Considered opinion: Investigating the presidentOn what grounds can the FBI investigate the president as a counterintelligence threat?
“Let’s stipulate for purposes of argument that Putin has compromising information on Trump, and that the FBI has Trump on tape unambiguously pledging fealty to Putin and promising to serve as his agent in carrying out a number of concrete orders from the Russian president to damage U.S. intelligence operations (for example, by exposing U.S. spies and U.S. intelligence operations),” Harvard Law School’s Jack Glodsmith writes. In this situation, could the FBI seek a FISA warrant premised on the claim that the president was an agent of a foreign power? “The answer based on [my analysis] may be ‘no,’ at least to this extent: the FBI cannot act in a way that is legally premised on second-guessing the president’s national security bona fides. On this view, the FBI can fully investigate Russia’s interference with the 2016 election, including matters involving the president, as it has been doing for a while now. But it cannot cross the line of taking investigative steps premised on the president’s threat to national security. The Constitution leaves crossing that line up to Congress and the American people.”
The New York Times reported on 11 January that the FBI “began investigating whether President Trump had been working on behalf of Russia against American interests” soon after Trump fired FBI Director James Comey in May 2017. In other words, the FBI opened a counterintelligence investigation on the president.
Jack Glodsmith, the Henry L. Shattuck Professor at Harvard Law School – he served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003 — writes in Lawfare that the the Times reported that his friend and former colleague, former FBI General Counsel James Baker, said during testimony to House investigators in October 2018 that “Not only would [firing Comey] be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” The Times paraphrases Baker’s testimony as follows: “If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved.”
Glodsmith writes:
If the story is accurate, then what the FBI did was unprecedented and possibly—I emphasize possibly, since many relevant facts are not included in the Times reporting—an overstep, or at least imprudent. The reason the FBI step might have been imprudent is that it was premised on an inversion of the normal assumptions of Article II of the Constitution.
