Shoot first, ask questions later.
That’s a great motto for a lawless lawman in an old Western movie.
Not so much for two House committee chairmen who called for the removal of State Department undersecretary Pat Kennedy earlier this week. Reps. Jason Chaffetz, R-Utah, and Devin Nunes, R-Calif., were responding to a trove of FBI notes on the investigation into Hillary Clinton’s email server that mentioned Kennedy had tried to persuade the FBI to not classify one of Clinton’s emails before it was publicly released.
One person interviewed by the FBI said Kennedy discussed a “quid pro quo” exchange, in which the email in question would remain unclassified and the FBI would get new overseas postings for agents. The FBI said no, and the positions overseas never materialized. While administration officials have said that the two issues were discussed in the same conversation, they have also denied that there was an offer of a trade-off.
Given the allegation, it would be reasonable for members of Congress to look into whether there was an attempt to improperly influence the FBI’s decision-making process. It is not reasonable for them to say, as they did, that Kennedy should be removed from his job, “pending” an investigation. Nor was it reasonable for Donald Trump to call for his ouster, which the Republican presidential nominee did through a spokesman.
Trump’s “lock her up” disease — a psychological affliction distorting an American candidate’s thinking to the point where he argues it’s OK to jail opponents or fire bureaucrats who haven’t been charged with any wrongdoing — has temporarily infected Capitol Hill.
Here’s what Chaffetz, chairman of House Oversight and Government Reform Committee, and Nunes, chairman of the Permanent Select Committee on Intelligence, wrote in a letter to Secretary of State John Kerry and the department’s inspector general, Steve Linick. “We find Undersecretary Kennedy’s actions extremely disturbing. Those who receive classified intelligence should not barter in it — that is reckless behavior with our nation’s secrets,” they wrote. “Someone who would try to get classification markings doctored should not continue serving in the State Department or retain access to classified information. Therefore, President Obama and Secretary Kerry should immediately remove Undersecretary Kennedy, pending a full investigation.”
They make it sound like Kennedy was giving classified information to someone who shouldn’t have it. That’s not true. And the person who used the words “quid pro quo” was a secondhand source, not the person who was engaged in the conversation.
No one — no one — in any official capacity who has any direct knowledge of the investigation has accused Kennedy of any wrongdoing, much less charged him with anything. Kennedy, a veteran of the Foreign Service who has worked under presidents of both parties, has defended his institution in ways that benefit Clinton and infuriate congressional Republicans who failed to destroy her with their serial Benghazi investigations. And therein lies the rub.
They’re not calling for Kennedy to be fired or suspended from his job because they expect he will be prosecuted and convicted for some crime. They’re doing it precisely because they can’t imagine that scenario playing out. He won’t be of use later. Now is the moment when Kennedy, who is appropriately described as a Clinton ally, has his greatest political currency. And make no mistake about how Chaffetz and Nunes are trying to expend it: in an nakedly partisan and decidedly unjust way.
In my reporting on the State Department, for a book I co-authored in 2014, on the Benghazi investigations and on other matters, I’ve come across Kennedy’s name a lot. He’s known for being inaccessible and transactional — not unusual for a high-ranking and long-serving bureaucrat — and intensely loyal to the State Department.
But is what he did either illegal or unethical? It’s hard to see how it would be illegal, even if Kennedy — who is savvy enough not to make this mistake — used the magic words of promising an exchange of an official act on his part for an official action by the FBI. In government, that’s known as “horse-trading” — or “logrolling” when it’s specific to Congress. That’s how laws are made, and it’s how bureaucracies do business.
Without any evidence of an offer of a direct exchange — and the term “quid pro quo” appears to have been used in layman’s, rather than lawyer’s, terms — there’s no bribery. Ask any member of Congress who holds a fundraiser and rakes in money from industry lobbyists right before a big markup or floor vote on legislation affecting the industry or industries that donated to him. That’s not bribery in our legal system; it’s just a coincidence of interests. Curse the system, or change it, but don’t deny its existence.
A less politically motivated read of the situation is that Kennedy, acting in the interests of his department and his former boss, sensed an opportunity to limit what he saw as over-classification of Clinton’s emails. Whether it’s unethical for a public official to explicitly or implicitly trade favors with another public official is a reasonable question. And perhaps it merits investigation by the administration or Congress.
But the effort by Chaffetz and Nunes to evict Kennedy before gathering any facts is prima facie evidence that they don’t really care to find out what happened as much as they want to damage Clinton. American justice isn’t supposed to work that way. Maybe that will change if Trump wins.
Roll Call columnist Jonathan Allen is co-author of the New York Times-bestselling Clinton biography “HRC” and has covered Congress, the White House and elections over the past 15 years.