Who wins and loses in his attack on the U.S. government
At 6:35 a.m. on March 4, President Donald Trump launched an attack against the government of the United States. Deploying his favorite weapon, Twitter, he wrote, “Terrible! Just found out that Obama had my ‘wires tapped’ in Trump Tower just before the victory. Nothing found. This is McCarthyism!” In fewer than 140 characters, he accused a former President of an impeachable offense, suggested that Justice Department agents might have engaged in a felony and gestured at the possibility that federal judges enabled a political outrage.
He wasn’t finished. Over the next half hour–as Trump’s staff, left behind in Washington, began waking up and unlocking their phones to discover what the boss was up to down at Mar-a-Lago–the President added two more tweets suggesting that Obama and federal investigators had broken the law and should be prosecuted. He capped his indictment with a fourth blurt, comparing the allegation with the worst political crisis of his 70-year lifetime. “How low has President Obama gone to tapp [sic] my phones during the very sacred election process. This is Nixon/Watergate. Bad (or sick) guy!”
Trump was right that the government now faces a test of historic dimensions. The FBI is probing a plot by Russia to subvert the core exercise of American democracy in the 2016 presidential election. Revelations of contacts between Trump aides and Russian officials have forced the resignation of the President’s National Security Adviser, Michael Flynn, and the recusal of his Attorney General, Jeff Sessions. This probe, which may or may not have involved court-approved surveillance, has unleashed an orgy of political exploitation, resulting in a crisis of confidence in the government’s ability to play by the rules.
But no matter what he tweets from his Palm Beach Xanadu, Trump is more author than victim of this crisis. Neither he nor his White House staff provided any evidence for his extraordinary accusations against what some of them call a “deep state.” Obama denied Trump’s assertions, and was soon joined by former Director of National Intelligence James Clapper and, via intermediaries, FBI Director James Comey. Trump is rallying his political base against the federal agencies he oversees, thus partnering his presidency with a radical fringe. Win or lose, the standoff he has engineered will diminish the credibility of the government.[video id=pLVPzBqw ]
Approaching the halfway point of his first 100 days, this has become a defining aspect of Trump’s presidency. His latest Twitter attack, like other actions before it, targeted institutions that stand in his path to what aides say is a larger political purpose: undoing much of what government has become over the past century. Few, if any, Presidents have paid so little deference to the chief executives and legislators who came before them. The extent of Trump’s battle plan remains unclear. But at a recent gathering of conservative activists in Washington, Trump’s top strategist, Stephen Bannon, said the goal was the “deconstruction” of the administrative state. “The progressives for the last 100 years have set up really a fourth branch of government,” he tells TIME. “So the deconstruction of that is really a massive project.”
It’s ambitious talk, and difficult to compress into even a storm of tweets. Trump’s results so far are mixed. He has embraced a budget that would slash nondefense government-agency spending by $54 billion. He has delayed, suspended or reversed 90 regulations imposing government controls on everything from Wall Street to telecoms to hunters, according to an analysis by the New York Times. He has frozen federal hiring, and his allies on Capitol Hill have proposed reducing federal employees’ pensions. He says many of the nearly 2,000 open executive federal positions might be “unnecessary.”
On the other hand, Trump has promised to preserve and even bolster many of the federal government’s largest programs, such as Social Security, Medicare and the Pentagon, to name a colossal three. His immigration policies are a federal overreach in the eyes of some traditional antigovernment conservatives. And his comments on health care policy suggest he will be happy to sign a bill that leaves Washington neck-deep in the middle of America’s largest industry.
It can be difficult to separate his program from his petulance, for nothing moves the mercurial Trump like hearing the word no. When federal courts blocked his Executive Order banning refugees and travelers from seven mostly Muslim countries, Trump attacked. He said the “so-called” judge’s opinion was “ridiculous” and the federal judiciary “political.” The tantrum moved Trump’s own Supreme Court nominee, U.S. Circuit Court Judge Neil Gorsuch, to criticize the President’s rhetoric. Trump’s Twitter backlashes have been interpreted as judo moves against elite power, or a CEO’s frustration that government can’t work like a business. Yet his senior aides say that every attack feeds into the same Trump strategy to shrink the federal government. It’s nothing personal, Bannon says. “He’s not doing that because he wants to disrupt the lives of bureaucrats,” he says. “It’s just the natural process of how one looks to dismantle part of a massive bureaucracy.”
At the same time, a senior official says Trump’s Twitter rants are tactical moves designed to build his political strength by going around the media to marshal his supporters. And nothing marshals his supporters like seeing him on the attack against political elites.
Strategy and tactics aside, though, this is playing with fire. Where does the so-called deep state or administrative state end, and our beloved 228-year-old constitutional republic begin? Who will ultimately have a say in drawing that line, apart from Trump? When the President’s advisers talk about a century of government action, they are covering a tremendous amount of ground, ranging from the National Park System to the federal rule that requires disclosure of diced or dried onions in onion rings.
So far in his young presidency, Trump has attacked his predecessor, the judicial branch, military commanders (they were to blame for the recent combat death of a Navy SEAL, Trump said), the intelligence agencies and the legacy of a century of legislative actions, executive decisions and court rulings. And he is only getting started, the senior White House official says.
There was a time when the kind of domestic spying abuse that Trump charged against Obama was widespread. During the Kennedy, Johnson and Nixon administrations the FBI, CIA and NSA all used lawless investigative techniques to collect and pass along political intelligence to the White House. Robert Kennedy’s Justice Department received wiretap information on Martin Luther King Jr., while Richard Nixon “authorized a program of wiretaps which produced for the White House purely political or personal information unrelated to national security,” according to the post-Watergate Church Committee. The FBI passed along information on the social lives of Supreme Court Justices and “social contacts with foreign officials by Bernard Baruch, Mrs. Eleanor Roosevelt and Supreme Court Justice William O. Douglas,” while the IRS compiled files on “more than 11,000 individuals and groups” between 1969 and 1973 based on “political rather than tax criteria.”
The motivation for this lawless behavior, according to David Kris and J. Douglas Wilson, who wrote the definitive reference work National Security Investigations & Prosecutions, was a rampant fear of the Soviet Union. Some of the fears were outlandish but terrifying: the CIA believed, for example, in the aftermath of World War II, that the Soviet Union was engaged in a wide-ranging program of testing LSD. It genuinely thought that the Soviets might develop mind-control drugs and turn every American into an obedient, communist zombie. One CIA officer testified that he and his colleagues were “literally terrified” at the prospect. The excesses led to a series of laws passed in the years after Nixon’s resignation designed to constrain America’s spies and spy hunters.
In 1976 and 1977, Congress created the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence, which have broad oversight power over the FBI, CIA and NSA. Congress also passed the Inspector General Act, creating multiple independent watchdogs at the investigative and national-security agencies. Most important, it passed in 1978 the Foreign Intelligence Surveillance Act (FISA), which governs all spy-targeting electronic surveillance in the U.S. After 1978, if the U.S. government wanted to eavesdrop on a foreign spy in the U.S., an official from the FBI or NSA had to get a warrant from the Foreign Intelligence Surveillance Court–which comprises federal judges selected for the task by the Chief Justice of the Supreme Court–whose proceedings are generally classified.
And getting such a warrant was not easy, especially if the feds risked invading the privacy of Americans as part of the investigation. Multiple Justice Department and White House rules required approval by senior law enforcement and intelligence officials before a warrant application could even be made. FISA itself required that application to include detailed and specific information about who was to be targeted, where, for what purpose, for how long and what exactly the result was likely to be. Any information on Americans caught up in the surveillance had to be set aside and destroyed unless specific conditions were met, like evidence of a crime. Multiple rules set even higher safeguards against accidental snooping against politicians, activists or academics, among others. And the newly formed congressional committees were to be kept “fully informed” of any FISA court activity.
By the summer of 2016, the FBI had plenty of incentives to jump through all those legal hoops. The first hint that Russia had designs on the election came in April, when the spy service of a foreign ally passed along a tip that Russia was funneling money through two banks to fund a political-influence operation in the U.S., according to several published reports. Over the next several months, as Russia hacked into state voting databases and leaked emails stolen from the accounts of leading Democrats, U.S. spy hunters realized they had a growing problem on their hands.
In early September, the Washington Post reported that the FBI was investigating a possible Russian operation against the election. That was followed on Oct. 7 by a public assessment from the U.S. intelligence community that Russia was interfering in the November vote. Under those circumstances, it would not be surprising if investigators had sought a FISA warrant to gather documents or authorize surveillance of Russian contacts with American political figures. The first such report–a day before the election–was by a former member of the British Parliament turned journalist for Rupert Murdoch’s News Corp., Louise Mensch. She published an article on the website HeatStreet claiming that the FBI had in fact sought and received a FISA warrant against members of Trump’s campaign for an investigation of ties to Russian banks.
The article went largely unnoticed, but then the FISA warrant issue resurfaced in January, reported by the BBC. Over the following weeks, the allegations merged with stories about the long-standing associations between Trump aides and various members of Russia’s oligarchy. Trump’s refusal to acknowledge the authorship of the Russian influence operation, before and after Election Day, and his often admiring remarks about Russian President Vladimir Putin, lent further credence to the idea of a Russia connection inside Trumpland.
By February, Trump was a new President beset with questions about Russian influence and furious at persistent leaks concerning contacts that his aides and advisers had with Putin’s representatives. Trump’s defenders began to speculate that Trump’s aides were the actual targets in the probe, rather than being caught up in an investigation of the Russians. Meanwhile, Trump’s opponents in the Democratic Party ramped up their charges that Trump officials communicated with Russia about the election interference. The result: Trump’s presidency found itself hobbled with each new revelation from the ongoing and intensifying investigation.
First National Security Adviser Flynn was forced to step down on Feb. 13 after misleading Vice President Mike Pence about his conversations with Russian ambassador Sergey Kislyak. Two weeks later, the Washington Post reported that Attorney General Sessions had met with Kislyak twice in 2016, though he had denied during his confirmation hearings meeting any Russian officials. Under pressure, Sessions recused himself from oversight of the FBI’s Russia probe.
At first the White House reported that Trump had demanded Flynn’s resignation. But soon he was complaining on Twitter that “information is being illegally given to the failing @nytimes & @washingtonpost by the intelligence community (NSA and FBI?). Just like Russia.” He was even more furious at Sessions’ recusal.
After storming out of Washington for another weekend in Palm Beach, Trump read an incendiary mash-up of all the earlier coverage related to a possible FISA warrant assembled by Breitbart News, according to aides. The conclusion of that report: “the Obama Administration sought, and eventually obtained, authorization to eavesdrop on the Trump campaign.” The article quoted right-wing radio host Mark Levin calling the investigation a “silent coup.”
That was good enough for Trump, who promptly opened his Twitter app. And if his tweets were correct–if Obama and federal investigators working for him tapped Trump’s lines without legal authority–it would be a felony unlike any since Watergate. But if Trump had gone off half-cocked, he stood to undermine the very system put in place to prevent some of the worst outrages of that earlier era. A FISA warrant issued by a duly appointed judge would normally be a good sign, evidence that the FBI was getting to the heart of the Russian operation. “FISA coverage is always hoped for,” in a properly run FBI intelligence investigation, the Justice Department’s Inspector General observed in a November 2004 report.
Trump gave supporters a stark choice: believe me, or believe the government.
It would be one thing if Trump’s outburst against those investigating the Russia operation was simply an emotional backlash in the face of political woes. But the pattern of Trump’s seven-week presidency so far has been to reach for his political base whenever he faces opposition. As a self-declared warrior against the state and drainer of Washington’s swamp, he has opposition on multiple fronts.
Trump has taken a number of steps aimed at cutting the government. He has ordered that for every new government rule, two existing ones must be eliminated. He has set in motion an unwinding of Wall Street regulations imposed after the 2008 financial crisis. His Labor Department is under orders to review, and presumably rescind, Obama’s regulation of financial advisers who deal with Main Street investors.
His proposed budget, which faces an uncertain fate in Congress, contains aggressive cuts totaling $54 billion at nondefense agencies. Cuts proposed at the EPA could shrink Clean Air Act implementation funds granted to states by $68 million, to less than $160 million. Even greater cuts, percentage-wise, would limit funds for fighting water and lead pollution. Trump’s denunciation of a “slow and burdensome” FDA has many in the medical community, not to mention staffers in that agency, fearful that his future pick to lead them could pare back drug- and food-safety measures in place since the early 1960s.
Trump has declined to nominate officials below the Cabinet level in many agencies, leaving some effectively paralyzed. Only six departments–Commerce, Justice, Health and Human Services, Defense, Homeland Security and Transportation–have any Senate-confirmed positions at headquarters nominated below the Secretary level. Agencies accustomed to driving the agenda are sitting idle. At the State Department, diplomats not immediately involved in crises like Russia or North Korea are biding their time reading cables.
This, argues the Administration, is all part of the master plan. Rulemakers have supplanted legislators and administrative courts answering to the President have supplanted the judiciary, White House officials say. The result has been a bureaucracy that is larger than all three traditional branches of government combined.
Defenders of the administrative state say it exists for a reason: to make sure the laws and policies of the government are implemented fairly and according to the Constitution. Staffed by experts who oversee an open governmental process, they say, the federal bureaucracy exists to protect those who would otherwise be at the mercy of better-organized, better-funded interests. “It’s not realistic to expect that Congress is going to solve all the policy problems that come up” in the modern world, says Susan Rose Ackerman of Yale Law School. The war on the administrative state, she says, is in fact a “war on the core responsibility of the bureaucracy to make sure the laws as passed are carried out.”
For many of Trump’s followers, his declared war and the steps he has taken to wage it so far are all part of a job well done, exactly what they asked for. And his credibility with them is on the rise. “He was given a mandate with the election to go up there and correct and fix Washington and drain that swamp. That is exactly what I see him doing,” says Janice Westmoreland, 69, of Milledgeville, Ga.
But patient advocates worry about changes at the FDA, while environmentalists warn of the consequences of loosened regulations. “Millions of people around the country will be exposed to unhealthful air,” says Bill Becker, executive director of the National Association of Clean Air Agencies. “It could literally be the difference between protecting public health and premature death.”
Trump’s greatest foes are among his principal targets: the men and women of the U.S. government. Leaks have sprung all across the Trump Administration. Some, presumably from those alarmed by his foreign-policy agenda, have exposed Trump’s gaffe-filled conversations with foreign leaders. Other leaks, perhaps from those angry at Trump’s attacks on the intelligence community, have detailed the Russia investigation in ways that make Trump look bad.
To combat these, Trump reaches for Twitter. On Feb. 16, at 7:02 a.m., Trump tweeted a warning: “low-life leakers” will be caught.
More damaging confrontations arise when Trump goes after other parts of the government, namely the courts and agencies charged with law enforcement. It’s not clear that the President has a thorough understanding of checks and balances, and compared with most Presidents, he doesn’t surround himself with people who do. To paraphrase former Defense Secretary Donald Rumsfeld, Trump went to war against the state with the army he had, business-school ideologues and website provocateurs like Bannon, rather than with the army he should have wanted: experienced, cold-blooded lawyers. No personnel in the White House will ever alter a core fact about Washington: power depends on knowing how to use the law even more than knowing how to change it.
Charged with responding to that reality is Trump’s White House counsel, Don McGahn. It has already become clear that changing laws on Capitol Hill will be, at best, a slow and partial part of the war. McGahn says he is staffing his office with lawyers experienced both inside and outside the administrative state. “In order to increase the power of President Trump to implement his policy preferences, you have to decrease the role of the unelected bureaucracy which has grown accustomed to implementing their policy preferences,” McGahn says.
The cost of that effort, for Trump and for America, is unclear. “Trump is spending at a terrific rate the accumulated credibility capital of the office he occupies,” the former head of the Justice Department’s National Security Division, David Kris, wrote recently in the Washington Post. “There may come a day when he needs to speak seriously, and to be taken seriously, at home or abroad. On his present course and speed, that will be a hard day.”
In the meantime, the gumshoes at the FBI have their old nemeses, the spies of Moscow, squarely in their sights. And those agents will keep grinding away, using the investigative tools granted them by law, until they make their case. Whatever they prove in court against the Russians and anyone who helped them will be a testament to the institutions that have ensured the survival of American democracy for 241 years. The question is how much lasting damage America’s political leaders will inflict on those institutions in the meantime.
–With reporting by PHILIP ELLIOTT and ZEKE J. MILLER/WASHINGTON; ALICE PARK, JOSH SANBURN and JUSTIN WORLAND/NEW YORK