Into the hands of certain fellow citizens we place a special trust to act on our behalf as government and elected officials. We trust them not to trample upon our basic freedoms and our inalienable rights — but trust can never be naive, and so the Founders of this country wisely placed important constraints on government actors.
These constraints are concentrated in the Bill of Rights, the first 10 amendments to the U.S. Constitution. They are history’s greatest aggregation of words written to protect the weak from the strong.
Within the Bill of Rights, the Fourth, Fifth and Sixth Amendments place particular restrictions on the government’s ability to investigate an individual and charge a crime. They were designed to remove the temptation to use the power of government out of curiosity, or differing ideologies, or revenge, or some other caprice.
In other words, the government has no hunting license. It may not proceed with all of its power just to see what it can find. These amendments demand an articulation of just cause, based on established law, before the government can investigate and charge, arrest, seize, convict and imprison.
In addition, implicit in these amendments is that when the government cannot meet the thresholds required in order to take action, it must remain silent. The reasoning is sound: Mere suspicion should not lead to reputational damage if the government cannot clear the high bar needed to charge wrongdoing. This is why the FBI habitually does not confirm or deny the existence of any investigation until public charges are filed. It is to protect the potentially innocent from unjust stigma.
When the government is not able to use its powers legally, it cannot then become a bully, out of seeming frustration, to intimidate the uncharged or to sway public opinion. Sadly, we’re seeing increasing examples of such tactics.
On July 5, 2016, then-FBI Director James Comey ascribed to himself certain authorities he did not possess and held a press conference to publicly decline the charging and prosecution of presidential candidate Hillary Clinton for mishandling classified information.
But he didn’t stop there. He then recited a litany of things he believed she had done wrong. Without charging her, Comey had no right — while acting in his official capacity — to publicly disparage her, whether what he was saying was true or not. It was government abuse of an American citizen.
On March 20, 2017, continuing his inability to remain appropriately silent, Comey took the unprecedented step of publicly disclosing, during congressional testimony, the FBI’s counterintelligence investigation of Donald Trump’s presidential campaign.
Never before had an FBI director taken such a step to endanger the reputations of American citizens who, at that point, were merely under suspicion and, by Comey’s own admission, weak suspicion at that. He claimed an exception to FBI policy because of his imagined right of the American people to know.
In fact, his action was inimical to the constitutional interests and protections of the American people. It was an abuse of government authority and a cynical attempt to strong-arm a sitting president into not firing him lest the president look like he was obstructing a now publicly disclosed investigation into his activities.
Comey was fired anyway — appropriately so, for his recklessness — but not before smearing many on suspicions of conspiratorial activities for which the subsequent Mueller report found no evidence.
When his original strategy failed, Comey broke his oath of office and leaked FBI records to the press in order to, as he admitted, create a need for a special counsel investigation.
And so we had a special counsel appointed, prompted by the illicit act of a government official and armed with marching orders in an authorizing memo to look for “links and coordination” between the Trump campaign and the Russian government.
This, on its face, did not meet the constitutional prerequisites for a government investigation into American citizens. There was no articulation of reasonable factors that U.S. citizens were acting on behalf of a foreign power. Special counsel Robert Mueller seemingly was empowered to hunt for possible national security dangers or criminal violations without adequate reason to do so.
The hunt, predictably, came up empty. Some Americans were criminally charged for unrelated violations or process violations that sprang as fruit from a provably dead tree. The special counsel report and Mueller’s curious press conference last week did nothing to diminish concerns of government overreach. In fact, it brought to mind the ill-advised Comey press conference of nearly three years ago.
The report raised concerns about possible obstruction of the FBI and special counsel’s efforts by the president. Mueller offered an ultra-lawyerly explanation of his non-action — but the bottom line, familiar to all federal investigators, was that the prosecutor declined to prosecute on obstruction of justice.
Had the report stopped upon that conclusion, all would be fine. Instead, it enumerated words and actions by the president or his surrogates that the special counsel’s office thought were suspicious. But if the special counsel was unwilling to “determine whether the President did commit a crime,” and charge him, then silence is in order. Proceeding to publicly identify the uncharged activities is little more than gossip. We do not have a Department of Gossip in the U.S. government.
Nor is it appropriate to list those uncharged activities as a means to telegraph to Congress possible impeachment grounds, as Mueller seemed to imply. The attorney general rightly has pointed out that it is not the duty or right of the Department of Justice (DOJ), as a separate branch of government, to act as an adjunct to or extension of Congress’s oversight responsibilities.
And so, it is not the prerogative of the FBI, or the special counsel, or the DOJ to promulgate information damaging to someone’s reputation because they are frustrated that they cannot charge a crime. This applies whether it’s Mr. Trump, or Mrs. Clinton, or Harry your odd neighbor.
We should strive to hold dear the values and protections wisely codified by our nation’s founders. The past three years have seen an intensive attack on those values for nakedly partisan political considerations. When political drivers overwhelm the law, then the government turns into a bully. And a bully can turn around on anyone.
Kevin R. Brock, former assistant director of intelligence for the FBI, was an FBI special agent for 24 years and principal deputy director of the National Counterterrorism Center (NCTC). He is a founder and principal of NewStreet Global Solutions, LLC.