That’s a great line from the movie Enemy of the State, “Yeah, well who’s gonna monitor the monitors?” That’s our predicament – we have significant evidence that the monitors (FBI and DOJ) may be abusing their power to monitor others. So how do we monitor the monitors?
Shining light on the monitors’ conduct seems to me to be the best course. DOJ and FBI should answer the questions, and then voters can evaluate what Congress and the President do with those answers.
This is the first time I’ve questioned one of Judge Andrew Napolitano’s analyses. I nearly always enjoy his insight, but today’s opinion piece at Fox News is off the mark, I think. He argues that FBI Director Wray is correct to withhold information from Congress, to preserve the FBI’s independence and uphold the rule of law.
But the FBI is not the sole arbiter of the rule of law; other parties have their role to play in upholding the rule of law, too. Congress makes the law, for example, and has oversight authority. The President has the duty (and therefore the authority) to take care that the laws be faithfully executed. Voters have the power to choose different Representatives and Senators if we think the current ones are not properly upholding the law.
Judge Napolitano writes, “the FBI must go where the evidence of crime leads it, and the DOJ must prosecute when the evidence is lawfully sufficient, no matter the subject.” Therein lies the rub. FBI keeps announcing there is no evidence of collusion. Well then, what the hell evidence are you following? What the hell crime are you investigating?
These are legitimate questions which FBI must answer. Their “just power” to investigate does not derive from merely occupying the seats they occupy; they must obey the law and not abuse the power which has been entrusted to them. There is serious doubt about whether they have provided equal protection of the law. Comparing their conduct in the two investigations, it is immediately obvious that Clinton was treated quite differently than Trump. Comparing the e-mail investigation to other mishandling of national security information, it is immediately obvious that Clinton was treated quite differently than others who mishandled.
DOJ did not prosecute Clinton when the evidence was lawfully sufficient, but rather rewrote the statute and unilaterally inserted “intent” where none was required.
In these circumstances, I think it is obvious that FBI and DOJ are NOT obeying the rule of law. They need to answer the questions Congress and President Trump have asked:
- What crime are you investigating?
- Why did you start the investigation, what triggered it?
- If it is a counter-intelligence investigation, then what concern about national security triggered the investigation?
- Have you equally investigated all instances of that concern?
- For example, if your national security concern was that a foreign power might gain influence over a President because that foreign power had previously paid someone for a speech and then that someone later became an advisor to a Presidential campaign … have you equally investigated every Presidential campaign who had an advisor who had previously been paid by that foreign power?
We need answers to these questions so that we as a union can decide if these investigations are legitimate. Congress and the President need the answers so they can exercise their oversight duty, and voters need the answers so we can ratify or reverse the decisions made by Congress and the President.
I agree with Judge Napolitano that this situation is complex. However, I believe the greatest risk is that the FBI and DOJ are acting as though they are above the law. If our checks and balances cannot be applied because doing so will get Congress and the President branded as being above the law … then how do we mitigate this risk of FBI and DOJ acting above the law?
As for the argument that precious “sources and methods” may be compromised, that’s easily handled. If the investigations are legitimate, then the crimes or national security concerns being investigated can easily be described without compromising sources and methods. After all, if the investigations are legitimate because the precious sources and methods provided rock-solid information … then we’d have evidence of the crimes, wouldn’t we?
If we started with rock-solid information from unimpeachable sources and methods, then after two years of investigation scrupulously following the rule of law with what Andrew McCabe said was “unbending devotion to protect the American people and uphold the Constitution.” … seems like FBI would have turned up the evidence, don’t you think?
On the other hand, if the investigations are not legitimate, then those precious “sources and methods” damn well need to be revealed, because they are involved in gross abuse of power. Either way, sunshine is the best way to mitigate the risk of any participants acting as though they are above the law.
ERpundit – 06/21/18