When such a firmly established American institution of justice as the FBI falls under attack by prominent members of the “law and order” party, it should be clear to everyone that something is amiss.
But this is precisely what happened in early February when House Republicans approved the release of the so-called Nunes Memo, a four-page document alleging a pattern of political bias in the FBI’s inquiry into Trump’s Russia ties. The memo, drafted by Republicans on the House Intelligence Committee and enthusiastically endorsed by President Trump, drew criticism from both Congressional Democrats and the FBI itself. The Bureau, normally reticent in political scandals, released a rare public statement condemning the document for “material omissions of fact.” Legal and intelligence experts mostly agree that the memo does little to substantively discredit the inquiry. But many conservatives have rejoiced at the document’s release, claiming it legitimizes their fears that political forces in the Bureau have been seeking to systematically undermine President Trump.
The incident reflected a growing national concern that the credibility and integrity of the FBI were increasingly vulnerable to politically motivated attacks. Trump and his Republican allies, seeking to insulate the President’s reputation from the ongoing Russia inquiry, have increasingly indulged in such attacks over recent months. Many observers have noted that for Republicans, historically staunch supporters of the FBI and law enforcement generally, this is a stunning reversal.
But recent partisan attacks on the FBI are only a new chapter of the larger timeline of Trump’s efforts to tighten his influence over the agency. From demanding loyalty of his former FBI director (and subsequently firing him) to nearly firing the special counsel in charge of the Russia investigation (and nearly sparking a Constitutional crisis), Trump has demonstrated a mounting frustration with his inability to control the FBI and a clear disregard for institutional norms that separate the office of the President from the Justice Department. His willingness to publicly attack the Bureau’s credibility is the latest escalation of this worrisome attitude. And recent cheers from conservatives show that the actions of the House Republicans who supported release of the Nunes memo have succeeded in granting a measure of public legitimacy to Trump’s efforts. Congress is dumping fuel on a political fire that started at the White House almost a year ago, and it can only get hotter.
There are good reasons that the FBI and the White House are traditionally separate. Steven Levitsky and Daniel Ziblatt explain this well in How Democracies Die (2018) when they remark that “In democracies, such institutions are designed to serve as neutral arbiters. . .[So long as] they remain independent, they [can] expose and punish government abuse.” Law enforcement agencies like the FBI, they say, function like “referees” for democratic systems by ensuring that all political players, regardless of their partisanship, follow the same rules. If Trump wants to avoid answering to the referees, it’s clear he believes the rules don’t apply to him.
And as Ozan Varol (2015) points out, selective enforcement of the law is a hallmark of authoritarian regimes seeking to consolidate political power while maintaining a veneer of democratic legitimacy. Such practices typically involve the systematic harassment and suppression of dissidents and political opponents. And given Trump’s pattern of disturbing comments on his political enemies, it is not unreasonable to think that his repeated advances against the FBI may lead to such effects if successful.
This is not to say, though, that anyone who criticizes the FBI is a threat to democracy. What makes House Republicans’ actions so dangerous is that they seem almost tailor-made to aid in Trump’s conquest of the FBI. In undermining the the FBI’s credibility in such a politically charged context, House Republicans effectively granted an endorsement to Trump’s own attacks on the Bureau. As conservative commentator William Kristol lamented, the memo’s release showed that “conspiracy theorizing” about sinister political forces in the Justice Department now extends to “top people” whose voices have a real effect. House Republicans’ disregard for both the public credibility of the Bureau and the basic facts of the case here show that when it really matters, they’re willing to defer to the President above all else. This should worry anyone who values the rule of law and the independence of law enforcement.
It is important to recognize the dangers of the escalation of threats to the FBI’s integrity. As Nancy Bermeo (2016) demonstrates, democracies today rarely break down into authoritarian regimes in one fell swoop. Instead, it takes the accumulation of gradual changes over time. In this case, that means the gradual intensification of efforts to undermine the integrity of law enforcement on Trump’s behalf. The pattern of events points towards a growing threat of what Bermeo calls executive aggrandizement: “The disassembling of institutions that might challenge the executive. . .done through legal channels.” The actions of Trump and Congress, though breaking with important norms, have all so far been perfectly legal. But that doesn’t mean they aren’t dangerous to democracy.
Yes, Trump’s attacks on the FBI have failed in the past. But Congressional attacks on the Bureau’s integrity may just give Trump the political push he needs to assert control over the FBI in earnest. Recent cases of executive aggrandizement show we should be especially careful of how lawmakers handle executives who violate the unwritten rules of democratic government. In Turkey, analysts have noted that President Recep Tayyip Erdoğan’s efforts to expand his executive power were greatly aided by the strong support of his Justice and Development Party (APK) in the Turkish Parliament. Once in power, the APK enabled Erdoğan to enact hundreds of laws undermining the power of the media, law enforcement, and the judiciary to check the power of the President. It’s clear we aren’t quite at this point yet. But Turkey’s example shows that whenever members of a legislature grant sanction to an executive’s antidemocratic ambitions, we ought to be worried.
Is the FBI in any real danger? The facts that the Bureau is such an established institution and that many Republican voices have spoken out against recent attacks ought to give us some hope. Recent scholarship, however, suggests we ought to be more worried. Aziz Huq and Tom Ginsburg (2018) emphasize that the independence of federal bureaucracies like the FBI, relying more on norms and precedent than on law, is really fairly vulnerable to political pressure. Trump has demonstrated that he is more than willing to break these fragile norms. And the President’s past willingness to cripple federal agencies to advance his personal agenda, most notably the State Department and EPA, should amplify our concerns about his actions towards the FBI.
With the Republicans in control of the House and Senate, the fate of the FBI and Mueller investigation is largely up to them if Trump begins to take more aggressive steps. But their recent withdrawal from legislative efforts to protect the Special Counsel should make us especially skeptical that they would be of much help. If there’s one key takeaway from the events of this past year, it’s this: for a growing number of Republicans, when it comes to the law, the buck stops with Trump. Trump, not so surprisingly, seems to agree.
Image: Washington DC FBI J. Edgar Hoover Building Brunswyk (2012). Edgar Hoover Building Brunswyk (2012) retouched.jpg. Authorized for noncommercial use under Creative Commons 3.0. From Wikimedia Commons.