In the last days of the 2016 campaign — as the FBI investigation into Hillary Clinton’s use of a private email server has surged back into the headlines — the American public has been reminded just how much power the federal government has to choose what to investigate and whom to target.
Typically, that power lies mostly unused: Presidents are usually in office to set policy, not to punish their personal enemies. But one of the major party nominees in 2016 is a man defined by the desire for vengeance — a man who carries, as a rule for life, that if someone screws you over, you screw them back “ten times worse.”
The FBI has just reminded America that public officials make subjective decisions all the time. It’s raised the specter of what might happen if those officials had decided, with a unified mind, to use their power over information to punish their enemies and reward their friends.
But the way the story has unfolded — a steady drip of leaks from within the FBI and Department of Justice — has been a reminder that the government isn’t always a unified mind in pursuit of a single goal. It’s made up of various factions with their own agendas, who have plenty of ways of undermining each other if they don’t agree with what their superiors have done.
If this is what a government with a Democratic president, a Republican FBI director, and various alliances leaking information to support their diverging agendas can do — throwing chaos into the mix days before Americans go to the polls — what might happen if the president himself tried to set an agenda of maximum vengeance? How much would the rest of government be emboldened — either to help him or to thwart him?
The specifics are all speculative. But the bottom line is clear: The more power that individual factions hold to derail the rest of government by pushing their own agendas, the easier it is for vindictiveness to dictate how government works.
We already know Trump has some vengeful tendencies
One of the big rules Trump lives his life by is this, as written in his 2007 book Think Big and Kick Ass:
"When someone intentionally harms you or your reputation, how do you react? I strike back, doing the same thing to them only ten times worse."
Trump is already assembling a list of the people he feels have screwed him over. He wants to "open up the libel laws" against reporters who write unkind things about him. His lawyers sent threatening letters to a woman who painted a nude portrait of Trump, warning they’d sue her if she tried to sell it.
He’s openly threatened to investigate the business holdings of Washington Post owner Jeff Bezos. "He thinks I would go after him for antitrust because he's got a huge antitrust problem," Trump said in May. "It's a monopoly, and he wants to make sure I don't get in."
Trump has demonstrated an interest in ruining the political careers of his former rivals for the Republican nomination, like John Kasich and Ted Cruz. "I'll probably do a Super PAC, you know, when they run," he told Meet the Press in July (after the Republican National Convention) — "against Kasich for $10 million, to $20 million against Ted Cruz."
Donald Trump is used to having the leverage that comes with being a rich celebrity. He’s not used to having the amount of leverage that comes with the White House. The president is the most powerful job in the world. The federal government is an extremely powerful machine — capable, if it so chooses, of making a lot of people’s lives very miserable.
The good news for those worried about Trump is that while the executive branch is incredibly powerful, that power isn’t unlimited. And a president using the government as a weapon to target and harass his personal enemies is actually one of the things the current federal government is fairly well-equipped to resist.
The bad news is that the government is only as strong as its people. If President Trump — or another vindictive president — were elected, the burden of stopping the president from using his power against his enemies would fall on individual civil servants. It’s a lot to ask.
As senior fellow at Brookings Benjamin Wittes has written, "There is, in fact, only one way to tyrant-proof the American presidency: Don't elect tyrants to it."
How the federal government could go after a president’s enemies — if it so chose
There are a lot of ways the federal government can make the lives of private citizens hell. Companies that rely on federal contracts can be stripped of permissions like security clearances, or simply get all their contract bids rejected. Government employees are obviously the most beholden, but even people outside the federal government have a lot at stake.
There are dozens of agencies within the federal government tasked with identifying and pursuing potential violations of laws and regulations. The Federal Law Enforcement Officers Association includes members of 65 federal agencies. And not every investigative agency counts as law enforcement: Agencies from the Office of Safety and Health Administration to the Civil Rights Division of the Department of Justice to the SEC to the EEOC spend a lot of their time looking at potential violations (and pushing the potential violators to cooperate).
They’re increasingly aggressive in their tactics — in 2014, the New York Times found 40 different federal agencies who’d used undercover agents in investigations (including the Department of Agriculture, the Small Business Administration, and NASA). They have new technologies and tactics of surveillance: Inevitably, surveillance requests that are supposed to be used for anti-terrorism aims end up getting used in more mundane domestic law enforcement.
And they have the ability to cast a wide net.
"We now have an awful lot of federal laws for practically everything," John Malcolm of the Heritage Foundation — a former assistant US attorney himself — told me last year for a story I reported on prosecutorial discretion. Many of these laws carry criminal penalties for things that used to be simply regulatory infractions. Until last year, Congress could pass a law that created new crimes without the judiciary committee of either chamber ever getting a look at it.
"When everything all of a sudden becomes a crime, then you have a broad field from which you can pick and choose," said Malcolm.
This is how the FBI discovered the 650,000 emails it’s currently analyzing in the Clinton email server investigation.
Former Rep. Anthony Weiner (D-NY) committed a federal crime by sexting an underage girl across state lines (opening him up to child pornography charges). The FBI started investigating him this fall. Over the course of the investigation, an agent realized that a laptop belonging to Weiner that the FBI had seized had also been used by Weiner’s estranged wife, Huma Abedin — a close Hillary Clinton adviser.
If the Weiner investigation had been left to a state law enforcement agency, the new emails might never have come to the FBI’s attention.
A particularly unscrupulous investigator or prosecutor could go on what’s called a "fishing expedition." The investigator might not find enough evidence of the crime she’s supposedly investigating, but she might find evidence of other potential crimes instead. Or she might simply harass the investigation’s target enough to get him to agree to make a deal.
Under President Obama, the federal government — or rather, particular federal attorneys who are trying to push back against state and local marijuana legalization — used a fishing expedition to harass medical marijuana growers in Mendocino County, California. In 2012, US attorneys asked county officials for "any and all records" related to the county’s medical cannabis farms, a program that had existed for three years at that point. That included "names and locations of pot gardeners, county bank records, ‘any and all’ legal correspondence, etc.," in the words of the East Bay Express.
Because county officials decided to fight back, the request was eventually narrowed so that prosecutors didn’t get access to individual identifying information about growers. But with more easily cowed county officials — or those who simply couldn’t afford a four-month court battle — the fishing expedition would have significantly chilled participation in the legal farm program.
You don’t have to succeed in prosecuting someone to succeed in harassing them
Even if those investigations never result in formal court action, simply complying with a federal investigation can be costly: "forcing someone or a company to spend a lot of money, to answer questions, to produce information, potentially damaging reputations if the investigation were to come out," said Sean Moulton of the Project on Government Oversight. "To know the federal government is looking into you in terms of being a criminal target? That can take an emotional toll on you," Malcolm added in an interview last week.
Because there are so many violations, the question of how investigators choose whom to target becomes the most important one.
This is the reason the Department of Justice has a policy against revealing any information about investigations that could be relevant to a campaign within 60 days of an election. But in practice, as the FBI discovered this year, that policy leads to a lot of judgment calls.
When the FBI concluded that Russia was trying to tamper with the election, did the importance of the information outweigh the fact that it could affect the course of the campaign? The FBI ultimately concluded that it was worth notifying the public — but Comey, according to reports, didn’t want to go public because of the 60-day rule.
When Comey was notified about the new 650,000 emails in late October, did the 60-day window trump another longstanding DOJ practice of updating Congress about investigations after testifying about them in hearings? Comey decided it didn’t. But several former DOJ officials believe he made the wrong choice.
The specter of politically motivated investigations is always present. Just look at the IRS.
In 2013, the Treasury inspector general for tax administration found that the IRS had evaluated applications for new tax-exempt 501(c)3 groups, which can’t engage in "political activity," in part based on inappropriate things like whether a group had "Tea Party" in the name.
Conservatives felt this was evidence that the Obama administration was using the IRS to target conservative groups. Moulton doesn’t think it quite reached the level of persecution — but still thinks the politically motivated use of the IRS, especially when it comes to tax audits, is a genuine cause for concern.
The government doesn’t even have to use all of these powers to change people’s behavior. Just the very possibility of an investigation is likely to make people tread carefully. Reporters sniffing around might worry about finding themselves snared in a costly audit.
Carlos Lauría of the Committee to Protect Journalists tells me this is one of his group’s biggest fears about a President Trump: that he’ll create "an environment where self-censorship is practiced" among the press.
Until now, journalists haven’t faced too much worry about this. The First Amendment broadly protects journalists, and just the appearance of auditing a journalist for negative coverage is a bad look.
But when you look around the world, this is not a universal standard. In Ecuador, for example, "the message the president has sent to the media is that if you criticize the government, if you report on corruption, they will be liable to damaging defamation suits," Lauría says. "It definitely has created a climate of self-censorship."
In December, NBC and MSNBC correspondent Katy Tur live-tweeted a Trump rally that had been repeatedly disrupted by protesters. She received a note from Trump’s press secretary calling her coverage "disgraceful" and "not nice!" — followed by a tweet from Trump himself, calling for her and a colleague to be fired.
Then Trump singled her out at a rally in South Carolina, pointing to the press pen and saying, "She’s back there. Little Katy. … What a lie. Katy Tur. What a lie it was. Third. Rate. Reporter. Remember that."
Imagine that in 2017, Tur gets an audit request from the IRS for the past seven years of her tax information. She served as a foreign correspondent for NBC before covering the election, and the IRS sends her a letter every few weeks asking for more documentation about how she reported her income while on reporting trips abroad.
Meanwhile, whenever she flies to Europe to visit friends from her time in Europe, she’s held up by the TSA for additional screening before she leaves and by immigration officials for additional questioning after she returns. Then while trying to follow up on an anonymous tip about the president’s schedule, she’s visited at the office by Secret Service agents making an inquiry into the "leak."
Tur and her editors wouldn’t know whether all these things were related to Trump’s criticism of her coverage. But she and they wouldn’t be able to prove otherwise. They’d face a choice: Make nice with the White House, or get used to the feeling of being under the world’s most powerful microscope — and accept the consequences.
And the sad reality is that the government wouldn’t even have to do anything to Katy Tur or her editors. It could just leak to another reporter (at a more sympathetic outlet) that it was looking into some vague form of potential misconduct. As we’ve seen over the last several days of the election, the leak is a very powerful tool in getting an agenda out there — and a very widely used one.
The president would have to be careful — but sympathetic political appointees could read between the lines
Chilling effects are generated by fear — and that fear isn’t always rational. If reporters across America stopped reporting anything critical of Barack Obama out of fear that he’d sic the FBI on them, that wouldn’t make any sense.
So "what could the government do?" is only one question. The other question is: Would the government actually choose to do it? Could a president use the federal government for vindictive purposes if he wanted to? Would someone try to stop him? And what would happen if they did?
The federal government has awesome power, but that doesn’t mean the president can do exactly what he wants with it. If a vindictive president can create a vindictive executive branch, self-censorship is an act of self-preservation; if he can’t, it’s an act of paranoia.
A vindictive president would need sympathetic political appointees in key positions: attorney general, DHS secretary, head of the IRS, maybe the director of National Intelligence. (The head of the FBI is a 10-year appointment, so James Comey — if he wants to — will be in charge until September 2023.)
They’d need to be people — as Wittes wrote in an essay for the blog Lawfare on the question of how Trump could abuse executive power — who both shared the president’s desire to go after his enemies and were able to read between the lines of what he said to understand what he wanted done.
"An unspoken understanding that the Justice Department's new priorities include crimes by the right sort of people," Wittes said, "would be better than the sort of chortling communications Richard Nixon and John Mitchell used to have."
Trump is not known for his subtlety: Indeed, as NYU professor and former Nixon Library director Tim Naftali observed to Vox’s Dylan Matthews earlier this year, "At times Trump acts publicly the way Nixon acted privately." But he’s also known for surrounding himself with people who share his psychology and temperament, people who also have chips on their shoulders about complacent elites and want to knock them down a peg or 10.
Trump didn’t have to tell Lewandowski to grab reporter Michelle Fields after an appearance — but that doesn’t mean Lewandowski didn’t think he was acting on his boss’s behalf. Trump has adopted Chris Christie as a lieutenant knowing full well that Christie was likely entangled in a scheme to cause "traffic problems in Fort Lee" — if he wasn’t the architect, the people around him somehow knew how to retaliate against a troublesome mayor.
At a certain point, political appointees have to get the civil service involved — and that’s where the trouble begins
While political appointees might be the ones coming up with schemes to target political enemies, they won’t be the ones carrying them out.
In order for targeting to move from chilling to genuine harassment, some government employee is going to have to make the decision to pick up the phone or stamp the letter and actually contact a civilian — the target of the investigation herself, or a would-be informant, or whomever.
That employee will be a member of the federal government. He will not be a member of the president’s administration. The difference is crucial.
There is a government that endures beyond the transition of one presidency to the next: career civil servants, appointees with long tenures, and the policies and rules that bind them. I talked to a member of this government about the question of the vindictive presidency. (For obvious reasons, he wasn’t willing to have his name published, or any information about where in government he works.) For the sake of convenience, let’s call him "Mark."
"By and large," Mark told me, "the activities of federal agencies are exceedingly law-governed. Even when there’s no statute or regulation, you just cannot believe the extent to which things government employees do are governed by written policies that might as well be statute."
So by the time a federal employee is on the verge of picking up the phone to begin a harassment campaign disguised as an investigation, he’s on the verge of violating an agency policy.
The places where the Bush and Obama administrations have done the most to expand the power not just of the executive branch but of the presidency itself are in foreign policy. Intelligence agencies like the FBI and NSA are relatively opaque to the public.
Richard Nixon was able to use the FBI and CIA to spy on unfavorable journalists. But even these agencies have limitations. Starting in 1976, the FBI put internal regulations in place that govern when agents can start an investigation — and that explicitly say no one can be investigated simply for doing things that fall under their First Amendment rights. (The guidelines can be changed, as Wittes has pointed out, but that would take the agreement of leadership at the agency — members of the permanent government.)
This isn’t to say that violations never happen. But when they do happen, Congress can hold the agency accountable for falling short of its own policies — even though those policies aren’t law.
Wittes is concerned that the more banal law enforcement agencies under federal control, like those at the Department of Justice, are the "soft spot, the least tyrant-proof part of the government." The intelligence community is constrained by laws dictating when it can conduct and stop an investigation, but everyday law enforcement and regulatory agencies’ guidelines are just that.
Mark downplays the difference between the two. "In terms of who can you open an investigation on, who can you impose a sanction against? Those things are very structured procedures," he says.
"If [Trump] was just going to have the SEC go after some casino companies who he hasn’t liked as competitors, either there would be such a paper trail" that someone could "follow the bureaucratic procedure that exists, or there would be such a grotesque violation of the paper trail" that the absence of documentation could raise a red flag.
At the moment of picking up the phone, the employee would have enough information to know that what he’s about to do constitutes a violation.
He has an opportunity, and a very strong incentive, not to do it: to stop the harassment before it starts. Or even to call a reporter instead, and drop some hints that something untoward is being done.
Vindictiveness is hard to turn into policy — and without a policy, there’s nothing to implement
Yes, the SEC, DOJ, and other agencies have discretion in whom they prosecute. But at a certain point, Moulton says, agencies have to show their work. "If push ever really came to shove and there was an investigation into the DOJ or IRS or something like that," he says, "then the agency needs to be able to produce its criteria: ‘Here’s how we got there; we did the same thing with other companies or other individuals; it was part of this policy that was in place.’"
This is the key: There has to be a policy.
Civil servants are willing to implement policies they disagree with — or even aggressive interpretations of federal law, says Mark. He points to the Obama administration’s interpretation of federal law to protect transgender individuals from discrimination. “That’s more boundary-pushing” than most government lawyers (whom he characterizes as very conservative in their interpretation) would be comfortable with, "but it wouldn’t be such a black-and-white departure from the way things usually run."
George W. Bush and Obama have both pushed aggressive interpretations of federal law on the executive branch. And government officials have gone along with them — possibly because they felt they had to, possibly because they truly believed it was the right thing to do.
But both of those were in the service of policy. The more purely vindictive a president is — the more motivated he is by personal animus — the harder it is to formulate a higher principle that could justify the actions he wants government to take.
The federal government has gotten more robust in implementing matters of policy — but it’s not so flexible that it can simply be pushed in the direction of arbitrary enforcement. "It’s just so bureaucratized and formalized," Mark says, "that it would be hard to corrupt quickly. It would take corruption of a lot of people."
A vindictive president would expose cracks in the civil service
Obviously, rules don’t stop anything on their own. They only stop things when people are willing to follow them. That means the real question of the vindictive presidency is this:Would the civil service be willing to go along with it?
The answer to that is almost certainly that some probably would, and some probably wouldn’t. And that raises problems of its own.
Civil servants would have very good reasons to resist. For one thing, if they help do something unethical or illegal, that could be on their head.
"Whenever you have secret decision-making and actions going on, that’s always where the possibility comes in that things could be done for the wrong reasons," says Moulton of the Project on Government Oversight. But that’s why, he adds, there’s a clear line of legal responsibility — one that prevents the civil service from defending themselves by saying they were "only following orders."
John Malcolm points out that if a federal prosecutor, for example, tried to bring case after case into court that wasn’t merited by the evidence, she could face sanctions from the bar association — giving her a strong incentive not to press charges simply because the president said (in Malcolm’s words), "Goddammit, charge this person."
"These career civil servants, they know that. They know that if you do something, if you cross that line and you can’t justify what you did — and if it was just as retaliation, you wouldn’t be able to — and you’re left holding the bag, then at the very least you’re looking at losing your career," he says.
Mark says something similar: "People are going to want to have jobs after this. By and large, people don’t want to be followed for the rest of their lives by having done something outside the line. And so they’re going to, I think, try to impose those lines on themselves."
By the time they’re thinking about their own individual careers, though, they’re already divorcing their own goals from the goals of their agency. And a lot of personal feelings (and intra-agency power squabbles) can seep into that crack, destabilizing the agency’s work.
“Deep Throat,” the source who helped Bob Woodward and Carl Bernstein break the Watergate scandal, is probably the most famous whistleblower in history. But he wasn’t purely acting out of a desire to expose wrongdoing — he was mad that he’d been passed over for a promotion at the FBI.
Not everything is Watergate. When you’re settling a score, though, it can be hard to tell the difference.
A vindictive plot might collapse under the force of a thousand blown whistles — or petty leaks
Ben Wittes wrote, earlier this year, that the constraints against executive abuse at the Justice Department "reside in an institutional culture […] and that is precisely the sort of thing a tyrant leader can change."
But when a Justice Department lawyer proceeded to write to Wittes to ask him for advice, Wittes counseled him and everyone else in the government to stay put — partly to serve as the first line of defense, but partly so that if anything untoward happened, they would be able to notice and speak out: "Stay put unless and until you are asked to do something legally or ethically improper — at which point you should resign publicly and as loudly as the law allows."
There are ways for people outside government to call out government malfeasance. Losing bidders on government contracts can protest them if they think the contract was awarded unfairly: There were about 2,500 protests of federal contracts in 2014, and 43 percent of them were upheld (or got the agency to voluntarily make a change).
Civilians who feel they’re unfairly targeted by government can go to their members of Congress, Sean Moulton points out — "and Congress, if they’re seeing a pattern, or a particularly questionable decision that was made, they can start to make inquiries and go so far as to launch a full-scale investigation."
But the most direct route to calling out malfeasance comes from the inside. "I haven't seen any new ethics guidance on whistleblowing or insubordination," Mark told me, "but you have to think that people will be seeking that kind of guidance in a Trump administration a lot."
The cost of whistleblowing, though, can be extremely high. When Thomas Drake brought his concerns about his employer, the National Security Agency, outside the agency, the Obama administration charged him with espionage. Even in less extreme cases, it’s easier for the government to ruin the life of a government employee than anyone else: Security clearances can be stripped, wages can be suspended, or (as Moulton says) the employees can simply be "given nothing to do and stuck in a corner for eight hours a day because ‘we don’t trust you; you’re not part of the team anymore.’"
It can be safer, and certainly easier, just to go to the press.
The revival of the Clinton email scandal has been dominated by dueling leaks. Employees of the FBI and Department of Justice presumably upset with Comey’s decision to notify Congress about the new emails have leaked stories about the guidelines Comey broke to do it. They told reporters that Comey had sent the letter without even having a warrant to review the emails, and that many of them could be duplicates of emails the FBI has already reviewed. They told reporters about Comey’s reluctance to tell the public about Russia’s attempted interference in the election. (The suppression of that information would presumably have helped Donald Trump, whom it’s assumed the Russian government is trying to help.)
Employees trying to defend Comey, meanwhile, leaked that the FBI had actually known about the new emails for weeks but hadn’t briefed Comey until the day before he told Congress.
When leaks are the cost of doing business, they affect what decisions will be made in advance. It’s probable Comey felt that if he didn’t tell Congress about the new emails, someone in his agency would leak that they’d been discovered — and Comey would be accused of suppressing bad news to help Hillary Clinton.
Leaking, in this way, can be a form of bullying — yet another way for a vindictive president or his appointees to get what they want. Leaking can be a last resort for civil servants worried about breaking the law — but it can also be a way for their less scrupulous peers to get around the law by litigating things in the court of public opinion instead.
A vindictive president could get around this by purging the civil service — something Trump has floated in the past
A president could hypothetically engage in the executive branch equivalent of "court packing" — simply expanding the agencies that don’t cooperate so he can fill those slots with people who can — though it’s unlikely that Congress would appropriate that kind of money.
But civil servants who would rather leave than commit unethical acts can be replaced with people who are drawn to the civil service in order to commit unethical acts.
That puts the success or failure of a vindictive presidency squarely on the shoulders of rank-and-file federal employees.
"Would they feel an obligation to just look for another job because their job would be unworkable?" Mark wondered. "Would they feel an obligation to stick around and do their job, because it would be important to do correctly in light of the fact that there might be pressure to do it incorrectly?"
"People are certainly personally aware of that being their dilemma," he says. He doesn’t tell me what his conclusion would be, or what line he would be unwilling to cross.
There are thousands of civil servants working through that calculus right now.
In January, Government Executive surveyed 688 federal employees — most of them from high levels of the permanent civil service — about what they would do if Donald Trump came into office. Fifty-nine percent said they would be embarrassed by his election. Fourteen percent said they would consider leaving the federal service; another 11 percent said they might consider it.
If most — or even many — of those employees really did leave federal government rather than serve under Trump, the political appointees building a vindictive presidency would have the opportunity to staff up with people who would simply follow and implement suggestions about harassing individuals, rather than throwing up objections based on agency rules. Or they’d have the option of simply going along with an understaffed executive branch, knowing that with fewer people around to know what’s going on, it’s easier to bend rules and skip proper procedures.
"The Bush administration’s attempted destruction of the civil rights division of the DOJ did lead to a lot of people leaving long careers there," Mark said. Those positions were then filled by a hiring process in which applicants were literally asked about their personal loyalty to Bush — though that abuse ultimately came to light.
For this reason, arguably the most terrifying proposal that Trump or his campaign has mooted on the campaign trail is the suggestion that full-time employees be cut from the federal government and replaced by people on sabbatical from their business careers. Just like part-time politicians end up relying on lobbyists to supplement their scant policy knowledge, part-time government officials are likely to rely on the White House to tell them what they can and cannot do.
Luckily, though, it would be exceedingly difficult to change the composition of the federal government that drastically. (Just think of the security clearances.) So the change will be made on the margins: as individual civil servants determine their individual carrying capacities.
Each day, they’d have to decide whether to stay or leave. Each day, they’d have to decide whether the job they were being asked to do was unconscionable enough to risk destabilizing the agency by starting a leak war. Each day, the rule of law would be in the hands of human beings.