‘le­gal’ doesn’t make it right

The Washington Post Sunday - - OUTLOOK - Twit­ter: @asha­rangap­pa_ Asha Ran­gappa is an as­so­ciate dean at Yale Law School and a for­mer FBI agent.

Like all new FBI agents at Quan­tico, I got to know one par­tic­u­lar in­di­vid­ual very well when I was in the acad­emy there. Her name was Carla F. Bad. Strictly speak­ing, she was not ac­tu­ally a per­son but an acro­nym, whose name was a mnemonic de­vice for all the ways the bureau taught agents to mea­sure peo­ple seek­ing po­si­tions of pub­lic trust: char­ac­ter, as­so­ci­ates, rep­u­ta­tion, loy­alty, abil­ity, fi­nances, bias, al­co­hol and drugs. Carla F. Bad is the touch­stone against which FBI agents learn to as­sess a per­son’s hon­esty, in­tegrity and trust­wor­thi­ness in the course of check­ing their back­ground. And she — rather than the crim­i­nal code — might be pre­cisely what best re­veals the short­com­ings of the Trump ad­min­is­tra­tion.

The rev­e­la­tion that Don­ald Trump Jr. met with a Rus­sian lawyer to try to ob­tain in­crim­i­nat­ing in­for­ma­tion about Hil­lary Clin­ton has sparked another round of analysis on the tech­ni­cal­i­ties of crim­i­nal law. Specif­i­cally, le­gal ex­perts are fo­cused on whether Jared Kush­ner, a White House ad­viser and Pres­i­dent Trump’s son-in-law, who also at­tended the meet­ing, vi­o­lated the law by fail­ing to dis­close this meet­ing on a gov­ern­ment back­ground form. But fo­cus­ing on bright-line rules of crim­i­nal­ity misses the point. The deeper ques­tion is whether mem­bers of Trump’s ad­min­is­tra­tion can up­hold the trust that has been placed in them as ste­wards of the gov­ern­ment they have been cho­sen to lead. On this front, the crim­i­nal code shouldn’t be the only yard­stick. Even if Trump’s aides and fam­ily mem­bers have man­aged to toe the line of the law, the news out of the Rus­sia in­ves­ti­ga­tion so far leaves lit­tle rea­son to have faith in their judg­ment.

For the record, the form in ques­tion isn’t easy to fill out. The SF-86, more than 100 pages long, asks an in­di­vid­ual seek­ing a na­tional se­cu­rity po­si­tion — one re­quir­ing a se­cu­rity clear­ance — for ev­ery place they’ve ever lived, ev­ery coun­try they’ve ever vis­ited, back­ground in­for­ma­tion on ev­ery close rel­a­tive and al­most ev­ery pos­si­ble vari­a­tion on their con­tacts with for­eign of­fi­cials. Even know­ing that a false state­ment can carry a penalty of up to five years in prison, it’s not un­com­mon for even the most hon­est per­son fill­ing out the form to in­ad­ver­tently omit a piece of in­for­ma­tion. On my own SF-86, which I com­pleted when I was 27 to be­come a spe­cial agent for the FBI, I failed to dis­close a speed­ing ticket I got when trav­el­ing home from col­lege for Thanks­giv­ing when I was 19. I got a grilling from FBI agents: Why did I not men­tion this? “I for­got” wasn’t the an­swer they wanted, but to my re­lief, they did ac­cept it.

Which brings up the big­ger pic­ture: The SF-86 isn’t an end in it­self or an at­tempt to en­trap some­one in a false­hood. It’s a start­ing point for the FBI to de­ter­mine the kind of per­son you are — and whether you can be trusted to guard sen­si­tive in­for­ma­tion, up­hold the law and pro­tect the United States. And that’s where Carla F. Bad comes in. It is most of­ten ques­tions that arise on these grounds, not false state­ments on the ap­pli­ca­tion, that pre­vent hun­dreds of in­di­vid­u­als ev­ery year from ob­tain­ing their dream job in the fed­eral gov­ern­ment. In fis­cal 2015, the last year for which data was avail­able, the gov­ern­ment ap­proved 638,679 se­cu­rity clear­ances, but at some agen­cies, such as the CIA, as many as 8.5 per­cent of ap­pli­ca­tions were de­nied. The gov­ern­ment re­ported that “for­eign in­flu­ence” was the most com­mon rea­son for de­lay­ing clear­ances, fol­lowed by “fi­nan­cial con­sid­er­a­tions.”

Mea­sur­ing the ac­tions of Kush­ner, mem­bers of Trump’s cam­paign and even the pres­i­dent him­self against Carla F. Bad is re­veal­ing. Con­sider the ques­tions an FBI agent would ask a ref­er­ence while con­duct­ing a back­ground check: Can this per­son be trusted to do the right thing in a dif­fi­cult sit­u­a­tion? Is this per­son known as re­li­able and hon­est in their com­mu­nity? Does this per­son as­so­ciate with in­di­vid­u­als of ques­tion­able in­tegrity? Has this per­son ever demon­strated a bias against a par­tic­u­lar group of peo­ple? Does this per­son spend money wisely, or are they in se­ri­ous debt? Has this per­son done or said any­thing to make you ques­tion their al­le­giance to the United States and its in­sti­tu­tions? An­swer­ing “yes” to any of these would not make the per­son in ques­tion a crim­i­nal. But it would raise red flags about their suit­abil­ity to hold a po­si­tion of pub­lic trust.

Lawyers for Trump ad­min­is­tra­tion of­fi­cials in­sist that their clients didn’t break any laws at the meet­ing with Rus­sian lawyer Natalia Ve­sel­nit­skaya in June 2016. But merely fol­low­ing the law is the least we ex­pect of any­one in our so­ci­ety. It should, of course, be the bare min­i­mum of what we ex­pect from our pub­lic ser­vants. Carla F. Bad re­minds us, though, that as a na­tion we have held our gov­ern­ment of­fi­cials to some­thing far higher: to com­mon de­cency, fair­ness, eth­i­cal be­hav­ior and moral char­ac­ter. The re­cent fo­cus on finding a smok­ing gun of crim­i­nal­ity, or de­fend­ing against it, has blinded us to these qual­i­ties. As a re­sult, any be­hav­ior that lurks in the gaps of the crim­i­nal code is de­fended as ac­cept­able.

The ques­tion isn’t whether Kush­ner or oth­ers broke the law in meet­ing with Ve­sel­nit­skaya. It’s not even whether Trump’s cam­paign aides broke any laws by “col­lud­ing” with a for­eign power last year. If they did, then they should be held to ac­count — but this is a ceil­ing, not a floor. To make this the standard of their suit­abil­ity to lead the coun­try sug­gests that Congress’s fail­ure to imag­ine and crim­i­nal­ize ev­ery pos­si­ble lapse of eth­i­cal con­duct is the last word on the ex­pec­ta­tions of our gov­ern­ment of­fi­cials. The ques­tion should be, more sim­ply, whether the pat­tern of be­hav­ior by var­i­ous mem­bers of the ad­min­is­tra­tion that has so far come to light demon­strates a ca­pac­ity or will­ing­ness to up­hold the pub­lic’s trust.

On this point, we can’t count on the re­sults of the spe­cial coun­sel to pro­vide the an­swer. As a for­mer FBI di­rec­tor, Robert Mueller is fa­mil­iar with the spirit of Carla F. Bad, and her prin­ci­ples will no doubt an­i­mate the in­ves­ti­ga­tions un­der his charge. In the end, how­ever, Mueller’s in­quiry will be lim­ited to ac­tions that crossed the thresh­old of crim­i­nal­ity, which is a very nar­row ques­tion.

It re­mains to be seen whether any ac­tions by Trump Jr., Kush­ner, At­tor­ney Gen­eral Jeff Ses­sions, for­mer Trump cam­paign man­ager Paul Manafort, for­mer ad­viser Carter Page, for­mer na­tional se­cu­rity ad­viser Michael Flynn or any­one else con­nected to the White House meet the very high standard for crim­i­nal li­a­bil­ity. But while the crim­i­nal in­ves­ti­ga­tions take their course, the Amer­i­can pub­lic can reach their own ver­dict on the ad­min­is­tra­tion’s trust­wor­thi­ness — and here, Carla F. Bad should be our guide.

For­mer FBI agent Asha

Ran­gappa says we should de­mand more of our pub­lic ser­vants than merely fol­low­ing the law


Whether White House se­nior ad­viser Jared Kush­ner broke the law by fail­ing to re­port con­tacts with Rus­sia isn’t the only ques­tion that mat­ters.

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