Tuesday, June 19, 2018

Part I

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Justice Department inspector general report exposes politicization of the FBI, provides ammunition for both political parties

The Federal Bureau of Investigation more commonly known as the FBI is no stranger to controversy. Some controversies has been attached to the FBI ever since its inception in the early decades of the 20th century. But just last week, the inspector general of the Department of Justice released a report that can only be considered scathing.

Most importantly, the inspector general found that the former director of the FBI, James Comey, had repeatedly violated the policies and procedures not only of the FBI but of the Department of Justice of which the FBI is a very important part. The New York Times in its front page story on Friday reported, “The Justice Department’s inspector general painted a harsh portrait of the FBI during the 2016 presidential election describing a destructive culture in which James B. Comey, the former director, was insubordinate, senior officials privately bashed Donald J. Trump and agents came to distrust prosecutors.”

Matt Apuzzo went on to report, “The 500-page report criticized James Comey for breaking with longstanding policy and publicly discussing in a news conference and pair of letters in the middle of the campaign and investigation into Hillary Clinton’s use of a private email server in handling classified information.” The report said The New York Times was a firm rebuke of those actions which Mr. Comey has tried for months to defend.

Now, the background to this is really important and that background includes an immediate background back at least into the midpoint of the year 2016, a very important year in American presidential politics but the context also points back to the very birth of the FBI and that takes us back to about 1908.

But first, the more immediate context. The 2016 presidential election was one of the most polarizing political events in recent American history. It can be argued that there was actually no precedent to the 2016 election which pitted Donald J. Trump as the Republican nominee over against Hillary Clinton, the Democratic nominee. What was released in the FBI report is that there is now no question that the FBI was politicized in the course of the 2016 presidential campaign.

But as you’re thinking about winners and losers, there is also no question that both parties, the Republicans and the Democrats will find plenty of ammunition in the inspector general’s report in arguing that the FBI played into the politics and potentially even the political outcome of the 2016 presidential election. The inspector general’s role here is very important.

One of the most respected investigators in the United States government is the inspector general for the United States Department of Justice. That office is considered politically unimpeachable and one of the most important aspects for our consideration, very important as we’re trying to think in terms of world view is understanding that there is here proof positive of the fact that a Democratic form of self-government can also be self-investigating.

Just to create a contrast, it is virtually impossible to imagine this kind of investigation much less the release of this kind of report in most other nations, most importantly contrasted with nations such as China under the control of the Communist Party or Russia under the control of a political oligarchy. Governments tend to attempt to be very tightlipped especially about their own shortcomings and especially about this kind of investigation.

But Americans should at least be assured by the fact that this investigation took place and that the report was made public and the nature of the report is indeed such an indictment of the breaking of policies and routine political involvements of the FBI in the course of the 2016 election. The central person to the story is the former director, James B. Comey.

As we discussed when his memoir came out a matter of weeks ago, Mr. Comey has related his own understanding of these events over and over again and every time he does it, he seems to indicate that he believes that his own moral judgment is even more important than the law of the United States and the policies of the Department of Justice and the FBI. He personally intervened in the 2016 election in both May and October of 2016, both times he acted with disregard for the official policies of the FBI.

If you’re going to put those policies into a nutshell, just consider the fact that it is the official stated policy of the FBI that it should not involve itself in anything that might have a material impact upon an American election. That opening paragraph in The New York Times cited the use of the word insubordinate in the inspector general’s report with reference to the former FBI director.

Now, at this point, many Americans hear that word and might recognize that word but might not understand the full legal significance of that word. Insubordinate means acting outside of lawful and rightful authority. It represents not only actions but a recognized attitude within a pattern of actions which represents the kind of defiance that James B. Comey is now documented to have demonstrated in the 2016 election.

That is to say, he acted outside the policies of the FBI. He acted outside the policies and the traditions of the Department of Justice and he did so without any adequate respect or oversight when it comes to the attorney general of the United States or even those who serve directly the attorney general of the United States, all of whom should have been involved in making the decisions even about whether or not these press conferences and judgments would ever have been made.

In America’s constitutional order and in our legal system, there is a very important distinction between the investigators and the prosecutors. That’s vitally important. You won’t find that distinction in the Soviet Union. You won’t find it even in today’s Russia. You will not find that distinction in a Communist regime such as China. You do find it in many western nations and you certainly find it in the United States of America.

That is to say that those who make the decisions about handing down an indictment and pressing charges in major cases are prosecutors who work on behalf of the prosecutorial system. Those who do the investigating often involve police forces, they may make arrest but they cannot file charges. Those charges have to be filed in the form of an indictment by a lawful authority.

When the director of the FBI made a public statement in the middle of the 2016 presidential election in May of 2016, then no prosecutor should file charges against Hillary Clinton based upon the evidence. He was making a presumption that he had no right to make in a meeting he had no right call in an announcement he had no right to make.

In the inside first section of The New York Times last Friday, Alexander Burns had an headline story. The headline was simply this, “Clinton supporters find vindication, if little solace in the report’s findings.” But here’s where we also need to step back and understand that if it was wrong for the FBI director to make that case back in May of 2016 to hold the meeting and make the announcement, it was also wrong of him to come to the conclusion that no prosecutor would or should bring charges against Hillary Clinton either then or later.

The FBI director violated FBI policy in May. He did so again in October when he advised members of Congress that he was renewing the investigation even in the last days of the 2016 presidential campaign. Hillary Clinton and her supporters have long blamed the FBI for her defeat, at least in large part in 2016, and specifically they had blamed James B. Comey.

President Trump has also made major charges against the FBI and against James B. Comey. It was President Trump, of course, who fired Comey and that infamously is set into effect the sequence of events which is now eventuated in the ongoing investigation having to do with Russian interference in the 2016 presidential campaign. That investigation undertaken by another former director of the FBI, Robert Mueller.

The charges alleged by President Trump and members of his administration were very much the focus of the front page article as Friday in The Washington Times published in the nation’s capital. Stephen Dinan reports, “Fired FBI director James B. Comey was insubordinate and a top agent’s political bias might have skewed the bureau’s focus on candidate Donald Trump instead of Hillary Clinton in the waning days of the 2016 presidential race.” Dinan went on to report, “The agent deputy assistant director Peter Strzok caught in a text message telling paramour, Lisa Page, then an FBI lawyer that they would prevent Mr. Trump from winning the White House.”

This again according to the report by the Inspector General Michael Horowitz. Miss Page in that exchange of text messages had asked Mr. Strzok for reassurance that Donald Trump couldn’t win the 2016 election. Now, remember that Strzok was at that time deputy assistant director of the Federal Bureau of Investigation. His response to the woman with whom he was conducting an affair, herself a lawyer for the FBI, “No, he’s not. We’ll stop it.”

So, now, we have documentation that the FBI was involved in misbehavior on both sides of the 2016 presidential election. That’s the kind of bipartisan achievement that gives democracy a bad name. As we discussed on The Briefing when Comey’s memoir came out weeks ago entitled A Higher Loyalty, one of the problems that is revealed by a Christian world view is that even when someone has a very strong moral compass, that isn’t necessarily a sure guide. The issue is whether or not that moral compass is pointed rightly, whether or not it is calibrated to truth.

In the case of James Comey, it is clear that he operated by his own internal sense of morality, but we now know that for decades in the US Justice Department, that particular internal moral sense had put James Comey at odds with his colleagues and now we know with official policy. Having a strong moral sense isn’t sufficient if that moral sense is the wrong moral sense.

In response to this very important and devastating report, the new director at the Federal Bureau of Investigation, Christopher Wray, indicated that the bureau would undertake a top to bottom review of policies and would also seek to reeducate those who work for the FBI about the proper role of the organization and its policies.

Part II

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Why in a fallen world someone must watch the watchers and investigate the investigators

But Christians, looking for the deeper level of worldview issues, here have to go into a longer consideration of history. The very idea of the FBI goes back in an organized sense to President Theodore Roosevelt in the early years of the 20th century. Roosevelt was a president elected with a progressivist agenda. That doesn’t mean the same thing as progressive does now in moral terms.

Back in the late 19th and early 20th century, the progressivists were those who wanted to create a new sense of the federal government being an active agent in United States society. And as a progressivist, Theodore Roosevelt felt that it was the role of America’s federal government to undertake a federal police force. But that was an extremely controversial question back during the time of the Roosevelt administration.

One of the background issues to that is the fact that there was a renaissance on the part of the American people to accept a federal police force. Now, remember that the founders of this nation understood the dangers even of having a standing army. Now as it turned out, life as a young nation in the midst of a dangerous world required then and now a standing army.

But the fear was that if the federal government had a standing army, it could run roughshod over the states and could turn despotic for the very same reasons driven by the very same instincts, instincts deeply rooted in a biblical worldview. The American people during the 19th century and even in the early decades of the 20th century were very reluctant to turn to a federal policing authority, believing that it too would become politicized and very dangerous to a constitutional order.

We then have to ask the question, why did the American people come to accept the idea of what became the FBI? The answer to that is a period of radical political unrest, violence and domestic terrorism largely led by those identified as anarchist, the very enemy of any government in the first years of the 20th century.

Also in the background was the assassination of numerous presidents, the defense of the president have been assigned to the Secret Service but the Secret Service lacked the kind of broad investigatory power and force that was pointed out by the fact that an anarchist assassinated President William McKinley leading to Theodore Roosevelt first becoming President of the United States.

President McKinley was assassinated in 1901 and Theodore Roosevelt, his vice president, became president. Roosevelt was then elected in his own right and at that point, he began to push for the establishment of a federal police and investigative agency. It was during his administration in the year 1908 that Attorney General Charles Bonaparte announced that investigators for the internal division of the Justice Department would begin with just 34 agents to investigate crime in a federal level. There was pushback to this proposal but the pushback was less than had been true in previous decades.

Then in 1909, the next Attorney General of the United States, George Wickersham, announced that the Bureau of Investigation would be formed. That Bureau of Investigation later became renamed the Federal Bureau of Investigation, and thus those famous initials, the FBI. But the FBI as we know it today, with its coast-to-coast coverage and its recognized responsibility and centrality to American law enforcement, goes back to the years of the gangsters in the United States and the rise of organized crime. The reality of organized crime presented the same kind of danger as did the reality of a dangerous world.

Organized crime represented a threat to the United States that no local police department or even state agencies could handle. There was the recognized need for the expansion of the role of what became known as the FBI in fighting the mobsters, the gangsters and organized crime. America in the late teens and the early 1920s was in danger by public perception of falling into rampant lawlessness and the FBI was at least in part an answer to that public anxiety.

In 1924, J. Edgar Hoover, the most famous or infamous director of the FBI took control and was under Hoover’s leadership which was extended until the year 1972 that the FBI grew into national and international prominence. But here’s where’s Christians thinking from a biblical world view, we need to understand that there was great danger in one man serving in this kind of capacity for so long, from 1924 to 1972. And we now know that J. Edgar Hoover, though he accomplished much in the war on crime also involved himself personally and in a corrupt way in American politics, keeping enemies list, wiretapping conversations, interfering with the mail, involving himself in political disputes in the United States of America and choosing sides.

By the time Hoover left and that was only by his death in 1972, it was widely assumed that he had material that could be used to blackmail just about any major American politician and there is also evidence that at times, he used that material. It was in response to the embarrassment of the Hoover years that the Justice Department and the United States Congress and successive presidential administrations put what were believed to be adequate controls on the FBI. But as we have seen in this report that came out just last week, those controls were not adequate.

Here’s where Christians understand that no system of controls can be fully adequate. In a sinful world in which every single human agent, not just every FBI agent is a sinner, we have to understand that no system or policies is sufficient to control the kind of power that is represented by the federal government and by the FBI.

But we also have to put this entire situation into its context, and that context reminds us that most of the people who have worked for the FBI throughout his entire history had been noble defenders of justice and they had been those who have been devoted public servants. We also know that the FBI, even though it has found itself in this embarrassing situation related to certain aspects of its work and certain actions of its director, the ongoing importance of the FBI is undiminished.

Where you find a healthy, functioning democracy, you find both the government and a population ready to handle these kinds of issues and face these kinds of truths. In a functioning democracy, you also find the ability of a government or any kind of organizational leadership to learn from mistakes and make corrections moving to the future.

But in this context, you also learn there were human beings are involved, bad things not yet contemplated can and will happen. But finally on this issue, it comes back to the fact that someone in a fallen world must be watching the watchers and then someone has to watch the watchers of the watchers. It simply isn’t enough to create a Federal Bureau of Investigation. Someone eventually is going to have to investigate the investigators.

Part III

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When Canada’s Supreme Court tries to balance religious liberty and equality, it’s religious liberty that takes a back seat

But next, we shift to Canada and the threat to religious liberty. Last week, the Supreme Court of Canada handed down two closely anticipated decisions. They are both related to one university, Trinity Western University. That’s the major evangelical university in Canada, a university that in 2012 established what it hoped to become a recognized national law school.

But even as the law societies in six of the Canadian provinces indicated that they would accept the graduates, the law graduates of Trinity Western University as attorneys, the law societies in two of the Canadian provinces, British Columbia and Ontario said that those law societies would not, citing the fact that Trinity Western University holds to a Christian biblical understanding of marriage and human sexuality.

The Vancouver Sun reported the story this way last week, “In a pair of kingly anticipated decisions, the high court said law societies in Ontario and British Columbia were entitled to ensure equal access to the bar, support diversity and prevent harm to lesbian, gay, bisexual, transgender and queer students.” The Sun went on to report the cases pitted two significant societal values, freedom of religion and promotion of equality against one another.

Now, pausing there and the language of the Supreme Court in Canada on both of these two cases uses the very same language of balancing two different interests, in this case, two different rights or societal values according the Sun, freedom of religion and promotion of equality. And here’s where we need to know that when a fundamental human freedom such as religious liberty is balanced with anything else and what this really means with the language, the promotion of equality is the LGBTQ agenda, religious liberty inevitably loses.

The problem is the religious liberty must be in any constitutional order recognizes a fundamental right, and that fundamental right as a fundamental right is not subject to being balanced. That’s the word used here with any another social value. But as we have seen in the United States, this inevitable collision between the new sexual liberty and religious liberty often comes with the religious liberty either on the defensive or in this case clearly the loser.

The bottom line in these two decisions by the Canadian Supreme Court is that it is now virtually impossible for any kind of Christian educational institution, any institution of higher education in Canada that would hold to Christian biblical values to have its graduates recognized as professionals. In this case, the profession is the profession of law.

Now, to be sure, there were six law societies which said they would accept these graduates but with the legal precedent set by these two Supreme Court decisions, that is likely to be a perishable acceptance. What we’re looking at here is nothing less than devastation to the right of Christian, evangelical Christians in Canada, to have a university that is established upon evangelical Christian biblical convictions.

Now, that’s across America’s northern border and we have noted historically, constitutionally and culturally in many ways, Canada has tracked more closely with Western Europe in the progression of the sexual and moral revolution than with the United States. But here, we also have to note that the same arguments used, the same arguments that won in Canada Supreme Court are arguments that have already been used here in federal court cases and are certain to show up not just in Canada Supreme Court but at the United States Supreme Court as well, and probably rather quickly.

It’s really hard to exaggerate the ultimate impact of these two decisions handed down by the Canadian Supreme Court. Most immediately, they have impact in Canada but more broadly, they will have impact everywhere. And here’s where we have to understand that the arguments that won in Canada are arguments that are gaining in traction in the United States.

The moment you talk about balancing a fundamental human right with anything else, you have just redefined a fundamental human right. You’ve actually gone on to say in Canada, the religious liberty is not the truly a fundamental human right. If it were fundamental, it couldn’t be compromised in the name of balance.