A Comment on the Lawfare Article "On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat?"

Even by the standards of today’s politics this week has been full of strange things.

Possibly the most important of those strange things is a report that following the Comey firing the FBI opened a counter-intelligence investigation which asked (and I’m paraphrasing) “Is the President an agent of a foreign power and therefore a national security risk?” This is a deeply weird thing to happen and it sets a terrible precedent.

Everyone knows I’m not a lawyer, let alone a constitutional scholar, so when there’s a thorny problem in this space that I don’t understand I tune in to Lawfare where I know I can get some help from some of the brightest minds around. The article I link to here and reference in the title of this post walks through the legal problems with the FBI taking this action. Here’s the short version: The president is the sole constitutional actor who can determine foreign policy. Therefore it’s not possible for him to be a national security threat because the nation security interest is whatever he says it is. Who gave the FBI the authority to usurp the President’s authority and do we want to live in a country where the FBI would grant itself the authority to do that. The counterpoint is obvious: What if it’s true? Don’t we want the FBI to do just what it did?

Again, I’m not a lawyer, but it seems like this is one of those times (like this great scene from Lincoln) where legal logic isn’t going to get you to an answer. In fact it may very well be that the right thing to do is not the legal thing to do. I’m going to take a moment to reframe this problem in what I believe is the proper context.

THE “SUPER-LEGAL” SOLUTION

Many of our biggest problems aren’t legal ones. Strictly speaking they’re not political problems either. Our problems are issues of Power. America is a country of laws and too often we forget that laws aren’t immutable facts of the universe. Laws don’t even really exist. They’re just the stories we tell one another about how we’ve agreed to live our lives together. Nothing more. Their power is only in the fact that we agree to constrain ourselves by those stories. Take for example the Presidential Oath of Office. To the best of my knowledge there’s no law against breaking that oath. There are plenty of laws concerning acts that we’d consider a betrayal of the oath but the Oath itself isn’t a legal standard.

For our purposes here this is a really important thing to keep in mind because federal officers (including FBI agents) all take a similar oath. This gets interesting because in order for the the Feds to have any leg to stand on they’d need to come up with a justification that actually supersedes a legal framework and the oath of office is just such a “super-legal” solution. Why is such a standard required, you ask? Well, because as we’ve already established the President, and the President only, can set the foreign policy agenda of the United States and (as crazy as it sounds) he has an absolute right to place the interests of the Russia ahead of the interest of the United States if he chooses… unless we deem the Oath of office to be a governing constraint, a position for which there is no legal cause.

At this point someone will jump in and rightly point out that this is the kind of thing that Impeachment is built for and that it’s Congress, not the FBI that has authority here. I would agree with this point. Yet consider the frame of mind the Feds must have had. Certainly Congress has been charged with judging if a President should remain in office, but Impeachment isn’t a legal standard, it’s a political one. It’s a political one that ends with a trial conducted in the Senate and overseen by the Chief Justice of the Supreme Court. How then can such a trial be conducted fairly if the charge of Impeachment is made on some grounds relative to failure to uphold his oath, when there is no standard for such a charge? At that point the conscientious federal investigator might very well reflect on the fact that the investigator herself had taken a similar oath. Certainly if breach of the oath by the President is grounds for a charge of Impeachment, then oaths to support the Constitution must also carry an equally forceful responsibility to our federal agents to make a good faith effort to investigate Presidential oath-breaking and in the course of that investigation, preserve evidence.

So where are we? Let’s return to my early point. Many of our problems aren’t about issues of law, or even about politics, they’re about Power. Power is the crafting and sale of a counter-story so that events can be arranged which the law and politics would disallow under the story we tell ourselves now. We’ve given a small group of people the right to run the country. Some of them act illegally, and when we’ve vigilant we catch and punish them. Some people act with disregard to politics and in time they lose their position. Right now though, many are acting to craft a different set of stories which would grant them power. The most fundamental of our stories is the one told by the Constitution and although it isn’t a legal standard, perhaps the FBI can justify its actions on that super-legal basis.

Closing out 2018

You can be unhappy about the state of the world and still be proud of the work you do in it. Such was 2018. This year my wife and I celebrated our 6th Anniversary and our son’s 5th Birthday. I was fortunate enough to be able to take a shot at running for Congress and her business has started hitting its stride. I exited a poorly run professional setting and I’m committed to a new firm, in a new field, that looks to have in its ranks the smartest people I’ve ever had the pleasure to work with.

And still there’s a restlessness. An itch under the skin to make a lasting impact that does well by both my family and posterity. I don’t know what form that will come in or when it will come. A lot of people have encouraged me yo look at another run for office. Maybe some day. What I know for sure is that I’ll be a more active citizen. I’ll pay a bit more attention to local politics. I’ll think a bit deeper before I open my mouth with an opinion. I’ll give my neighbor a bit more time and a bit more space to be heard and I’ll be better at listening.

The few of you that have been regular readers of my content know that up to this point the C|M|P blog has focused on issues in the narrow space around carbon, climate and sustainability. That will still happen. In addition though, I’ll be broadening the “policy” end of Climate|Money|Policy. There’s no question in my mind that a set of voices are being ignored and I want the C|M|P blog to be a place where I can attempt to do that. More importantly, there are a whole range of issues that policy makers are doing a crap job of communicating back to the average person. I hope I can do even more of that.

I’m not certain yet what the frequency of publishing will be here. In the past I’ve set too aggressive a schedule and quickly got behind. I’m going to try to hit a balance and post regularly. Maybe 2-3 times week. In the first month I’m going to port over some of the pieces I though about on the campaign trail. There was a lot of good common sense stuff there and I hope that even if I’m never elected that someone picks up the torch and moves it forward.

Thank you friends, for your constant attention. As always, if you want to get in contact you can find me at Brian@ClimateMoneyPolicy.com I hope to continue earning your views.

Interview on "Business Innovators Radio"

I just got done with an interview for Business Innovators Radio where host Richard Tunnah and I had a conversation on what kinds of businesses look help with their sustainability, carbon & climate exposure.  It's a quick listen and connects a few dots for those executives that think climate change is an issue that only touches on big business.  Take a listen.

Talking about "Climate-Smart" Money

I had a remarkable experience recently.  One that became an all-consuming draw on time and mental capital.  I was invited to speak at a TEDx.  For those of you who don't know TED is a world famous ideas conference dedicated to promoting what they call Ideas Worth Spreading.  All of the talks are brief (under 18 minutes) and all of them are available online.  Collectively, TED talks have been viewed hundreds of millions of times and they've inspired remarkable action globally.  Every subject matter has been covered from micro-robotics to education reform and some of the speakers who have taken the TED stage have gone on to remarkable public lives thanks to the boost.  So popular is TED that it's spawned a culture of regional, independent conferences that license the name under "TEDx".  When I got the call from TEDxNavesink I was thrilled... and terrified.

Preparation for any talk requires energy and focus.  This talk was especially thorny because the audience was a general one.  Typically, I talk to audiences from the business world or from the governments of small island states.  These groups are largely homogenous and I can talk about specifics and impacts in a substantive way.  That wasn't the case here.  With this tiny little talk (I'd been given only 11 minutes) I had to drill down to a simple message, repeat it enough for it to be memorable and frame it to help anyone from any background relate to the subject.

Too often the face of climate change is a huricane or a water shortage but family budgets are experiencing climate's cost incrementally in costs all across the economy. In this talk Brian Reynolds explores how businesses are accounting for climate's costs as a matter of risk management.

The Preparation

I had about three months to prepare and it went by in a blink.  I spent the first month framing out what I wanted to say and what was important.  It became obvious early on that the world didn't need another talk about the evidence and veracity of the science.  Moreover I'm not a scientist and I felt it would be in error to try and play one.  At the same time it didn't make sense to talk about the politics.  I'm comfortable there but what would the take-away be?  Vote different?  That wasn't going to fly.  At some point I realized that what I really need to was to leapfrog the whole argument.  This talk had to be about how the world wasn't stuck in the debate.  That to call global warming a debate at all was to ignore the leaders in finance and industry who've been working to avert or insulate climate-risks.  Pulling back the curtain and showing the audience how  business and government were already charging fees related to absorbing the cost of climate change; that's where this talk had to go.

Challenge 1: The Family Budget

This talk wouldn't work if I didn't have their attention.  Unfortunately, climate related costs tend to be acute (and subject to argument), not systemic.  We can easily calculate the cost of extreme events like a hurricane but no single hurricane can be blamed on climate change.  Conversely, it's difficult to factor the costs of a greater humidity but it's clear that they exist and that global warming is to blame.  I needed to find some examples that were systemic and measurable.   Weeks went by before by favorite emerged: Heroine.  It turns out that Afghanistan makes pretty much all of the world's heroine and Afghanistan has had systemic drought for pretty much all of the century so far.  Perfect.  A robust drug war come with robust metrics and it turns out that the audience for TEDxNavesink was drawn from two counties with a combined 1800 man anti-heroine task force.  That made it easy to calculate the costs to a family budget.  Once I had the lead the next two followed in quick order.

Challenge 2: Follow the Leaders

If I could prove that climate change was already a concern for the average budget (family and business) it would be an easy pivot to industries that are taking the issue seriously. This middle third of the talk was by far the easiest part but the most difficult to edit.  So many companies are working hard to mitigate climate impacts that I didn't lack for evidence.  Unfortunately, there just aren't a lot that look at climate change as a core business risk and publish KPIs that relate to exposure.  I realized that talking too much about any company was a mistake.  Industry is just too diverse.  Business too varied.  Ultimately there were too many variables for any single story to be evidentiary.

Except one.  Wal-mart.  There are a lot of reasons people poke at Wal-mart but you have to admit, they're a goliath.  They became the only logical choice.

Challenge 3: The Ask

By the point that I have most of the talk lined out I've been fiddling with an ending for weeks.  I've had this sneaking suspicion that people need to be let off the hook for inaction.  Let's face it, climate change has been an issue in the background for over fifty years now.  No one has a legitimate excuse for not having taken action by now and it's had to turn around publicly and admit you were wrong.  I felt I needed to acknowledge that.  I wanted to give people a pass for their inaction and better marching orders on what to do now.  It was obvious to me that planting trees and voting different just aren't the most useful asks of an audience.  Asking them to be selfish though... that could work.

My thinking was that given all of the systemic risks, acting on climate change isn't just a moral imperative, it's deeply selfish.  Selfish in a good way.  Selfish in the same way that you'd steal food to feed your family.  So in the end and with only a couple weeks left to practice it became clear that the ask for the talk was simple: Question risky behavior.  Separate yourself from the masses who more and more seems to ask less and less of one another.  Ask more from those around you.  Ask more from your accountants and attorneys, ask more from your bankers and brokers, ask more from your partners, suppliers and advisors.  Ask them all, "What is my exposure to climate risks?  How are we planning for a world where climate increases the uncertainly of our business?"  It's the questioning that makes all the difference.