The Michael Flynn Case: Harbinger of a Constitutional Crisis?

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Republicans and Democrats alike are missing the full scope of what the Obama administration’s attack on Lt. General Michael Flynn means for constitutional government. The systematic campaign to undermine an incoming presidential administration through politicized investigations is not another political scandal, but threatens a true constitutional crisis.

Flynn’s treatment by the Obama administration’s FBI and DOJ seems to be a case study in how administrative elites, charged with executing the law, undermined the very rule of law. Our country was founded on fundamental republican principles: equal rights, individual liberty, and the consent of the governed. These sacred rights are secured, protected, and perpetuated by our civilization’s greatest political achievement: the constitutional rule of law. And while often taken for granted, the peaceful and unobstructed transition of power from one presidential administration to the next, frequently from the control of one political party to its political opposition, is the crown jewel of the American constitutional system.

If the actions now becoming known are true, the Obama administration subverted these fundamental principles and undermined the rule of law by employing the nation’s intelligence apparatus to interrupt the transition of power to the Trump administration, which was duly elected by the American people.

Consider a few of the things that have happened:

  1. Based on very flimsy evidence, the FBI of the Obama administration opened a counterintelligence investigation on the Trump presidential campaign, an investigation that included spying on at least three campaign officials and obtaining a FISA warrant rife with unverified information.
  2. As part of that investigation, someone in the Obama White House or the highest levels of our intelligence agencies leaked to the media classified information about a December 2016 phone call between the incoming National Security Advisor and the Russian ambassador.
  3. Though FBI staff had decided to close the investigation on Flynn for lack of evidence on January 4, they were instructed by FBI leadership to keep the case open. Twenty-four hours later, the FBI Director James Comey met with President Obama, Vice-President Biden, and other White House and intelligence officials.  The Flynn case was discussed and Comey was instructed to brief President-elect Trump about the infamous Steele dossier, which has been indirectly funded by the Clinton campaign.
  4. Instead of giving the incoming president a defensive briefing about their belief that Flynn and others in his campaign were tied to the Russians, the Director of the FBI — in full cooperation with and perhaps directed by then-President Obama — contrived to keep Mr. Trump from finding out about the full scope of the investigation.
  5. On January 24 (Flynn’s second day as the new National Security Advisor), the FBI Director sent two agents to the White House to, by their own admission, set a trap for Flynn in order to get him fired. In doing so, the FBI Director defied the wishes of the Acting Attorney General and did not notify the new White House Counsel of the interview but instead devised a plan to get Flynn to take the meeting alone, without a lawyer, in order to mask an FBI interview as a friendly conversation.

Each of these instances of are problematic. But the whole (along with all the other things we are learning) is worse than the sum of the parts: it looks to be a pattern of politicizing the legal process to subvert the outcome of our electoral system. 

When John Adams lost the bitter election of 1800, he did not attempt to sabotage Thomas Jefferson or his new administration. Indeed, when that election was thrown in to the House of Representatives to settle who would be the next president, it was Jefferson’s arch-enemy Alexander Hamilton who supported him rather than force an outcome of his partisan liking contrary to popular consent.

The election of 1800, in fact, was the first time in history that there was a peaceful transfer of power from one political party to another. Prior to that time, the usual way differing opinions about who should rule were settled was through force, whether chopping off the previous leader’s head, violently overthrowing the ruling government, or pursuing some other nefarious intrigue. The American rule of law system created a constitutional alternative: changing governments by ballots rather than bullets. And as Abraham Lincoln told Congress in 1861, “ballots are the rightful and peaceful successors of bullets; and that when ballots have fairly and constitutionally decided, there can be no successful appeal back to bullets; that there can be no successful appeal except to ballots themselves, at succeeding elections.”

A great disservice has been done to our country. One man’s due process rights have been violated, and the rule of law for all has been breached. Consider the precedent. If it is appropriate for one political party, having lost an election, to use the authority of government outside of the bounds of the law against their opponents who have won that election, what is to stop the next political party from doing the same? Or the next?

The consent of the governed makes government legitimate. Free elections are not merely a nice tradition, but the very expression of popular sovereignty. To circumvent or undermine a valid election denies the legitimacy and sovereignty of popular rule. What appears to have been done to Mr. Flynn and the incoming Trump administration at the hands of the intelligence agencies of the Obama administration may seem merely another partisan squabble but is ultimately a rejection of republican government.

Matthew Spalding is Dean of Hillsdale College’s Van Andel Graduate School of Government in Washington, D.C.

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