Stephen Gottlieb: The Nunes Memo And Trump’s Disloyalty

Feb 6, 2018

I prepared something else to talk about today but find myself furious about the misuse of the Constitution to prevent getting at the truth. Trump, and his supporters, are attacking the Mueller investigation into ties between the Trump campaign and Russia. The Nunes memo, written by congressional Republicans, is part of that attack. It says that, though well after the investigation began, a former member of British intelligence who had ties to the Clinton campaign, transmitted information which was included in a request for a warrant from the Foreign Intelligence Surveillance Act court, the FISA court. Based on the Nunes memo, Trump and his supporters claim that the investigation is tainted.[i]

Members of the FISA court are all appointed by the Chief Justice of the U.S. Supreme Court. Since 2005, that’s been Chief Justice John Roberts, a Republican, Bush appointee. The Court found the papers sufficient and renewed the warrants.

But the Nunes memo and use of a source sympathetic to Clinton, are being used as part of a campaign to thwart the investigation and dump those who run it. No Democratic hands allowed. Most Republican commentary about the memo claim it proves that the FBI, and the Russia investigations conducted by the special counsel, are tainted by bias against Trump.

First, it is unacceptable for Trump or his supporters to insist that the FBI must decide whether to investigate based on whether the informants are Republicans or Democrats, supporters or critics of Mr. Trump, and forego finding out whether the information is or can be corroborated. Playing politics with policing that way violates the Constitution.

That’s the way police function in dictatorships. Are you for me or against me? If you’re against me, your knowledge and opinions don’t count and can’t be trusted. We alone count and we’re pure. The very idea of a loyal opposition is crucial to the survival of democracy. But it’s anathema to Trump Republicans.

So Trump’s release and use of Nunes’ memo is the best and most important reason to consider impeaching him. He lacks loyalty to democracy; instead, his power trumps all else. This man is the greatest danger to the values on which our country was founded. The fact that he was apparently born in the U.S., as he claims, only makes his disloyalty worse.

Second, a large part of the information gathered by any police organization comes from people who are in some way connected or involved. To exclude information by such informants would cripple policing. To rely only on information from one side of a dispute or the other threatens justice, as does refusing to investigate. Motives deserve consideration and were disclosed to the FISA Court, but the ultimate question is whether the information can be corroborated and is correct. To follow the Nunes approach would undermine the ability of American police to enforce the law, impartially, so that no one is above the law.

The FBI historically was a conservative organization. A succession of presidents insisted that it rise above politics and investigate crimes without regard to politics. Trump is the first president to insist that the FBI should begin with a political test – a political test for employees and a political test for informants. This president has no respect for constitutional norms. These too are grounds which deserve to be considered for impeachment.

Steve Gottlieb’s latest book is Unfit for Democracy: The Roberts Court and The Breakdown of American Politics. He is the Jay and Ruth Caplan Distinguished Professor Emeritus at Albany Law School, served on the New York Civil Liberties Union board, on the New York Advisory Committee to the U.S. Civil Rights Commission, and as a US Peace Corps Volunteer in Iran. 

[i] The Democratic response has not been released by the House Intelligence Committee but a Democratic statement of objections can be found here.

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