When our Constitution’s Framers drafted a plan for our government, they were betting, against prior experience, that, for the first time in world history, they could create a polity based on popular sovereignty that would not decay into the anarchy and chaos that had beset democracies in the ancient world. They understood that the American people could only govern themselves if they possessed sufficient virtue to do so, and if the officials they picked were able to maintain the trust of the people.
The Framers’ worst fears were that we would succumb to the kind of abuses they could see in England. There, authority was concentrated in the central government, and there the executive (the monarch) had managed to corrupt the legislature, and by patronage had gotten parliament to submit to his bidding.
In England, the government favored the interest of royalty and its ministers and acolytes — particular the financial operations centered in London. The central government paid little heed to the interests of the country landowners. Curiously Donald Trump, in his run for president, made an appeal that revealed that our country is now in a similar situation to that of 18th century Britain.
Americans in flyover country, in the rural non-coastal counties in particular, understood that their government in Washington, D.C. was engaged in furthering its own interests, and not in accommodating theirs. Where we arrived, in terms of what we came to have, could be seen strongly to resemble 18th century England; a regime of oppressive taxation, centralized government, crony capitalism and policy-making by a self-interested bureaucracy.
Our bureaucracy, which candidate Trump succinctly labeled the "deep state," a leviathan flourishing under Barack Obama (and, if the truth be told, several administrations before him) and would have been continued by Hillary Clinton, was decisively rejected by Trump voters living in a great majority of the country.
The current brouhaha over the release of a memo drafted by two Republican members of Congress, Rep. Trey Gowdy, R-S.C., and Rep. Devin Nunes, R-Calif., viewed in this context, shows that the deep state understood the threat that a Trump administration would pose, and the actions of the bureaucrats detailed in that memo explicitly demonstrate the corruption the framers labored to avoid.
The memo shows that top officials at the Obama Department of Justice and at the Federal Bureau of Investigation sought and obtained legal authority from the Foreign Intelligence Surveillance Court (FISC) to engage in surveillance of Carter Page, an American citizen who served as a volunteer advisor to the Trump presidential campaign.
This meant, of course, that such power would result in surveillance of the Trump campaign itself. Thus, the president’s oft-ridiculed claim that his campaign was "wiretapped" by the Obama administration, a claim that now appears to have been vindicated figuratively, if not literally.
Such a request for surveillance of an American citizen is highly unusual and can only be justified on the grounds that the target is actually operating as an agent of governments hostile to the United States.
Given that Americans are supposed to be immune from unreasonable governmental searches or seizures, it's crucial that requests for any such surveillance be based on reliable information and that such information really does show a probable threat to the nation’s security.
The memo makes clear, however, that government officials who made the request for surveillance actually knew that crucial information on which the request was based was produced at the request of the political campaign of Mr. Trump’s opponent, Mrs. Clinton.
Additionally, they knew that it was produced by a man, former British intelligence operative, Christopher Steele, who had, according to the memo, "anti-Trump financial and ideological motivations," and was himself "desperate that Donald Trump not get elected and was passionate about him not being president."
Even more disturbing, is the fact that the government officials who sought the surveillance either knew or should have known that the information on which they were relying, was, in the words of the June 2017 testimony of former FBI Director James Comey, "salacious and unverified." The partisan character of the information on which Justice and FBI officials sought surveillance was not revealed to the FISC — nor was its unreliable nature.
The Watergate affair, bringing down Richard M. Nixon, involved a similar attempt in effect, to use government officials for unjustifiable partisan purposes. It may be too early to say what was done to Mr. Trump’s campaign was worse, but whether that is true or not, the memo cannot be understood as anything but revealing a betrayal of the trust that the American people ought to be able to put in their government officials.
We are in a situation where law enforcement officials, whose jobs require impartiality, were actively seeking to favor one political candidate over another, as well as abusing the power of the government itself, in the words of the memo, quoting government officials Peter Strzok and Lisa Page, to provide an "insurance policy against President Trump’s election."
That president declassified the congressional memo, on the grounds that the American public’s interest in disclosure outweighs any need to protect the information as a matter of national security. Indeed, what the president (and the two authors of the memo) have done is to begin to take the necessary steps to restore the faith in our government and awaken us from the Framers’ nightmare.
Stephen B. Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern’s Pritzker School of Law, the Legal Affairs Editor of Chronicles: A Magazine of American Culture, and a contributor to The University Bookman. He graduated from Harvard College and Harvard Law School, and has taught at Rutgers University, the University of Virginia, and University College, London. He has often testified on constitutional issues before committees of the United States Congress, and is the author of "Recapturing the Constitution: Race, Religion, and Abortion Reconsidered" (Regnery, 1994) and "Law Professsors: Three Centuries of Shaping American Law" (West Academic, 2017). To read more of his reports — Click Here Now.
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