The FBI, Impeachment, and the Question of Motive

News arrived last week that emboldened both the president’s supporters and his opponents. The inspector general’s report on the FBI’s 2016 investigation of Donald Trump’s presidential campaign revealed significant mistakes and irregularities, which, in the words of the Department of Justice Inspector General Michael Horowitz, do not “vindicate anybody.” At nearly the same time, the House Judiciary Committee moved to approve articles of impeachment against President Trump.

The articles of impeachment arise from Trump’s July 25 phone call with Ukraine President Volodymyr Zelensky. In the friendly phone call, Trump asked his Ukrainian counterpart to “get to the bottom of” his country’s role in the 2016 election; he also asked Ukraine to look into Hunter Biden, in connection with an aborted investigation of Burisma, a Ukrainian energy company for which the former vice president’s son once worked.

Ukraine fired the prosecutor on the case after it received pressure from Vice President Joe Biden, including a threat to withhold $1 billion in U.S. aid. Biden bragged about it, in fact. Trump said the whole thing sounded bad to him; President Zelensky agreed; and there was a brief hold on the dispatch of additional military aid to Ukraine that is not mentioned in the call, but cited as improper in the impeachment articles.

In spite of the extensive abuses reported by the inspector general, former FBI Director James Comey said the report was a vindication. In his words, “Horowitz’s report found that the investigation was opened and conducted according to the rules, finding no ‘evidence that political bias or improper motivation influenced [the] decision’ to start it or how to run it.”

A vital symmetry between the inspector general’s report on FBI abuses and the Ukraine scandal is that both involve actions that technically may be permitted—investigations or conditions on foreign aid—that assume a different cast depending on the subjective motive.

What Motivated the FBI? And What Motivated Trump?

The threshold for initiating and continuing an FBI investigation is low. It only requires “allegation or information” indicating possible criminal activity or threats to the national security. FISA warrants and the like receive further scrutiny, but they involve a lower threshold for a court-ordered wiretap in criminal cases. Even so, the use of nakedly partisan motives for criminal investigations and intrusive electronic surveillance is against FBI policy and an invasion of protected constitutional rights of free speech and free association.

As for the Ukraine call, there is no obvious standard for what a president can or cannot say in a phone call with a foreign leader, and it is not unusual for our government and foreign counterparts to cooperate on investigations, particularly when the conduct and participants span both countries. More generally, the president has an extremely wide berth in matters of foreign policy. This is why Jimmy Carter was able to give up the Panama Canal, Obama could pursue a military campaign in Libya without congressional authorization, and President Trump has the authority to pull U.S. forces from Syria. Both the FBI’s actions and the president’s actions involve areas in which they each have substantial discretion and authority.

In both cases, there is at least some plausible case to be made for improper motive. In fact, each involves the alleged misuse of government investigatory powers for partisan purposes.

But if those seeking impeachment are so sure that Trump’s motive in asking Ukraine to look into the Biden and Burisma connection was simply to “help his campaign,” how can anyone conceive of the use of FBI surveillance, confidential informants, and dishonest and pretextual use of security briefings against a rival political candidate as not having a partisan motive?

Isn’t the latter far more intrusive, far more egregious, and far more significant an intrusion than asking Ukraine to “look into it” regarding Hunter Biden? Isn’t help for a campaign far more direct and obvious after a candidate has clinched the nomination—Trump’s position in the summer of 2016—than in the case of Joe Biden, who is not yet a nominee and whose wrongdoing occurred during the previous administration, which was not disposed to investigate its own wrongdoing? And isn’t Joe Biden’s application of pressure on Ukraine while his son was earning millions serving on Burisma’s board far more tangible a predicate for some kind of investigation than are some remarks by a low level campaign advisor like George Papadopoulos—the event that began the intrusive investigations of the Trump Campaign and its associates?

When Does Motive Matter?

Generally speaking, motives do not make otherwise proper conduct criminal. The criminal law looks to “mental state” and not motive, per se. In other words, an act is deemed worse and more culpable based on the degree of volition, with gradations of increasing responsibility when an act is negligent, reckless, knowing, or intentional. But intentionally and, even, maliciously doing something one is permitted to do does not make the act criminal, any more than would an intentional act for a noble motive relieve the actor of criminal responsibility.

While we would like to imagine elected leaders are public spirited, we also expect ambition and partisanship, relying more on the separation of powers—including the independence of the courts and juries—than we do the patriotism and honesty among those who may have power to abuse. While merely partisan considerations may be deemed an abuse of power, it is hard to separate ideological considerations, personal political benefit, and other subjective considerations from what the FBI and the Department of Justice must do.

Was it an abuse of power when Obama asked the FBI to examine the Trayvon Martin case, a bone to his black voter base designed solely to shore up his reelection? How about when a wealthy president imposes a tax cut from which he personally benefits or dispatches federal aid to some disaster site in a swing state?

In all these cases, the president is ultimately the executive, his judgment is intermingled with personal interest as an unavoidable part of the job, and how that judgment is employed is not a scientific or even a legal question, but rather a political one, left to the judgment of voters.

The impeachment power is limited to “high crimes and misdemeanors,” not merely bad judgment. The Congress has discretion when interpreting these requirements, but this does not mean it can act purely on the basis of its will. It is bound by oath to those limits, and it must police itself.

The particular inclusion of “bribery” as one of the “high crimes and misdemeanors” permitting impeachments cannot include the great many actions by the president that both benefit the nation, while also benefiting him politically. Otherwise, it would impose no limit at all.

The line between personal and public benefit is always a bit murky, and thus impeachment where personal benefit is considered under the rubric of “bribery” should be limited to those situations where the benefit is purely personal, such as when an actual money bribe changes hands.

By way of example, this standard would likely vindicate Joe Biden’s actions in Ukraine. While he probably should have recused himself from Ukraine matters or cajoled his son into not taking a job with Burisma, if Joe Biden and the Obama Administration really believed the Ukrainian prosecutor was an obstacle to American policy in the region, strong-arming the Ukrainians by withholding aid would not thereby become a high crime or misdemeanor, even if it had the incidental benefit to Biden’s family member. Of course, if his son were secretly funneling money, this would qualify independently as bribery permitting impeachment.

The suggestion that Trump’s Ukraine phone call was simply for the low purpose of benefiting himself is weak sauce. Naturally, there was some personal concern from Trump, as Biden is his self-declared opponent, was in charge of Ukraine policy for the Obama Administration, and Ukraine cooperated with the Democratic National Committee to attempt to defeat Trump. But, like so much of what presidents do, Trump’s personal concerns cannot be neatly separated from legitimate concerns for the public, such as the public interest in uncovering the extent of the Obama administration’s corruption in Ukraine.

One unfortunate aspect of the inspector general’s report is its refusal to speculate about motive, instead citing a lack of “clear documentary” evidence of bias. In other words, the report found something unsurprising and irrelevant: none of the participants wrote or said, “We never would have done this, but for our bias.”

Clear evidence does show that partisan motives infected every aspect of the investigation. After all, the investigation was unusual—unprecedented, in fact. This alone suggestions ideological blinders. Normally, a concern for foreign interference in a campaign would be addressed with a defensive briefing; instead, here, the alleged interference was a lever through which multiple agents were tasked, confidential informants were deployed, and flimsy, opposition research (the Steele dossier) was presented to the FISA court to surveil a Trump campaign aide, Carter Page, even when substantial doubts about the dossier’s reliability had emerged and without bothering to tell the court that Carter Page was a trusted source of information to both the CIA and FBI.

We also know that various high level participants in the FBI’s investigation spoke openly and repeatedly of their disdain for Trump, even as they expressed doubts about the investigation itself. Lisa Page texted her lover, Peter Strzok, beseeching him that Trump is “not ever going to become president, right? Right?!” “No. No he won’t. We’ll stop it,” Strzok texted back. This was in August 2016.

In ordinary investigations, evidence of motive is chiefly useful for determining who undertook a criminal action or connecting circumstantial evidence to a particular person. The various possible motives—anger, hatred, jealousy, greed—do not serve to excuse a crime that is otherwise proven. In fact motive, is not critical to proving wrongdoing, nor an element of most offenses, which only require an answer to the narrower questions of act plus intent.

We are supposed to conclude that because this investigation may have had some possibility of proceeding in less charged circumstances, that it would have done so here, even though nothing like this has ever happened before. Proof of motive is rarely direct. We instead infer what people did and why from their expressed or inherent interests. We assume parents protect children, people with money problems want money, people that express race hatred might harm people of hated races, and, here, that partisan Democrats who thought Trump’s election would be a disaster would be more aggressive, more intrusive, more persistent, and more biased than they would have been against one of their ideological fellow travelers.

Motive Among the President and His Subordinates

When dealing with subordinate federal employees and agencies, their motives should always be to follow the rules, follow the laws, and follow the lawful directives of the elected president, regardless of whether a Democrat or Republican is president. Self-proclaimed resistance to this requirement of public service has been the chief source of abuse by the deep state after the election of President Trump.

On the other hand, when considering “high crimes and misdemeanors” that support impeachment, considerations of presidential motive should be limited to those cases that are connected to genuine bribery and purely personal motive, not the far larger number of cases of overlapping motives of personal and public interest.

Here the standards have been inverted. Subordinate members of the FBI whose motives were obvious and whose abuses well documented have been given a pass. The motives of the various participants, far from being public spirited, include a cover up of their own misdeeds—concealment of exculpatory material, avoidance of oversight, deviations from policy, and naked partisanship—by crudely projecting their own high crimes and misdemeanors onto President Trump.

Trump, on the other hand, acting well within the normal boundaries of presidential action, is being evaluated as if he were a GS-12. Without having committed a crime nor broken any particular rules, an impeachment is underway. All this when the abuses of the FBI in the last election represent a form of interference that far eclipses anything foreign or domestic that has ever occurred in the history of the republic.

About Christopher Roach

Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.

Photo: Drew Angerer/Getty Images

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