Several years ago, Laurence Silberman, a senior judge on the U.S. Court of Appeals for the District of Columbia Circuit and a man widely admired by conservatives for his wisdom and rectitude, spoke of his experience in the mid-1970s looking into the secret files of FBI Director J. Edgar Hoover.
“Accompanied by only one FBI official, I read virtually all these files in three weekends,” Silberman, who was then President Gerald Ford’s deputy attorney general, recalled in a speech to a judicial conference. “It was the single worst experience of my long governmental service.”
“I intend to take to my grave nasty bits of information on various political figures — some still active. As bad as the dirt collection business was, perhaps even worse was the evidence that (Hoover) had allowed — even offered — the bureau to be used by presidents for nakedly political purposes. I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.” (My emphasis.)
I’ve been thinking about Silberman’s speech in two connections this week, the first regarding the FBI, the second impeachment. They are related.
On Tuesday, Rosemary Collyer, presiding judge on the Foreign Intelligence Surveillance Court, issued a stinging rebuke to the bureau for its handling of the counterintelligence investigation into the Trump campaign’s Russia ties.
“The frequency with which representations made by FBI personnel turned out to be unsupported or contradicted by information in their possession, and with which they withheld information detrimental to their case, calls into question whether information contained in other FBI applications is reliable,” Collyer wrote.
Collyer’s decision should put paid to the notion that this month’s report from Michael Horowitz, the Justice Department’s inspector general, is some kind of ringing vindication of the Russia investigation. Republicans like Devin Nunes were more right about the conduct of the investigation than many of its supporters, including me, care to admit, even if the investigation itself was warranted. And Carter Page is owed an apology by anyone, including me, who cares for the presumption of innocence and objects to trial by media.
But now to impeachment: If conservatives are right to object to the abuse of power by FBI agents, shouldn’t they be far more alarmed at the abuse of investigatory and other powers for political ends by the president of the United States?
According to the public transcript of Donald Trump’s July 25 call with President Volodymyr Zelenskiy of Ukraine, Trump said: “The server, they say Ukraine has it. ... I would like to have the attorney general call you or your people and I would like you to get to the bottom of it.”
Trump also said: “There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the attorney general would be great.”
Here is a textbook case of Silberman’s “most heinous act in which a democratic government can engage.” The president is unambiguously proposing to employ his chief law enforcement officer to investigate a debunked conspiracy theory that Trump hopes will burnish his political legitimacy. And he also proposes to use the attorney general in an attempt to investigate a political opponent for undeniably political ends.
That Trump didn’t get away with it is a relief, not an exoneration. That he continues to insist the call was “perfect,” as he did Tuesday in his letter to Nancy Pelosi, means that he is likely to do it again. That he attempted to subvert the will of Congress by impounding congressional funds for his political ends threatens the separation of powers in ways that will haunt a future Republican Congress. That he was prepared to endanger an ally and benefit an enemy is not treason, as the Constitution defines treason, but it is a travesty, as any American ought to understand travesty. That Republican leaders are cheering him only serves to define deviancy down and debase our political norms in ways that will surely haunt a future Republican Congress. That conservative pundits claim to be outraged at the FBI’s investigation of the Trump campaign — or the smearing of Carter Page — while being indifferent to Trump’s attempt investigate Joe Biden — and the smearing of Hunter Biden — marks a fresh low in rhetorical sophistry.
There are people who believe that law, morality, traditions and institutions are at least as important to the preservation of freedom as the will of the people. Such people are called conservative. What Republicans are now doing with their lockstep opposition to impeachment — and with their indifference to the behavior that brought impeachment about — is not conservative. It is the abdication of principle to power.
I might think differently about impeachment if Trump had shown any sense of contrition. Or if Republicans had shown any inclination to censure him. But Trump hasn’t, and they haven’t. Whatever the political ramifications of impeachment now, history will judge members of this Congress harshly if they fail to state their revulsion at the president’s behavior in the strongest terms they can. Impeach and convict.
Bret Stephens is an Op-Ed columnist for The New York Times.