It’s the moment we’ve feared, the moment the Supreme Court invoked in giving Donald Trump immunity, and the moment that marks an authoritarian government at its most vulgar and vicious.
On Monday, Attorney General Pam Bondi signed an order directing an as-yet-unidentified federal prosecutor to convene a grand jury to investigate whether prominent officials in Barack Obama’s administration, including Obama himself, purposely manufactured an intelligence assessment in January 2017.
The supposed purpose of the Obama officials’ scheme: to promote a “false narrative” that Russia and its president, Vladimir Putin, engaged in an operation to interfere in the 2016 U.S. election with the intent of helping Trump win.
Problem #1: There’s nothing whatsoever false about this narrative.
The Intelligence Community Assessment, or ICA, prepared by career professionals and our intelligence agencies, indeed concluded: “Russian President Vladimir Putin ordered an influence campaign in 2016 to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency.”
But that conclusion has been repeatedly reaffirmed in multiple investigations—including those of special counsel Robert Mueller, the Senate Intelligence Committee, and special prosecutor John Durham.
The bipartisan Senate Intelligence Committee unanimously found in 2020 that the ICA was “coherent and well constructed” and reconfirmed that Russia “engaged in an aggressive, multi-faceted effort to influence” the 2016 election in Trump’s favor.
Durham’s work is particularly instructive here. Durham was a Trump U.S. attorney whom Attorney General William Barr tasked with leading an investigation into the origins of the FBI’s Crossfire Hurricane probe into alleged Trump-Russia campaign ties. Durham investigated exhaustively—over almost four years—whether anyone broke the law in connection with the 2016 intelligence assessments.
While Durham’s final report found certain procedural faults with intelligence actors and the Mueller operation, it confirmed that Russian spies were behind the hacking of Democratic campaign files and the release of campaign emails. It specifically failed to find a plot approved by Hillary Clinton to tie Trump to Putin.
So much for the notion, jealously protected and prized by certain Trump loyalists, that the ICA was a fraud cooked up by the Obama administration to hurt Trump’s electoral prospects and thereafter delegitimize his victory.
Or so you might think. But now enter Tulsi Gabbard, Trump’s controversial director of National Intelligence. Trump strong-armed her confirmation notwithstanding her lack of experience in the intelligence community—a depressing point she has in common with so many Trump nominees—and her apparent pro-Syria and pro-Russia sympathies. Over 100 former intelligence professionals wrote to Congress to warn that her candidacy posed a national security risk.
Gabbard has gone on the warpath in recent weeks with a series of document dumps seeking to revisit the unanimous verdict about 2016. Last month, she appeared at the White House press podium to accuse Obama, along with former CIA Director John Brennan, former Director of National Intelligence James Clapper, and former FBI Director James Comey, of engineering a “yearslong coup” against Trump.
She then chimed in that the information she was releasing showed a “treasonous conspiracy” by top Obama administration officials. A few days later, Trump touted Gabbard’s comments and took it over the top, laying it on Obama himself: “It’s there. He’s guilty. This was treason.”
Unsurprisingly, both Trump’s and Gabbard’s treason charges were constitutionally illiterate. Treason, the most serious crime a citizen can undertake against the country—and one punishable by death—is expressly defined in the Constitution, which reads: “Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”
It’s only Trump’s twisted “l’état, c’est moi” mindset that can construe a supposed political attack on him as an act of treason against the state.
At her White House appearance, Gabbard crowed: “There is irrefutable evidence that details how President Obama and his national security team directed the creation of an intelligence community assessment that they knew was false.”
The “irrefutable evidence” turns out to be stray bits of unverified intelligence that the agencies could not substantiate and that did not alter or weaken their bottom-line assessment of Russia’s involvement.
Gabbard—who the month before her dramatic announcement had been in Trump’s doghouse for saying that Iran wasn’t close to nuclear capability—capped her deranged performance with a criminal referral to the Department of Justice, seeking investigation and prosecution of the members of the “treasonous conspiracy,” including Clapper, Brennan, Comey, and Obama.
And sure enough, now Bondi—who, like Gabbard, is duty-bound to be apolitical—has greenlighted the scurrilous investigation. That piled impropriety on top of impropriety. The DOJ manual—which one suspects has been run through the shredder—requires “adequate factual predicate” before convening a grand jury. It’s unethical to use it for a fishing expedition. That rule, in fact, is what prompted the resignation of the criminal chief of the D.C. U.S. Attorney’s Office, whom Ed Martin Jr., Trump’s first choice to lead the office, ordered to undertake a grand jury investigation without predication.
It’s difficult to overstate how dangerous this moment is. Using the machinery of criminal justice to pursue manufactured charges against political predecessors is the stuff of strongmen and collapsing democracies. From Putin’s endless prosecutions of opposition figures like the late Alexei Navalny to Turkish President Recep Tayyip Erdoğan’s jailing of rivals and judges after labeling them coup plotters, to the cycles of vengeance in post-coup Egypt, this is the textbook authoritarian move. It corrodes trust in democratic transitions, chills dissent, and redefines political opposition as criminal subversion.
As Steven Levitsky and Daniel Ziblatt argue in How Democracies Die, once democratic norms around restraint and mutual legitimacy are breached, they rarely recover easily. Trump is mowing down the guardrails of democracy—and the institutions built to stop him are watching with the sound off.
Ironically, this very kind of weaponization of law enforcement to pursue political attacks was one of the dangers the Supreme Court cited in granting Trump immunity for official acts. Chief Justice John Roberts stressed that the rule was essential: “Without immunity, such types of prosecutions of ex-Presidents could quickly become routine … an executive branch that cannibalizes itself, with each successive President free to prosecute his predecessors, yet unable to boldly and fearlessly carry out his duties for fear that he may be next.”
So who is cannibalizing their predecessors now?