The uproar over a shabbily written House Republican Committee memorandum, fiercely contested by the Democrats and by the nation’s intelligence agencies but released with the eager assent of Donald Trump, reminds me of a cordial friendship. It was with Griffin Bell, a genial Georgian who came to Washington in 1977 as Jimmy Carter’s attorney general. He and I had worked together on a scholarship committee before either of us landed unexpectedly in the capital, he as Carter’s top legal official, I as a newspaper editor.
Our one salient disagreement was over Bell’s plan to create a federal court to oversee foreign intelligence. He was aware that it occasionally infringed the privacy of innocent citizens and hoped his new tribunal would regularize, in law, the wild world its occasional errors created. My newspaper, the Star, opposed the idea; we argued that it was a mistake to contaminate law with licenses to snoop and eavesdrop and our counter-argument was perhaps naive. We debated the issue in a friendly personal way when Bell treated his friends, including yours truly, to game luncheons at the Justice Department. His view prevailed. Bell’s creature, so to call it, is now universally known as FISA, and every alert newspaper reader now has heard of it.
Not long before my Washington rendezvous with Bell, the astute Columbia University historian Richard Hofstadter coined a term: “The paranoid style in American politics.” The 1964 Johnson-Goldwater contest that prompted the coinage was indeed characterized by Goldwater’s weird utterances, and his complaint that Johnson was using presidential intelligence resources to spy on him – a charge neither confirmed nor refuted but characteristic of the poisonous suspicions of the Cold War era.
The fuss over the House GOP memo renews the same warfare. There is reason to wonder whether the FISA court is as vigilant and impartial as Bell hoped it would be. FISA court appointments have all along had a Republican flavor; and it has functioned as a rubber stamp for the intelligence agencies, approving more than 99 percent of all warrant applications. Permissiveness tends to undermine its credibility, but its decisions do stamp so-called “foreign” intelligence with the color of legality. Griffin Bell, in fostering it, drew on his personal experience as a respected fifth circuit judge. And no one could then – the mid-1970s – have foreseen that its work would be vitiated by the 9/11 attack on the World Trade Center and reactive and intrusive congressional legislation.
Still, the Republican claim that the FBI affidavits targeting a minor Trump campaign operative pushed this conservative tribunal into Hillary Clinton’s campaign corner is absurd on its face – if only because James Comey as FBI director damaged Clinton’s campaign at the eleventh hour by a sudden resurrection of the tired issue of her emails, mere days before the 2016 election.
The other contention of the House Intelligence Committee majority is also dubious – that the FBI incorporated tainted matter in a warrant application. The allegedly tainted matter is a notorious “dossier” on the “Russian connection” of Trump’s campaign, compiled by a respected British intelligence agent. So far as is known, however, Christopher Steele’s memo, if financed by Democratic sources, is not inaccurate. But even if it were a tissue of fabrications, that defect would not necessarily delegitimize a warrant application. Applicants for surveillance warrants are at liberty to press any arguments they please. It is the sovereign burden of judges and magistrates to enforce Fourth Amendment protections against “unreasonable searches” and safeguard the public against monkey business.
The possible criminality of the Trump-Russia involvement is presumably at the heart of Robert Mueller’s special counsel investigation. Trump’s obsession with the issue, and his repeated disparagement of Mueller, signal that he has something big to hide, whether or not of impeachable gravity time will tell. The chatterboxes of the cable TV channels, with their constant speculation, casually echo technical terms of law – “obstruction of justice” is the favorite – but seem oblivious of the distinction between what is unlawful and what is merely reckless and foolish.
Donald Trump’s connivance in the release of the sloppy work of House Intelligence Committee staff jeopardizes sensitive sources and methods and subverts customary national security practices. That is the striking feature of this partisan exercise so far – but wholly consistent with Trump’s monumental and dangerous egotism.
Edwin M. Yoder Jr. of Chapel Hill, the former editorial page editor for the Washington Star and a winner of the Pulitzer Prize for Editorial Writing, is a contributing columnist.