Karyn Bartosic

December 7, 2018

All information herein about the office of the Attorney General of the United States was up to date when this magazine went to press on December 7. Due to this, any changes since, which are likely, are not discussed.

The United States’ intelligence community has a good deal of independence from the president and political sway, but that is not to say it goes unchecked; there are several ways by which the intelligence community can be held accountable for its actions. Issues can arise when the intelligence community becomes politicized, the truth becoming warped as it is brought into partisanship and policy fights. Intelligence communities are first and foremost devoted to gathering facts and must be treated as such; the intelligence community should not be used to pander to one party or the other in support of a certain policy, and agencies should not be shamed for supplying facts that don’t fall in line with what politicians would like to hear. Intelligence must already strive to balance providing facts and analysis as accurately as possible, yet also as quickly as possible before the subject becomes irrelevant; it does not need the added obstacle of politicization in its endeavors to protect the country.

Firstly, it is important to dispel the notion that any portion of the intelligence community has free access to any surveillance method they choose; public complaints claiming the government and its various intelligence organizations can do whatever it wants are blatantly false. Institutions have been put in place to ensure that agencies are not overstepping their bounds into citizens’ privacy and are adapting to protect citizens as technology advances.  The directors of the Federal Bureau of Investigation (FBI), for example, have a ten-year term, which helps insulate agency leaders from electoral politics. Although former FBI Director James Comey’s tenure was cut short, which is discussed below, Comey provides an example thereof; he was appointed in 2013 by President Obama, and at the time of his firing had six more years left in office. That tenure would have outlasted President Trump’s first term, keeping the directorship from the political fray. Along with that, there are many legal protections when it comes to the firing of an FBI director and other senior political appointees, mostly necessitating a legitimate reasoning and proof for their firing.[1] These protections help to distance FBI directors from politics in an institutional sense.

This is not to say that there is no operational accountability for the Bureau. The FBI is accountable to several people and institutions: the Attorney General—the head of the Department of Justice—, the president, the Foreign Intelligence Surveillance Court (FISC), Congressional Intelligence committees, press’ leaks to the public, and, the most powerful check, Inspectors General.[2] These actors work in tandem to monitor intelligence actions taken; for example, all intelligence surveillance activities by the FBI must be approved by the FISC, while the Attorney General acts as the main oversight for the FBI. Although the Attorney General is an extension of executive power, the multiagency process affords the FBI a good deal of independence from Executive politics. Attorneys General have, throughout the history of the position, upheld a precedent that although appointed by the President, they work for the people, going against the President’s wishes if they think it to be necessary. Present day you need not but to look at Jeff Sessions’ recusal from the Russia Investigation, an action which incited President Trump’s ire, yet upheld Department norms in his office’s independence from presidential sway.

In terms of individual independence, the distance each official has from presidential and political influence varies greatly. Appointees who do not require a Senate confirmation, for instance, are far more beholden to the president’s wishes and the sways of politics. The general precedent is that the FBI is as apolitical an institution as possible, the president and the FBI director keeping their distance so as to not seem too meddlesome from either view. The staggered appointment of officials like the FBI director and the protections from the firing thereof help to keep separation of powers in place; up until the firing of James Comey there had only ever been one FBI director fired by the president: William Sessions in 1993, due to an ethics scandal. Sessions had reportedly used an FBI plane and limo for personal use and installed a security fence around his home on the government’s dime. Sessions denied wrongdoing and newly inaugurated President Clinton fired him.[3] This obvious legal infraction is in stark contrast with the muddy reasons for Comey’s dismissal.

The Inspector General (IG), currently Michael Horowitz, is an important internal, impartial auditor of the Intelligence community. The IG’s semiannual reports, and any others which he publishes, are of paramount significance to the monitoring of intelligence agencies. A recent example is Horowitz’s report on James Comey regarding his decision to release details pertaining to the Clinton email investigation just before the 2016 presidential election. His impressively thorough report concluded that although Comey’s decision to release the October 28 letter was not politically influenced, it failed to recognize years of Bureau norms and policies. The decision was done in favor of Comey’s self-stated mission of “maximum transparency” between the agency and the public. The largest norm breaches were Comey’s departure from the 60-day norm—that information that has the potential to influence electoral politics not be released to the public within 60 days of the election—and the lack of communication between himself and then AG, Loretta Lynch, about the letter.[4] Although his choice came from a place of apparent good intention—when he took the office he stated his intention for as much transparence with the public as was secure and possible, which from the start was against the Department’s “stay silent” and “take no action” principles[5]—it was not ideal for the image of the neutral Bureau; the possible effects the letter may or may not have had on the 2016 election only add to the mayhem created by a number of other extraordinary factors, especially Russian involvement.

One of the most powerful checks on the Department of Justice (DOJ) power is the legislation outlining the role of a Special Counsel. We have heard a lot about this position since it came to light that there was possible collusion between the Trump campaign and Russia during the 2016 election cycle and Robert Mueller was appointed Special Counsel of an investigation thereof. A Special Counsel is appointed following a recusal of the United States Attorney General, in this case Jeff Sessions, and is granted all the powers of an Attorney General; Mueller cannot therefore create rights or laws.[6] He is there to carry out the investigation at hand. There is consultation with the Attorney General about the jurisdiction and authority of the Special Counsel, but Mueller has a great deal of independence from the president, which gives him the ability to be impartial, especially in a case sensitive to the president, as with the current situation. Previous to the recent resignation of Sessions per Trump’s request[7], Mueller could only be fired by Rod Rosenstein, the Deputy Attorney General; that firing power is highly regulated by the grounds on which a Special Counsel can be removed. Matthew G. Whitaker, the Chief of Staff to Sessions, is now the Acting Attorney General[8], and therefore now has direct oversight of the Mueller investigation.

Sessions, during his time as Attorney General, while following through on many of Trump’s policy wishes, did defend the Mueller investigation several times against Trump’s wishes. This was highly suggestive that Sessions was not beholden to Trump, and quite possibly this lack of loyalty was a driving reason for Trump’s want to urge him out of office. This is a great example of the dilution of a President’s power; he functions through appointees who act of their own volition. There are more concerns now with the appointing of Whitaker and what he might possibly do to the Mueller investigation. As previously mentioned, firing Mueller would almost certainly lead to accusations of obstruction of justice, so it is highly unlikely that Whitaker will fire Mueller. There are, however, other ways in which Whitaker can curtail the investigation. The most likely options would be limiting what information is released both to Congress and the public in Mueller’s final report, a power Whitaker now has as acting Attorney General. Whitaker could also strangle the investigation by cutting the budget. The latter scenario is one that Whitaker has previously proffered, which has led to many officials calling for his own recusal, including both Congressional Democratic leaders, Rep. Nancy Pelosi and Sen. Chuck Schumer.[9] This seems less probable than Sessions’ responsible recusal as Whitaker has proven himself a Trump loyalist. Trump and Whitaker must also tread lightly due to the now Democratic-controlled House, out of which more oversight is likely to emerge come the new Congressional session in January 2019.

The President cannot, therefore, accomplish whatever he wants unless he is willing to accept the consequences of firing the officials who are not doing his bidding. Because of this, generally the more politically savvy a president is, the more of his particular will he is able to accomplish; Trump has evidently not been as successful in this endeavor as have many of his predecessors, choosing instead to simply ignore political norms in favor of his own agenda. It is a general practice that these appointees eschew politics as much as they can, especially those in the intelligence community, whether for self-serving reasons or for upholding their department and its power[10]; for better or for worse, the independence of these appointees serves as an important buffer between presidential will and the policies actually implemented. A Trumpian example of this is Christopher Wray, the former DOJ lawyer who Trump chose to succeed Comey.

Wray’s appointment was a surprise to many, as he was not on the shortlist of candidates Trump released shortly before choosing the new FBI director.[11] In 2004 Wray was the top criminal prosecutor for the government and has had a long and distinguished career, often described as understated and principled.[12] Amidst the current turmoil, many at the time of his nomination feared Wray would not be strong in standing up for justice in the face of Trump, but thus far Wray has proven these skeptics wrong. Since being in office Wray has stood up for the Bureau and well as Mueller, stating a belief in Russian electoral meddling, much to Trump’s ire.[13] Officials like Wray who take their position and duty seriously are prime examples of the built-in checks on the president’s personal ambitions and power.

The Central Intelligence Agency (CIA), particularly recently, has faced a lot of criticism for having too much power and freedom; it does have power, but the agency is still accountable. The CIA exists by statute, as does the FBI, and is beholden mostly to Congress. In its earlier days, notably under the leadership of Allen Dulles, the CIA did have more independence than it maybe should have, but the relationship gave Dulles the power he wanted, and to the president, plausible deniability should anything go wrong. That status quo ended abruptly after the Bay of Pigs invasion. Dulles’ successor gathered what is commonly referred to as the “family jewels”—all the CIA’s secrets it did not, and does not, want the world to know, though some jewels have escaped their lock and key. This led to a thorough investigation of the CIA’s activities, including the jewels, leading to increased oversight of their actions. Restrictions have only increased since the ‘70s; today any proposed covert action must pass through a heavy vetting process; most proposals do not even make it through to proposal to the Congressional Intelligence Committees. There is more legal involvement with US covert operations than in any other country by a wide margin.[14] It is not the case that the CIA is unchecked; it is by nature, and understandably reticent with sharing its knowledge and actions with the public. It is a singularly American outlook which demands such a high level of public accountability for espionage and intelligence agencies. Americans do not like to blindly accept any actions taken by the government, the result of a deep-seated distrust of big government power which harkens back to the United States’ very founding. This cultural norm, while understandable given history, can be detrimental to the efficacy of the intelligence community.

Recent expansion of surveillance powers has come in response to 9/11, arguably the greatest failure of US intelligence to date, though the intelligence community is not entirely to blame. Regardless of fault, 9/11 spurred the USA PATRIOT Act (’01) and the creation of the Department of Homeland Security (’02), both immediate responses necessary to strengthen domestic intelligence action. On September 18, 2001, in Public Law 107-40, Congress authorized the president to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided” the 9/11 attacks.[15] This authorization is the basis for military detentions without trial, targeted killings, and the existence of Guantánamo Bay, among other actions taken by the Bush administration in the wake of 9/11. On the campaign trail, Obama expressed heavy criticism of Bush’s actions, though once he was in office, was not as harsh in reversing Bush-era policies as many expected him to be. Although Obama did close CIA black sites and severely limited approved interrogation tactics, he expanded domestic government surveillance further with the construction of Cyber Command, a 1 million square foot NSA data center at Camp Williams in Utah and left many military black sites active.[16] This is provides evidence of the inescapable truth of intelligence: it is often necessary to take unsavory actions in order to best protect the country. This is at odds with the ideals our nation was founded upon, and this paradoxical tension has existed from Washington’s spy ring to the formation of the OSS to the current-day CIA.

If these institutions have been designed with as many organizational proximity buffers between intelligence and presidential powers as possible, why is it that they are increasingly mentioned and pulled into the political circus? The answer to that lies in the personal proximity between some politicians and intelligence officials and, more importantly, in the power policymakers hold over the intelligence community. Dulles would likely be appalled by how beholden his beloved CIA now is to Congressional authority; during the Vietnam War, even with the lax CIA governing policies of the time, Dulles said he and the agency were put under a lot of pressure to produce analysis reports which fell in line with military goals, rather than a truthfully balanced account of the situation. There is a history of closeness between intelligence leaders and presidents, as was the case with Dulles and all three presidents who were in power during his career in the CIA; this is also seen in the FBI with Hoover during his forty-year tenure as Director of the FBI. Much of this intimacy stemmed from the dynastic nature of politics which was especially a factor in Dulles and his brother’s rise to power—their grandfather and uncle both served as Secretary of State—and the prevalent “old boys’ network”; these tendencies have not completely disappeared but have been significantly less prominent in recent years. The close ties have diminished on a personal level, with the power balance has shifting more and more to Congress. Flaws in intelligence are not the sole reason for failures of the intelligence community, though politicians often allude that this is the case. This is not to say that intelligence is perfect—that is arguably impossible; however, the urge to assume bad intelligence if there is no evidence of direct political manipulation is wrong. Intelligence reports are not created in a political vacuum. The larger issue, quite prevalent today, is the use of intelligence by politicians as a public relations tool, recently shown by the Nunes memo.[17]

On February 2, 2018, Rep. Devin Nunes, a member of the House Intelligence Committee, and his office released a four-page memorandum about early actions taken in the Russia investigation to the public. The report contained misleading information about how the FBI attained warrants used to investigate Trump and his allies. In July 2018 the FBI itself released heavily redacted proof of the completely above-board process through which the Bureau attained the FISA warrant on Trump adviser Carter Page, but the damage had already been done. The Nunes memo is proof of the power Congressional oversight has over the intelligence community; highly classified information is shared with the Congressional committees, but, as proved by Nunes, that does not guarantee the information is kept secret. This memo in particular hurt the credibility of the FBI, adding to the maelstrom of controversy which persists around the Russia investigation.[18] It is proof of how susceptible intelligence is to its watchers, which begs more oversight of the watchers themselves, possible through the voters and others in power who have influence over these watchers.

Nunes’ actions continued the unsavory trend of leaking partisanship and politics into intelligence institutions. With the massive polarization of politics today, the importance of keeping intelligence apolitical cannot be overstated. Decisions on intelligence operations and policies alike are dependent on the analysis that comes from all sectors of the intelligence community and have the capability to affect millions of people. At its core, intelligence is, and always has been, about gathering facts; facts are the impartial truth, and the truth should not and cannot become beholden to partisan politics, warped into whatever is most useful to whomever is in power, else we will be left in a vulnerable state, the side who happens to be in power unwilling to accept truths which do not fit their particular world view. That would be truly devastating.

Faculty Reviewer: Michelle Wier, Graduate Student, Department of Political Science, University of Pittsburgh

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[1] Jack Goldsmith, “Independence and Accountability at the Department of Justice”, Lawfare, January 30, 2018, accessed October 14, 2018, https://www.lawfareblog.com/independence-and-accountability-department-justice.

[2] Goldsmith, “Independence and Accountability at the Department of Justice”, 2018.

[3] “How independent is the FBI?”, The Economist, July 13, 2017, accessed October 12, 2018, https://www.economist.com/the-economist-explains/2017/07/13/how-independent-is-the-fbi.

    Blair Shiff, “Why President Clinton Fired Then-FBI Director William Sessions in July 1993”, ABC News, May 10, 2017, accessed October 13, 2018, //abcnews.go.com/Politics/president-clinton-fired-fbi-director-william-sessions-july/story?id=47323746.

[4] Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Michael Horowitz, Oversight and Review Division 18-04, Washington D.C.: DOJ, 2018, https://www.justice.gov/file/1071991/download (accessed October 14, 2018).

[5] Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election, Michael Horowitz.

[6] “General Powers of a Special Counsel,” Code of Federal Regulations Title 28 (1999): 600, https://www.ecfr.gov/cgi-bin/text-idx?SID=0e24bfbab3a1e7c0f005d2d0bda65b08&mc=true&node=pt28.2.600&rgn=div5.

    Goldsmith, “Independence and Accountability at the Department of Justice”, 2018.

[7] United States of America, Department of Justice, Office of the Attorney General, Letter of Resignation, by Jefferson B. Sessions, III, November 07, 2018, accessed November 07, 2018, https://www.scribd.com/document/392616751/Jeff-Sessions-resigns-at-attorney-general#download&from_embed.

[8] Trump, Donald J., Twitter Post, November 07, 2018, 11:44 AM, https://twitter.com/realDonaldTrump/status/1060256619383193601.

[9] Clare Foran, “Democrats Warn against Mueller Probe Interference after Sessions’ Firing,” CNN, November 07, 2018, accessed November 07, 2018. https://www.cnn.com/2018/11/07/politics/sessions-trump-mueller-schumer/index.html

[10] Goldsmith, “Independence and Accountability at the Department of Justice”, 2018.

[11] Dylan Scott, “Your Guide to President Trump’s FBI Director Shortlist,” Vox, May 15, 2017, accessed October 23, 2018, https://www.vox.com/policy-and-politics/2017/5/15/15642308/trump-fbi-short-list.

[12] Adam Goldman and Matt Apuzzo, “Who Is Christopher Wray? Trump’s F.B.I. Pick Is Said to be Low-Key and Principled,” The New York Times, June 07, 2017, accessed October 23, 2018, https://www.nytimes.com/2017/06/07/us/politics/christopher-wray-bio.html.

    Gretchen Frazee, “Who Is Christopher Wray, Trump’s Pick for FBI Director,” PBS, July 12, 2017, accessed October 23, 2018, https://www.pbs.org/newshour/politics/christopher-wray-trumps-pick-fbi-director.

[13] Jessica Taylor, “Christopher Wray Confirmed as Next FBI Director,” NPR, August 01, 2017, accessed October 12, 2018, https://www.npr.org/2017/08/01/540957441/christopher-wray-confirmed-as-next-fbi-director.

    Carol E. Lee, Nicolle Wallace, and Kristen Welker, “Christopher Wray Becomes the Latest Target of Trump’s Ire,” NBC News, September 04, 2018, accessed October 23, 2018, https://www.nbcnews.com/politics/donald-trump/christopher-wray-becomes-latest-target-trump-s-ire-n906326.

[14] Jack L. Goldsmith, Power and Constraint: The Accountable Presidency after 9/11. (New York: W.W. Norton & Company, 2012), 83-95.

[15] Goldsmith, Power and Constraint: The Accountable Presidency after 9/11, 2012, 5.
    Joint resolution to authorize the use of United States Armed Forces against those responsible for the recent attacks launched against the United States. Public Law 107-40. U.S. Statutes at Large 115 (2001): 224-225.

[16] Goldsmith, Power and Constraint: The Accountable Presidency after 9/11, 2012, 16-17.

[17] Joshua Rovner, Fixing the Facts: National Security and the Politics of Intelligence (Ithaca, United States: Cornell University Press), 8-13, 185-187.

[18] David Kris, “The Irony of the Nunes Memo,” Lawfare, March 01, 2018, accessed October 14, 2018, https://www.lawfareblog.com/irony-nunes-memo.