Jack Goldsmith on the deep state

Jack Goldsmith, writing in the Guardian, tells us that the “deep state” is real and dangerous. His assertions carry weight for two reasons.

First, Goldsmith should know. He was a high ranking Justice Department official — head the Office of Legal Counsel — during part of the George W. Bush administration. This placed him in the middle of issues regarding national security, electronic surveillance, and the like. He also worked closely with James Comey, including during the famous incident at Attorney General Ashcroft’s hospital bed that made Comey famous (or at least a legend in his own mind).

Goldsmith is also author of Power and Constraint, a book I reviewed for the Federalist Society. Goldsmith’s research kept him very much in touch with the deep state and issues relating to its power.

Second, Goldsmith is a strong critic of President Trump. Thus I view his agreement with Trump about the “deep state” as more significant than the concurrence of Trump’s defenders, from whom we normally here such assertions.

It’s also noteworthy that Goldsmith’s column on the deep state appears in The Guardian, a left-wing organ. Remember, though, that the left, at times in the past, has been more inclined than the right to worry about the dangers posed by agencies like the CIA and the FBI.

At any rate, Goldsmith has this to say about the deep state and Donald Trump:

America doesn’t have coups or tanks in the street. But a deep state of sorts exists here and it includes national security bureaucrats who use secretly collected information to shape or curb the actions of elected officials. . . .

The deep state has been blamed for many things since Donald Trump became president, including by the president himself. Trump defenders have used the term promiscuously to include not just intelligence bureaucrats but a broader array of connected players in other administrative bureaucracies, in private industry, and in the media.

But even if we focus narrowly on the intelligence bureaucracies that conduct and use information collected secretly in the homeland, including the FBI, National Security Agency (NSA), and National Security Council, there is significant evidence that the deep state has used secretly collected information opportunistically and illegally to sabotage the president and his senior officials – either as part of a concerted movement or via individuals acting more or less independently. . . .

Since Trump was elected, unusually sensitive leaks of intelligence information designed to discredit him and his senior leadership have poured forth from current and former intelligence officials in the deep state.

(Emphasis added)

Goldsmith provides several examples. He then writes:

These leaks probably mark the first time ever that the content of foreign intelligence intercepts aimed at foreign agents that swept up US-person information was leaked. They clearly aimed to damage US persons – ones who happen to also be senior US government officials.

They were unlawful and, beyond that, they violated two until-now strict taboos about leaks – first on revealing the content of foreign intelligence information collected through electronic surveillance, and second on revealing the content of incidentally collected information about American citizens.

Many people, including many who are not in the Trump camp, have interpreted these leaks to violate a third taboo by marking a return to the Hoover-era FBI’s use of secretly collected information to sabotage elected officials with adverse political interests.

In fact, the deep state’s conduct towards the Trump administration goes beyond the realm of J. Edgar Hoover:

[W]hile Hoover did many awful things in quiet, neither during his reign nor at any other time in American history have we seen such a profusion of sensitive leaks from the deep state with such an overtly political aim to bring down senior leadership.

Remember, this isn’t Sean Hannity. It’s Jack Goldsmith.

Goldsmith has no doubt that the consequences of the deep state’s abuses towards the Trump administration are grave:

[T]he whole ordeal has already done great damage to both the presidency and the national security bureaucracy.

As deep state officials get a taste for the power that inheres in the selective revelation of such information, and if the leaks are not responded to with severe punishments, it is easy to imagine the tools that brought down Flynn being used in other contexts by national security bureaucrats with different commitments and interests.

Even the most severe critics of Trump should worry about this subtle form of anti-democratic abuse. The big loser in all this will probably be the national security bureaucracy itself and, to the extent it is weakened, the security of the American people.

Exactly.

All of this notwithstanding, Goldsmith lamely suggests that special circumstances might have justified the deep state’s assault on the Trump presidency. What special circumstances? Sally Yates (an anti-Trumper temporarily in charge of the Justice Department) thought that Michael Flynn might become a Russian agent, or something. Plus, there were hints of collusion between Russia and Trump, a matter already being investigated (by anti-Trumpers in the deep state).

Goldsmith makes no attempt to show that these circumstances did, in fact, justify the deep state’s assault on the president. He simply allows it as a possibility.

But the deep state will always be able to cite, or gin up, “special circumstances” to justify its interference in our politics — just as, to return to the analogy with which Goldsmith begins his article — South American military leaders were always able to some up with special circumstances to justify military coups.

I think Goldsmith understands this. Maybe that’s why the alarmist portions of his discussion of the deep state’s conduct are so ringing while his suggestions that the deep state acted with justification seem so perfunctory.

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