Trump’s plan to punish and defame the FBI and the Intelligence Community

Trump’s plan to punish and defame the FBI and the Intelligence Community

As a private litigant, Trump, aided, abetted and guided by the disgraced Attorney Roy Cohn, used the law to wear down his adversaries, to make the process too expensive and too unbearable to continue with regardless of the merits of the case. See Zirin, James D., Plaintiff in Chief: A Portrait of Donald Trump in 3,500 Lawsuit, All Points Books, published September 24, 2019.(Available on Amazon here). 

An NBC News report by Ken Dilanian, Julia Anisley and Tom Winter describes an ever-expanding investigation ordered by Attorney General Barr and led by John Durham, United States Attorney for the District of Connecticut, into the origins of the investigation into Russia’s successful and well documented (see Vol. 1 of the Mueller Report) interference in the 2016 election to help Trump and hurt Clinton. Trump believes, or perhaps more accurately, wants his supporters to believe, that the Russia investigation was a ruse perpetrated by the “Deep State” in order to undermine Trump. By “Deep State” Trump means the Obama administration, the U.S. Intelligence Agencies and the F.B.I. Durham is allegedly asking pointed questions about political bias of intelligence analysts.

Many, if not most, of the individuals interviewed by Durham and his expanding list of investigators will hire lawyers at significant expense. This is right out of the Trump/Cohn litigation playbook as is Cohn’s and now Trump’s strategy of always attacking one’s adversaries.

In effect, Trump through Attorney’s Barr and Durham and their status as being government lawyers, is imposing sanctions – in the form of attorney’s fees – on members of the Intelligence Community and the F.B.I. As he did when he is a private litigant, Trump is using his superior financial position to punish civil servants who he regards as his enemies.

In my view, this set of circumstances raises ethical questions for Attorney General Barr and John Durham. There is a risk of doing great harm to individuals and to the reputations of the Intelligence Community and the F.B.I. It appears that Trump, Barr and, unfortunately, Durham do not care about the harm their investigation will almost certainly cause to career civil servants and the agencies they serve.  It is unclear to me what the predicate of the investigation is. The D.O.J. should not be conducting an investigation solely because Trump wants one and Barr agrees.  And Barr and Durham should not be carrying out Trump’s orders without having a good faith basis in fact for believing that a violation of law has occurred. It is not clear that the Barr/Durham investigation is criminal in nature but it should be clear. As it is, it seems as though the investigation is into a series of discredited rumors. Durham has a sterling reputation. One wonders if he is taking orders from Attorney General Barr, who has shown himself to be a political figure closely allied with Trump (see Barr’s mis-characterization of the Mueller Report before the report was released to the public.)

I wonder if Barr’s and Durham’s travels to foreign countries are efforts to enlist the aid of those countries in Trump’s re-election campaign. With Trump being as volatile as he is and some foreign countries perhaps wanting to position themselves to be in Trump’s “good graces,”(see Italy’s appeal to Trump to lower the amount allocated to Italy of the seven billion dollar award to the U.S. for trade violations committed by the E.U.) how can one trust the information Barr and Durham are gathering from foreign countries?

Professional Ethics: A vital historical perspective

Yale History Professor Timothy Snyder has written two books of immediate importance: On Tyranny – Twenty Lessons From The Twentieth Century and The Road to Unfreedom – Russia Europe America. The Road to Unfreedom explains Russia’s goals for Europe and America and describes many of the means, including massive amounts of disinformation, Russia uses to achieve its goals. The Road to Unfreedom explains what is happening now to advance anti-democratic impulses in Europe and America. It is a fascinating and chilling book. On Tyranny is a short book listing twenty lessons from the Twentieth Century on how to resist the pull of tyrannical forces. Lesson number 5, is entitled “Remember Professional Ethics.” It applies to all professions but especially to lawyers. Here is Lesson 5 in full:

When political leaders set a negative example, professional commitments to just practice become more important. It is hard to subvert a rule-of-law state without lawyers, or to hold show trials without judges. Authoritarians need obedient civil servants, and concentration camp directors seek businessmen interested in cheap labor.

Before the Second World War, a man named Hans Frank was Hitler’s personal lawyer. After Germany invaded Poland in 1939, Frank became the governor-general of occupied Poland, a German colony where millions of Jews and other Polish citizens were murdered. He once boasted that there were not enough trees to make the posters that would be needed to announce all of the executions. Frank claimed that law was meant to serve the race, and so what seemed good for the race was therefore the law. With arguments like this, German lawyers could convince themselves that laws and rules were there to serve their projects of conquest and destruction, rather than to hinder them.

The man Hitler chose to oversee the annexation of Austria, Arthur Seyss-Inquart, was a lawyer who later ran the occupation of the Netherlands. Lawyers were vastly overrepresented among commanders of the Einsatzgruppen, the special task forces who carried out the mass murder of Jews, Gypsies, Polish elites, communists, the handicapped and others. German (and other) physicians took part in ghastly medical experiments in the concentration camps. Businessmen from I.G. Farben and other German firms exploited the labor of concentration camp inmates, Jews in ghettos, and prisoners of war. Civil servants, from ministers down to secretaries, oversaw and recorded it all.

If lawyers had followed the norm of no execution without trial, if doctors had accepted the rule of no surgery without consent, if businessmen had endorsed the prohibition of slavery, if bureaucrats had refused to handle paperwork involving murder, then the Nazi regime would have been much harder pressed to carry out the atrocities by which we remember it.

Professions can create forms of ethical conversation that are impossible between a lonely individual and a distant government. If members of professions think of themselves as groups with common interests, with norms and rules that oblige them at all times, then they can gain confidence and indeed a certain kind of power. Professional ethics must guide us precisely when we are told that the situation is exceptional. Then there is no such thing as “just following orders.” If members of the professions confuse their specific ethics with the emotions of the moment, however, they can find themselves saying and doing things that they might previously have thought unimaginable. Snyder, Timothy, On Tyranny – Twenty Lessons form the Twentieth Century, pages 38-41.

My takeaway is that lawyers are part of a very important group governed by the Rules of Professional Conduct and other parts of the law of lawyering. Snyder’s lesson applies directly to government lawyers and lawyers acting on behalf of the government but we are part of the same group as those lawyers, which gives us the right if not the duty to speak out when we see violations of the rule of law, legal ethics and the law of lawyering.

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