The Dangers in the Trump-Brennan Confrontation

Jack Goldsmith:

But Trump and his allies are not the only culprits here. In reaction to perceived evils by Trump campaign and transition officials, members of the intelligence community—intelligence bureaucrats or outgoing Obama national security officials, or both—contributed a lot to diminishing trust in the intelligence community when they leaked, early in the Trump administration, a great deal of U.S.-person information collected from FISA warrants in order to bring down Trump’s national security adviser and achieve other anti-Trump goals. As Wittes and I wrote last year, “these leaks violated the core [Grand Bargain] commitment not to politicize the use of surveillance tools or the fruits of their use.” The leaks hurt Trump, but they also hurt the intelligence community a great deal, and probably for a longer term, by making Trump’s politicization charges credible. It was an unnecessary shot in the foot since the issues that the leaks sought to shed light on were under full official investigation.

This leads to the second unfortunate trend during the Trump era: the president’s uncanny ability to induce his critics to break norms in response to his norm-breaking behavior, in the process lending credibility to his critiques. This was a major theme of my Atlantic essay last fall. The FISA leaks break norms and confirm to many that the intelligence community in general and the Russia investigation in particular are politicized. The press often overreacts to Trump by (in Bob Woodward’s words) “binge-drinking the anti-Trump Kool-Aid,” thereby lending credence to Trump’s charges of bias and the shortcomings of “the fake-news media.” Some early lower-court reactions to the Trump immigration orders confirmed to many the appearance of such bias when they issued heated opinions that failed to pay the president proper deference and respect in cases touching on immigration and national security.