Federal law enforcement did not cover itself in glory—again—in the just-concluded trial of Noor Salman, wife of the Pulse nightclub mass murderer in Orlando, Fla.
A judge scolded prosecutors during the trial for withholding exculpatory evidence. At her original bail hearing, the FBI had relied on a confession, extracted from Ms. Salman in an 11-hour interrogation, that she had helped Omar Mateen scope out the gay nightclub in advance of the shooting. As was subsequently revealed, the FBI was already in possession of cellphone location data that contradicted her claim. Other evidence also cast doubt on the confession, which the FBI failed to record or sustain with circumstantial proof. Ms. Salman was acquitted.
Happily, the malpractice here was less consequential than in the thrown-out corruption conviction of the late Sen. Ted Stevens. It was less brazen than the Consumer Financial Protection Bureau’s manufacture of fake statistical evidence of racial bias in auto lending or the questionable federal and state asset seizures that keep coming to light.
The Noor outcome may not be flattering to the FBI, but it should be flattering to America. Holding law enforcement accountable is the best refutation of the authoritarian temptation, with its mocking of our insistence on due process, elections and respect for individual rights.
At the same time, not every culpable police action is motivated by careerism or dishonesty of purpose. Murders are down in New York City. Policing is a reason. Yet two of the city’s most productive detectives were recently charged with manufacturing evidence to support an otherwise legitimate seizure of an illegal gun. Now under way is a spreading crackdown on police “testilying” in court.
So skepticism, leavened with a certain understanding, is required in the clash between individual rights and the police. This is about to become especially true in the mother of all cases, the FBI’s role in the 2016 election.
We’ve already learned a few unsettling things. Trump associates Michael Flynn and George Papadopoulos were treated in unforgiving fashion for lies that may not have been lies, whereas the FBI practically conspired with Hillary Clinton and her aides to make sure their truth-shading was overlooked. The FBI’s use of evidence to win a Carter Page surveillance order appears to have been every bit as disingenuous as that used by prosecutors in the Noor Salman bail hearing.
Political bias or simply toadying to the party in power may turn out to have been a factor, but we are likely to hear a great deal about what top law-enforcement officials believed, rather than knew, about Donald Trump.
The autobiography of FBI chief James Comey is due next week. The chances are nil that it will deal honestly and completely with the 2016 race, especially the role of U.S. intelligence agencies in influencing some of the FBI’s actions. But as leaks already reveal, the book is accurately redolent of the contempt and distrust top officials felt for Candidate Trump, leading to actions that are hard to defend in hindsight.
Coming next will be a Justice Department inspector general’s report on Mr. Comey’s anomalous exculpation of Mr. Trump’s Democratic rival in the 2016 race. If, as we suspect, Robert Mueller is framing his own investigation partly to justify the pre-election actions of the FBI, then we will doubly need the recently launched investigation by U.S. Attorney John Huber, which doesn’t start from the assumption that the one thing that doesn’t need investigating is the investigators.
Then there’s the Stormy Daniels matter, in which a seamy but not illegal payment might, in theory, be illegal under campaign-finance rules.
At least efforts at suppressing Mr. Trump’s sexual history are a gentlemanly improvement on those of the Bill Clinton campaign 24 years earlier. If Trump lawyer Michael Cohen made an “in-kind” donation by paying off Ms. Daniels, didn’t Ms. Daniels make an in-kind donation when she agreed not to speak? Weren’t those Clinton women who didn’t come forward because they didn’t want to be savaged by the Clinton machine making in-kind contributions to the Clinton campaign?
The questions are absurd because the law is absurd. What should be a personal and political embarrassment for Mr. Trump has become another superfluous legal jeopardy for the man 46% of American voters wanted for their president. When we metastasize laws for criminalizing politics, we become more like Vladimir Putin’s Russia, not less so. Witness the liberal group Common Cause, which can’t get enough campaign regulation, rushing out Stormy-related federal complaints against the Trump campaign on Thursday.
But another lesson also applies in such a world. All presidents face opponents who seek to make sure they deliver as little as possible even when delivering would be good for the country. Mr. Trump came to the presidency with too much baggage that his opposition could use against him. That’s something Mr. Trump’s voters and party should have thought about before nominating him.
Appeared in the April 14, 2018, print edition.