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Analysis: Trump Versus Law Enforcement: A Confrontation With No Precedent

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© Doug Mills/The New York Times President Trump at the White House on Thursday.

By PETER BAKER and KATIE BENNER, The New York Times
WASHINGTON

At a White House meeting last winter, leaders of the F.B.I. and Justice Department made an urgent appeal to John F. Kelly, the White House chief of staff, to side with them against Republicans in Congress who were pressing for information about the Russia investigation that would compromise confidential sources.

Mr. Kelly seemed to agree. But not long after Rod J. Rosenstein, the deputy attorney general, and Christopher A. Wray, the F.B.I. director, returned to their offices, Mr. Kelly called back and reversed himself, according to a former law enforcement official. They would have to hand over the information after all.

What changed? Mr. Kelly’s answer: the president.

For more than a year, President Trump has been at war with law enforcement agencies that answer to him, interjecting himself into an investigation in which he himself is a subject. And he has escalated the conflict drastically in recent days by accusing the F.B.I. of placing a “spy” inside his 2016 campaign, pressuring the agencies to reveal secret information and demanding an investigation of his investigators.

The confrontation has no precedent in the modern era and holds great stakes not just for the president but for the relative autonomy for law enforcement investigations established after Watergate. Mr. Trump’s allies argue that he has every right to manage the executive branch and every reason to be outraged at possible misconduct aimed at his campaign. But many law enforcement veterans say he is wreaking untold damage on institutions that form the bulwark of a democratic society.

“To turn on the F.B.I. using this loaded language like ‘spy’ and ‘infiltrate,’ President Trump is trying to poison public opinion against the F.B.I. for his own reasons,” said Barbara McQuade, a career federal prosecutor who served as United States attorney in Michigan under President Barack Obama. “He may be successful, but I worry about the impact his kind of rhetoric has on the public when the F.B.I. is investigating a case of kidnapping or bank robbery and the president has told them they’re not trustworthy.”

Since even before taking office, Mr. Trump has disparaged intelligence agencies that concluded that Russia sought to influence the election on his behalf, at one point in effect comparing them to Nazis. He has publicly badgered law enforcement officials to shut down the Russia investigation and instead open inquiries into his political adversaries. But he went even further last week by effectively ordering an investigation into the actions taken regarding his campaign.

He also summoned Mr. Wray and Mr. Rosenstein to the White House to insist they turn over details about the F.B.I. informant that he called a “spy” and even sent Mr. Kelly and a White House lawyer, Emmet T. Flood, to a meeting that Mr. Wray and Mr. Rosenstein held with congressional leaders about the confidential information. Although the White House said they did not stay, Democrats called their presence highly inappropriate.

David B. Rivkin Jr., a constitutional lawyer who worked in the White House and Justice Department under Presidents Ronald Reagan and George Bush, said critics were overreacting. While Mr. Trump’s bellicose tweets and direct involvement are unusual, he said, it would not be any different legally had he gone through his White House counsel, Donald F. McGahn II.

“What he did was not only perfectly constitutional but was not unreasonable,” said Mr. Rivkin. “He perhaps could have done it more elegantly, maybe he should have used McGahn, but he is who he is and we shouldn’t hold it against him. Just because something isn’t elegant doesn’t mean it’s wrong.“

Mr. Rivkin and others said Mr. Trump was right to see the use of an informant as an abuse of power, equating it to F.B.I. surveillance of civil rights and antiwar groups in the 1960s. Jonathan Turley, a law professor at George Washington University, said that while the way Mr. Trump went about seeking an investigation was “clearly inappropriate,” the emerging facts merited an examination.

“Where I depart from the critics is I think the president has a legitimate point here,” he said. “The extent of this investigation directed against an opposition party’s presidential campaign is unprecedented and it does raise legitimate questions.”

Contrary to Mr. Trump’s assertions, no evidence has surfaced that the F.B.I. informant or anyone else was “embedded” inside Mr. Trump’s campaign or that his work had partisan origins. The F.B.I. was investigating Russian efforts to influence the American election and had picked up evidence that people around Mr. Trump had been in contact with Russians, evidence that has only grown in the nearly two years since then.

The F.B.I. informant, an American academic who teaches in Britain, was in contact with three Trump campaign advisers. James R. Clapper Jr., then the director of national intelligence, said neither he nor Mr. Obama’s White House knew about the informant at the time. Law enforcement officials said there was nothing unusual about using an informant to gather information.

But that has hardly convinced the president, who has characterized the situation as ”one of the biggest political scandals in U.S. history” and dubbed it “Spygate.” He has pressed his claim relentlessly, overstating the known facts and misquoting Mr. Clapper to claim that the former intelligence official had admitted “spying,” when he said the opposite.

Mr. Trump has wanted to take on his own government more overtly for months, but had been warned against it by his lawyers. Since bringing on Rudolph W. Giuliani, the former New York mayor, as the face of his legal team, the president has turned more aggressive and is willing to push boundaries of law enforcement practices.

He remains deeply mistrustful of the Justice Department, according to people who have spoken with him, primarily because of his animosity for Mr. Rosenstein and Attorney General Jeff Sessions, who recused himself from the Russia investigation because of his campaign work for Mr. Trump. Even periodic reminders that Mr. Wray has cleaned house of several F.B.I. holdovers has not soothed Mr. Trump, associates said.

“I think the president should exercise restraint,” said Christopher Ruddy, his friend and chief executive of Newsmax Media. “He should use the Reagan model. You shouldn’t get involved in these investigations, leave it to the lawyers, leave it to the people outside the White House. Avoid the Nixon model where you get involved in the investigations and you fire prosecutors and the other stuff that could be perceived as obstruction.”

Sam Nunberg, a former campaign adviser to Mr. Trump, said the president should not fire Mr. Sessions, Mr. Rosenstein or Robert S. Mueller III, the special counsel in charge of the Russia investigation, because “they’re perfect foils” where they are now. They and James B. Comey, the F.B.I. director fired by Mr. Trump last year, have become representations of the “deep state” that Mr. Trump says he is fighting.

“They have given us every single talking point that we have needed,” Mr. Nunberg said. “All I need to do is quote them. Their mind-set is they know better. It’s this gilded Washington, ‘we know best and you’re just not smart enough to understand.’”

The president’s demand for an investigation into the informant and the release of confidential information stunned Justice Department officials and put Mr. Rosenstein in an awkward position. Rather than resist, Mr. Rosenstein released a statement agreeing to an inquiry. The next day, Mr. Trump summoned him and Mr. Wray to the White House, which then announced that the department and F.B.I. would disclose information to House Republicans who have been demanding it.

The drama culminated in an unusual pair of meetings at the Justice Department and Capitol Hill on Thursday, with the attendee list and venues shifting until the last moment. The Justice Department and F.B.I. offered essentially the same limited verbal briefing they had offered earlier this month — an offer ignored by Representative Devin Nunes of California, the Republican chairman of the House Intelligence Committee.

It was unclear whether Thursday’s exercise would satisfy Mr. Nunes, who has sought all documents related to the informant. Representative Adam B. Schiff of California, his Democratic counterpart, said the briefings made clear “there is no evidence to support any allegation that the F.B.I. or any intelligence agency placed a ‘spy’ in the Trump campaign.”

Mr. Trump’s meeting with law enforcement leaders about an investigation in which he is a subject was all the more striking given his criticism of former President Bill Clinton for meeting in 2016 with Loretta E. Lynch, then the attorney general overseeing an investigation into Hillary Clinton’s private email server. Ms. Lynch insisted that it was a chance encounter and that they never discussed the investigation.

In this case, Mr. Trump openly discussed the investigation into his own campaign with the officials overseeing it and, unlike Mr. Clinton, has the power to take action if his wishes were not accommodated.

“This isn’t any old oversight fight,” said Matthew S. Axelrod, a former Justice Department official. “It’s about information related to a criminal probe that involves the president and his close associates. This is not the White House weighing in on a discrete issue of congressional oversight in which it doesn’t have a deep-rooted, personal interest.”

Mr. Trump’s allies in Congress said they had no choice but to appeal to Mr. Trump to overrule law enforcement agencies that were stonewalling their requests.

“We’re trying to do our job,” said Representative Matt Gaetz, Republican of Florida. “We’re trying to get documents to set up interviews to understand whether norms were violated in terms of the collection of intelligence on a presidential campaign.” Given the resistance, he said, “there has to be some appeal to someone who has been elected. Otherwise this is not a republic.”

Mr. Sessions has been an absent figure in the furor. As Mr. Trump’s order generated a firestorm in Washington, the attorney general set off on a five-day trip to Bulgaria and Croatia. Left on the front line was Mr. Rosenstein, who appeared intent on trying to appease Mr. Trump without jeopardizing the integrity of the investigation.

The stakes have been high for Mr. Rosenstein. Each presidential lightning bolt hurled at the Justice Department comes with the implicit threat that Mr. Trump could fire him and replace him with someone who would impede Mr. Mueller. Mr. Rosenstein has told colleagues that he is trying to protect Mr. Mueller’s investigation.

Early in Mr. Trump’s tenure, Mr. Rosenstein worked within established protocols in communicating about investigations with the White House. When Mr. Trump’s attorneys asked Mr. Rosenstein to investigate Mr. Comey for perjuring himself and illegally leaking information last year, he left it to a subordinate to respond, which the White House considered an affront, according to people who saw the exchange of letters.

But Mr. Rosenstein has since given ground, providing congressional leaders access to sensitive documents with fewer redactions about continuing investigations. And he is now communicating directly with the president on investigative matters, which historically has been left to the White House Counsel’s Office, to avoid the appearance of presidential interference.

Current and former law enforcement officials have mixed opinions on Mr. Rosenstein’s handling of the situation. Some applaud him for mollifying a president who has openly mused about firing Mr. Mueller. Others say he has weakened the Justice Department’s principles and contributed to Mr. Trump’s efforts to undermine Mr. Mueller’s credibility.

“In the past week, he tacitly endorsed the idea that it is O.K. for the president to demand a counter-probe into an investigation into himself based on zero evidence of wrongdoing and with the clear intent of harming the underlying investigation,” said Matthew Miller, a Justice Department spokesman under Mr. Obama. “We don’t know what he’s buying, but he’s giving up a lot for it.”

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Politics - U.S. Daily News: Analysis: Trump Versus Law Enforcement: A Confrontation With No Precedent
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