During the past two weeks, President Donald Trump has made no secret of his unhappiness at the management of the Department of Justice under Attorney General Jeff Sessions. Actually, Trump seems most agitated at the growing parts of the DOJ that are not under Sessions’ management.
He is also angry that the trail of the well-known evidence of the crimes of his former opponent Hillary Clinton seems to have been vacated by the DOJ.
How is it that parts of the DOJ cannot be controlled by the attorney general, whom Trump appointed to run the DOJ? And with a mountain of evidence of Clinton’s espionage — her failure to safeguard state secrets, crimes far more treacherous than those alleged against Trump’s campaign — why has she not been prosecuted?
Here is the back story.
Shortly before he left office, President Barack Obama quietly changed a DOJ regulation so as to permit any federal intelligence agency — there are 16 of them that the federal government acknowledges — that lawfully possesses raw intelligence data to share it with any one or more of the other intelligence agencies. For generations, this had been prohibited.
Raw intelligence data is the untouched fruit of government surveillance, such as copies of emails, text messages and fiber-optic data, as well as digital copies of telephone conversations. We know today that — notwithstanding the Constitution, federal statutes and federal judicial rulings — the National Security Agency captures all communications into, out of and within the United States of every person and entity in the U.S., in real time, 24/7/365.
Among the raw data captured and shared with politicians and the press (such sharing can often be a felony) were transcripts of a series of telephone conversations between Trump’s first national security adviser, former Lt. Gen. Michael Flynn, and then-Russian Ambassador to the U.S. Sergey Kislyak.
When portions of those transcripts were revealed to the press, it appeared that then-FBI Director James Comey thought there may have been a relationship between the Trump presidential campaign and the Russian government worth investigating. The FBI was also aware of British and NSA surveillance of the Trump campaign going back to the summer of 2015, selected portions of which had been made available to it.
When Sessions became attorney general and learned whatever it is that the FBI learned about the Russians, he concluded that he might become a reluctant witness in the FBI investigation of the Russians because he had been involved in the management of the Trump campaign. Fearing this conflict and rejecting the toughness demanded of his office, Sessions recused himself from the management of all DOJ matters involving the Russians. Then Rod Rosenstein, the deputy attorney general, overreacted and appointed former FBI Director Robert Mueller as an independent counsel to investigate the Russians and all related matters.
Thus was born a now growing part of the DOJ, which is lawfully independent of the president and which has challenged him. On the very day the president warned Mueller to steer clear of investigating Trump’s businesses, Mueller subpoenaed many of their banks’ records.
Shortly before all of this took place, Trump fired Comey because in July 2016, he had dropped the ball by declining to recommend the prosecution of Clinton for destroying 30,000 government emails and for failing to safeguard the secrets contained in the thousands of emails she failed to destroy. Trump was very critical of Comey for usurping the role of the DOJ itself and announcing publicly that Clinton would not be prosecuted — a decision and an announcement that were not Comey’s to make.
At this writing, Sessions is still the attorney general of the United States. Were he to be replaced with an attorney general who has not recused himself from the most significant DOJ investigation since Watergate, there would be no need for an independent counsel.
Whether Sessions stays or goes, the attorney general should not feel bound by Comey’s decision to let Clinton go. He should put the evidence of her crimes before a fresh team of prosecutors and instruct them to present it to a grand jury for indictment.
And he should also identify and indict those in the Obama administration who started this mess with their leaks of raw intelligence data. I have condemned universal surveillance since we first learned of it in 2005. Now we know how horrific the unlawful political use of it can be.
The president is frustrated because he wants to do what he was elected to do. Instead, the DOJ’s lethargy and the independent counsel’s zeal have him at bay.
I have argued in this column and elsewhere that a fair reading of the Constitution and a reasonable understanding of the separation of powers militate in favor of the doctrine of the unitary executive. That doctrine, which was well-accepted by the Framers, states succinctly that when it comes to the executive branch of the federal government, since only the president is accountable to the voters, only he can run the executive branch. The doctrine further articulates that since the consent of the governed is the base line for the government’s moral legitimacy, we should not have agents in the government to whom the voters have never given consent.
Look for a break in the dark clouds soon.
Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel.