Trump Calls for Congressional Investigation of his Administration-in-Waiting

On Friday, President-elect Donald Trump tweeted:  “I am asking the chairs of the House and Senate committees to investigate top secret intelligence shared with NBC prior to me seeing it.”  It is probably not a good standard operating procedure to allow every Trump tweet to become Helen of Troy to analysts’ thousand-ship launch.  But this tweet is astonishing as a matter of separation of powers, institutional function, and historical precedent.

Trump’s tweet was part of a tweetstorm prompted by road-blocked media coverage of Russian election interference generated by the related Senate hearing, Intelligence Community briefings of Trump and President Barack Obama, and Intelligence Community’s public release of its findings.  It responds specifically to his assumption that NBC and The Washington Post received access to a classified version of the Intelligence Community report providing evidentiary source material.  It is unclear who provided access to classified material, if indeed that happened.  We do not know whether the classified report was actually leaked, and if so whether it came from the intelligence community, executive branch political appointees, or a congressional source.  The NBC article cites a “senior U.S. Intelligence official with direct knowledge” as someone who “confirmed” certain details about the unreleased report.  That language suggests the unnamed intelligence source was not the initial leaker.  The same article cites a “senior congressional staffer…who had been briefed on the classified report” for information about the timing of the public report’s release as well as confidence in the classified evidence.  Press Secretary Josh Earnest denied White House involvement in the leak to NBC.

On one hand, this is classic Trump.  He is doubling down on his attack on the intelligence community by means of the leak.  He hopes this jiu jitsu will allow him to go on offense on the Russia story.  It also allows him to go after the Obama administration and NBC in one package.

On the other hand, a President-elect calling for a congressional investigation of a classified leak is bizarre on a number of levels. 

First, and most important, if this is an investigation into a criminal matter it should be handled by law enforcement.  Congressional investigative power flows from its legislative power in the service of policy, not as a means of enforcing classification restrictions.  If the President-elect suspects FBI or DOJ personnel could be involved in the leak, then he could get other FBI components to lead, tap another federal law enforcement agency, convene a task force, or refer the matter to the inspectors general community.

Second, if he seeks to settle scores with Obama political appointees by means of Congress, he would largely break with a tradition of comity across successive administrations.  I can’t think of any precedent for a subsequent administration to investigate a leak during the prior administration.  Usually bygones are bygones because there is a lot of political expectation that the new president will exercise power to solve present problems rather than settle older accounts.  President Gerald Ford’s pardon of former President Richard Nixon and the Obama administration’s light touch as to torture allegations arising out of President George W. Bush’s term suggest there is a premium on current challenges and prospective policy.

Third, inviting a congressional investigation will make it very difficult to raise longstanding executive branch interests that could weaken the Trump administration’s position in other contexts.  This investigation would likely implicate deliberative processes, intelligence sources and methods, foreign intelligence liaison information, presidential communications, and other very sensitive information.  I would hazard to guess that some career staff at the Office of Legal Counsel went into this weekend with great heartburn over that tweet.

Fourth, this will continue to antagonize subject matter experts on whom Trump will need to rely to execute his policy program.  He’s already sent dismissive signals to the professional staffs at a number of agencies.  Turning Congress loose on them will exacerbate that emerging dynamic.

Fifth, unlike an FBI-led criminal probe, the Democrats on the House and Senate intelligence committees would be read into the investigation all along the way.  This would be a lot of grist for the partisan mill.  As a practical matter, he would lose control of the investigation and message.  I favor a bipartisan 9/11 commission approach to the legislative branch investigation of Russian election interference because it would have the benefit of insulating the probe, to a degree, from unnecessary partisanship.  Trump’s approach would assuredly further enflame the partisan divide.

Did Trump propose congressional referral on purpose because he is suspicious of the FBI and DOJ?  Does he not understand how this should be handled?  Is he getting bad advice?  Of course, it could just be bluster.  During the campaign, Trump threatened litigation against critics and adversaries at least 22 times without follow through.

So far, neither the chair of the House Permanent Select Committee on Intelligence, Rep. Devin Nunes (R-Calif.) nor chair of the Senate Select Committee on Intelligence, Sen. Richard Burr (R-N.C.) appear to have responded to Trump’s suggested referral.  Nunes has issued a statement generally accepting the intelligence community’s findings on Russian election interference (subject to a few digs at the Obama administration).  The tone of his December letter on the daylight between the FBI and CIA as to Russian motives suggests to me that he might honor a request from Trump to begin a congressional investigation into the leak to NBC.  Ranking Member Adam Schiff (D-Calif.) blasted Trump in response: “Of all issues implicated by Russian active measures, this is what you want to investigate?  This is your top priority for intel committees?”

Imagine if Presidents Harry Truman and Dwight Eisenhower had collaborated with Sen. Joseph McCarthy’s investigation of alleged communists in the State Department and Army.  Instead, they both loathed McCarthy’s tactics.  See Truman’s 1950 speech here and Eisenhower’s 1954 letter here.  Perhaps Trump’s tweet is a flash in the pan.  But Congress just revived a pre-civil service rule allowing Congress to reduce a targeted individual federal employee’s salary to one dollar.  Together with Trump’s request for a congressional investigation of his administration, we may witness a new form of triangulation: Trump and allies in Congress versus federal civil servants.   

Image: “An uncomfortable situation,” by Cy Hungerford, Pittsburgh Post-Gazette, Dec. 3, 1953, showing Joseph McCarthy, with pen in ink well, looking at President Dwight Eisenhower, Library of Congress

 

About the Author(s)

Andy Wright

Professor at Savannah Law School, Former Associate Counsel to the President in the White House Counsel’s Office Follow him on Twitter (@AndyMcCanse).