President Donald Trump’s attacks on the FBI are forcing civil libertarians to make painful choices between their distaste for Trump and their distrust of federal law enforcement.
As Democrats and Republicans feud over Trump’s unfounded claim that the FBI planted a spy in his campaign, a parallel debate is underway amid activists, lawyers and experts who battle government encroachment on individual rights.
To longtime critics of the FBI’s most intrusive investigative tactics, Trump’s attacks on the bureau are self-serving, uninformed and transparently intended to deflect from his own conduct.
But the president’s claim that his campaign was infiltrated by an FBI informant also echoes longtime complaints by left-wing political activists, notably including the American Civil Liberties Union and Muslim-American groups, that the bureau often relies on flimsy evidence to justify spying on U.S. citizens
“What’s wrong for the goose is wrong for the gander,” said Fordham University Law School’s Karen Greenberg, who tracks the FBI’s use of informants in terrorism sting operations that she argues often concoct crimes rather than uncovering them. “This is the FBI’s way of doing business—and not just in terrorism cases.”
“I’ve actually been thinking obsessively about it,” said Harvey Silverglate, a criminal defense attorney and famed civil liberties advocate. “It’s very difficult for me because I loathe and distrust completely the FBI. I loathe and distrust completely the president of the United States and I loathe and distrust completely Hillary Clinton. I am in a real bind.”
The search warrants the FBI carried out recently at the home, office and hotel room of Trump personal lawyer Michael Cohen have also been a flashpoint among civil liberties activists, exposing simmering tensions about whether organizations like the ACLU should be targeting Trump or hewing to more traditional concerns about due process for those caught up in criminal investigations.
Some longtime ACLU supporters were disturbed by the organization’s initial response to the Cohen raids: a blog post that seemed to celebrate them as a triumph of the American justice system.
“Prosecutors had to overcome high hurdles to obtain the search warrant,” ACLU legal director David Cole wrote on the group’s website on April 10. “That the warrant was issued is not a sign that the attorney-client privilege is dead. It is, on the contrary, a sign that the rule of law is alive.”
Former New York Civil Liberties Union executive director Norman Siegel said that was the wrong tack for the ACLU to take.
“I respectfully disagree with the way the ACLU handled that particular statement,” Siegel said in an interview. “I was troubled by it. Anytime the FBI is raiding anyone’s home, let alone a lawyer’s office … that raises potential abuse of power and civil liberties concerns. … When we were at the ACLU, we were eternally vigilant about the government’s taking of people’s information.”
Siegel said criminal defense attorneys and ACLU veterans have shared concerns that the organization seemed to be blessing a raid on an attorney’s office and had not immediately called for a court-appointed arbiter to ensure prosecutors did not obtain attorney-client privileged materials.
On April 17, the ACLU posted another statement on the Cohen searches that struck a different tone.
“The risks of wrongful privacy invasions are too great to leave to the prosecutors when the government seizes digital data,” ACLU attorney Brett Max Kaufman wrote. “How the court decides this issue is not just of interest to Trump and Cohen, but to everyone…. how to manage searches of digital information, like any other evidence, is not a matter of expediency or any party’s good faith — it’s a matter of ensuring that the government complies with the Constitution.”
Despite the shift, the ACLU still finds itself accused of abandoning its principles in a bid to take down Trump.
“One of the biggest contributions that Donald Trump has made is to expose the extreme hypocrisy of the left—of the ACLU and other civil rights organizations who believe in civil rights for me but for thee,” said Alan Dershowitz, a prominent but unofficial legal defender of the president. “It’s so hypocritical and it’s so rampant.”
The debate comes at a complicated moment for the ACLU. Some see the 98-year-old group as morphing too much into an anti-Trump organization and away from its stated mission "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States.”
The group saw a massive outpouring of financial support after Trump’s election, with revenues and contributions surging to nearly $300 million in the fiscal year spanning Trump’s win, up from $138 million a year earlier. Membership also mushroomed from about 400,000 to 1.75 million. That support was fueled in part by the group’s vigorous fight against Trump’s executive order imposing strict new limits on travel from several Muslim-majority nations.
But the group also suffered a furious backlash after it went to court to defend the right of white nationalists to protest in a public park in Charlottesville, Va. last summer. In a shift, the ACLU later said it would refrain from defending those planning armed protests.
Asked about the criticism of the group’s position on issues related to the Trump-Russia probe, ACLU executive director Anthony Romero said it’s too soon to say if the tactics used by special counsel Robert Mueller or other prosecutors have been too aggressive.
“No one can know whether the Mueller investigation is violating President Trump’s rights without knowing the underlying facts,” Romero told POLITICO. “There is nothing unlawful per se about using an informant where there’s evidence of Russian interference — or seizing documents from an attorney’s office where there may be probable cause that he ran criminal business enterprises.”
Civil libertarians were already arguing about the Cohen raids when word emerged last month that the FBI had used Stefan Halper, an American academic teaching at a British University, to explore potential Russian influence on the 2016 Trump campaign. Reportedly at the FBI’s urging, Halper reached out to foreign policy advisers Carter Page and George Papadopoulos and campaign aide Sam Clovis.
“When the FBI infiltrated anti-war activists in the Vietnam War, the ACLU went nuts. ... If the FBI sent in spies and informants to go after left-wingers, the sky is falling, but if they do it to get Trump, they give them a pass,” Dershowitz said. “It’s appalling.”
Dershowitz "seems more concerned about potential civil liberties violations against Trump than about real civil liberties violations suffered by ordinary folks,” the ACLU's Romero retorted.
But Trump insists he has been the victim of scandalous FBI actions, branding them as “Spygate” and asserting that agents were gathering intelligence for Hillary Clinton’s campaign.
A prominent House Republican, Rep. Trey Gowdy of South Carolina, deflated those claims this week by saying he thinks the FBI acted appropriately.
Democrats argued that Deputy Attorney General Rod Rosenstein was wrong to refer the matter to Justice’s internal watchdog for investigation, in response to a Trump demand for action.
“Trump demand for DOJ investigation is dangerous/democracy threatening," former Attorney General Eric Holder wrote on Twitter last week. "DOJ response is disappointing. There is no basis/no predicate for an inquiry. It's time to stand for time honored DOJ independence. That separation from White House is a critical part of our system.”
The ACLU’s Cole said in a statement to POLITICO that the FBI’s actions may have been justified, but deserve to be examined by Justice’s inspector general.
“If the FBI had reason to believe that Russians may have been interfering with the election, that would warrant an investigation and quite possibly an informant. At the same time, the use of an informant to meet with officials of a presidential campaign is a significant enough matter, even when lawful, that an inspector general investigation is warranted if requested by the affected campaign. The deputy attorney general’s referral of the matter to the inspector general was appropriate.”
Longtime FBI critics like Greenberg agree that virtually any added scrutiny of the FBI is welcome. But they fear Trump is simply trying to divert attention — and even to confound liberals.
“People who are on the civil liberties side of things are caught up in a kind of no-man’s land and that’s intentional,” Greenberg said. “I wonder: is there a kind of brilliance to what he’s done to try to divide us?”
Former FBI agent Mike German, a fellow at NYU’s Brennan Center who earlier worked for the ACLU, said he sees some merit in Trump’s concerns as well as Clinton’s complaints about the FBI’s handling of the investigation into her email practices.
“I have long criticized the FBI for how it has used its expanded authorities since 9/11,” German said. “My concern has been how they were used against the most vulnerable communities in America. There also should have been some recognition that such broad power could be used inappropriately against the most powerful as well.”
“Just the matter of fact that the FBI was investigating both presidential candidates during the election raises a lot of questions about how much power we’ve given this agency,” German added.
FBI policies require special approvals for many activities involving churches, political organizations and public officials. That’s a product of decades of documented abuses in investigations of left-wing groups, civil rights activists, and groups opposing wars in Vietnam, Latin America and Iraq, as well as animal rights and environmental activists. The ACLU is also still pressing litigation over the FBI’s use of informants to infiltrate mosques in southern California after 9/11.
Some say what happened to Trump’s campaign is different.
Jeanne Baker, a criminal defense attorney and civil liberties activist, said there is “a world of difference” between the FBI’s sleuthing to uncover a possible connection between the Trump campaign and Moscow and “embedding a bearded hippy in my anti-war group.”
But German noted that even limited use of an informant in connection with a political campaign could affect the campaign in ways that may be difficult to discern, particularly because informants often lack close FBI oversight.
Siegel warns that the ACLU’s recent surge in support could dissipate if the group isn’t faithful to its core issues.
“Are people giving money or joining the ACLU because they are civil libertarians or are they doing it for political purposes,” Siegel said. “When we were involved with the campaign to impeach Nixon, our membership shot up, but shortly after Nixon wasn’t there, the membership shrunk. Maybe that’s happening today? ... It has to be neutral principles. Once we deviate from the neutral principles, we’re in trouble.”