Trump-Russia, and the rule of law

Recently, I took part in a debate on the question “Does the Russia investigation endanger the rule of law?” I said yes.

First, a caveat. If “endanger the rule of law” means “destroys our legal order and threatens our democracy,” then no, I don’t think the Trump-Russia investigation does that. But if it means “involves our nation’s most powerful law enforcement and intelligence agencies in reckless political conduct that undermines our system of elections and the orderly transfer of power,” then yes, the Trump-Russia investigation does, in fact, endanger the rule of law.

Two incidents from 2016 and early 2017 point to the danger posed by overzealous Trump-Russia investigators.

The first is that the Justice Department used the Logan Act, which bars private Americans from conducting foreign policy, as a pretense to pursue an investigation against Trump.

The Logan Act was passed in 1799 and has never been used to successfully prosecute anybody. No one has even tried since the 19th century. It is, by any practical measure, dead — look up the legal concept of “desuetude.”

And yet, in the summer of 2016, some prominent Democrats began accusing Trump of violating the Logan Act. They said he broke the law by sarcastically encouraging Russia to release Hillary Clinton’s famous deleted emails.

Then, after Trump’s victory, stunned and angry Democrats watched him prepare for the presidency — and prepare to undo Barack Obama’s policies.

Unbeknownst to the public, the Obama Justice Department was using the Logan Act as a pretext to take action against the incoming administration.

When intelligence intercepts picked up Michael Flynn, the incoming national security adviser, talking to the Russian ambassador in late December, the Obama Justice Department saw that as a possible violation of the Logan Act. Sally Yates, the Obama holdover leading the Justice Department, sent agents to the White House to question Flynn on the suspicion that he might have violated the Logan Act.

It was that interview that ultimately resulted in Flynn pleading guilty to one count of lying to the FBI.

The Flynn saga, which is at the heart of the Trump-Russia investigation, appears to have hinged on a trumped-up suspicion that a new administration had broken a centuries-old law that has never been prosecuted before — when, in fact, the new administration’s real transgression was to make clear it would throw away many of its predecessor’s policies.

The second incident that suggests the Trump investigation threatens the rule of law is the FBI’s use of the Trump dossier — a Clinton campaign opposition research product — as a part of its counterintelligence investigation into the Trump campaign.

To compile the dossier, a Democratic law firm hired the opposition research group Fusion GPS, which hired a former British spy named Christopher Steele, who paid a number of Russian “collectors,” who then talked to other Russians, who provided gossip about Trump. The most spectacular gossip is the dossier’s description of Trump, in a Moscow hotel room in 2013, watching as prostitutes played out a kinky sex scene.

Steele took his material to the FBI, and the bureau agreed to pay Steele to keep gathering dirt on Trump — an astonishing development in the midst of a presidential election.

Now fast-forward to the transition. In early January 2017, intelligence chiefs James Comey, John Brennan, Mike Rogers and James Clapper traveled to Trump Tower to brief the president-elect on Russian efforts to interfere with the 2016 campaign.

After the briefing, by a plan they had devised earlier, three of them left the room, leaving Comey alone with Trump. Comey gave Trump a summary of the dossier, including the Moscow sex scene.

In their new book “Russian Roulette,” authors Michael Isikoff and David Corn report Trump thought the FBI was blackmailing him:

With the Logan Act, Obama holdovers used a dead law as a pretense to push the Trump investigation. With the dossier, they used unverified opposition research not only to investigate the Trump campaign, but to execute a clever maneuver to make the dirt public.

And this was all done by the nation’s top law enforcement and intelligence officials, targeting a new president. So yes, it is reasonable to say the Trump-Russia investigation endangers the rule of law.