“The Trump–Deep State clash is a showdown between a presidency that is far too powerful versus federal agencies that have become fiefdoms with immunity for almost any and all abuses,” I wrote in an FFF article a year ago. Since then, Donald Trump lost the 2020 election by fewer than 50,000 votes in a handful of swing states that determined the Electoral College result. There were numerous issues that could drive that relatively small number of votes. But machinations by the Deep State probably cost Trump far more votes than it took to seal his loss.
“The Deep State” commonly refers to officials who secretly wield power permanently in Washington, often in federal agencies with vast sway and little accountability. During Trump’s first impeachment, the establishment media exalted the Deep State. New York Times columnist James Stewart assured readers that the secretive agencies “work for the American people,” New York Times editorial writer Michelle Cottle hailed the Deep State as “a collection of patriotic public servants,” and Washington Post columnist Eugene Robinson captured the Beltway’s verdict: “God bless the Deep State!”
The first three years of Trump’s presidency were haunted by constant accusations that he had colluded with Russians to win the 2016 election. The FBI launched its investigation on the basis of ludicrous allegations from a dossier financed by the Hillary Clinton presidential campaign. FBI officials deceived the FISA Court to authorize surveilling the Trump campaign. A FISA warrant is the nuclear bomb of searches, authorizing the FBI “to conduct simultaneous telephone, microphone, cell phone, e-mail and computer surveillance of the U.S. person target’s home, workplace and vehicles,” as well as “physical searches of the target’s residence, office, vehicles, computer, safe deposit box and U.S. mails,” as a FISA court decision noted. The FISA court is extremely deferential, approving 99 percent of all search warrant requests.
Leaks from federal officials spurred media hysteria that put Trump on the defensive even before he took his oath of office in January 2017. A 2018 Inspector General (IG) report revealed that one FBI agent labeled Trump supporters as “retarded” and declared, “I’m with her” (Clinton). Another FBI employee texted that “Trump’s supporters are all poor to middle class, uneducated, lazy POS.” One FBI lawyer texted that he was “devastated” by Trump’s election and declared, “Viva la Resistance!” and “I never really liked the Republic anyway.” The same person became the “primary FBI attorney assigned to [the Russian election-interference] investigation beginning in early 2017,” the IG noted.
FBI chief James Comey leaked official memos to friendly reporters, thereby spurring the appointment of Special Counsel Robert Mueller to investigate Trump. A 2019 Inspector General report noted that top FBI officials told the IG that they were “shocked,” “stunned,” and “surprised’ that Comey would leak the contents of one of the memos to a reporter. The IG concluded, “The unauthorized disclosure of this information — information that Comey knew only by virtue of his position as FBI Director — violated the terms of his FBI Employment Agreement and the FBI’s Prepublication Review Policy.” The IG concluded that by using sensitive information “to create public pressure for official action, Comey set a dangerous example for the over 35,000 current FBI employees — and the many thousands more former FBI employees — who similarly have access to or knowledge of non-public information.” The IG report warned that “the civil liberties of every individual who may fall within the scope of the FBI’s investigative authorities depend on FBI’s ability to protect sensitive information from unauthorized disclosure.” But the only penalty that Comey suffered was to collect multimillion-dollar advances for his book deals.
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The Steele dossier
In December 2019, another Inspector General report confirmed that the FBI made “fundamental
errors” to justify surveilling the Trump campaign. The FBI refrained from launching a FISA warrant request until it came into possession of a dossier from Christopher Steele, a former British intelligence agent. The Steele dossier played “a central and essential role in the decision by FBI [Office of General Counsel] to support the request for FISA surveillance targeting Carter Page, as well as the FBI’s ultimate decision to seek the FISA order,” the IG report concluded. The FBI “drew almost entirely” from the Steele dossier to prove a “well-developed conspiracy” between Russians and the Trump campaign. The IG found that FBI agents were “unable to corroborate any of the specific substantive allegations against Carter Page” in the Steele dossier but the FBI relied on Steele’s allegations regardless.
The FBI withheld from the FISA court key details that obliterated the dossier’s credibility, including a warning from a top Justice Department official that “Steele may have been hired by someone associated with presidential candidate Clinton or the DNC [Democratic National Committee].” The CIA disdained the Steele dossier as “an internet rumor,” one FBI official told IG investigators.
Many if not most of the damning details involving Russiagate have still not been disclosed. But the occasional disclosures are doing nothing to burnish the credibility of the key players. On January 12, 2017, Comey attested to the Foreign Intelligence Surveillance Act court that the Steele dossier used to hound the Trump campaign had been “verified.” But on the same day, he emailed the director of national intelligence, James Clapper, “We are not able to sufficiently corroborate the reporting.” That email was revealed this past February, thanks to a multi-year fight for disclosure by the Southeastern Legal Foundation.
If the FBI’s deceit and political biases had been exposed in real time, there would have been far less national outrage when Trump fired Comey. Instead, that firing was quickly followed by the appointment of Special Counsel Robert Mueller to investigate the Russian charges. In April 2019, Mueller admitted there was no evidence of collusion. Conniving by FBI officials and the veil of secrecy that hid their abuses had roiled national politics for years.
Not one FBI official has spent a single day in jail for the abuses. In January, former FBI assistant general counsel Kevin Clinesmith was sentenced after he admitted falsifying key evidence used to secure the FISA warrant to spy on the Trump campaign. A federal prosecutor declared that the “resulting harm is immeasurable” from Clinesmith’s action. But a federal judge believed that a wrist slap was sufficient punishment — 400 hours of community service and 12 months of probation.
The Deep State defeated Trump in part because the president appointed agency chiefs who were more devoted to secrecy than to truth. Bureaucratic barricades were reinforced by judges who repeatedly defied common sense to perpetuate iron curtains around federal agencies.
Syria
Trump’s failure to extract the United States from the Syrian civil war was one of his biggest foreign policy pratfalls. Each time he sought to exit that quagmire, the Washington establishment and Deep State agencies pushed back.
When Trump tried to end CIA assistance to Syrian terrorist groups in July 2017, a Washington Post article portrayed his reversal in apocalyptic terms. Trump responded with an angry tweet: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.” That disclosure spurred a Freedom of Information Act (FOIA) request by the New York Times for CIA records on payments to Syrian rebel groups. The CIA denied the request and the case ended up in court.
CIA officer Antoinette Shiner warned the court that forcing the CIA to admit that it possessed any records of aiding Syrian rebels would “confirm the existence and the focus of sensitive Agency activity that is by definition kept hidden to protect U.S. government policy objectives.” Of course, “kept hidden” doesn’t apply to the CIA when it was engaged in “not for attribution” bragging to reporters. Washington Post columnist David Ignatius proudly cited an estimate from a “knowledgeable official” that “CIA-backed fighters may have killed or wounded 100,000 Syrian soldiers and their allies over the past four years.”
Federal judges, unlike Syrian civilians slaughtered by U.S.-funded terrorist groups, had the luxury of pretending the program didn’t exist. In a decision last July, the federal appeals court of the Second Circuit stressed that affidavits from CIA officials are “accorded a presumption of good faith” and stressed “the appropriate deference owed” to the CIA. The judges omitted quoting former CIA chief Mike Pompeo’s description of his agency’s modus operandi: “We lied, we cheated, we stole. It’s like we had entire training courses.”
Since Trump’s tweet did not specifically state that the program he was seeking to terminate actually existed, the judges entitled the CIA to pretend it was still top secret. The judges concluded with another kowtow, stressing that they were “mindful of the requisite deference courts traditionally owe to the executive in the area of classification.” Judge Robert Katzmann dissented, declaring that the court’s decision put its “imprimatur to a fiction of deniability that no reasonable person would regard as plausible.”
On February 9, another federal appeals court shot down a FOIA request from BuzzFeed journalist Jason Leopold who had sought the same records on the basis of Trump’s tweet. But the federal appeals court for the District of Columbia unanimously blocked Leopold’s request: “Did President Trump’s tweet officially acknowledge the existence of a program? Perhaps. Or perhaps not. And therein lies a problem.” The judges proffered no evidence that Trump had tweeted about a program that didn’t exist. The judges reached into an “Alice in Wonderland” bag of legal tricks and plucked out this pretext: “Even if the President’s tweet revealed some program, it did not reveal the existence of Agency records about that alleged program.” Since Trump failed to specify the exact room number where the records were located at CIA headquarters, the judges entitled the CIA to pretend the records didn’t exist.
Only a federal judge could shovel that kind of hokum. Well, also members of Congress and editorial writers, but that’s a story for another month.
In his final months in office, Trump repeatedly promised massive declassification which never came. Was the president stymied by persons he had unwisely appointed, such as CIA chief Gina Haspel and FBI chief Christopher Wray? Or was that simply another series of empty Twitter eruptions that Trump failed to follow up? Instead, his legacy is another grim reminder of how government secrecy can determine political history.
Have Deep State federal agencies become a Godzilla with the prerogative to undermine elections? Unfortunately, there’s no chance that federal judges would permit disclosure of the answer to that question. Former CIA and NSA boss Michael Hayden proudly proclaimed, ““Espionage is not just compatible with democracy; it’s essential for democracy.” And how can we know if the Deep State’s espionage is actually pro-democracy or subversive of democracy? Again, don’t expect judges to permit any truths to escape on that score.
Secrecy is the ultimate entitlement program for the Deep State. The federal government is creating trillions of pages of new secrets every year. The more documents bureaucrats classify, the more lies politicians and government officials can tell. Federal judge Amy Berman Jackson warned in 2019, “If people don’t have the facts, democracy doesn’t work.” Actually, it is working very well for the FBI, CIA, and other Deep State agencies.
This article was originally published in the May 2021 edition of Future of Freedom.