Presidents and the FBI

President Donald J. Trump’s situation regarding possible investigation by the Federal Bureau of Investigation is sadly not unique. The list of presidents investigated by the FBI while in office is frighteningly long. Beginning with Richard Nixon, eight of our last nine presidents have been the subject of FBI investigations while in office. Sadly, it seems almost routine. Barack Obama is the only sitting president since Nixon to not be the focus of an FBI probe.

Richard M. Nixon

Nixon Close UpOn June 17, 1972, five men were arrested inside the Watergate Complex in Washington, D.C. while attempting to plant electronic surveillance devices in the offices of the Democratic National Committee. The question of what exactly they hoped to discover is still unanswered, but it would turn out this foiled break-in was just the tip of the iceberg when it came to the criminal activities of Nixon’s administration. Nixon’s “plumbers”—a White House covert investigative unit so named because they were ostensibly formed to stop leaks to the press of various secret activities—engaged in all manner of political debauchery, beginning with digging up dirt on Daniel Ellsberg, who had blown the whistle on Nixon’s secret bombing raids in Laos and Cambodia. While Nixon managed to dodge a surprising amount of heat for various corrupt activities carried out by his White House, the personal hand Nixon took in covering up these men’s activity ultimately led to his downfall. He resigned in the middle of impeachment proceedings on August 4, 1974.

In the aftermath of the break in, Nixon asked the CIA to disrupt the FBI investigation, paid co-conspirators for their silence, and attempted to manufacture evidence exonerating himself and others to give to the judge involved in the case. The investigation into just how high up the chain of command that Watergate scandal reached was a multiyear joint effort between the FBI and a number of journalists, most notably Carl Bernstein and Bob Woodward of the Washington Post. The pair were receiving insider info from FBI second-in-command Mark Felt, who was identifed for decades simply as “Deep Throat.” Eventually, the Senate set-up a special independent counsel to investigate and a grand jury was formed.

Ultimately, the House Judiciary Committee approved three articles of impeachment against Nixon. Article 1, Obstruction of JusticeArticle 2, Abuse of Power, and Article 3, Defiance of Subpoenas. Nixon resigned in the face of almost certain impeachment and removal from office. He was subsequently and infamously pardoned by his successor, Gerald Ford.

Gerald R. Ford

gerald-ford-9298683-1-402The Watergate scandal went well beyond the initial break-in and extended far into Richard Nixon’s second term as president, with Gerald Ford replacing the disgraced Spiro Agnew as vice president. The investigation into the crimes of Nixon’s administration did not end with his resignation, and many—including the FBI—naturally questioned whether Ford had been complicit in any way. These questions intensified when Ford’s infamous pardon of Nixon raised allegations of dirty dealing. His approval ratings plummeted and there was speculation Ford and Nixon had struck some kind of corrupt agreement behind closed doors. No charges were ever raised against Ford in connection with the Watergate scandal specifically.

Public trust in the government was virtually non-existent after the Watergate Scandal. It didn’t help that information came to light about potentially illegal activities carried out by a number of government organizations. Ford’s vice president launched an investigation meant to uncover CIA corruption and present previously disclosed information to the American public in a transparent fashion. Known as the Rockefeller Commission, the endeavor ultimately did more harm than good. It was determined that Ford’s administration had heavily edited and censored their report before it was released. In fact, Chief of Staff Dick Cheney ordered the removal of an 86-page section regarding CIA assassinations.

Jimmy Carter

JimmyCarterPortrait2Carter was well into his presidency when it emerged that his family peanut business had received potentially inappropriate loans. Investigators alleged that Carter had used money from these loans to fund his presidential campaign in 1976. A special counsel, Paul J. Curran, was appointed to investigate the manner, and he did so over a period of seven months, mostly out of the public spotlight but with the involvement of a federal grand jury.

The Curran report cited numerous irregularities in the transactions between Carter’s company and the bank. The loans, which eventually grew to a total of $6.5 million, were first extended in June 1975 when the National Bank of Georgia was run by Bert Lance, who later became President Carter’s first budget director. The report cited numerous instances of checks written on a Carter business account at the bank without sufficient funds to back them up, the removal of collateral in violation of the terms of the NHG loans, bookkeeping irregularities at the bank and other violations of the loan agreements between NBG and the Carter company.

The largest of these loans, extended so the warehouse could buy unshelled peanuts for its sheller, was continually short of collateral except for a brief period in 1975. During one seven-week period in the spring of 1976, the warehouse owed as much as $1,150,000 to NBG without having any peanuts under bond—as it had agreed to do—to secure the debt. Currand was determined to find out whether any money was diverted illegally from the warehouse to Jimmy Carter’s 1976 presidential campaign and whether any federal crimes were committed in the handling of several large loans from NBG to the warehouse.

Ronald Reagan

Official_Portrait_of_President_Reagan_1985_(cropped)In a world of complicated presidential scandals, so-called “Debategate” offers nearly whimsical simplicity—someone stole the prep notes of Jimmy Carter before an important televised debate and gave them to Reagan’s team. Reagan dominated Carter in the debate and cruised to an election win. But we should not expect our presidential candidates to engage in such sophomoric behavior. An investigation by the Justice Department was launched, lasting nearly eight months, ultimately finding no evidence of criminal conduct. Democrats and certain media outlets cried out for appointment of a Special Counsel. The request was not granted.

Reagan’s not-so-juvenile scandal to follow was Iran-Contra. In 1985, the government of Iran, under embargo due in part to their war with Iraq, reached a secret deal with the Reagan administration. This involved the United States illegally trading arms to Iran in exchange for the release of American hostages. The Administration violated international law and Reagan’s campaign promise to never negotiate with terrorists. Moreover, money gained from the deal was funneled Contra militants fighting against communist Sandinistas in Nicaragua.

At first, the Reagan-appointed Tower Commission looked into Iran-Contra to determine whether Reagan had advanced knowledge of these secret dealings. Eventually, an independent counsel, Lawrence Walsh, was appointed to take over the investigation. Despite an 8-year investigation, Walsh failed to uncover evidence officially linking Reagan to the Iran-Contra affair.  Fourteen people were eventually charged with crimes relative to the operation and conspiracy to cover it up. A large number of the convictions for high-ranking Reagan officials were overturned by pardons from incoming President George H.W. Bush. Oliver North, an army colonel who had admitted to diverting funds to the Contras, was found guilty, but his conviction was later overturned on a technicality.

George H.W. Bush

President George H W BushA scandal that began during the Reagan administration seeped into the early days of the administration of Bush 41. The Reagan administration began granting Iraq financial support to help with the Iran-Iraq War. Despite Congress pushing for sanctions against Iraq after allegations of human rights violations in 1988, both the Bush and Reagan administrations strove to keep relations friendly in defiance of Congress.

Bush administration officials were accused of dealing with an international bank located in Italy with a shady reputation. The bank was later accused of loaning money to Iraq for the illegal purchase of weapons during the Iran-Iraq war in 1992. Some of the money was linked to loans previously granted to Iraq by the Bush administration. This led investigators to speculate that the administration had engaged in business transactions with the Italian bank despite knowing its role in illegal weapons dealing.

 Former judge Frederick B. Lacey was named Special Prosecutor in charge of investigating multiple matters involving the Bush administration, including the bank scandal and potential facilitating of weapon sales. Lacey found no federal crime had been committed, and no connection to George H.W. Bush was ever formally drawn. None of the many investigations found any evidence of involvement, conspiracy, or cover-up.

Bill Clinton

President Clinton graced us with several major scandals.

Bill Clinton and the Flag

Whitewater. The Whitewater scandal was a hold-over from Arkansas when he and wife Hillary suffered a failed business venture known as the Whitewater Development Corporation. Their business partner, Jim McDougal, engaged in fraudulent activity as the development failed, forming a phony loan company known as Madison Guaranty. It was alleged that the Clintons themselves were involved by pressuring an Arkansas banker to provide McDougal with an illegal loan. Allegations were also made that fraudulent funds from Madison were used to pay off debts related to Bill Clinton’s campaign for governor.

Several investigations were launched into the Whitewater scandal, including one by famed independent counsel Kenneth Starr. The investigation uncovered a staggering number of wrongdoings by McDougal and those associated with him. Several fraud charges resulted from the scandal, but no evidence emerged proving the Clintons were aware of the fraud or participated in any illegal activities related to Madison Guaranty. None of this derails Bill Clinton’s path to the presidency.

In June 1993, Deputy White House Counsel Vincent Foster files three years of delinquent Whitewater corporate tax returns. Foster is found dead in a Washington area park on July 20, 1993. Police rule the death a suicide. Federal investigators are not allowed access to Foster’s office immediately after the discovery, but White House aides enter Foster’s office shortly after his death, giving rise to speculation that files were removed from his office before the FBI got there.

The Lewinsky Affair. The investigation into the Whitewater scandal was eventually expanded, with independent counsel Kenneth Starr looking into allegations of sexual impropriety by President Clinton. This included an affair with young White House intern Monica Lewinsky, which had left behind physical and circumstantial evidence of her encounter with Clinton. Most importantly, Clinton perjured himself during the Whitewater investigation by denying sexual relations with Lewinsky under oath. Starr concluded in late 1998 that Clinton committed perjury, and should be charged. Articles of impeachment were issued and a Senate trial followed. Every Democrat and ten Republicans voted to acquit Clinton.

Filegate. The Filegate scandal surfaced during the investigation of Travelgate where seven presumably competent individuals were ousted to make room for Clinton relatives. In 1993 and 1994, hundreds of FBI background files on officials in previous Republican presidential administrations were improperly given to Craig Livingstone, the director of White House security who was a Hillary Clinton favorite.

Bill and Hillary Clinton were cleared of any wrongdoing or connection to the acquisition of the files. Fingerprint analysis in 1996 supported Hillary’s claims she had no contact with the files. Nevertheless, the civil lawsuit connected to Filegate would not conclude for well over a decade when a judge dismissed the case. Nevertheless, Filegate had long reaching consequences. This, along with other scandals, were brought up numerous times by Donald Trump during his 2016 presidential campaign. It’s been spectulated that renewed interest in the case, and the resulting bad press, was a contributing factor to Hillary Clinton’s defeat.

George W. Bush

Geo W Bush

Valarie Plame. For 18 years as an undercover agent for the CIA, Valerie Plame Wilson kept her occupation and her identity a secret, even from her own friends and family, to avoid compromising her work as a spy. When she was exposed in 2003, it led to a federal investigation and raised questions about what would motivate such a betrayal. The Bush administration released Plame’s identity to syndicated columnist Robert Novak. Of course, Novak would go on to publish Plame’s name in a newspaper column.

Plame’s husband, Joseph Wilson, had criticized President Bush relative to the alleged “yellow cake” uranium that Saddam Hussein obtained from Niger, and the leak was seen as a form of retaliation. “Outing” a covert operative imperils many. It risks not only the officer’s safety—there are many who want a CIA officer dead—but the entire network of foreign assets being run by the officer. In some cases, the assets’ lives and even those of their families may be jeopardized. The danger is real.

The investigation into Plamegate lasted 22 months, and was led by special counsel Patrick Fitzgerald. The investigation looked beyond the leak to determine whether Dick Cheney’s Chief of Staff, Scooter Libby, had been involved in a cover-up. Ultimately, no one was charged in relation to the leak itself, but Scooter Libby was convicted for misleading investigators. His sentence was commuted by President Bush, who was never formally connected with the Plame affair himself.

Donald J. Trump

president-trump-emergency-alert-text-fema-2018Russian Collusion and Obstruction of Justice. Allegations have been made that Donald Trump’s campaign for presidency colluded with the Russian government to influence the 2016 election. There have also been subsequent allegations that the actions of the Trump administration, including the firing of FBI director James Comey, constitute obstruction of justice.

U.S. intelligence agencies have been able to determine that Moscow attempted to sway the 2016 presidential election away from Hillary Clinton and in favor of Donald Trump. It has been alleged that Russian hackers stole information linked to the Clinton campaign and passed it on to WikiLeaks so it could be released to undermine her. Congressional committees were set up to investigate the matter. In March, then FBI director James Comey confirmed the Bureau was undertaking its own investigation. Trump fired Comey on May 9, 2017, less than two months after Comey confirmed at a congressional hearing that the Bureau was investigating “whether there was any coordination between the [Trump] campaign and Russia’s efforts” to influence the 2016 presidential election.

The White House has offered several contradictory reasons for Comey’s firing. Initially, Trump said he terminated Comey because of “strong recommendations” from Attorney General Jeff Sessions and Deputy Attorney General Rod Rosenstein. Later, Trump said he planned on firing Comey “regardless of recommendation.” The president also claimed the “FBI has been in turmoil,” and a White House spokeswoman said “the rank and file of the FBI has lost confidence” in Comey. Much information surfaced that these statements were not accurate. Rather, Trump was overheard on May 17, 2017 informing Russian officials in the Oval Office that he had fired Director Comey. He said, “I faced great pressure because of Russia. That’s taken off.” Still, Trump informed Lester Holt of NBC News that Comey was fired because of incompetence.

WHERE DO WE GO FROM HERE?

Americans who lived through the Watergate scandal believed that Nixon’s impeachment and resignation would forever put to rest the notion that the president is above the law. Article 1 of the three impeachment articles filed against Nixon stated that he “obstructed and impeded the administration of justice.” Obstruction also was part of both impeachment articles returned against President Bill Clinton by the House of Representatives in 1998. Clinton ultimately was acquitted, but the principle that the president can be held accountable for obstruction of justice remained intact.

The New York Times noted on June 2, 2018 that lawyers for President Trump revealed the basis of their legal strategy in a confidential letter, informing special counsel Robert Mueller that Trump will not comply with requests for an interview. The letter, dated January 29, also claimed Trump could use his executive powers to pardon if needed. In the letter, the lawyers noted the importance of the presidency itself. “We are reminded of our duty to protect the president and his office,” adding, “Ensuring that the office remains sacred and above the fray of shifting political winds and gamesmanship is of critical importance.” Sekulow and Dowd—who has resigned from Trump’s legal team—also discussed the priorities and perception of the presidency. “The president’s prime function as the chief executive ought not be hampered by requests for interview,” they wrote. “Having him testify demeans the office of the president before the world.”

The letter stated, in pertinent part, “It remains our position that the President’s actions here, by virtue of his position as the chief law enforcement officer, could neither constitutionally nor legally constitute obstruction because that would amount to him obstructing himself, and that he could, if he wished, terminate the inquiry, or even exercise his power to pardon if he so desired.” Regarding the firing of James Comey, the letter stated, “As you know, and as Mr. Comey himself has acknowledged, a president can fire an FBI director at any time and for any reason. To the extent that such an action has an impact on any investigation pending before the FBI, that impact is simply an effect of the president’s lawful exercise of his constitutional power and cannot constitute obstruction of justice here. No president has ever faced charges of obstruction merely for exercising his constitutional authority. A president can also order the termination of an investigation by the Justice Department or FBI at any tie and for any reason.”

It is certainly possible for a president to obstruct justice. Any case for immunity from criminal prosecution—at least while in office—has its proponents, but they base their position mainly on the consideration that a sitting president must be unencumbered to fully execute the duties of the office. The security and sovereignty of the nation depend on it. While a sitting president may be out of reach in court, there’s no question that the House can impeach and the Senate can convict the president for any actions, including obstruction of justice, that lawmakers decide are “high crimes and misdemeanors” under the Constitution.

The question remains: Did President Trump fire Director Comey because he would not agree to “lift the cloud” of the Russian investigation? For purposes of criminal law, presidents must be judged by the lawfulness or unlawfulness of their acts, not by the motivations that underlay them. It’s not that a president can never be charged with obstruction of justice. It is that he cannot be charged with that crime if his only actions were constitutionally authorized. This distinction is central to our system of separation of powers and checks and balances.