Executive Branch

Arlington at Midnight: Memorial Day Reflections on President Trump

Jeffrey H. Smith
Monday, May 28, 2018, 8:54 AM

Lying is the foundation of all crimes and follies.

—Ulysses S. Grant

More than 400,000 Americans now rest at Arlington National Cemetery. All of them served. All of them sacrificed; some falling in combat, others after a lifetime of service.

U.S. flags stand in front of the graves of fallen service members on Memorial Day at Arlington National Cemetery in Arlington Va., May 28, 2012.

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Lying is the foundation of all crimes and follies.

—Ulysses S. Grant

More than 400,000 Americans now rest at Arlington National Cemetery. All of them served. All of them sacrificed; some falling in combat, others after a lifetime of service.

The cemetery sits on a hill looking across the Potomac at the Capitol and the White House. The ghosts of those 400,000 watch over us. They are the sentries of our national soul. And on this particular Memorial Day weekend, we must ask whether what they fought and sacrificed for is in peril.

At midnight on a clear night Arlington becomes a cathedral of sorts, the moonlight reflected off endless rows of white marble gravestones flanked by magnificent soaring trees. Ordinary Americans can’t walk among the graves at midnight, but I would like to think that if President Trump were to do so, the multitude of ghosts would have much to say to him.

They must surely have a voice. And their simple message is undoubtedly, “Do not destroy what we fought for, and for which many of us died.”

The Trump presidency and the Mueller investigation appear to be on an accelerating collision course. The president is increasingly shrill and desperate in his efforts to stop the investigation of himself and his campaign. He is breaking decades of precedent established to protect the impartial and fair administration of justice from improper political interference. He shows little, if any, real regard for the rule of law. Indeed, he seems to think that because he is president the laws do not apply to him.

When these fundamental tenets of our democracy are under attack, we owe it to the dead to not sit idle. It is now time to think not only about how to protect the rule of law and our democracy during the crisis, but also what changes will be needed when that crisis is finally over.

The country has survived many crises far worse than the one Trump is creating. And after each crisis we have returned to our senses and made changes to address the wrongs that occurred during, or were exposed by, the crisis. The Civil War ended slavery and preserved the Union. In more recent times, the Watergate and Church and Pike Committee investigations (the latter two themselves outcrops of Watergate) produced a number of laws meant, among other objectives, to constrain abuse of intelligence and law enforcement powers. The system of congressional oversight of the intelligence community was, until recently, working well.

Where do things stand today?

In military terms, the Russian attack on our electoral process was directed at the “seams” in our society, much as an attack in a conventional war is directed at the seams between units in the lines of the opposing force. If a breakthrough is achieved, it is then exploited by a massive attack. The Russians attacked the seams in our nation—that is, the divisions between Democrats and Republicans, between ethnic and racial groups, between gun owners and those advocating for gun control, between city and rural populations. These gaps were then skillfully exploited by massive attacks of fake messages targeted at specific receptive audiences. The Mueller indictments on February 16, 2018 of 13 Russians leaves no doubt about the extent of the activity and the intent of the Russian government.

And when the president unjustly attacks the institutions that are investigating the Russian interference—and when those attacks begin to be accepted as justified by large numbers of Americans—his actions are “force multipliers” of the Russian attack.

This result is especially galling because Trump’s efforts to undermine the investigations and the findings of the intelligence community appear to be motivated entirely by the desire to shut down or derail an investigation of him personally. His arguments that he is motivated to “clean… everything up” at the FBI ring utterly hollow.

The catalog of offensive presidential actions is long, beginning with efforts to obstruct justice—or in the more elegant term used in English law, “pervert the course of justice.” What other reason lies behind the firing of Jim Comey, the vile personal attacks on Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein, the blatantly false press release on the purpose of the June 2016 Trump Tower meeting and agents of the Russian government? The list goes on.

Trump’s constant attacks on the media and assertions that anything he doesn’t like is “fake news” are dangerous. There is no other word for it. When he points to the media covering his rallies and jeers them as “dishonest” and when the crowd cheers him on, my blood runs cold. We have seen that in countries governed by fascist regimes, but not here.

Insufficient attention has been paid to Trump’s insistence that the Senate abandon the cloture rule so that his legislation can pass by simple majority. Should that happen it threatens to turn the Senate into merely a smaller version of the House of Representatives—though George Washington is said to have told Thomas Jefferson that the Senate was created to “cool” House legislation just as a saucer cools hot tea. When Majority Leader Harry Reid abolished the use of filibusters to block judicial (other than the Supreme Court) and executive branch nominees, it was a mistake. It will be worse if the Senate throws it out completely. The Senate filibuster is the single most important protection of the rights of minorities in Congress.

And, now we have the sensational charge that the FBI planted a “spy” in the Trump campaign. That charge is likely to be found groundless, but it has not stopped the president and his supporters from attacking a “criminal deep state” and breaching valuable norms in efforts to undermine the FBI’s investigation. The antics of Mr. Trump’s supporters led to the disclosure of the identity of a human source used by the FBI in a legitimate counterintelligence investigation of Russian efforts to penetrate the Trump campaign. Even more troubling was the presence of the White House Chief of Staff and the president’s counsel in the two meetings this past Thursday convened to brief congressional leadership on the use of the confidential informant. It’s hard to know what the long-term impact of their presence will be—but it cannot be good for the fair administration of justice or the separation of powers.

The president appears to have scant concern that Russia tried to penetrate his campaign and conducted a massive attack on the integrity of our 2016 elections. He has said almost nothing about the Russian effort to do so again in 2018. His defenders in Congress have expressed scant concern—other than protecting Trump against all charges, regardless of their validity—with the underlying Russian attack or the consequences of the disclosure of the identity of an FBI confidential source.

The president’s relentless attacks on the credibility of the FBI have already taken hold in broad swaths of the United States. Recently, in a federal prosecution in Kansas of three men accused of a plot to bomb residences of Somali Muslim immigrants, the U.S. Attorney had trouble finding jurors who said they trusted the FBI—some even citing President Trump’s frequent remarks that the bureau was corrupt. There are likely to be many more such claims. Mr. Trump has recklessly handed defense counsels across the country a powerful tool.

The attacks on the FBI, the Justice Department and—at least initially—the CIA have infected our system of government. They have taken root in many of our fellow citizens. They have undermined the trust that is essential between the people and the government that keeps us safe and protects our liberties. This trust is precious, and the president has shattered it for his own selfish purposes.

In my view, two themes have emerged. First, the president consistently refuses to accept facts and truths he doesn’t like. This appears to be rooted in his inherent dishonesty. Second, he simply does not respect the rule of law, not only in its specifics— for example, why he should not abuse his powers by interfering in investigations of himself—but also its broader sweep: the importance of a system based on the separation of powers and the essential role of a free press.

So on we stumble. But with a quickening pace.

Those who care about our democracy and the rule of law must do all we can to preserve the integrity of the institutions that make our democracy function and enforce the rule of law. The president and his allies have raised some fair questions: for example, did the Department of Justice fail to adequately inform the Foreign Intelligence Surveillance Court in its application to surveil Carter Page? More recently, did the FBI follow proper procedures in directing a confidential source to approach the Trump campaign to learn whether the Russians were seeking to influence our election? Both questions are being reviewed by the Department of Justice Inspector General, as they should be. Knowing the Bureau and the Department of Justice well, I believe the Bureau and the Department acted properly in both instances.

But it is very wrong for the president and his supporters to politicize these issues for the sole purpose of discrediting the investigation of a direct attack by a hostile power on our democracy. We must do all we can to assure the independence of both the Mueller and the Senate Select Committee on Intelligence investigations—the Senate’s investigation being the only remaining credible congressional probe after the collapse of the House intelligence committee.

Similar protection and support is essential for the career public servants in the law enforcement and intelligence agencies. The president’s ad hominem harassment and intimidation of career public servants is obscene.

It is therefore critical that we support the senior ranks of the law enforcement and intelligence community, including those appointed by the president. Rosenstein, FBI Director Christopher Wray and CIA Director Gina Haspel are superb public servants and they must know that the nation has their back. At some point, Trump will no longer be president and they will no longer be the heads of their agencies. When that day comes, Rosenstein, Wray and Haspel (and perhaps a few federal judges) must be able to say that—with the support of the American people—they did their duty honorably and with integrity, and protected their institutions from improper political interference. Protecting the rule of law and the independence of these agencies is, in the long run, more important than protecting Trump’s legacy.

The question of Trump’s performance as president will be a key issue in the mid-term elections in November. He still enjoys much support among many Americans. Many of his policies remain popular; indeed, I agree with some of them. Members of Congress in states and districts where his approval ratings are high are understandably reluctant to go against the wishes of their constituents. After all, that’s what democracy is about.

But will there be a tipping point, where the president has simply gone too far or when the evidence is so overwhelmingly clear—as happened when the Nixon tapes were released—that his support collapses? Is there a “smoking gun” lurking in Mueller’s evidence room? For the moment, we can’t know.

If the Democrats take the House of Representatives in the fall, they may move to adopt articles of impeachment. That would be an ugly process and, unless there is more evidence of wrongdoing by the president, would be decided along party lines. The lack of bipartisan support will be another force multiplier of the Russian effort to undermine our democracy in the first place.

Even if the House does vote to impeach the president, it seems unlikely, given the probable make up of the Senate in 2019, that the necessary two-thirds would vote to convict him. In the meantime, the country would be led by a desperate and angry president with diminished power, who is already prone to lashing out irrationally and who has in the past seemed to encourage and condone violence by his supporters. A terrible question must thus be asked, could the impeachment process unleash violence in our streets? I do not believe it can be ruled out.

Finally, we should begin now to consider reforms to be adopted when this is finally over. Four legislative actions occur to me:

One, amend the conflict of interest laws to include the president. There are constitutional considerations that led to the blanket exception as it now exists in stature. But it is hard to understand why the president should be totally exempt from fundamental laws that protect against abuse of the office for personal financial gain..

Two, adopt a law requiring that all presidential candidates release their federal income tax returns for the five years preceding the candidacy—even if under audit.

Three, adopt laws prohibiting the president or anyone on his or her behalf from improperly seeking to influence a criminal investigation or prosecution by the Department of Justice. I recognize this raises constitutional issues, but under military law “command influence” is barred in courts martial, and it must be possible to craft a law that adopts a similar principle barring the president from exerting improper influence in civilian courts. Surely there can be no objection to a law prohibiting a president from interfering in a criminal investigation of himself.

Four, Congress should consider a range of statutes and funding to prohibit future efforts by foreign powers to interfere in our elections. For example, are stronger criminal statutes needed? What can be done to protect against cyber attacks on the voting process? Should there be increased federal assistance to state and local governments, including sharing of highly classified intelligence information?

President Trump does not strike me as a reflective man. He does not appear to have a good grasp of history or even basic democratic norms. But should he ever walk among the graves at Arlington at midnight, I would like to think would hear the ghostly voices of those who forged our democracy and made it more perfect with their sacrifices. If he listens to those voices, he can avoid an unnecessary constitutional crisis. He might even save himself. But I am not holding my breath.

Jeffrey Smith has served in the Pentagon, the Department of State, on the staff of the Senate Armed Services Committee, as General Counsel of the CIA, and is a retired partner of Arnold & Porter Kaye Scholer LLP.

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