At 6:35 a.m. on March 4, President Donald Trump
launched an attack against the government of the United States. Deploying his favorite weapon, Twitter, he wrote, "Terrible! Just found
out that Obama had my 'wires tapped' in Trump Tower just before the
victory. Nothing found. This is McCarthyism!"
In fewer than 140 characters, he accused a former President of an
impeachable offense, suggested that Justice Department agents might have
engaged in a felony and gestured at the possibility that federal judges
enabled a political outrage.
He
wasn't finished.
Over the next half hour--as Trump's staff, left behind
in Washington, began waking up and unlocking their phones to discover
what the boss was up to down at Mar-a-Lago--the President added two more
tweets suggesting that Obama and federal investigators had broken the
law and should be prosecuted. He capped his indictment with a fourth
blurt, comparing the allegation with the worst political crisis of his
70-year lifetime. "How low has President Obama gone to tapp [sic] my
phones during the very sacred election process. This is Nixon/Watergate.
Bad (or sick) guy!"
Trump
was right that the government now faces a test of historic dimensions.
The FBI is probing a plot by Russia to subvert the core exercise of
American democracy in the 2016 presidential election. Revelations of
contacts between Trump aides and Russian officials have forced the
resignation of the President's National Security Adviser, Michael Flynn,
and the recusal of his Attorney General, Jeff Sessions. This probe,
which may or may not have involved court-approved surveillance, has
unleashed an orgy of political exploitation, resulting in a crisis of
confidence in the government's ability to play by the rules.
Illustration by Tim O’Brien for TIME
But
no matter what he tweets from his Palm Beach Xanadu, Trump is more
author than victim of this crisis.
Neither he nor his White House staff
provided any evidence for his extraordinary accusations against what
some of them call a "deep state." Obama denied Trump's assertions, and
was soon joined by former Director of National Intelligence James
Clapper and, via intermediaries, FBI Director James Comey.
Trump is
rallying his political base against the federal agencies he oversees,
thus partnering his presidency with a radical fringe. Win or lose, the
standoff he has engineered will diminish the credibility of the
government.
Approaching
the halfway point of his first 100 days, this has become a defining
aspect of Trump’s presidency.
His latest Twitter attack, like other
actions before it, targeted institutions that stand in his path to what
aides say is a larger political purpose: undoing much of what government
has become over the past century.
Few, if any, Presidents have paid so
little deference to the chief executives and legislators who came before
them. The extent of Trump’s battle plan remains unclear. But at a
recent gathering of conservative activists in Washington, Trump’s top
strategist, Stephen Bannon, said the goal was the “deconstruction” of
the administrative state. “The progressives for the last 100 years have
set up really a fourth branch of government,” he tells TIME. “So the
deconstruction of that is really a massive project.”
It's
ambitious talk, and difficult to compress into even a storm of tweets.
Trump's results so far are mixed.
He has embraced a budget that would
slash nondefense government-agency spending by $54 billion.
He has
delayed, suspended or reversed 90 regulations imposing government
controls on everything from Wall Street to telecoms to hunters,
according to an analysis by the New York Times. He has frozen federal
hiring, and his allies on Capitol Hill have proposed reducing federal
employees' pensions.
He says many of the nearly 2,000 open executive
federal positions might be "unnecessary."
On
the other hand, Trump has promised to preserve and even bolster many of
the federal government's largest programs, such as Social Security,
Medicare and the Pentagon, to name a colossal three.
His immigration
policies are a federal overreach in the eyes of some traditional
antigovernment conservatives.
And his comments on health care policy
suggest he will be happy to sign a bill that leaves Washington neck-deep
in the middle of America's largest industry.
It
can be difficult to separate his program from his petulance, for
nothing moves the mercurial Trump like hearing the word no. When federal
courts blocked his Executive Order banning refugees and travelers from
seven mostly Muslim countries, Trump attacked.
He said the "so-called"
judge's opinion was "ridiculous" and the federal judiciary "political."
The tantrum moved Trump's own Supreme Court nominee, U.S. Circuit Court
Judge Neil Gorsuch, to criticize the President's rhetoric. Trump's
Twitter backlashes have been interpreted as judo moves against elite
power, or a CEO's frustration that government can't work like a
business.
Yet his senior aides say that every attack feeds into the same
Trump strategy to shrink the federal government. It's nothing personal,
Bannon says. “He’s not doing that because he wants to disrupt the lives
of bureaucrats,” he says. “It’s just the natural process of how one
looks to dismantle part of a massive bureaucracy.”
At
the same time, a senior official says Trump's Twitter rants are
tactical moves designed to build his political strength by going around
the media to marshal his supporters.
And nothing marshals his supporters
like seeing him on the attack against political elites.
Strategy
and tactics aside, though, this is playing with fire.
Where does the
so-called deep state or administrative state end, and our beloved
228-year-old constitutional republic begin? Who will ultimately have a
say in drawing that line, apart from Trump?
When the President's
advisers talk about a century of government action, they are covering a
tremendous amount of ground, ranging from the National Park System to
the federal rule that requires disclosure of diced or dried onions in
onion rings.
So
far in his young presidency, Trump has attacked his predecessor, the
judicial branch, military commanders (they were to blame for the recent
combat death of a Navy SEAL, Trump said), the intelligence agencies and
the legacy of a century of legislative actions, executive decisions and
court rulings. And he is only getting started, the senior White House
official says.
There
was a time when the kind of domestic spying abuse that Trump charged
against Obama was widespread. During the Kennedy, Johnson and Nixon
administrations the FBI, CIA and NSA all used lawless investigative
techniques to collect and pass along political intelligence to the White
House. Robert Kennedy's Justice Department received wiretap information
on Martin Luther King Jr., while Richard Nixon "authorized a program of
wiretaps which produced for the White House purely political or
personal information unrelated to national security," according to the
post-Watergate Church Committee. The FBI passed along information on the
social lives of Supreme Court Justices and "social contacts with
foreign officials by Bernard Baruch, Mrs. Eleanor Roosevelt and Supreme
Court Justice William O. Douglas," while the IRS compiled files on "more
than 11,000 individuals and groups" between 1969 and 1973 based on
"political rather than tax criteria."
The
motivation for this lawless behavior, according to David Kris and J.
Douglas Wilson, who wrote the definitive reference work National
Security Investigations & Prosecutions, was a rampant fear of the
Soviet Union.
Some of the fears were outlandish but terrifying: the CIA
believed, for example, in the aftermath of World War II, that the Soviet
Union was engaged in a wide-ranging program of testing LSD.
It
genuinely thought that the Soviets might develop mind-control drugs and
turn every American into an obedient, communist zombie.
One CIA officer
testified that he and his colleagues were "literally terrified" at the
prospect. The excesses led to a series of laws passed in the years after
Nixon's resignation designed to constrain America's spies and spy
hunters.
In
1976 and 1977, Congress created the Senate Select Committee on
Intelligence and the House Permanent Select Committee on Intelligence,
which have broad oversight power over the FBI, CIA and NSA. Congress
also passed the Inspector General Act, creating multiple independent
watchdogs at the investigative and national-security agencies. Most
important, it passed in 1978 the Foreign Intelligence Surveillance Act
(FISA), which governs all spy-targeting electronic surveillance in the
U.S. After 1978, if the U.S. government wanted to eavesdrop on a foreign
spy in the U.S., an official from the FBI or NSA had to get a warrant
from the Foreign Intelligence Surveillance Court--which comprises
federal judges selected for the task by the Chief Justice of the Supreme
Court--whose proceedings are generally classified.
And
getting such a warrant was not easy, especially if the feds risked
invading the privacy of Americans as part of the investigation. Multiple
Justice Department and White House rules required approval by senior
law enforcement and intelligence officials before a warrant application
could even be made.
FISA itself required that application to include
detailed and specific information about who was to be targeted, where,
for what purpose, for how long and what exactly the result was likely to
be.
Any information on Americans caught up in the surveillance had to
be set aside and destroyed unless specific conditions were met, like
evidence of a crime.
Multiple rules set even higher safeguards against
accidental snooping against politicians, activists or academics, among
others.
And the newly formed congressional committees were to be kept
"fully informed" of any FISA court activity.
By
the summer of 2016, the FBI had plenty of incentives to jump through
all those legal hoops.
The first hint that Russia had designs on the
election came in April, when the spy service of a foreign ally passed
along a tip that Russia was funneling money through two banks to fund a
political-influence operation in the U.S., according to several
published reports. Over the next several months, as Russia hacked into
state voting databases and leaked emails stolen from the accounts of
leading Democrats, U.S. spy hunters realized they had a growing problem
on their hands.
In
early September, the Washington Post reported that the FBI was
investigating a possible Russian operation against the election.
That
was followed on Oct. 7 by a public assessment from the U.S. intelligence
community that Russia was interfering in the November vote. Under those
circumstances, it would not be surprising if investigators had sought a
FISA warrant to gather documents or authorize surveillance of Russian
contacts with American political figures. The first such report--a day
before the election--was by a former member of the British Parliament
turned journalist for Rupert Murdoch's News Corp.,
Louise Mensch. She published an article on the website HeatStreet
claiming that the FBI had in fact sought and received a FISA warrant
against members of Trump's campaign for an investigation of ties to
Russian banks.
The
article went largely unnoticed, but then the FISA warrant issue
resurfaced in January, reported by the BBC. Over the following weeks,
the allegations merged with stories about the long-standing associations
between Trump aides and various members of Russia's oligarchy. Trump's
refusal to acknowledge the authorship of the Russian influence
operation, before and after Election Day, and his often admiring remarks
about Russian President Vladimir Putin, lent further credence to the
idea of a Russia connection inside Trumpland.
By
February, Trump was a new President beset with questions about Russian
influence and furious at persistent leaks concerning contacts that his
aides and advisers had with Putin's representatives.
Trump's defenders
began to speculate that Trump's aides were the actual targets in the
probe, rather than being caught up in an investigation of the Russians.
Meanwhile, Trump's opponents in the Democratic Party ramped up their
charges that Trump officials communicated with Russia about the election
interference.
The result: Trump's presidency found itself hobbled with
each new revelation from the ongoing and intensifying investigation.
First
National Security Adviser Flynn was forced to step down on Feb. 13
after misleading Vice President Mike Pence about his conversations with
Russian ambassador Sergey Kislyak. Two weeks later, the Washington Post
reported that Attorney General Sessions had met with Kislyak twice in
2016, though he had denied during his confirmation hearings meeting any
Russian officials. Under pressure, Sessions recused himself from
oversight of the FBI's Russia probe.
At
first the White House reported that Trump had demanded Flynn's
resignation.
But soon he was complaining on Twitter that "information is
being illegally given to the failing @nytimes & @washingtonpost by
the intelligence community (NSA and FBI?).
Just like Russia." He was
even more furious at Sessions' recusal.
After
storming out of Washington for another weekend in Palm Beach, Trump
read an incendiary mash-up of all the earlier coverage related to a
possible FISA warrant assembled by Breitbart News, according to aides.
The conclusion of that report: "the Obama Administration sought, and
eventually obtained, authorization to eavesdrop on the Trump campaign."
The article quoted right-wing radio host Mark Levin calling the
investigation a "silent coup."
That
was good enough for Trump, who promptly opened his Twitter app. And if
his tweets were correct--if Obama and federal investigators working for
him tapped Trump's lines without legal authority--it would be a felony
unlike any since Watergate. But if Trump had gone off half-cocked, he
stood to undermine the very system put in place to prevent some of the
worst outrages of that earlier era.
A FISA warrant issued by a duly
appointed judge would normally be a good sign, evidence that the FBI was
getting to the heart of the Russian operation. "FISA coverage is always
hoped for," in a properly run FBI intelligence investigation, the
Justice Department's Inspector General observed in a November 2004
report.
Trump gave supporters a stark choice: believe me, or believe the government.
It
would be one thing if Trump's outburst against those investigating the
Russia operation was simply an emotional backlash in the face of
political woes.
But the pattern of Trump's seven-week presidency so far
has been to reach for his political base whenever he faces opposition.
As a self-declared warrior against the state and drainer of Washington's
swamp, he has opposition on multiple fronts.
Trump
has taken a number of steps aimed at cutting the government.
He has
ordered that for every new government rule, two existing ones must be
eliminated.
He has set in motion an unwinding of Wall Street regulations
imposed after the 2008 financial crisis.
His Labor Department is under
orders to review, and presumably rescind, Obama's regulation of
financial advisers who deal with Main Street investors.
His
proposed budget, which faces an uncertain fate in Congress, contains
aggressive cuts totaling $54 billion at nondefense agencies. Cuts
proposed at the EPA could shrink Clean Air Act implementation funds
granted to states by $68 million, to less than $160 million. Even
greater cuts, percentage-wise, would limit funds for fighting water and
lead pollution. Trump's denunciation of a "slow and burdensome" FDA has
many in the medical community, not to mention staffers in that agency,
fearful that his future pick to lead them could pare back drug- and
food-safety measures in place since the early 1960s.
Trump
has declined to nominate officials below the Cabinet level in many
agencies, leaving some effectively paralyzed.
Only six
departments--Commerce, Justice, Health and Human Services, Defense,
Homeland Security and Transportation--have any Senate-confirmed
positions at headquarters nominated below the Secretary level.
Agencies
accustomed to driving the agenda are sitting idle. At the State
Department, diplomats not immediately involved in crises like Russia or
North Korea are biding their time reading cables.
This,
argues the Administration, is all part of the master plan. Rulemakers
have supplanted legislators and administrative courts answering to the
President have supplanted the judiciary, White House officials say. The
result has been a bureaucracy that is larger than all three traditional
branches of government combined.
Defenders
of the administrative state say it exists for a reason: to make sure
the laws and policies of the government are implemented fairly and
according to the Constitution. Staffed by experts who oversee an open
governmental process, they say, the federal bureaucracy exists to
protect those who would otherwise be at the mercy of better-organized,
better-funded interests. "It's not realistic to expect that Congress is
going to solve all the policy problems that come up" in the modern
world, says Susan Rose Ackerman of Yale Law School. The war on the
administrative state, she says, is in fact a "war on the core
responsibility of the bureaucracy to make sure the laws as passed are
carried out."
For
many of Trump's followers, his declared war and the steps he has taken
to wage it so far are all part of a job well done, exactly what they
asked for. And his credibility with them is on the rise. "He was given a
mandate with the election to go up there and correct and fix Washington
and drain that swamp. That is exactly what I see him doing," says
Janice Westmoreland, 69, of Milledgeville, Ga.
But
patient advocates worry about changes at the FDA, while
environmentalists warn of the consequences of loosened regulations.
"Millions of people around the country will be exposed to unhealthful
air," says Bill Becker, executive director of the National Association
of Clean Air Agencies. "It could literally be the difference between
protecting public health and premature death."
Trump's
greatest foes are among his principal targets: the men and women of the
U.S. government. Leaks have sprung all across the Trump Administration.
Some, presumably from those alarmed by his foreign-policy agenda, have
exposed Trump's gaffe-filled conversations with foreign leaders. Other
leaks, perhaps from those angry at Trump's attacks on the intelligence
community, have detailed the Russia investigation in ways that make
Trump look bad.
To
combat these, Trump reaches for Twitter. On Feb. 16, at 7:02 a.m.,
Trump tweeted a warning: "low-life leakers" will be caught.
More
damaging confrontations arise when Trump goes after other parts of the
government, namely the courts and agencies charged with law enforcement.
It's not clear that the President has a thorough understanding of
checks and balances, and compared with most Presidents, he doesn't
surround himself with people who do. To paraphrase former Defense
Secretary Donald Rumsfeld, Trump went to war against the state with the
army he had, business-school ideologues and website provocateurs like
Bannon, rather than with the army he should have wanted: experienced,
cold-blooded lawyers. No personnel in the White House will ever alter a
core fact about Washington: power depends on knowing how to use the law
even more than knowing how to change it.
Charged
with responding to that reality is Trump's White House counsel, Don
McGahn. It has already become clear that changing laws on Capitol Hill
will be, at best, a slow and partial part of the war. McGahn says he is
staffing his office with lawyers experienced both inside and outside the
administrative state. "In order to increase the power of President
Trump to implement his policy preferences, you have to decrease the role
of the unelected bureaucracy which has grown accustomed to implementing
their policy preferences," McGahn says.
The
cost of that effort, for Trump and for America, is unclear. "Trump is
spending at a terrific rate the accumulated credibility capital of the
office he occupies," the former head of the Justice Department's
National Security Division, David Kris, wrote recently in the Washington
Post. "There may come a day when he needs to speak seriously, and to be
taken seriously, at home or abroad. On his present course and speed,
that will be a hard day."
In
the meantime, the gumshoes at the FBI have their old nemeses, the spies
of Moscow, squarely in their sights. And those agents will keep
grinding away, using the investigative tools granted them by law, until
they make their case. Whatever they prove in court against the Russians
and anyone who helped them will be a testament to the institutions that
have ensured the survival of American democracy for 241 years. The
question is how much lasting damage America's political leaders will
inflict on those institutions in the meantime.
--With reporting by PHILIP ELLIOTT and ZEKE J. MILLER/WASHINGTON; ALICE PARK, JOSH SANBURN and JUSTIN WORLAND/NEW YORK
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