By Thomas Neuburger
"In Trump-related cases, the DOJ has pushed the tactical envelope in all the same ways it has with other types of unpopular defendants over the years, only it’s done so with a disturbing ... presumption that the public wants them to color outside the lines more than ever, and deal even more cruelly with targets. The DOJ has political winds at its back it lacked even in the early War on Terror days." —Matt Taibbi, writing about the extensive cruelty of the prosecutorial state
"The FBI has always been a tool of repression of left-wing movements" —Alex Vitale, author of The End of Policing
“The CIA is not your friend.” —Edward Snowden, here
Two things can be true at the same time.
• Donald Trump can be an indefensible excuse for a president and represent a danger to the Republic (the formal institution of our government).
• At the same time, the National Security State can be exercising a power grab the likes of which will end both our democracy and our republican version of it.
Of course, both things can also be false, or just one true. If I were a novelist, I’d make both things true. But that's just a novelist's view. Let's see what we find when we take a real-world view.
The Once and Future Danger
I take it as a given that Trump is a dangerous president. You can give your reasons, if you have them, as easily as I can give mine. Our lists might even match.
The point is not to argue our lists. The point is to wonder what made liberals — defined as more-or-less mainstream voters to the left of the Right; people who used to hate the FBI, the CIA, and the criminally surveillant NSA — suddenly love them, support their penetration of media via “unaffiliated” spokespeople, and blind themselves to the conversion of J. Edgar Hoover’s criminal, blackmail enterprise into modern angels of democratic deliverance in the current American mind.
A recent angel of democratic deliverance is George W. Bush, he of torture and war crimes fame. Another is from the Cheney family, Trump-hating Liz Cheney, enemy of all that progressives hold dear save animosity toward the previous Occupant. Are either of them friends of freedom? Not if you look at them — or retain the semblance of a memory — but they're certainly praised as such, ehese days that is. Some Democrats would like to finance her run for the presidency, should she make one.
Hoover’s FBI, of course, has been credibly linked to the murder of Malcolm X and less credibly linked to the murder of Martin Luther King. And the misdeeds of the National Security State writ large are so numerous and indefensible. From the murder of Americans by the CIA drone operation (2010), to spying on the Supreme Court by the FBI (2012), to outright (and unpunished) lying to Congress, under oath, by Director of National Intelligence James Clapper (2017) — it’s surprising that the most fervent friends of democracy, voters to the left of the Right, have become their fast friends, if not their oddly fierce defenders.
Yet so strong is the defense of the FBI by those to the left of the Right that even the venerable folks at Democracy Now are taking a look. Describing a recent broadcast, they wrote (all bolded emphasis mine below):
“There Are Good Reasons to Defund the FBI. They Have Nothing to Do with Trump” “Defund the FBI” is the growing call by Republicans after the FBI searched former President Donald Trump’s Mar-a-Lago estate. We get response from Alex Vitale, author of “The End of Policing,” who lays out reasons to defund the FBI that have nothing to do with Trump. Vitale reviews the history of the FBI, which he says has “always been a tool of repression of left-wing movements,” and calls the FBI investigation into Trump a “shortsighted” attempt to shut down some of the most extreme parts of the right wing. He uplifts efforts to “reduce the power and scope of the FBI in ways that limit their ability to demonize and criminalize those on the left.”
Has Trump made us blind, or has the State reformed? Is that question even being asked?
The DOJ’s Trojan Horse?
All this leads me to recommend a full read of a series that appeared recently at Matt Taibbi’s Substack site. In a piece called “What Happened to America’s Civil Libertarians?” Taibbi details how disturbing it is for readers to even see these doubts expressed:
Over the weekend I published a feature on Justice Department use of bullying tactics and unfair practices, called “The Justice Department Was Dangerous Before Trump. It's Out of Control Now.” Despite the fact that the bulk of the article focused on targets broadly sympathetic to the left, like the late radical lawyer Lynne Stewart and a civil rights firm in Baltimore raided for the crime of representing another lawyer, a flood of emails and social media posts ensued, most on the predictable theme that this piece [—] packed with facts and testimonials by people other than myself [—] was right-wing grift: “What happened to you, man?”
But the piece he refers to is solid and solidly researched. There he examines the use of “taint teams” by the FBI, a practice whereby they go into a target’s office, often a lawyer defending someone under investigation, and scoop up everything they can find, with the intention of assigning one of their own (but “not part of the investigation”) to look at everything and sort it out later.
Judges were especially upset with prosecutors who were taking advantage of technological changes to seize masses of electronic data — usually computers or cell phones containing private information outside the scope of the warrant request — and, in defiance of courts, keeping that information. In a case involving seizure of emails from a defense contractor suspected of a kickback scheme, a D.C. Magistrate named John Facciola expressed concern that the government would “keep data indefinitely” despite the fact that it is “illegal” to refuse to return “seized documents not described in a warrant.” Facciola, who’d dealt with this issue more than once, blew his top ... [but he was] overturned by a judge, Richard Roberts, who said the government’s take-everything, construct-probable-cause-later method was okay so long as there was “sufficient chance of finding some needles in the computer haystack.” This was the kind of judicial advice the feds liked: seize now, worry later.
Of one such raid of the law office of Joshua Treem, “the lawyer of the lawyer of a suspect,” Taibbi writes:
The U.S. Attorney’s office in Maryland had long been pursuing a lawyer named Ken Ravenell, one of the top criminal attorneys in Baltimore, believing he was essentially part of the criminal operation of a Jamaican marijuana kingpin named Richard Byrd. That the feds raided Ravenell’s office in 2014 was one thing. The real shocker came in 2019, when the U.S. Attorney and the I.R.S. raided the law office of Ravenell’s lawyer, Joshua Treem. If the Lynne Stewart case was about intimidating the lawyer of a suspect, this case was about intimidating the lawyer of the lawyer of a suspect. The DOJ didn’t just take Treem’s files. It took huge amounts of data and files from the firm where Treem was and is a partner, Brown, Goldstein, and Levy. This group of lawyers had been repeatedly recognized as a top firm by U.S. News and World Report and Best Lawyers in America, with several attorneys winning annual “Baltimore Lawyer of the Year” awards, including Treem himself. Despite their standing, the Justice Department treated Treem’s firm like terror suspects, delivering a surprise search replete with armed, kevlar-clad agents, on the basis of a warrant issued in an ex parte hearing with a district judge, meaning the firm had no chance to contest the raid. The Brown, Goldstein, and Levy lawyers were in a state of shock. “For a civil rights law office, mid-morning on a business day, in the middle of Baltimore, they felt the need to get fully armed,” says Treem, laughing in amazement as he recalls the scene. “They never even sent a subpoena,” says fellow partner Kobie Flowers. “That was part of our argument later in the Fourth Circuit. We’re all officers of the court. We all have ethical duties to follow. We can’t destroy evidence. Had you just sent a subpoena for this stuff, we would have given it over to you.”
Why do all this?
One consequence of becoming a criminal suspect was that Treem, who’d received a target letter six months before, had a conflict of interest that prevented him from defending Ravenell, which of course might have been part of the point. “I had to withdraw from representing my client,” says Treem. “Once I got the target letter, I had to advise my current clients and any people who were calling me to ask for representation.” Asked if such tactics could be interpreted as a message, that any attorney who wants to stay in business should think twice about representing someone the government is serious about pursuing, Flowers said the intimidation factor goes further than that. “On the one hand, it’s a strategy move. They get to kick Josh off the case,” he said. “But the next step, or a corollary to that thought, is: for many criminal defense attorneys, it causes them to question whether they want to be in this profession?”
The FBI and DOJ also gets a peek — and chance to copy and use without revealing their sources to the defense — all of the communication and files of all of the other lawyers at the firm. What’s the benefit of that? Taibbi answers:
The government took 37,000 emails from Treem’s inbox alone, of which only 62 were from Ravenell or contained his name. Treem’s firm had over twenty lawyers, files about whom were taken into the custody of a separate office of the Maryland U.S. Attorney’s office. As a judge in the case later wrote, referencing Treem and Ravenell as Lawyer A and Client A: An “extensive” portion of the seized emails were “from other [Law Firm] attorneys concerning . . . other attorneys’ clients that have no connection with th[e] investigation[s]” of Lawyer A and Client A. Notably, some of those Law Firm clients “are being investigated by, or are being prosecuted by, the United States Attorney’s Office [for the District of Maryland] for unrelated crimes.” In other words, the U.S. Attorney’s office in Maryland decided to cruise through the defense files of clients that same office was already investigating and/or prosecuting.
Is the Justice Department out of control when it comes to its prosecutorial powers and abilities? Has the National Security State, of which the FBI and the DOJ are part, slipped its leash thanks to 9/11 and our new-found love of making life miserable for terrorists?
Has the FBI, in the words of one of its liberal defenders, “reformed and modernized”? Or is it, in Taibbi’s words, “a Trojan Horse, inside which the Justice Department has assembled an army for a grand assault on civil liberties”?
Left and Right vs. Right and Wrong
These questions are currently handled through a left vs. right framework. I’d argue they should be handled through a right vs. wrong framework. “Is the criticism true or not?” is a different question than “Does it help Trump or not?”
But of course, a lonely writer and a few thousand loyal readers aren’t going to decide this matter for the nation. The nation will decide for itself which spinning wheels it wants to be dazzled by.
I wait with bated breath for the day it decides. I will release that breath when I see what flows from the result. I hope to God that result is not presaged by the lines of famous poem “First they came...”, whose middle verse might then be revised to say: “Then they came for Trump, but I hated the bastard, so f-ck him.”