An un­nec­es­sary clash be­tween Trump and Ses­sions

The at­tor­ney gen­eral’s re­cusal has left the pres­i­dent un­der siege

The Washington Times Weekly - - Commentary - By An­drew P. Napoli­tano

Dur­ing the past two weeks, Pres­i­dent Trump has made no se­cret of his un­hap­pi­ness at the man­age­ment of the De­part­ment of Jus­tice (DOJ) un­der At­tor­ney Gen­eral Jeff Ses­sions. Ac­tu­ally, Mr. Trump seems most ag­i­tated at the grow­ing parts of the Jus­tice De­part­ment that are not un­der Mr. Ses­sions’ man­age­ment. He is also an­gry that the trail of the well-known ev­i­dence of the crimes of his for­mer op­po­nent Hil­lary Clin­ton seems to have been va­cated by the de­part­ment.

How is it that parts of the DOJ can­not be con­trolled by the at­tor­ney gen­eral, whom Mr. Trump ap­pointed to run the de­part­ment? And with a moun­tain of ev­i­dence of Mrs. Clin­ton’s es­pi­onage — her fail­ure to safe­guard state se­crets, crimes far more treach­er­ous than those al­leged against Trump’s cam­paign — why has she not been pros­e­cuted? Here is the back story. Shortly be­fore he left of­fice, Pres­i­dent Obama qui­etly changed a DOJ reg­u­la­tion so as to per­mit any fed­eral in­tel­li­gence agency — there are 16 of them that the fed­eral gov­ern­ment ac­knowl­edges — that law­fully pos­sesses raw in­tel­li­gence data to share it with any one or more of the other in­tel­li­gence agen­cies. For gen­er­a­tions, this had been pro­hib­ited.

Raw in­tel­li­gence data is the un­touched fruit of gov­ern­ment sur­veil­lance, such as copies of emails, text mes­sages and fiber-op­tic data, as well as dig­i­tal copies of tele­phone con­ver­sa­tions. We know to­day that — not­with­stand­ing the Con­sti­tu­tion, fed­eral statutes and fed­eral ju­di­cial rul­ings — the Na­tional Se­cu­rity Agency (NSA) cap­tures all com­mu­ni­ca­tions into, out of and within the United States of every per­son and en­tity in the U.S., in real time, 24/7/365.

Among the raw data cap­tured and shared with politi­cians and the press (such shar­ing can of­ten be a felony) were tran­scripts of a se­ries of tele­phone con­ver­sa­tions be­tween Mr. Trump’s first na­tional se­cu­rity ad­viser, for­mer Lt. Gen. Michael Flynn, and then-Rus­sian Am­bas­sador to the U.S. Sergey Kislyak.

When por­tions of those tran­scripts were re­vealed to the press, it ap­peared that then-FBI Di­rec­tor James Comey thought there may have been a re­la­tion­ship be­tween the Trump pres­i­den­tial cam­paign and the Rus­sian gov­ern­ment worth in­ves­ti­gat­ing. The FBI was also aware of Bri­tish and NSA sur­veil­lance of the Trump cam­paign go­ing back to the sum­mer of 2015, se­lected por­tions of which had been made avail­able to it.

When Mr. Ses­sions be­came at­tor­ney gen­eral and learned what­ever it is that the FBI learned about the Rus­sians, he con­cluded that he might be­come a re­luc­tant wit­ness in the FBI in­ves­ti­ga­tion of the Rus­sians be­cause he had been in­volved in the man­age­ment of the Trump cam­paign. Fear­ing this con­flict and re­ject­ing the tough­ness de­manded of his of­fice, Mr. Ses­sions re­cused him­self from the man­age­ment of all DOJ mat­ters in­volv­ing the Rus­sians. Then Rod Rosen­stein, the deputy at­tor­ney gen­eral, over­re­acted and ap­pointed for­mer FBI Di­rec­tor Robert Mueller as an in­de­pen­dent coun­sel to in­ves­ti­gate the Rus­sians and all re­lated mat­ters.

Thus was born a now grow­ing part of the Jus­tice De­part­ment, which is law­fully in­de­pen­dent of the pres­i­dent and which has chal­lenged him. On the very day the pres­i­dent warned Mr. Mueller to steer clear of in­ves­ti­gat­ing Mr. Trump’s busi­nesses, Mr. Mueller sub­poe­naed many of their banks’ records.

Shortly be­fore all of this took place, Mr. Trump fired Mr. Comey be­cause in July 2016, he had dropped the ball by de­clin­ing to rec­om­mend the pros­e­cu­tion of Mrs. Clin­ton for de­stroy­ing 30,000 gov­ern­ment emails and for fail­ing to safe­guard the se­crets con­tained in the thou­sands of emails she failed to de­stroy. Mr. Trump was very crit­i­cal of Mr. Comey for usurp­ing the role of the DOJ it­self and an­nounc­ing pub­licly that Mrs. Clin­ton would not be pros­e­cuted — a de­ci­sion and an an­nounce­ment that were not Mr. Comey’s to make.

At this writ­ing, Mr. Ses­sions is still the at­tor­ney gen­eral of the United States. Were he to be re­placed with an at­tor­ney gen­eral who has not re­cused him­self from the most sig­nif­i­cant DOJ in­ves­ti­ga­tion since Water­gate, there would be no need for an in­de­pen­dent coun­sel.

Whether Mr. Ses­sions stays or goes, the at­tor­ney gen­eral should not feel bound by Mr. Comey’s de­ci­sion to let Mrs. Clin­ton go. He should put the ev­i­dence of her crimes be­fore a fresh team of pros­e­cu­tors and in­struct them to present it to a grand jury for in­dict­ment.

And he should also iden­tify and in­dict those in the Obama ad­min­is­tra­tion who started this mess with their leaks of raw in­tel­li­gence data. I have con­demned uni­ver­sal sur­veil­lance since we first learned of it in 2005. Now we know how hor­rific the un­law­ful po­lit­i­cal use of it can be.

The pres­i­dent is frus­trated be­cause he wants to do what he was elected to do. In­stead, the DOJ’s lethargy and the in­de­pen­dent coun­sel’s zeal have him at bay.

I have ar­gued in this col­umn and else­where that a fair read­ing of the Con­sti­tu­tion and a rea­son­able un­der­stand­ing of the sep­a­ra­tion of pow­ers mil­i­tate in fa­vor of the doc­trine of the uni­tary ex­ec­u­tive. That doc­trine, which was well ac­cepted by the Framers, states suc­cinctly that when it comes to the ex­ec­u­tive branch of the fed­eral gov­ern­ment, since only the pres­i­dent is ac­count­able to the vot­ers, only he can run the ex­ec­u­tive branch. The doc­trine fur­ther ar­tic­u­lates that since the con­sent of the gov­erned is the base line for the gov­ern­ment’s moral le­git­i­macy, we should not have agents in the gov­ern­ment to whom the vot­ers have never given con­sent.

Look for a break in the dark clouds soon. An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

IL­LUS­TRA­TION BY

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