a presidential candidate who might be compromised or beholden to a foreign power: The electoral college was intended to act as a second fail-safe in the event of poor voter judgment, if a truly dangerous candidate came along. (In this case, it failed.) Unfortunately, once a person who is willing to act against the interests of the United States assumes the awesome powers of the presidency, the laws and investigative techniques we use in ordinary national security situations are woefully inadequate. Like the breach of multiple hulls in the Titanic, the mechanisms designed to keep our democracy afloat are giving way one by one.