The bureaucracy, the gigantic power set into motion by dwarfs, was thus born.
(La bureaucratie, pouvoir gigantesque mis en mouvement par des nains, est née ainsi.)
—HONORÉ DE BALZAC, Les Employés
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We have explored how ancient, indeed premodern, phenomena—the medieval bifurcation of society, the prenation migrations of large populations, and the primary identification by tribal loyalties—in organic fashion have returned and conspired to undermine American citizenship. Yet, the threats to citizenship outlined in the following three chapters, while no less real, are certainly more contrived and deliberate, the work of a professional and often ideologically driven elite. The first such danger is the effort of a near-permanent caste of unelected officials, regulators, and bureaucrats who hold enough “gigantic power” to usurp the citizens’ control over their own government.
There are various ways of defining the so-called deep or administrative state. The hotly debated term usually refers to a “state within a state” and has traditionally focused mostly on supposedly unaccountable and nontransparent intelligence agencies.
Now, however, references to a deep state encompass the entire permanent Beltway military echelon, as well as the intelligence and investigative agencies. It also often includes the top officials of the civil service bureaucracies and administrative agencies. In the case of the United States, it can also denote their multifarious and often incestuous—not to mention lucrative—bureaucratic relationships with the Washington–New York media, lobbyists, Wall Street, and elite universities.1
In the past, liberal critics especially warned of the deep state. They often cited the ominous power and overreach of the so-called military-industrial complex. In contrast, conservatives more often feared the power of regulatory agencies. They fought bureaucracies that tried to curtail the freedoms of private citizens and elected officials alike. They railed against the waste of public funds through inefficiencies and administrative bloat.
Both sides, however, shared suspicions of these unelected and often exempt careerists. Both suspected the vast government archipelago could become illegitimate and unwarranted without oversight—and might either hound individual citizens because of their political views, their singular success, and their fame or, in contrast, simply neglect their less powerful constituents without fear of consequences.
In past times, conservatives also criticized the deep state mostly in financial terms, talking of “cutting fat” and “trimming waste,” or ridiculed useless “bureaucrats” and “functionaries” of a government that had grown enormously, both relatively and absolutely, after the New Deal of the 1930s. When Ronald Reagan’s administration talked of “starving the beast,” it meant cutting taxes to decrease incoming federal revenues. Reagan then assumed, wrongly as it turned out, that the ensuing reduced national income would demand massive cuts in government regulators. His administration failed to realize that the bureaucracy only grew as the government simply borrowed money from future generations to replace any lost tax revenue, even as annual deficits soared and conservatives lost their credibility as budgetary hawks.2
In contrast, liberals praised the deep state in terms of “making government work for you”—as in, evening out on the back end the inequities on the front end. They meant updating, reforming, but always growing the second great expansion of government as a result of President Lyndon Johnson’s Great Society.
Grow the administrative state certainly did. By 2019 some 450 federal agencies were staffed by 2.7 million bureaucrats. The Federal Register now numbers 175,496 pages of various codes, encompassing 235 volumes. Its size increased yearly—until 2017 and Donald J. Trump’s last-ditch efforts at radical deregulation and some thinning of the bureaucracy. An unfathomable amount of power has been transferred from state and local governments. The US Congress has ceded to federal agencies, manned by the unelected, the power to make regulations, administer them with the force of law, punish perceived offenders, and muster unlimited resources to quash citizens’ appeals and objections.3
Contrary to popular belief, the term “deep state” never implied a secret cabal. Much less does it now convey any notion of official membership. Rather, it is a natural and loose alliance of those who see themselves as permanent custodians of US power, morality, and influence. The hierarchy is an anointed class, self-defined by its members’ educations, résumés, incestuousness, and contacts. All too often they exude disdain and condescension for what they see as transitory, mostly clueless elected officials who come and go in Washington—and the ill-informed citizens who put them in office.
Of course, this worry over the powers of a deep state is no new development. Athenian democracy of the mid-fourth century BC was vastly more complex and bureaucratic than its founder Cleisthenes had originally envisioned in 508/7 BC. Even by the time of the latter fifth century, the Athenian bureaucracy was a constant butt of the comic dramatist Aristophanes’s jokes for its graft, irrelevance, and self-importance. In the fourth century BC, some eleven hundred magistrates headed various boards and civil service organizations at Athens, whose citizen population numbered no more than thirty thousand adult males.4
To take other examples, the Great Palace of Justinian in Constantinople, the Vatican in Rome, the seventeenth-century Spanish El Escorial, the Versailles complex of Louis XIV, and the czarist and communist Kremlin all housed permanent bureaucracies. Their clerks alone knew how to run a state through their own intrigues and myriads of rules and regulations that always outlasted the particular monarch or autocrat in power. Note that the creation of a permanent caste of government officials that transcends the authority of its leaders is not confined to democracies. A deep state grows in monarchies and autocracies as well. Bureaucracy seems innate to human political nature. The key difference in democracies is that the government claims to be elected by and operate only at the will and pleasure of the people; it thus suffers the additional wage of hypocrisy when the administrative state becomes all powerful.
Woodrow Wilson and the progressives drew on the examples of the technocratic intellectuals of the French Revolution, such as Henri de Saint-Simon, in advocating that government could be entrusted to a professional class of unelected but “expert” functionaries, the precursors of modern “technocrats.” Professionals supposedly could train and educate less capable, revolving elected and appointed officials. A meritocratic technocracy was supposedly certified by its members’ knowledge of science, education and training certificates, and long state expertise. In contrast, elected officials gained legitimacy only from a mercurial and often uninformed mob of voters.
So the current American deep state is depressing in that we have seen it all before in a variety of contexts and different forms of government. We should have learned from history of its dangers to individual freedom and choice. Of all forms of government, democracies should be the least prone to negate the power of the people. But, on the other hand, democratic governments also singularly assume ambitious economic, social, and cultural challenges of bringing parity and equality to all their citizens—and occasionally attempt to nation-build democracies abroad as well. These were the very fears of the Founders, such as Alexander Hamilton and James Madison, who, in drafting the Constitution, sought to avoid Athenian-style democracy and imperialism through federalism and the checks of a constitutional republic.
Or as Robert Nisbet long ago observed of the ironic symbiosis between democracy and bureaucracy, “Through democracy, bureaucracy has constantly expanded, the result of the rising number of social and economic functions taken on by the democratic state. But when bureaucracy reaches a certain degree of mass and power, it becomes almost automatically resistant to any will, including the elected will of the people, that is not of its own making.”5
Democracies are also masters of institutionalizing fads, popular beliefs, and new ideas. Sometimes they can galvanize the public brilliantly to avoid catastrophes, as in the mobilization during World War II against sudden existential enemies after December 7, 1941, or during the post-Sputnik space program of the 1960s, or during the same decade when the government and larger culture mobilized to address the threat of smoking, or in spring 2020 during the coronavirus pandemic when the United States recalibrated entire industries to meet medical supply demands and successfully created a commercial landscape to hasten a viable COVID-19 vaccination in less than a year.
Sometimes, the speed at which 51 percent consensus is reached and minority views are discredited is also frightening. Transgenderism, climate change, females in frontline combat units, and gay marriage, between 2008 and 2020, were transformed from topics of legitimate discussion and debate into rigid, politically correct orthodoxies—often more by regulators than legislators. When the deep state embraces new normals, its powers to target dissidents and mavericks and redefine them as dangers to the ideas of equality, fairness, and decency can become downright scary.6
In some sense, the best definition of the administrative state is just this absorption of the constitutionally separate powers of the executive, legislative, and judicial branches into one omnipotent entity—into the hands of people never elected to their positions of power. The regulator, after all, has no constituency that periodically audits his conduct at the polls. He can create a rule and then become the judge of whether the targeted citizen has broken it. Finally, as an executive, he has the power to enforce upon the offender his own prior legislative and judiciary rulings. In response, the citizen has no direct control over the anonymous bureaucrat. Of course, in theory, the power to elect new representatives and executives who can curtail or expand the deep state ultimately resides with the people. In reality, however, so often elected officials of both parties become overwhelmed by the permanent army of clerks, experts, and civil servants who must brief them, sometimes selectively, on the levers, gears, and wheels of their own vast and sometimes secretive government. Metaphors abound for the relationship, be it the parasite that eventually eats away its host, the Frankensteinian monster that cannot be controlled by its human creator, or the science fiction computer that goes rogue and devours its inventor.
Historically, most champions of constitutional government cautioned against creation of such central boards and bureaucracies and governmental agencies. They worried about the consolidation of the powers to make, enforce, and adjudicate laws. They saw the growth and inflexibility of the state as one of the prime enemies of democratic citizenship. So Alexis de Tocqueville warned, “I think that extreme centralization of government ultimately enervates society, and thus after a length of time weakens the government itself.”7
The deterrent idea of a separation of powers that led to the foundations of the US Constitution began in ancient Greece, especially in Crete, Sparta, and other city-states. It was institutionalized in Republican Rome and refined and expanded during the British and French Enlightenments. The need to separate power among legislators, executives, and judges rested on a pessimistic view of human nature: officials would always seek to consolidate power and would do so under pretense of service to the public good or noble causes.
Thus, the only remedy to protect the citizen was to ensure that there would be tripartite and competing government interests—all overseen as well by the people, who in turn could elect their own officials. Each concern would be equipped with checks and balances upon the other. The ensuing tension would lead to a forced sharing of power and thereby prevent the inevitable emergence of a monarch, autocrat, or tyrant or rule by the mob—and also supposedly rule by unelected officials inside the government. For the Founders, these precautions would preclude an unelected, all-powerful caste, even though since the age of Aristotle political theorists had warned that once democratic man achieves political equality, he naturally soon expects additional equality in all realms of life—economic, social, and cultural—a dream that by definition demands legions of government regulators and interventionists.8
In addition, the deep state functionary is antithetical to the elected citizen official. Bureaucracies comprise workers with set hours. The pay of the bureaucrat is mostly guaranteed. Indeed, it is often higher than in the private sector. The regulator’s success or failure is not predicated on the weather, the business cycle, finance, labor, or all the extraneous criteria that can destroy or elevate the self-employed amid a mercurial business cycle. Or it is worse still, given that the regulator’s salary is paid by those he regulates—a source of often envy and mistrust?
The crisis is not just the canard that bureaucrats are frustrated utopians or failed entrepreneurs who resent the greater success of the businesspeople they so often regulate, fine, or indict. The paradox is subtler. When one’s career is often predicated on various contractual tenures, civil service protections, and seniority, then a billet seems safe, if not guaranteed. An entitled worldview follows that events can and should be commensurately predictable, logical, controllable, and ultimately perfectible. Getting along rather than getting it right becomes institutionalized. The bureaucrat assumes that his own job guarantees and protected competence reflect his critical importance to the nation, in a way not necessarily true of those who grow, truck, or deliver our food and have no such sinecures.
The Internal Revenue Service (IRS) offers a fairly recent example of a Frankensteinian bureaucracy at war with the citizen. From 2010 to 2013, the IRS created a BOLO (be on the lookout) list. Its aim was to check the political affiliations of nonprofits applying for tax-exempt status. Purportedly nonpartisan IRS auditors began focusing on organizations with nomenclature that included supposedly telltale terms like “patriots,” “Tea Party,” or “Constitution.” Lois Lerner, head of the IRS tax-exemption division (who would later be held in contempt of Congress and seek early retirement), inordinately delayed or refused these groups’ requests for tax-exempt status.
No IRS official was ever charged with a crime. Yet the agency later offered profuse apologies for wrongdoing. Nonprofits had their applications delayed or deferred—in some cases to the advantage of the Barack Obama reelection campaign in 2012, which benefited from the noncertification of Tea Party–affiliated nonprofits. The boon of using state power to punish enemies outweighed any risk of disclosure and subsequent embarrassment. A certain sense of deterrence was also signaled: nonprofits were warned that it was foolhardy to complain about IRS overreach. The retirement of Lois Lerner, without loss of benefits, reminded the public not that the citizen controlled his bureaucracy but that a major scandal that may have affected a presidential election resulted in only a handful of abbreviated careers and prompted no loss of support for the administration that had unleashed Lerner.
Later studies authored jointly by Andreas Madestam (Stockholm University), Stanley Veuger (American Enterprise Institute), and Daniel Shoag and David Yanagizawa-Drott (Harvard Kennedy School) argued that the Obama administration had essentially weaponized the IRS. It had used its vast powers of bureaucratic oversight for patently partisan purposes and, successfully, to divert votes from Mitt Romney’s 2012 campaign.9
Sometimes the clout of the administrative state can become tragicomic. It can creep into the most unimaginable recesses far from Washington but exhibit the same sense of entitlement as those IRS officials who felt they could freely violate their own tax codes in confidence because either the public would never discover their violations or the administration in power would deem their efforts politically useful and thus, if they were caught, more as misdemeanors than felonies. An esoteric but instructive example of the reach of the deep state is the relatively tiny raisin industry of less than five thousand individual growers, seemingly the most unlikely target of a strangulating federal octopus.
In the 1980s and 1990s, I farmed Thompson seedless grapes that were dried into raisins, the fifth generation of my family to have done so on a small 120-acre farm where I still live. When prices crashed during the national recession of 1983, many raisin farmers contemplated not delivering their near worthless crops to packers to be sold. The contracted prices that growers were to receive remained far below the costs of production. Some of us instead planned on stemming and washing our own raisins and, in desperation, selling them directly to farmers’ markets and local bakers and small stores—as if our typical-size small farm could ever sell its annual crop of four hundred thousand pounds locally.10
Yet the government quickly warned us that to do so was illegal—indeed, it was a federal felony. Bankrupt raisin farmers rediscovered that although they owned their ground and the vines on it, produced the grapes, dried them into raisins, stored them on their property, and lost money in the process, they still did not own their crop—or at least not completely.
The federal government in effect owns the nation’s annual raisin crop before it is even harvested. Under the auspices of the fossilized, Depression-era Raisin Administrative Committee—created formally and overseen by the US Department of Agriculture in 1947, authorized and operating under the Agricultural Marketing Agreement Act of 1937—the government each year decides what percentage of farmers’ raisin crops can be sold within the United States. The US government then confiscates the rest of the year’s tonnage once it is delivered to packers. Sometimes the set-asides comprise up to 50 to 75 percent of the year’s crop. It is still a crime to keep one’s own harvested raisins on the farm without apprising the federal government. And further, it is a criminal act not to deliver to a federally authorized raisin packer any percentage of one’s crop designated as a reserve tonnage portion.11
Delivered raisins determined to be reserve tonnage are set aside at packers’ lots. They are kept off the domestic market and then eventually sold for below-production costs or given away, mostly abroad, as an annual “reserve pool” of raisins. That way the government controls the size of the domestic market and thus the pricing—all paternalistically in the supposed interest of the raisin growers themselves. So under such a marketing order, only raisins delivered to certified packers can be sold domestically once the government determines the percentage of such allowable “free tonnage” saleable within the United States.
Some years in the past, some of the reserve raisin tonnage—occasionally the majority of the crop—was, on the decision of bureaucrats, given away to domestic school lunch programs. It was also sold by administrative edict as animal feed or discounted at below-market prices overseas to create supposed new markets. The net result was often that farmers were forced to hand over much of their crops to the federal government without compensation to cover their costs of production. Again, those who refused or attempted to sell their own raisins without federal set-asides were fined or prosecuted. Again, elected congressional officials could serve as the people’s auditors to investigate, audit, and punish overreaching bureaucrats. In fact, a mere 535 elected senators and representatives can hardly become acquainted with, much less even read, some 175,496 pages of the Federal Register or monitor 2.7 million employees—without the enlistment of more bureaucrats to monitor bureaucrats.12
Each year, the federal regulatory state creates far more similar “rules” that have the force of law than laws actually passed by Congress and signed by the president. In 2016, for example, federal departments, agencies, and commissions in toto issued 3,853 new rules and regulations. Yet that year Congress passed, and the president signed into law, only 214 bills. In other words, for every new law, there were eighteen new regulations and rules created by the unelected. Even if our 535 elected federal representatives knew the details of the 214 bills they passed, there is no way they could master the 3,853 new bureaucratic edicts that they did not pass.13
One example was the creation by the Environmental Protection Agency (EPA) of a new regulation in May 2015 known as the Clean Water Rule. The unelected EPA decided that under its new statute, it could now extend the law protecting “navigable waters” (streams and wetlands) from pollution and defilement to cover even standing water on private property. The law even extended to local irrigation district canals and ditches that run across private farm property but are neither navigable streams nor wetlands.14
Sometimes EPA regulators singled out farmers with low ground that collected temporary storm runoff or with irrigation ditch laterals, arguing that such temporary stagnant pools or tiny weed-filled ditches were subject to water analyses and possible punitive action. In my own environs, it became surreal that, after a dry ditch or low spot in an orchard filled with muddy water after a series of storms, farmers were apprehensive that either state or federal environmental officials might show up to test the water in order to determine whether the farmer was culpable of polluting an “inland waterway.”
The point is that the bureaucracy had decided to reinterpret the law either to enhance its power over citizens or to advance an agenda it deemed to be in the state’s long-term interest. And it often did so in violation of or indifference to the original intent of the Congress that passed the legislation. The EPA acted as a combined legislative, judicial, and executive entity that by fiat infringed on the citizen’s private property. The aggrieved, of course, could always go to federal court to sue the federal government for overreach, but with limited means in comparison to the bureaucracy’s legal resources.
The Clean Water Rule was just one of many efforts by federal government employees to harass small business owners, on the false premise that myriads of new regulations were cost-effective to society—or reflected proper and vital agendas that only experts such as themselves, certainly not an otherwise ignorant public, could appreciate. But, as public policy critic Oren Cass, for example, has pointed out, the drive for massive regulations is the work of elites who a priori assume that they have the money and influence to ensure the economic consequences of their new rules fall mostly on the working classes rather than on themselves: “Social justice activists argue that low-income and minority communities suffer disproportionally from pollution, therefore aggressive regulation advances a redistributive agenda. But the cost of constraining industrial activity lands far more disproportionally on blue-collar workers than does any benefit. They are the ones asked to ‘pay’ the most for environmental gains that high-income households value at least as highly.”15
These fears of the unelected aggregating legislative, judicial, and executive power grew more pointed in the administration of Donald J. Trump. Because the bipartisan establishment and the professional classes of Washington disliked Trump so widely, especially in comparison to his far more accommodating predecessor Barack Obama, he uniquely became a test case of administrative overreach. The administrative state often saw the purportedly noble end of aborting his unpopular administration as justifying the often extraordinary and unconstitutional means of achieving it.
Trump campaigned not so much, as other conservatives had, on the financial waste, fraud, and abuse of the growing federal regulatory and administrative bureaucracy. Rather, he harangued on its perceived sinister ability to curtail the freedoms and opportunities of everyday citizens and to take out bothersome individuals such as himself. It was almost as if he were daring the administrative state to reveal its true nature by turning on him.
So “deep state” became by late 2016 a more common pejorative for the old “bureaucracy.” The neologism implies that the functionaries of federal agencies comprised an organic entity “deeply” burrowed into the sinews of tax-payer-subsidized government. They thrived irrespective of elected overseers and often freelanced preemptively to emasculate perceived elected critics.16
Yet, in pushback, many in the federal government also recalibrated their own language and defense of the administrative state. The bureaucracy now praised rather than shied away from acknowledging a professional, permanent guild of what it called experts. This was especially true of the diplomatic corps, the current and retired military, the intelligence agencies, and the executive branch at large. Most dropped prior pretenses that they were supposedly apolitical and selfless technocrats with knowledge and skills lacking among elected officials and the mass of voters.
Now their redefined role “as adults in the room”—a much-used establishment phrase for those obstructing the president—was to act as custodians of normal protocols against dangerous “populists” and interloping “nationalists.” Such advocacy was especially true of the intelligence and military communities that increasingly took on the look of a political party, eager to joust with elected officials who complained about either their incompetence or their partisanship or both.17
The bureaucratic threat, then, to classical citizenship is an ascendance of a virtual, unelected aristocracy or rigged oligarchy that exercises power in a manner that does not reflect consensual government. As part of their guardianship, the deep-state auditors were always on the lookout for trespassers like Donald Trump. His supposed uncouth and unethical presidency, they argued, might harm invaluable institutions such as the Federal Bureau of Investigation (FBI) or the Central Intelligence Agency (CIA) for posterity. Clearly, then, deep-state career officials supposedly were more than warranted to find ways, in partnership with the media, to mitigate the damage of any perceived populist mountebank like Trump.
Without a disinterested and investigated media, neither citizens nor their elected officials have any means of monitoring the huge federal octopus. For example, in 2020, four years after the FBI’s extraordinary surveillance of Trump campaign officials, incriminating official internal bureau communications were finally released. Documents revealed that individual agents had worried about their own illegal behavior—to the degree that they fretted that even their government tenure might not save them from legal consequences. Thus many had purchased individual professional liability insurance policies to protect them from future civil suits lodged by those they had stealthily targeted and eventually ruined.18
Like those of the IRS, career Pentagon, State Department, or regulatory officials can draw on a wealth of bureaucratic contacts and lifelong knowledge of the permanent government to bend the will of a newly elected president. Days after the inauguration of Donald Trump, on January 31, 2017, the Washington Post reported, “180 federal employees have signed up for a workshop next weekend, where experts will offer advice on workers’ rights and how they can express civil disobedience.” The report also noted that federal employees were in “regular consultation with recently departed Obama-era political appointees” to affect the operation of their agencies to reflect political agendas. Among their strategies to undermine the incoming administration were instructions about slowing their work, at least if they felt they had differences with their new supervisors’ instructions.19
A good admission of the arrogance of the deep state and its assurance that it knew government far better and could manipulate it far more effectively than the transitory elected administration came from controversial former FBI director James Comey. In a televised interview, he explained why and how as director he was able to insert his agents into the newly inaugurated Trump White House to interrogate National Security Advisor Michael Flynn. Comey did so without asking the permission of the president or his cabinet and without tipping Flynn off that the meeting might be adversarial and that thus having legal counsel present might be in Flynn’s interest:
I sent them.… Something we’ve, I, probably wouldn’t have done or maybe gotten away with in a more organized investigation, a more organized administration. In the George W. Bush administration… or the Obama administration.… In both of those administrations there was process.… So if the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel and there would be discussions and approvals and it would be there. I thought, “It’s early enough, let’s just send a couple of guys over.”20
The locus classicus of bureaucratic freelancing was the FBI and Department of Justice (DOJ) abuse of the Foreign Intelligence Surveillance Act (FISA) court process during the 2016 campaign and the first year of the Trump presidency. The inspector general of the Justice Department, Michael Horowitz, found that the FBI had systematically violated its own rules of conduct in deceiving or misleading FISA court judges in order to obtain surveillance of a minor Trump campaign official, Carter Page, on erroneous accusations of colluding with Russian interests. The voluminous Horowitz report confirmed almost all the key points of House Intelligence Committee chairman Devin Nunes’s official report of his committee’s findings about the FBI role in obtaining FISA surveillance. Most of the claims in his counterpart Representative Adam Schiff’s contrasting minority report were discredited or exposed as untruths.21
Controversy followed the report concerning the reason why an apparently rogue FBI had sought to destroy citizen Page by surveilling and leaking false information about his purported profiteering and intrigue with high Russian officials. Good arguments were made that FBI and CIA operatives systematically targeted Trump’s campaign staff on accusations of collusion that were never substantiated. Such administrative state paranoia illustrated institutional fears that the new president Trump was highly critical of and determined to prune what he called the “swamp.”
By summer 2020, Christopher Steele, author of the dossier that supposedly had corroborated the Russian collusion hoax, had admitted that his research was unverifiable and his “research” notes destroyed. That fact had earlier been noted but ignored by the FBI in long-suppressed internal memos.
In addition, newly released federal documents showed that in fact Steele himself had relied on an unreliable Russian fantasist, Igor Danchenko. The latter had a criminal record and had been accused in the past of working for the Russian government. Yet Danchenko was employed at the Brookings Institution as a “researcher,” and his various roles were likely known for some time to the FBI.
In this labyrinth of deceit, the US government was using the concoctions of a likely Russian asset and British ex-spy to compile dirt on Carter Page, a US citizen, himself once valued by the CIA as a helpful source. In sum, bureaucrats were colluding with those claiming to be in contact with Russian sources to concoct a crime of “Russian collusion” against one of their own informants, who was voluntarily offering them any expertise he possessed about Russia.22
Earlier in April 2020, amid the panic of the coronavirus epidemic, Inspector General Horowitz issued a second and subsequent report about FBI conduct in requesting FISA warrants that transcended the Trump campaign investigations. He additionally found a pattern of systematic abuse and disingenuousness on the part of the FBI lawyers, including thirty-nine major defects in forty-two applications. Translated, that means the FBI was habitually, improperly, or illegally monitoring American citizens by systematically deceiving a federal judge to obtain permission for such surveillance.23
In May 2020, still more federal documents were declassified. They included those from top FBI officials that showed how they had staged a January 24, 2017, interview with newly appointed National Security Advisor Michael Flynn. The FBI’s clear intention was to snare Flynn in a perjury trap, or to charge him under the ossified Logan Act, or simply to so harass him that he might resign.
Before the agents—sent by Director Comey, who bragged of his audacity—went into the White House to interview Flynn, FBI supervisor Bill Priestap took handwritten notes of his briefing with them: “What’s our goal? Truth/Admission or to get him to lie, so we can prosecute him or get him fired? If we get him to admit to breaking the Logan Act, give facts to DOJ & have them decide. Or, if he initially lies, then we present him [redacted] & he admits it, document for DOJ, & let them decide how to address it.”
Eventually Flynn resigned, after promising Vice President Michael Pence that he had not discussed sanctions with the Russian ambassador during the presidential transition. That assertion, the FBI and other government agencies knew, did not square with their intercepted communications. A frightened Flynn essentially misled the vice president about a conversation of the sort that was not wrong and certainly common during presidential transitions. Flynn soon was nearly bankrupted by legal fees. The FBI and DOJ pressured him with threats to indict his son on questionable grounds. And he was charged with lying to FBI agents sent by special counsel Robert Mueller’s investigation team—only to withdraw his guilty pleas upon the release of exonerating documents suggesting a government ambush. Flynn finally was freed from prosecution when DOJ officials dropped all charges—only to have a Washington judge refuse to end the case and instead call in a retired partisan justice to determine whether Flynn should be jailed anyway. A presidential pardon finally ended this entire sordid abuse of power.24
Nearly a half century ago, sociologist Robert Nisbet, writing in the wake of the Watergate scandal and the postwar growth of intelligence agencies, lamented,
As everyone knows, it has been, since World War II under FDR, a constantly widening cloak or umbrella for government actions of every conceivable degree of power, stealth, and cunning by an ever-expanding corps of government officials. As we now know in detail, the utilization of the FBI and other paramilitary agencies by the President and other high executive department officers for the purposes of eavesdropping, electronic bugging, and similarly intimate penetrations of individual privacy goes straight back to FDR, and the practice has only intensified and widened ever since. Naturally, all such royalist invasions have been justified, right down to Watergate under the name of national security.25
What is now different from—and scarier than—past abuses is the radical change in attitude of the media and progressive community to such government abuse and overreach. If both were once careful to monitor FBI and CIA abuses, they now rationalize them. Both institutions, as is perhaps reminiscent of the New Deal era, see government power as a positive, a means of bypassing obstructive opposition to progressive agendas.
If some citizens, such as Carter Page, must be surveilled, even if illegally and unethically, or if a rambunctious and wayward general like Michael Flynn should be kept out of government and be reverse-targeted by the government surveillance of those with whom he spoke, then the liberal media assumes that such troublemakers should not have raised the suspicions of the state in the first place. If, in the Watergate age, the media inherently distrusted the permanent Washington bureaucracy, during the Trump administration journalists inherently distrusted those who distrusted the permanent Washington bureaucracy. All of these establishment “professionals” could condemn the excesses of Donald Trump; almost none would fault the excesses of professionals, in circular fashion, supposedly justified by the excesses of Donald Trump.
Given that progressivism self-identifies as a protector of civil liberties against government infringement on the rights of the individual, such modern overreach of the sort from 2015 to 2017 became a question of who will police the police. No public official, pundit, or media star who trafficked in the Steele dossier came forward to apologize to the public. Not one. None admitted that in prior court or congressional testimony, under oath, they had possessed no evidence to substantiate their often-televised wild charges.
For the bipartisan establishment, high rank in the deep state now exudes professionalism. It reflects trust in government. Selfless public servants put their exceptional talents in service to the public. And they sometimes note that they might have earned far more lucrative compensation in the private sector had they been less public spirited and more profit minded. Indeed, the sobriquet “deep state” became a badge of honor. And in most cases all this is true.
In contrast, the “shallow state” soon became a pejorative term for ignorant outsiders like those of the Trump administration who struggled to find even mediocre replacement talent, once they had ostracized the seasoned professional classes of Western government. Trump, for example, ran against both the Democratic Party and the Republican Party’s veteran politicians, such as the Bush family, Mitt Romney, and many of the marquee veterans dating back to the George H. W. Bush and George W. Bush administrations.26
Another good example of how the administrative state, along with the media, judges its own came during special counsel Robert Mueller’s 2017–2019 investigations of alleged Russian collusion and obstruction. Mueller put together what the media immediately dubbed a “powerhouse” lineup of career legal and investigatory bureaucrats. The team was peremptorily declared the veritable winner that would shortly dismantle Donald Trump’s motley collection of inept and aged has-been lawyers.
At the outset, credentials—apparently defined as prior revolving-door government posts—seemed to be all that mattered. A Vox headline on August 2, 2017, summed up the progressive exuberance of the time: “Meet the all-star legal team who may take down Trump.” The subtitle then clarified, “Special counsel Robert Mueller’s legal team is full of pros. Trump’s team makes typos.” The media almost immediately recharacterized what had been authorized as an inquiry as a “takedown” by “pros” of the half-educated who could not spell—a referendum, as it were, on the sophisticated deep state versus those supposedly clueless about it.
As members of the Washington media perused the résumés of the New York and Washington government revolving-door veteran prosecutors and veterans of all sorts of federal bureaucracies and the prestigious Washington legal firm of WilmerHale, they soon became giddy. Indeed, Washington journalists immediately began writing of a “dream team” of “all-stars,” a veritable “hunter-killer team.” Wired immediately boasted of Mueller’s team, “From the list of hires, it’s clear, in fact, that Mueller is recruiting perhaps the most high-powered and experienced team of investigators ever assembled by the Justice Department.”
If “high-powered” was the signature adjective of the Left, then the add-on superlative “ever assembled” was supposed to sound downright scary. Again, prior government service at the top levels of the FBI and DOJ and degrees from supposedly top-notch law schools—not necessarily long records of successful prosecutions in a variety of spheres—were taken for granted as proof of excellence.27
In contrast, Trump would predictably have little access to the bureaucratic elite and instead only to a limited pool of supposedly C-team legal talent due to a variety of reasons, from his status as an outsider and disrupter, to his known reputation for being mercurial and difficult with his own attorneys, to fear of career jeopardy that might accrue to any lawyer who defended him. No wonder he was soon supposedly bereft of Beltway legal resources entirely. Or as an NPR editorialist in June 2017 condescendingly tried to explain Trump’s hapless plight, “If you asked a Washington insider to come up with a legal dream team for a situation like this, it’s highly unlikely this is who they would come up with. But President Trump came into office as an outsider and continues to operate that way, and in a way his legal team is a reflection of that as well.” Note the lack of any appreciation of irony in the use of “outsider” and “insider,” as if they conveyed any notion of innate competence aside from tenure in Washington, DC.
Trump was certainly a difficult client for any attorney. And he was to be joined by sixty-nine-year-old Ty Cobb, an oddly named, rotund, eccentric-looking barrister. With his handlebar mustache, Cobb was typecast and caricatured in contrast to the suave, cool, and much younger Mueller head lawyer, the feared prosecutor Andrew Weissmann. Cobb’s partner was initially John Dowd, a seventy-eight-year-old lawyer with degrees from Southern Benedictine College and Emory. Dowd seemed to the media another slow-talking, has-been lawyer who looked and acted his age. Hip and woke he was not.
Sixty-three-year-old TV and radio host Jay Sekulow, another Trump counselor, was a frequent Christian Broadcast Network and Fox News Channel commentator—and therefore an object of even more elite derision. The media often emphasized that Sekulow was a Christian convert and Messianic Jew. His degrees from Mercer and Regent universities did not, for the most part, impress legal commentators. Nor did his job as past chief counsel for the conservative American Center for Law and Justice.28
Trump further confirmed the stereotype of a rube in autumn 2018 when he brought in the husband-and-wife team of Jane and Martin Raskin as legal replacements and additions. The Washington Post headline could scarcely disguise its disdain—and glee: “Trump needed new lawyers for Russia probe. He found them at a tiny Florida firm.” One might have rejoined that geographical, chorological, and educational experience had advantages perhaps lacked by Beltway firms that recruited talent with predictable career and educational résumés.
The average age of Trump’s original four-man, top-echelon legal guard of Cobb, Dowd, Sekulow, and Rudy Giuliani was seventy-one. None had a Yale, Harvard, Columbia, Chicago, or Stanford law degree. Vox remarked of another Trump attorney, Michael Bowe, and of Sekulow, “The last two are known more for their time on TV than their time in the courtroom, and don’t have anywhere near the background Mueller’s team boasts to take on this challenge.” But, in fact, in terms of classical definitions of citizenship, the ancient reverence for experience and age, and modern ideas of diversity, perhaps the Trump team did indeed have the proper background.29
Soon deep-state legal and ethical blunders, not those of the outsiders, characterized the entire twenty-two-month, nearly $40 million Mueller investigation. Two of Mueller’s all-stars, Lisa Page and Peter Strzok, were dismissed. The two had engaged in an unprofessional, stealth adulterous relationship while assembling an embarrassing phone text trove of expressed hate for Trump and his supporters, the very targets of their supposedly unbiased investigation.
Another all-star legal eagle, Kevin Clinesmith, was later found to have altered a document presented in a FISA warrant application. He faced felony indictment to which he eventually pled guilty. In an act of apparent illegality, on the eve of an inspector general’s investigation into government wrongdoing, members of the Mueller team wiped clean the data from twenty-four of their own government-issued phones. They apparently feared, after their own failure to find grounds for a Trump indictment, that their communications would become part of the public record—and thus an incriminating narrative of their own partisanship, incompetence, and unlawful behavior. And the wrongdoing was multifold, given the mysterious loss of phone and text records, the suppressed circumstances surrounding the firing of Lisa Page and Peter Strzok, and Mueller’s own baffling testimony under oath to Congress. The special counsel bizarrely claimed ignorance about the key players and facts in his own investigation, from the Fusion GPS oppositional research team to the Steele dossier itself.
Worse, Mueller early on had grasped that he had little evidence to fulfill his primary mandate of investigating supposed Russian collusion with members of the Trump campaign to warp the 2016 election and instead turned to the DOJ-authorized blank check to investigate “any matters that arose or may arise directly from the investigation.” Nonetheless, instead of apprising his superiors in the Department of Justice of his inability to find collusion, he sought to prolong and divert his mission into a hunting expedition that in the end was reduced to hopes of laying perjury traps and concocted obstruction charges for the president. As Trump lawyer John Dowd later put it, “That is when I knew he [Mueller] had lied to me in our original meeting (June 16, 2017) and every meeting thereafter. Robert Mueller—‘D.C.’s great man’—completely and deliberately misled us in order to set up a perjury/false statement trap for POTUS. It was a monstrous lie and scheme to defraud.”30
Some of the Mueller all-star team had proven indiscreetly partisan in broadcasting their anti-Trump venom before coming aboard. Weissmann, for example, had quite publicly announced that he attended a Hillary Clinton “victory” party on election night and later sent an email congratulating acting Trump attorney general and former Obama appointee Sally Yates for her stonewalling of a Trump executive order.31
In the end, the Mueller investigation, the FBI’s various leaked investigations into the Trump campaign, transition, and administration, the so-called Steele dossier, and the “Russian collusion” narrative were all proved to be fantasy based though politically useful. Former federal prosecutor Andrew McCarthy summed up the “Ball of Collusion” charade as “counterintelligence as a pretext for a criminal investigation in search of a crime; a criminal investigation as a pretext for impeachment without an impeachable offense; an impeachment inquiry as a pretext for rendering the Donald Trump un-reelectable; and all of it designed as a straightjacket around his presidency.”32
In reductionist terms, unelected bureaucrats had tried their best to overturn an election and deprive citizens of their right to elect whomever they wished as their president. Yet another example of the unelected resistance to an elected president was the case of “Anonymous,” an unnamed “senior administration official” who, in a September 5, 2018, New York Times op-ed, unwittingly described a cabal in government. The writer thought of trying to declare Trump non compos mentis and having him removed from the presidency through the Twenty-Fifth Amendment, which entailed a clumsy process of the vice president and the cabinet instigating removal processes by a majority vote to refer their decision to the Congress. But then Anonymous thought better of it. So in his yarn, his colleagues resigned themselves to keep the government alive by thwarting the president until the Trump cancer was gone “one way or another”: “Given the instability many witnessed, there were early whispers within the cabinet of invoking the 25th Amendment, which would start a complex process for removing the president. But no one wanted to precipitate a constitutional crisis. So we will do what we can to steer the administration in the right direction until—one way or another—it’s over.”33
Nowhere did Anonymous note that the president was duly elected by the people, in a way he himself was not. Also different in the age of Trump was an unabashed audacity in such resistance to the elected president, who has legal authority over executive agency employees. It was as if the vote of the citizenry in 2016 could and should be nullified by a group of bureaucrats with no such constituency. Nonetheless, Anonymous believed that he and others would thwart presidential orders in hopes of forcing the issue of presidential removal.
In late October 2020, just days before the election, Anonymous outed himself. Far from being an idealistic “senior administration official” (in the words of the New York Times), the author, Miles Taylor, was a relatively minor staffer in the Department of Homeland Security. Rather than a staunch conservative who felt betrayed by his president, Taylor, who had left government to work for Google, by 2020 had become a political activist in the NeverTrump campaign effort. Had Taylor simply resigned to shop his anti-Trump manifesto under his own name, then no major newspaper would have published it—given his low-level status, his lack of any prior government, literary, or academic achievement, and his obvious partisanship.
Yet the idea of a high-ranking mole, purportedly in the top echelons of the Trump administration, boasting that there were legions like him resisting an elected president provided a mutually beneficial hoax for the Times. The gambit ensured a lucrative platform for Anonymous-Taylor to land a book deal as a follow-up to his New York Times piece. In the end, Taylor and the New York Times merely accomplished further tarnishing of their reputations.
Worse, Taylor further deceived the nation by not coming forward earlier when the media had falsely identified Trump administration loyalist Victoria Coates as Anonymous. Indeed, Taylor not only denied he was Anonymous but fanned suspicions that it might be Coates by declaring, “No I’m not.… I’ve got my own thoughts on who that might be.” Taylor finally came clean only when the Anonymous brand was no longer viable in leveraging either notoriety, profits, or anti-Trump momentum but apparently retained some marginal value as an “October surprise” in the final days before the election.34
Far more powerful bureaucrats than Miles Taylor, during their tenures and in their retirements, felt that the unelected should exercise authority over officials elected by the citizens. In autumn 2019, former acting CIA chief John McLaughlin proclaimed in a public forum, “Thank God for the deep state!”
McLaughlin was seconded by former CIA director John Brennan. The latter had previously admitted to lying on two occasions to Congress while under oath—without legal consequences. Brennan praised the “deep-state people” for their marshaling of bureaucratic forces in opposition to Trump. He bragged that his former colleagues were analogous to soldiers in the trenches as they fought a comparable war against an elected president. But Brennan left unsaid that both the FBI and CIA had hired contractors to serve as informants to snoop about and monitor an ongoing presidential campaign, in pursuit of disrupting and indeed destroying a presidential candidacy.35
Less than a month into the Trump presidency, in mid-February 2017, former establishment conservative insider and later fervent NeverTrumper Bill Kristol tweeted out that he apparently preferred a coup by the administrative state to remove Trump if the constitutional means were not viable: “Obviously strongly prefer normal democratic and constitutional politics. But if it comes to it, prefer the deep state to the Trump state.” Translated, “if it comes to it” meant that Kristol preferred the unlawful action of the unelected to the constitutional system that monitored any administration. “Deep state” was no longer a pejorative. It had become the brag of a Washington caste that felt itself more entitled to power and legitimacy than those elected through “democratic and constitutional politics.”
Bob Woodward every year or so writes an insider’s muckraking account of Washington politics. He had alleged that retired General James Mattis, serving in the Trump administration as secretary of defense, was so exasperated over policy disagreements with the president that he discussed with other high officials an intervention against an “unfit” and “dangerous” commander in chief. Or, as Mattis reportedly remarked to Dan Coates, the director of national intelligence, “There may come a time when we have to take collective action.” If Woodward has accurately reported this quotation, one wonders why Mattis felt that he had the power or wisdom to unilaterally decide to even think about nullifying a US election and apparently to take steps to remove or emasculate an elected president.36
Apparently a “coup” became increasingly a part of the general discourse of bipartisan resistance to Trump among those unapologetic about removing a president before a scheduled election. The once unthinkable idea of a coup renewed confidence in the permanent state’s efforts to oust Trump—or in fact anyone in the future deemed dangerous like him. The point again is not whether one voted for or loathed Trump but whether an unelected group of federal officials has a right to destroy a presidency on grounds of some “higher” cause and thus overturn an American election.
Retired generals, admirals, and intelligence heads now routinely appear as highly paid consultants on network and cable news shows. Some, almost immediately upon retirement, often land lucrative billets on corporate defense contractor boards. Apparently, defense suppliers consider their past knowledge and enduring influence with former subordinates in arms procurement and Pentagon bidding invaluable and pay them accordingly.
Many in retirement maintain top-secret security clearances, an entitlement rarely questioned. They are befriended by politicians and media celebrities alike. Often the most successful of them, especially State Department and national security officials, are enshrined as bipartisan “wise men” to be called upon in extremis by flummoxed American presidents, such as during the perceived stalemates of the Vietnam and Iraq wars.37
Yet traditionally CIA and FBI directors, the heads of the National Security Agency (NSA) and national intelligence, our highest-ranking military officers, and those who float among the State Department, military, intelligence agencies, and White House, both current and retired, were at least nominally apolitical. Their loyalties were first to the US Constitution. Their apolitical rationale was logical and twofold. First, by definition, in their three- or four-decade careers, high-ranking military and intelligence officers were asked to serve both Republican and Democratic administrations without partisanship. Second, they wielded such enormous power to marshal troops, to surveille, and to disseminate and massage intelligence reports that shape US foreign and even domestic policies that even the hint of political agendas might make them suspect—if not dangerous—in the public eye and thereby discredit the reputation of our most key services.
To be blunt, top-ranking officers, active and retired, in the military, CIA, FBI, NSA, and Defense Intelligence Agency have enormous ability to do either great good or great evil. And they can do so with the veneer of bipartisanship or disinterested government service, without a great deal of immediate oversight or repercussions when they err.
Periodically, the elected government pushes back. Sometimes furor arises over the incompetence of the military-intelligence complex. For example, it had little inkling of the Yom Kippur War, the Iranian Revolution of 1979, the Pakistani detonation of a nuclear bomb, the sudden collapse of the Soviet Union, the planned attacks on 9/11, the status of Saddam Hussein’s weapons of mass destruction arsenal, the threat of the postwar insurrection in Iraq, the turmoil in Libya, or the rise of the ISIS caliphate.
On other occasions, outrage follows disclosures that the FBI, CIA, NSA, and military intelligence have become too intrusive and adept at spying. Or rather such agencies have become politicized and used their enormous powers of surveillance either in service of a particular ideology or political party or to preserve their own authority and influence—and often wielded them directly against elected critics and the American public. If in the past the Left deemed these federal organizations dangerous due to the conservatives and hyper-nationalists in their ranks, in the present they have earned equal suspicion from the Right that they are overly progressive, with a culture deeply skeptical of American influence and power abroad but eager to use it to advance agendas at home.38
The most famous—and to some infamous—check on the military-intelligence complex was the 1975 hearings of Senator Frank Church (D-ID) on alleged abuses of the CIA, FBI, NSA, and IRS. The investigations nominally focused on supposed abuses during the recent Richard Nixon administration (1969–1974). But soon they encompassed wrongdoing dating back to the early 1950s. The Church Senate Committee—formally known as the United States Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities—issued a damning report in 1976. It charged the CIA with a series of targeted killings and assassination attempts on foreign leaders. It accused the US Army of spying on civilians and the NSA of intercepting the mail of private citizens and compiling “watch lists” of US citizens to be surveilled. The committee blasted the FBI for hounding American critics through illegal wiretaps and the use of informants.
The committee’s findings were themselves predicated on the turbulent landscape of the 1960s and 1970s. They were seen as a liberal triumph over frightening government abuse, itself allegedly fueled by false patriotism and dark conservative worldviews redolent of the Cold War. Church had formed his committee in reaction to the Watergate scandal and resignation of President Nixon, with overwhelming bipartisan congressional support, in 1975. It was soon deemed authoritative after some fifty thousand pages of abuses were declassified and released to the public a year later. However, in the aftermath of the 2001 terrorist attacks on New York and Washington, DC, conservatives sometimes damned the late Senator Church ex post facto for constructing so many firewalls obstructing the intelligence agencies’ mutual cooperation that the 9/11 plotters easily escaped detection as they sought to destroy the World Trade Center, the Pentagon, and the US Capitol. Such walls may have prevented the so-called twentieth hijacker’s computer from being examined before 9/11.
Yet, after the news reports of the George W. Bush administration’s “enhanced interrogation” of detained terrorists at US facilities at Guantánamo Bay, Cuba, and the Obama administration’s misuse of the FBI, CIA, DOJ, and FISA courts to surveille the campaign and transition of President Trump, many Americans were once again convinced that the unelected military-intelligence complex had far too little oversight and far too much power.39
Recently many in the military and intelligence agencies, both active and retired, have acted in ways that can only be described as surreal. Some have committed crimes—leaked classified documents to the media, altered documents, destroyed evidence, lied under oath to congressional committees, illegally surveilled American citizens, unmasked redacted names and passed them on to the press, inserted informants into political campaigns, set perjury ambushes to entrap other federal officials, and in public attacked bitterly the commander in chief and other high-ranking administration officials.
All acted without the citizens’ knowledge. Much less did they seek or earn approval for such behavior. These baleful actors in the current military-intelligence complex have two common denominators. First, they had either politicized the bureaucracies they directed or in retirement used their influence to weaponize them. Second, by 2021 these current and retired officials had worked in concert with the media to amplify their activism and rarely faced legal consequences for conduct that was often illegal.
Former FBI director James Comey unintentionally emblemizes one theme in ironic fashion in his memoir A Higher Loyalty. Comey inadvertently publicized the deep state’s sanctimonious notion that violating laws and protocols in service of its own purported higher ethical agendas—in this case, opposition to the controversial president Donald J. Trump—was more than justified. Comey, for example, after he was fired, leaked classified memos of confidential conversations with the president in a successful gambit to force the appointment of a special counsel. Eventually his former FBI associate and close friend Robert Mueller would be tasked with investigating Trump’s supposed “Russian collusion.”40
Comey failed to mention in his numerous interviews and memoir that under congressional questioning he had claimed on some 245 occasions, usually in the context of compromising and self-incriminating information, that he simply could not remember or had no idea how to answer. From 2015 to 2020 Comey issued a series of questionable denials of his culpability in leaking confidential or classified documents, misleading FISA courts, ordering FBI agents to conduct suspect investigations, hiring the disreputable and eventually discredited Christopher Steele, and personally deceiving the president of the United States about the latter’s being the target of an ongoing FBI investigation. Comey seemed to have little clue that a constitutional republic cannot function when its highest law enforcement officers simply will not or cannot answer simple questions under oath about their own purportedly illegal conduct.41
As unelected bureaucrats, those in the military-intelligence complex often show little appreciation of elected officials—much less realization that they themselves are appointed fixtures of the state. The deep state gains legitimacy only through appointment, while elected officials do so only through the voters. In popular American mythology, far-fetched stories of military coups, rogue officers, and revolts are common and often subjects of Hollywood movies like Seven Days in May, Dr. Strangelove, The Rock, and Taps—perhaps because heretofore such attempts have been rare or nearly nonexistent in the history of the American republic and are not periodic dangers. It is an American conceit that “tin-horn dictators” in Latin America who take power through coups and “strongmen” in the Arab world who assassinate their way to power or rig elections reflect extraconstitutional agendas impossible in the United States.
The now familiar Hollywood conspiracy genre channeled the tensions arising in the Joseph McCarthy era over the Cold War between former wartime allies the United States and the Soviet Union as well as Mao Tse-tung’s unexpected communist takeover of China. Beginning in late 1945, a few conservative American military icons such Generals George S. Patton, Douglas MacArthur, and Curtis LeMay had questioned US wartime alliances with the Soviet Union and its communist appendages. These themes fed stereotypes of a cabal of fervent right-wing revanchists willing to disobey the orders of both military and civilian overseers in order to seize power and supposedly restore a lost constitutional America. All then were portrayed as potential threats to the American citizen and indeed the very idea of citizenship itself.
In reality, the dangers of an overreaching military and intelligence community rarely stemmed exclusively or even predominately from the Right—despite the constant warnings to the public of the dangers of rogue right-wing generals. The landscape of the Washington-centric military and especially intelligence agencies was predominately centrist or liberal. A progressive media that was always ready to fixate on a supposed furtive bemedaled right-wing insurrectionist or a Reaganite spook, such as CIA director William Casey, was ill-equipped to consider the deformation of military or intelligence institutions by the Left.
Journalists and academics assume that the CIA and military in particular have now evolved to become journalistic allies, not media adversaries. Both are occasionally seen as a far more rapid and sure mechanism to enact social change than lobbying for such agendas in the Congress, and they are often praised for their attention to rapid implementation of liberal reforms. Both represent a supposedly professional “deep-state” class that can resist supposedly know-nothing populism.42
Almost immediately after the 2016 election, a loose opposition group of current and former government officials and Washington functionaries, self-described as The #Resistance, sought to unify critics of the elected president. Defeated candidate Hillary Clinton, who did not entirely accept the verdict of the election, given the electorally irrelevant fact that she had won the popular vote by a wide margin, symbolically joined it. She announced in May 2017, “I’m now back to being an activist citizen and part of the resistance.” She further promised to create a “resistance” political action committee.
The melodrama about “The Resistance” soon proved no mere pipe dream. Inspector General Michael Horowitz discovered communications between a high-ranking partisan FBI lawyer, Kevin Clinesmith, and fellow FBI lawyer Sally Moyer, in which Clinesmith insisted that he had no intention of resigning after the Trump inauguration (“Viva [sic] le [sic] resistance”). Clinesmith, however, worried that his signature was on incriminating documents that might put him in legal jeopardy (“Plus, my god damned name is all over the legal documents investigating his staff”). In August 2020, Clinesmith, a former member of the Mueller “all-stars,” pled guilty to a federal felony of deliberately concocting evidence in a FISA warrant application, including altering a federal document submitted as evidence to the court.
The resistance nomenclature was melodramatic but also revealing. The president’s opponents did not call themselves the traditional “loyal opposition” or even see themselves as mere “opponents.” Instead, they deliberately chose a term from World War II’s occupied France. La Résistance fighters had formed “underground” alliances across French society, especially to organize military attacks on the Nazi occupation forces and their Vichy collaborators.
Again, lost in all the frenzy was the central truth that the inaugurated Donald Trump was elected president for four years in a US election, as outlined by the Constitution and as approved by the citizens of the nation, and would exit only as a result of impeachment and conviction, resignation, a successful executive and congressional effort to declare him seriously mentally or physically unfit under the Twenty-Fifth Amendment, or a failed reelection bid in a constitutionally mandated four years. Any attempt to alter that apparently unhappy legal reality and to remove an inaugurated, sitting president, either in a way not specified by the Constitution or by perverting the spirit and letter of the law, was not patriotic and itself could soon turn unconstitutional if not insurrectionary.
Yet, just ten days after Trump’s inauguration, Washington insider lawyer Rosa Brooks—a well-known and respected former adviser in the Obama administration to State Department legal adviser Harold Koh and a former special counsel to the president at George Soros’s Open Society Institute—in Foreign Policy magazine offered the nation formal specific advice about removing the sitting president.
Brooks, remember, unlike the inaugurated President Trump, had never been elected to anything. She was no longer serving in government. But she seemed to sum up bipartisan Washington fears about the incoming administration in an article ominously titled “Three Ways to Get Rid of President Trump Before 2020.” In it, she validated the acceptability of doing almost anything to prevent the elected president from remaining long in office. In other words, Brooks had needed a little over a week after the inauguration to conclude that Trump had to be ousted from his elected office by means other than a lost election in 2020.43
One might wonder not why a former government official of the now out party felt that a president was unqualified for office but rather by what logic she believed unelected administrators had a right, even a duty, to remove an elected president whom they did not particularly like. In her essay, Brooks first offered to the troubled military and diplomatic communities the option of immediate impeachment—but as a sort of European parliamentary vote of no confidence. Brooks reassured her readers, “If impeachment seems like a fine solution to you, the good news is that Congress doesn’t need evidence of actual treason or murder to move forward with an impeachment. Practically anything can be considered a ‘high crime or misdemeanor.’” Note her emphasis on “anything,” which is a complete misreading of the precise constitutional language of grounds for impeachment—“Treason, Bribery, or other high Crimes and Misdemeanors.”44
For those readers who might cringe at the broadness of “practically anything can be considered” an impeachable crime, Brooks next pointed to the fallback position of invoking the Twenty-Fifth Amendment: “In these dark days, some around the globe are finding solace in the 25th Amendment to the Constitution.” Here she advanced the idea to her apparently international audience that Trump could be immediately declared mentally unfit and removed from office. Also troubling was her seeming focus on “some around the globe,” as if the effort to remove prematurely an elected US president were properly an ecumenical effort of the like-minded cosmopolitans of the sort discussed in the final chapter.
Brooks was clairvoyant, given what actually followed. Not much later, congressional Democrats and the media advanced the argument that Trump’s presidency indeed should be terminated due to his mental incapacity. As a result, Yale psychiatrist Dr. Bandy X. Lee organized a conference at Yale where she met with members of Congress and diagnosed Trump as dangerously unfit. Indeed, Lee deemed the president an existential threat to the planet comparable to some sort of global pandemic. “Our survival as a species,” she insisted, “may be at stake.” When during the primary campaign of 2020 Democratic front-runner Joe Biden seemed to exhibit confusion at times about names, dates, and places, Dr. Lee was asked whether she might offer another in absentia analysis but refused. Nonetheless, her idea of removing a president by claiming he was non compos mentis without a physical or mental examination persisted—and took on even stranger manifestations.45
In 2019, fired former deputy and acting director of the FBI Andrew McCabe admitted that he and then deputy attorney general Rod Rosenstein had earlier discussed the possibility of removing the president from office. They pondered efforts to convince “the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide” to vote him unfit under the protocols of the Twenty-Fifth Amendment. McCabe later claimed that Rosenstein had gone so far as to offer to wear a wire, supposedly to record Trump’s inflammatory private speech in one of his purportedly more unhinged moments. One wonders whether either McCabe or Rosenstein had ever listened to some of the private, recorded, and unguarded taped presidential conversations of John F. Kennedy or Lyndon Johnson.
If McCabe was accurate in his description of yet another Twenty-Fifth Amendment caper, then the attempt might have been the first time in modern American history when the acting FBI director and the second-ranking attorney in the DOJ, who was his boss, both unelected bureaucrats, discussed ways to depose a sitting president. “Coup” is a strong word, but it is hard to find a more apt noun to describe what the two insiders were contemplating.
In part because of such spreading opposition narratives that he was deranged and should be removed from office, the president later conceded in mid-January 2018 to take the Montreal Cognitive Assessment test. He apparently wished to demonstrate that he showed no mental or cognitive decline. His White House physician, Rear Admiral Ronny Jackson, announced that Trump had scored thirty out of thirty on the exam. Trump, Jackson reported, had “absolutely no cognitive or mental issues whatsoever.” In some sense, the media-contrived effort to brand Trump crazy by enlisting supposedly professional psychiatrists and psychologists mirrored the early-1964 liberal efforts to reduce presidential candidate Barry Goldwater to little more than an unhinged nut.46
Few constitutional lawyers stepped forward to remind citizens that the Twenty-Fifth Amendment (ratified in 1965) came in direct response to the 1963 assassination of President John F. Kennedy. After Vice President Lyndon Johnson assumed the presidency, he—himself a heart attack survivor—had no vice president until the January 1965 inauguration of Hubert Humphrey. At the drafting of the amendment, congressional leaders had also reviewed past cases of presidential physical incapacity due to health concerns, especially the illness of Woodrow Wilson. In the subsequent half century since its passage, it has been invoked or considered only during physical health crises or surgeries of incumbent presidents. The Twenty-Fifth Amendment was never envisioned as a tool of the opposition party or internal resistance to question the mental stability of a president whom they opposed in order to hasten his removal from office before or in lieu of an election.47
Brooks finished her presidential-removal essay with an even more chilling alternative: “The fourth possibility is one that until recently I would have said was unthinkable in the United States of America: a military coup, or at least a refusal by military leaders to obey certain orders.” And she concluded, “For the first time in my life, I can imagine plausible scenarios in which senior military officials might simply tell the president: ‘No, sir. We’re not doing that,’ to thunderous applause from the New York Times editorial board.” Note the logic of gaming a scenario that spawns an illegal act that one regrets is “unthinkable,” at least “until recently.” That is, less than two weeks after a new president has been inaugurated. If not an outright resort to violence, Brooks envisioned “at least a refusal by military leaders to obey certain orders.” Given what followed Brooks’s essay in the ensuing months, she again proved prescient and scary all at once.
Brooks suffered little criticism in at least outlining a hypothetical avenue for removing Trump by military force. Strangely, three years later, during the campaign of 2020, Brooks reappeared in the public arena to cofound the Transition Integrity Project. It was a sort of war-gaming exercise, among mostly Washington elites, to determine whether there would be a peaceful transfer of power after the election. And her group not surprisingly seemed to suggest that only the hoped-for Joe Biden landslide would avoid a disastrous crisis—possibly involving the use of force—especially if Trump again won the Electoral College but not the popular vote. By late summer 2020, a number of retired military officers were envisioning several scenarios in which the military might surround the White House and force Trump to vacate, ostensibly based on their own conspiracy theories that he would not accept the verdict of an election and stay on after noon on January 20, 2021.
That paranoia was ironic. For two years, from 2017 to 2018, Hillary Clinton, the “Resistance,” and former high officials of the Obama administration had sought to abort the Trump administration on grounds that the verdict of 2016 was not valid due to “Russian collusion,” the debunked hoax birthed by the fabricated Steele dossier. The published scenarios of would-be architects of “patriotic” removal of a president became so common that one journalist dubbed the growing genre “coup porn.”48
Just as disturbing to the idea that citizens, justices, and elected officials alone oversee a presidential tenure was the case of unelected officials organizing to obstruct an incoming elected administration. In early March 2017, Evelyn Farkas, an outgoing Obama-appointed deputy assistant secretary of defense, in a strange confession on MSNBC, detailed how departing Obama administration officials scrambled to leak and undermine the six-week-old Trump administration: “I was urging my former colleagues and, frankly speaking, the people on the Hill.… ‘Get as much information as you can. Get as much intelligence as you can before President Obama leaves the administration.… The Trump folks, if they found out how we knew what we knew about the Trump staff’s dealing with Russians, [they] would try to compromise those sources and methods, meaning we would no longer have access to that intelligence.… That’s why you have the leaking.” Note, inter alia, that former federal official Farkas apparently had expressed a worry that the incoming administration might discover prior Obama-era efforts to use intelligence information to damage the new president—on the ruse that there had been Trump-Russian collusion, a charge that no Obama administration official has ever under oath testified was justified by evidence.
Indeed, less than two weeks before leaving office, outgoing president Obama made a radical and unprecedented decision to increase the ability of the National Security Agency to disseminate and share its own globally intercepted and often personal communications. It was now to distribute such classified information to at least sixteen other government intelligence agencies, and to do so without pausing for the standard firewalls designed to protect the privacy of American citizens.
Note that in May 2020 the House Intelligence Committee, under administration pressure, finally released testimony that Farkas had given under oath in June 2017. Despite her melodramatic tales on MSNBC, a now meek Farkas, when under oath, apparently claimed that she had lied on television about knowledge of Trump-Russian collusion that might have justified leaking documents to the media. In short, she confessed, “I didn’t know anything.” In other words, her efforts to hamper a presidential transition were based not on real national security concerns but apparently on political and media-generated animosity.49
Unfortunately, these serial efforts to undermine an elected president were not limited to anonymous appointees or lifelong bureaucrats, as we have seen earlier with loose talk among retired military officers about obstructing a presidency. That latter effort marks an unprecedented development that also deserves further attention. The Uniform Code of Military Justice (UCMJ), which became effective law in May 1951, prohibits active generals from disparaging their commander in chief—in the way perhaps General Douglas MacArthur had bitterly pilloried then president Harry Truman over the Korean War. Indeed, Article 88 of the UCMJ makes it a crime to voice “contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State.”
No one quite knows, and debate continues over, whether such codified prohibitions on free expression apply to retired generals receiving military pensions. Yet, given the spate of recent “contemptuous words against the President” leveled from retired top-ranking officers, it seems that few have worried much about another explicit regulation, AR 27-10 of the code: “Retired members of a regular component of the Armed Forces who are entitled to pay are subject to the UCMJ. (See Art. 2(a)(4)) They may be tried by courts-martial for offenses committed while in a retired status” (emphasis added). In the real world, the issue of proper military conduct versus First Amendment rights for retired generals remains nebulous. But the statute at least is unambiguous in that it is clearly improper for retired officers to attack a sitting president publicly.50
In the past generals and admirals of both political parties have rebuked their commander in chief or his chief cabinet officers in disparaging ways, from the so-called Seven Days in April retired military group who in April 2006 went on the attack against then secretary of defense Donald Rumsfeld to retired General Michael Flynn’s tough talk against President Obama. Yet, most recently, an entire array of well-known and decorated retired officers have ignored such prohibitions in a fashion never before seen. Indeed, they came forward to denounce President Trump in extraordinarily contemptuous terms—from likening him to the world’s most notorious mass murderers to declaring that he was utterly unfit to serve as president and should leave office before a scheduled election.
Retired four-star general Barry McCaffrey, for much of the Trump administration, lodged repeated ad hominem charges against the elected president, going so far as to state, “He [President Trump] is a serious threat to U.S. national security.” By any standard, such venom would be characterized as “contemptuous” under the UCMJ’s Article 88. McCaffrey alleged that Trump’s loyalties lay more with Russian dictator Vladimir Putin than with his own country—essentially a smear that his commander in chief was treasonous: “He is for some unknown reason under the sway of Mr. Putin.” McCaffrey certainly had a right to criticize Trump’s policies. But for a retired four-star general to suggest, without any evidence, that his commander in chief was a virtual traitor was incendiary.
In a matter of policy disagreement, McCaffrey later called the president “stupid” and “cruel” for recalibrating the presence of US tripwire troops between Kurdish and Turkish forces. When Trump cancelled the White House’s and other federal agencies’ subscriptions to the New York Times and the Washington Post, McCaffrey equated him with the fascist dictator Benito Mussolini (“This is Mussolini”). Note that these smears were not based on any evidence of wrongdoing but grew entirely out of differences of policy and style.
When a high-profile retired military officer announces that the current president is in service to a foreign country and the equivalent of a fascist, mass-murdering dictator who seized power and defied constitutional norms, then what message is conveyed to other serving military officers and to the citizens who elected him? What would be the patriotic duty of active officers sworn to uphold the Constitution if they felt that one of their most respected former commanders was accusing the president of veritable treason?
McCaffrey was not alone.
Retired general Stanley McChrystal—removed from command by the Obama administration for, inter alia, allegedly not reprimanding one of his officers for referring to then vice president Joe Biden as “Bite Me”—publicly called the president “immoral and dishonest.” Former CIA director Michael Hayden—a four-star air force general once smeared by the Left for defending supposed “torture” at Guantánamo—compared Trump’s policies to Nazism. Hayden tweeted a picture of the Birkenau death camp to illustrate his criticism of the administration’s use of detention facilities at the border—a plan inaugurated by the Obama administration to deal with tens of thousands of illegal entrants and followed as well by the Biden administration. That invective was only the beginning.51
Retired general John Allen attacked the commander in chief in morally disparaging terms rather than merely criticizing the president’s strategic or operational judgment in pulling back US troops from the Kurdish-Turkish battlefront in Syria: “There is blood on Trump’s hands for abandoning our Kurdish allies.” Later Allen essentially accused Trump of destroying America as we have known it for railing against governors and mayors who refused help from federal troops and, in Trump’s view, would or could not restore order in their jurisdictions and punish those who serially engaged in violence, looting, and arson: “The slide of the United States into illiberalism may well have begun on June 1, 2020,” Allen wrote in Foreign Policy. “Remember the date. It may well signal the beginning of the end of the American experiment.” So what exactly should the serving military do when one of its esteemed retired generals declares that the elected president destroyed America on June 1, when he contemplated using federal troops to restore order in the capital?
In perhaps the eeriest of all commentaries, highly decorated retired admiral William H. McRaven all but declared his president a subversive traitor. Apparently in reference to fellow military officers also working in some sort of resistance to the president, McRaven remarked, “The America that they believed in was under attack, not from without, but from within.” Indeed, in the same New York Times op-ed, Admiral McRaven seemed to call for Trump to be removed before the 2020 election: “It is time for a new person in the Oval Office—Republican, Democrat or independent—the sooner, the better. The fate of our Republic depends upon it” (emphasis added). Just one year away from a constitutionally mandated election, an esteemed retired admiral of the US Navy publicly wished for a “new person” in the Oval Office—“the sooner, the better,” a phrase reminiscent of Anonymous’s earlier “one way or another.” Exactly what scenario was the admiral referring to? Impeachment? Invocation of the Twenty-Fifth Amendment? Or the last of Rosa Brooks’s various scenarios: a forced removal by the military? Did he reflect upon the notion that removing Trump “the sooner, the better” would equate to cancelling out the verdict of citizen voters?52
Esteemed retired marine general James N. Mattis, former secretary of defense in the Trump administration and a deservedly iconic figure, during the national protests, rioting, and violence of summer 2020 suggested that Trump had fostered disunity in much the same way that Nazis did. In a statement published in The Atlantic, Mattis wrote,
Instructions given by the military departments to our troops before the Normandy invasion reminded soldiers that “The Nazi slogan for destroying us… was ‘Divide and Conquer.’ Our American answer is ‘In Union there is Strength.’” We must summon that unity to surmount this crisis—confident that we are better than our politics.
Donald Trump is the first president in my lifetime who does not try to unite the American people—does not even pretend to try. Instead, he tries to divide us. We are witnessing the consequences of three years of this deliberate effort. We are witnessing the consequences of three years without mature leadership.
How exactly was an elected president emulating the divisive methods of the Nazis, which included executing dissidents, establishing death camps, and torturing suspected enemies? What was the purpose of the indictment from Mattis—who had likely been forced out as commander of Central Command by the Obama administration and had worked for Trump for over two years—in the 2020 election year? Did he think his invocation of the Nazi simile might better “unite the American people” or instead enrage nearly half of the country who supported the president? Was ecumenicalism really the aim of his election-year simile?53
Such orchestrated furor next prompted four former chairmen of the Joint Chiefs of Staff—retired navy admiral Mike Mullen, retired army general Martin Dempsey, retired air force general Richard Myers, and retired army general Colin Powell—to join the chorus, in particular over Trump’s notice that he might, if necessary, as had numerous past presidents, use federal troops to restore calm in cities where violence remained unchecked.
Democratic presidential candidate Joe Biden correctly assessed the thrust of the retired generals’ attacks and the influence they exercised—and sought to capitalize on it. After breezily asserting, “This president is going to try to steal this election,” Biden then charged additionally that Trump might not depart peacefully in January 2021 after losing the election. In other words, according to Biden, Trump would either steal the election, claim he won, and then not leave after really losing it, or he would clearly lose it and then refuse to vacate the White House.
But Biden was not worried because such revered retired generals had “ripped the skin off of Trump” and thus apparently could be counted on as muscle if need be: “I was so damn proud. You have four chiefs of staff coming out and ripping the skin off of Trump, and you have so many rank-and-file military personnel saying, ‘Whoah, we’re not a military state. This is not who we are.’” Biden then offered a final warning: “I promise you, I’m absolutely convinced they will escort him from the White House with great dispatch.”
The irony notwithstanding of asserting that the United States is “not a military state” at a time when retired generals were weaponizing their military reputations and influence to attack a sitting president politically and personally and in some cases imagining his early removal by force, Biden was entering dangerous ground. In his use of the pronoun “they,” he apparently counted on as his enforcers two groups of the military: the “four chiefs of staff,” or retired generals, who had ripped Trump’s skin off and the currently serving “rank-and-file military personnel.” And together “they” would escort the cheating Trump out “with great dispatch.”
The logic was twisted. But Biden seemed to suggest that retired generals who came out to criticize the current elected president might have to be pressed into action by Biden to enforce the results of an election. Biden apparently believed that, if necessary, he would have the support of the military, active and retired, to depose the interloper. This was preposterous. But it was a preposterousness that the retired generals themselves had spawned, because their current incendiary talk seemed not so preposterous to Biden. Further irony arose in their paradoxical idea that retired generals and admirals should use their influence in politics but all the same not be subject to the Code of Military Justice that governs the public behavior of retired high officers.54
At about the same time as Biden’s “ripping the skin off” braggadocio, the current chairman of the Joint Chiefs of Staff, General Mark Milley, apologized to the country for appearing in a “photo-op” with his commander in chief. Milley had come under intense criticism from both dissident retired military and the progressive media for standing next to Trump at a time when the president had ordered federal police to stand by in order to maintain calm near the White House: “I should not have been there. My presence in that moment and in that environment created a perception of the military involved in domestic politics. As a commissioned uniformed officer, it was a mistake that I have learned from, and I sincerely hope we all can learn from it.”55
If Milley were sincerely worried about “the military involved in domestic politics,” he might have reminded retired generals of pertinent articles in the Uniform Code of Military Justice. Yet it was not as if the president, without precedent, had ordered a few federal officers into the streets to quell violent protesters. In fact, over a dozen past presidents have sent the military into cities to stop rioting and looting. President George H. W. Bush in 1992 had characterized the racially sensitive riots in Los Angeles, over the beating of Rodney King, as mob-like: “What we saw last night and the night before in Los Angeles is not about civil rights.… It’s not a message of protest. It’s been the brutality of a mob, pure and simple.” Accordingly, as commander in chief, Bush ordered forty-five hundred marine combat troops into the city to quell the violence. He added of the order, “Federal effort will not be driven by mob violence, but by respect for due process and law.” At the time of the riots, Bush’s chairman of the Joint Chiefs of Staff, who oversaw the dispatch of the federal marines into Los Angeles, was General Colin Powell. Powell, with the other former joint chiefs chairs, had criticized Trump for even considering the use of federal troops. Yet in 1992, he reportedly had eagerly remarked to Bush about his request for federal troops to quell a domestic disturbance, “All you’ve got to do is say it.”56
Note again, the common thread in these complaints from retired officers was never demonstrable high crimes and misdemeanors or, indeed, any evidence that the elected president would not leave office if defeated in the 2020 election—much less any popular groundswell among angry citizens for the retired or active military to act to remove a supposed danger to the republic. Rather, retired officers expressed venom over policy disagreements with the president about the Middle East or Russia. Further, they felt that they could demonize the president largely on grounds that he was controversial, unpopular, and completely at odds with the establishment of both political parties. Or they were furious over the president’s own retaliatory and sometimes crass pushbacks, usually against prior ad hominem attacks both from serving and retired military officers. Retired admirals and generals somehow had gotten it into their heads that as far as the president was concerned, removal in some manner was far preferable to the downside of violating hallowed protocols of military conduct.
Note that the test of institutional resiliency and constitutional stability comes during times not of popular but rather unpopular leaders. When polarizing figures are elected, then popular cries arise to thwart them by sidestepping constitutional safeguards. And this certainly is the most dangerous time for a republic. Harry Truman left the office the most disliked president up until that time in US history. His unpopularity had earlier energized General Douglas MacArthur and his media and administrative enablers to intrude into political decision-making—this was dangerous for the constitutional system, even if MacArthur at times had proposed some strategic options superior to those entertained by the president.
Nonetheless, at a time of war in Korea, MacArthur serially disparaged his commander in chief to the press over American policy in Korea. And he did so to the extent that he imperiled the president’s political and moral ability to establish strategy and see his military carry it out. Again, the crisis hinged on unelected public servants’ assuming the right to remove or destroy a president without going through constitutional processes—such as impeachment and conviction or removal through the complicated process of determining a president medically unfit, as later entailed in the Twenty-Fifth Amendment—and thus nullify citizens’ votes in a presidential election.
These insurrectionary impulses were not confined to the retired military. Some retired high-ranking intelligence officers—many of them actively engaged in the last months of the Obama administration in ordering surveillance of the Trump campaign and transition—were no less shy in seeking to undermine the new commander in chief. Most prominent was CIA director John Brennan, who had a long history of misleading or outright lying under oath to Congress. By 2020 his unchecked excesses had become emblematic of the dangers of the intelligence complex to constitutional government and indeed the sovereignty of the citizen-voter. Brennan’s career additionally was a reminder that our administrative elite is rarely seriously audited and ignores laws that citizens, in fear of real consequences, do not.
For example, Brennan in 2009 falsely claimed that intelligence agencies had not missed evidence suggesting that Umar Farouk Abdulmutallab, aka the “underwear bomber,” might blow up a US airliner in a manner well known to US authorities. In 2010, he offered a surreal redefinition of jihad (i.e., “Nor do we describe our enemy as ‘jihadists’ or ‘Islamists’ because jihad is a holy struggle, a legitimate tenet of Islam, meaning to purify oneself or one’s community”). In 2011, Brennan’s official statements about the Osama bin Laden raid were contradictory and had to be withdrawn or modified.
Also in 2011, Brennan, then the country’s chief counterterrorism adviser, had sworn to Congress under oath that scores of drone strikes abroad had not killed a single noncombatant—at precisely the time when both the president and the CIA had received numerous reports of civilian collateral deaths. In 2014, John Brennan, by then CIA director, again lied, and once more emphatically, under congressional oath. He claimed that the CIA had not illegally accessed the computers of US Senate staffers who were then exploring a CIA role in torturing detainees (“As far as the allegations of the CIA hacking into Senate computers, nothing could be further from the truth.… We wouldn’t do that. I mean, that’s just beyond the, you know, the scope of reason in terms of what we do”). After months of prevarication, but only upon release of the CIA inspector general’s report, Brennan belatedly apologized to the senators he had once deceived.
Brennan, in May 2017, as an ex–CIA director, again almost certainly did not tell the truth to Congress when he testified under oath, in answer to Representative Trey Gowdy’s questions, that neither did he know who had commissioned the so-called Steele dossier nor had the CIA relied on its contents for any action. Yet both retired NSA director Michael Rogers and former director of national intelligence James Clapper have conceded otherwise: that the Steele dossier—along with the knowledge that it was a Clinton-campaign-funded product—most certainly did help shape the Obama administration’s intelligence community interagency assessments and actions, often under the urging of Brennan himself. Andrew McCabe, former acting director of the FBI, testified under oath to Congress that without the unverified Steele dossier, the FISA court may well have not approved FBI requests to surveille erstwhile Trump campaign advisor Carter Page.
Years later, released government documents showed that Brennan had been well aware that the 2016 Clinton campaign had used the so-called Steele dossier to smear her political opponent in order to deflect media scrutiny from her own email scandals. Brennan knew of the ruse through intercepted communications from Russian intelligence sources.
Apparently, the Russians were baffled over why Clinton was falsely blaming them for colluding with Donald Trump. Their confusion arose perhaps because the Steele team may have been concocting its farcical dossier in part on falsehoods peddled by a Russian operative. In addition, when Brennan became aware of the intercept, he briefed President Obama on the Clinton gambit. Rather than investigating the subversion of the Trump campaign, high officials of the Obama State Department, FBI, and CIA continued their efforts either to deny much knowledge of the dossier or, at least, to claim ignorance about those seeking to seed it within government agencies and the media.57
Indeed, numerous reports suggested that despite his denials about knowledge of the dossier, Brennan served as a stealthy conduit to ensure its wide dissemination. In an unusual private meeting in August 2016 with Senator Harry Reid, one that circumvented normal bipartisan briefings of relevant congressional leaders, Brennan himself apprised the senator about the Steele dossier’s unverified contents. He hoped that Reid would pressure the FBI to further its investigations. Reid later bragged that he did just that, in a call two days later to James Comey.58
The list of John Brennan’s unprofessional and bizarre behavior only increased after he left office, despite his retaining for over two years his top-secret CIA security clearance. On March 17, 2018, Brennan, in objection to the firing of deputy FBI director Andrew McCabe (who the nonpartisan inspector general would shortly find had lied on four occasions to federal investigators), tweeted about the current president of the United States, “When the full extent of your venality, moral turpitude, and political corruption becomes known, you will take your rightful place as a disgraced demagogue in the dustbin of history.… America will triumph over you.” In mid-April, ex–CIA director Brennan followed up with another attack on Trump: “Your kakistocracy [rule of the ‘worst people’] is collapsing after its lamentable journey. As the greatest Nation history has known, we have the opportunity to emerge from this nightmare stronger & more committed to ensuring a better life for all Americans, including those you have so tragically deceived.” It is hard to find any comparable such statement about a sitting president from any of the other twenty-four former CIA directors. Yet Brennan continued to attack the president at a time when he was reportedly under federal questioning for his prior role in the so-called Russia collusion hoax and improper use of CIA operatives in the investigation of US citizens.59
None of Brennan’s behavior raised eyebrows among his colleagues of the administrative state: far from it. Samantha Power, former UN ambassador and a past ethics professor on the Harvard faculty, almost gleefully warned, “Not a good idea to piss off John Brennan.” Power was unabashedly conceding that powerful but unelected officials, even after retirement from the federal bureaucracy, exercised a greater degree of coercion than even high-ranking elected officials—and yet there was nothing anyone could or should do about it. Brennan’s lies and long career of dissimulation were mysteriously exempt from legal, congressional, and public oversight. Few elected officials expressed such warnings about the intelligence services’ reputed ability to stymie an elected president or worse—in a manner of admonition but also grudging respect for the omnipotence of these bureaucrats.
In a related and larger context, Senate Minority Leader Chuck Schumer warned Trump, shortly before his inauguration, about criticizing CIA officials in general and what the intelligence community could do to the president-elect, who had supposedly unwisely attacked such a permanent caste: “Let me tell you: You take on the intelligence community—they have six ways from Sunday at getting back at you.” An elected US senator warned a newly elected president that he better fear the CIA and, by inference, its most prominent Trump critic—a retired CIA director. The latter purportedly had avenues of retaliation unimagined by the commander in chief. The strange case of the serial dissembler CIA director, the danger even his allies conceded he posed to elected officials, and the immunity under which he seemed to operate were all proof of just how dangerous the twenty-first-century deep state had become. It seemed utterly unaccountable to the very citizens who had indirectly created and were directly funding and supposedly auditing it.
Progressive former Cleveland mayor, erstwhile presidential candidate, and retired congressman Representative Dennis Kucinich (D-OH), at about the same time, warned of just these dangers to a constitutional republic:
The intention is to take down our President. This is very dangerous to America. It’s a threat to our Republic. It constitutes a clear and present danger to our way of life. So, we have to be asking, “What is the motive of these people?”… This is a problem in our country. We’ve got to protect our nation here. People have to be aware of what’s going on, we need to protect America. This isn’t about Democrat or Republican. This is about getting what’s going on in the moment and understanding that our country itself is under attack from within.60
Samantha Power herself was later found to have requested transcripts of FISA-court-ordered surveillance of Trump associates in the 2016 campaign. Indeed, she had gone further and made over three hundred such requests, most right before the 2016 election. She also asked to have the redacted names of American citizens in these files “unmasked,” many of which were mysteriously subsequently leaked to the press—the latter act a felony.
Aside from the enigma of why a UN ambassador needed to know the whereabouts and the names of Republican officials in the midst of a campaign—and after the election—Power simply denied under oath to a House Intelligence Committee, without explanation, that she had herself actually submitted the requests made under her name. Who had made them? And why, if she had allowed others to make them, was it never disclosed?
I have mostly focused on John Brennan, the CIA director under President Obama, only because he was iconic of the deep-state intelligence service careerists who had mobilized against an elected president—especially, in Brennan’s case, in the apparent expectation that he would never face accountability for his serial lying from the Congress or federal investigators. Unfortunately, Brennan was not an isolated example. Fired and would-be martyred FBI deputy director Andrew McCabe openly admitted to misstatements (“I was confused and distracted”). He had falsely assured investigators (“Some of my answers were not fully accurate”) that he had not been a source for background leaks about purported Trump-Russian collusion, all of them harmful to Trump.
The inspector general released a report condemning McCabe for his serial false statements. McCabe had leaked FBI business ostensibly to deflect from charges that he was biased and had ignored conflict-of-interest charges arising from his own investigation of Hillary Clinton’s purported destruction of several thousand emails under federal subpoena—after his wife, a Democratic candidate for the Virginia legislature, had received hundreds of thousands of dollars in campaign donations from Clinton-affiliated political action committees.
Former director of national intelligence James Clapper had also lied under oath to the Senate Intelligence Committee. On March 12, 2013, he had assured its members that the National Security Agency did not collect data on American citizens. Months later, Clapper was called out for his assertion. He then suddenly claimed that he had given “the least untruthful” answer. In late 2017 Clapper made an astounding charge, offering no proof: “I think this past weekend is illustrative of what a great case officer Vladimir Putin is. He knows how to handle an asset, and that’s what he’s doing with the president.” We know that Clapper himself knew that he had been lying when he said that the president was a veritable Russian asset, because just months prior to that assertion, the House Intelligence Committee had subpoenaed him to testify on May 8, 2017. While under oath, he was asked directly whether he had any evidence that Donald Trump was colluding with the Russian government. Clapper testified that he did not—an admission that strangely was not released to the public until May 2020.
Clapper likely lied again when he also testified under oath to the House Intelligence Committee that he had not leaked the contents of the Steele dossier to the media. Later he apparently confessed that he had done just that to CNN’s Jake Tapper. According to a House Intelligence Committee report, “Clapper subsequently acknowledged discussing the ‘dossier with CNN journalist Jake Tapper,’ and admitted that he might have spoken with other journalists about the same topic.” Clapper later became a paid CNN analyst, often criticizing those who had alleged that he had been serially untruthful.61
It is a threat to a free, constitutional republic when a retired general and director of national intelligence, in and then out of office, while retaining a federal security clearance, so frequently lies to the public. In the cases of Brennan, Clapper, Comey, and McCabe, for the first three years of the Trump administration, they were never held to account for their distortions. And they often ended up as paid media consultants to analyze various scandals in which they themselves were often key players. A cynic would conclude that once a professional bureaucrat or revolving-door appointee reaches a senior level in the government, he is immune from the sorts of perjury charges or ostracism that most all Americans would face.
What does all this have to do with the notion of citizenship? And why should we care that high-ranking career military officers and intelligence heads actively sought to remove or injure a constitutionally elected US administration?
The danger is that half the country will conclude that too many retired generals and admirals are going the way of past CIA and FBI directors. No longer just esteemed professionals, op-ed writers, and astute analysts, they have now become, in the public mind, political activists. They feel entitled to use their past authority and present contacts to challenge the very legitimacy of an elected president and the foundations of the US Constitution. That development is ruinous both to the reputation of a hallowed military and intelligence community and to the idea of a constitutional republic of citizens.
All of these abuses of the unelected might have been exposed and checked had the media played its assumed role as a watchdog of government and disinterested purveyor of the news. After all, reporters are not op-ed writers and opinion columnists. They supposedly report the news and leave editorialization out of their empirical investigations.
Yet recently many have lost their shyness in announcing that the era of past presumptions of neutrality is now over‚ even if in the past the media was, in fact, not always so disinterested. Journalists Jim Rutenberg of the New York Times and Christiane Amanpour of CNN both said that they could—and should—no longer be neutral reporters, given their low opinion of the president and the dangers he posed to America. Rutenberg indeed urged fellow journalists “to throw out the textbook American journalism has been using for the better part of the past half-century” and instead become “oppositional.”
In Orwellian fashion, Amanpour claimed that declaring her bias was best described as being “truthful.” She too defiantly announced, “Much of the media was tying itself in knots trying to differentiate between balance, between objectivity, neutrality, and crucially, the truth. We cannot continue the old paradigm.” And Amanpour certainly did not. Later she simply refused to consider any of the concrete mounting evidence that Hunter Biden, son of then presidential candidate Joe Biden, had engaged in unethical if not illegal ventures with foreign-government-related concerns in order to peddle his influence on behalf of the Biden family. The subtext was that “journalists” like Amanpour could turn off and on the “old paradigm” of journalistic jurisprudence, depending on their own particular take on the object of their coverage.
Univision anchor Jorge Ramos more honestly declared of the “old paradigm” that it was the duty of the media to take sides, given the moral issues at stake: “Saying that reporters should abandon neutrality on certain issues and choose sides may seem at odds with everything that’s taught in journalism school. But there are times when the only way we journalists can fulfill our primary social responsibility—challenging those in power—is by leaving neutrality aside.”62
Amanpour, Ramos, and Rutenberg apparently did not contemplate that half the country held legitimate but antithetical views to their own. Other journalists could easily make the same argument if someone opposed to their own politics were president.
Unable to trust their time-honored sources of daily information, citizens could and did turn to talk radio, podcasts, the internet, blogs and websites, and social media for different versions of the news. In any case, what was stated rhetorically was soon born out in the concrete, as the following random examples illustrate.
In summer 2020, over a ten-day period, CNN reported that there was a “hate crime” at a NASCAR garage, after African American driver Bubba Wallace reported seeing a hanging noose. CNN tied the crime to the climate of hate purportedly fostered by Donald Trump. The noose upon FBI investigation was found to be a cord used as a garage door opener.
CNN additionally claimed that Trump did nothing when apprised by intelligence sources that Russians were paying Taliban terrorists to kill Americans in Afghanistan. Yet CNN never substantiated the truth of that rumor or reported that Donald Trump had never been briefed on such intelligence. Much later it was disclosed that the story was a fabrication.
CNN alleged that Donald Trump’s July 3, 2020, address at Mount Rushmore was a veritable homage to Confederate Civil War racists. In fact, Trump did not mention a single Confederate in his long list of both white and black American icons.63
Sometime during the Obama administration years, the news division at CNN—a once-renowned and pathbreaking global media service—simply ceased being a news outlet. It soon would become an extension of the so-called Resistance and a defender of the administrative state—in a way well beyond both the center-left news networks and the strictly news division at center-right Fox News. Its new mission was stunning in the wide variety of its expression. Reporters Manu Raju and Jeremy Herb in December 2017, for example, falsely asserted that Donald Trump Jr. had advanced access to the hacked WikiLeaks documents belonging to the Democratic National Committee in general and to the emails of Hillary Clinton’s campaign advisor John Podesta in particular. But Trump Jr. did not. Such a false charge may have spawned all sorts of subsidiary rumors that the younger Trump was on the verge of becoming indicted by special counsel Robert Mueller.64
Why did CNN’s own “unnamed source”—namely, lawyer Lanny Davis—later deny he had ever given CNN information that Donald Trump had advance warning of a meeting between Russian interests and Donald Trump Jr. concerning purported “collusion” during the 2016 campaign? Why did the authors of the false story, Jim Sciutto, Carl Bernstein, and Marshall Cohen, not retract the allegation in full? Could they not at least have explained why their not-so-anonymous source, Lanny Davis, was claiming that he never told the three that his client Michael Cohen had professed foreknowledge of the meeting on the part of Trump?65
Why were Thomas Frank, Eric Lichtblau, and Lex Harris all forced to resign from CNN? Was it their collective, but false, report that Anthony Scaramucci, who had served briefly as Trump’s press secretary, was connected to a $10 billion Russian investment fund and thereby, their insinuation went, part of the “collusion” conspiracy?
CNN’s Gloria Borger, Eric Lichtblau, Jake Tapper, and Brian Rokus, remember, also had erroneously reported that former FBI director James Comey would, in congressional testimony, soon contradict President Trump’s prior assertion that Comey had told him that he was not under investigation. That reporting proved false—and yet it too had helped to whip up anti-Trump hysteria on the eve of the Comey appearance. The problem was not just that news is untrustworthy but that it had become untrustworthy in a particularly predictable, biased fashion intended to warp coverage to advance a political outcome.66
Trump was controversial and often rude and enjoyed replying in kind to any media attack. So a certain media furor over Trump often erupted in repeated, obscene, and unprofessional anti-Trump outbursts by CNN journalists, contributors, and anchors—whether it was Anderson Cooper trashing a pro-Trump panelist by profanely retorting, “If he took a dump on his desk, you would defend it,” or CNN religious scholar Reza Aslan referring to Trump as “this piece of sh-t,” or perhaps the late CNN host Anthony Bourdain joking in an interview about poisoning Trump, or CNN New Year’s Eve host Kathy Griffin’s infamous photo in which she is holding a bloody effigy of Trump’s severed head.67
Once journalists lose their reputations for disinterested reporting, they forfeit respect. Government entities then sense that, rather than serving as deterrents who keep officials honest, reporters can be enlisted as allies or indeed played. For example, critical to the selling of the Affordable Care Act to voters were the later cynical admissions of health expert Jonathan Gruber, who ex post facto bragged that he simply used a compliant media to dupe the public:
This bill was written in a tortured way to make sure [the Congressional Budget Office (CBO)] did not score the [individual] mandate as taxes. If CBO scored the mandate as taxes the bill dies. In terms of risk-rated subsidies, if you had a law which said healthy people are going to pay in—it made explicit that healthy people pay in, sick people get money—it would not have passed.… Lack of transparency is a huge political advantage. And, basically, call it the stupidity of the American voter or whatever, but, basically, that was really, really critical for the thing to pass.68
Even more cynical was Ben Rhodes, former deputy national security advisor under Barack Obama. He bragged that he had counted on the inexperience, bias, and general stupidity of the news media to feed them narratives about an envisioned Iran Deal, which otherwise did not poll so well with the American people: “We created an echo chamber. They were saying things that validated what we had given them to say.… The average reporter we talk to is 27 years old, and their only reporting experience consists of being around political campaigns.… They literally know nothing.”69
Meanwhile MSNBC anchor Brian Williams castigated the idea of a so-called fake news epidemic. Yet Williams failed to remind us that he was removed as NBC’s evening news anchor for serving up all sorts of false details about his supposedly brave trips abroad in search of edgy news stories. Even worse, after the fatal shooting of Michael Brown in Ferguson, Missouri, the cohosts of the show CNN Newsroom collectively put up their hands in “don’t shoot” solidarity with the progressive narrative of unjustified police killing, which a lengthy federal investigation conducted by the Obama administration later proved completely false.
Earlier, decades-long journalistic one-sidedness was apparently viable when there were no other news alternatives. Mainstream-media monopolies once were also highly profitable, and long ago news people, whatever their biases, were at least well-mannered and sought to appear neutral. In contrast, there is no such pretense today that television news is disinterested or hides some of its displeasure with conservative presidents. After just one hundred days in office, before President Trump could even enact his own agendas, the liberal Shorenstein Center on Media, Politics and Public Policy at Harvard University reported that 91 percent of CNN’s initial coverage of the Trump administration was already negative. Just one in every thirteen CNN stories proved positive.
We are now apparently in uncharted territory. This radically asymmetrical pattern had never been seen before in the history of comparable media analytics. As the Shorenstein Center put it, “Trump’s coverage during his first 100 days set a new standard for negativity” (emphasis added). No one in the media sought to explain the imbalance beyond asserting either that Trump deserved the asymmetrical coverage or that it was not biased but simply reflected his comprehensive failures. That inability to explain the slant left the impression that CNN, for example, had more or less joined the progressive opposition, in the fashion earlier outlined by Jim Rutenberg, Christiane Amanpour, and Jorge Ramos.70
It is easy to critique Donald Trump’s often crass attacks on a press that was so one-sided in the coverage of his administration. But politicians’ and even elected officials’ crudity and invective are easily identified and contextualized in terms of transparent partisanship and politics. Far more pernicious than adversarial bias can be obsequious partiality or a willingness to be deceived for a purported higher good. The former is grating, the latter insidious and ultimately far more dangerous to a free citizenry, especially in the age of electronic and instantaneous communications.
Worse still is the level of contempt that officials harbored for the citizen (e.g., “stupidity of the American voter”) and the surety by which they could manipulate the media (e.g., “they literally know nothing”) to fool the public.
The duty of a journalist to the citizen is to stay neutral and disinterested and to report the truth, at least as it can be determined by testimonies, evidence, motive, and common sense—without concern for whether such reporting injures or aids a particular politician or agenda. Otherwise, the citizen has few sources of reliable news by which to form an independent opinion on any issue—and thus to participate in democracy in an effective manner.
So when journalistic bias is institutionalized and serves the state with the speed and electronic massaging of the internet, the citizen becomes orphaned from the world about him. Unelected bureaucrats, those who control electronic communications, the media, and the military-intelligence complex of the federal government all exercise enormous powers over American citizens without being elected to any office and while facing few consequences for their unethical or illegal behavior.
In the next chapter we shall see that there are also more formal and overt efforts to stifle the freedoms of American citizens, at least as envisaged by the founders. An army of political activists, judges, advocates, and politicians currently see the US Constitution and the centuries-old traditions that surround it as hopelessly outdated. They judge our founding documents and national traditions ill-equipped to meet their visions of the twenty-first century—and thus in need of radical changes. When ideologues cannot persuade Americans to support their agenda under the existing political rules and traditions of the nation, they seek to alter them for their own advantage—often by redefining citizenship as something never envisioned by the Founders.