Two libertarian-leaning conservatives, Rep. Justin Amash (R–Mich.) and Sen. Rand Paul (R–Ky.), have been working together for the past six years attempting to restrain the government's power to snoop on citizens without a warrant. But the two have found themselves on opposite sides in their interpretations of the investigation of President Donald Trump and his campaign team, on whether there were political motivations behind the then-secret surveillance, and on how that should inform our thoughts about whether Trump has committed impeachable offenses.
Amash has famously come forward as the only Republican in Congress willing to publicly consider impeachment. Paul is opposed to impeaching Trump, and his opposition is partly rooted in his concerns that the Trump investigation has politicized roots and is not solely an effort to root out possible corrupt relationships with Russia or other countries.
The two men's differences have been presented as a potential significant rift or conflict. Last week on Fox News, Paul expressed his disagreement with Amash's position. Fox headlined the coverage, "Rand Paul on fellow libertarian Amash's impeachment call: Russia probe was 'un-libertarian.'" The implication was that if one were a libertarian, one would have been opposed to the Russia probe, and therefore subsequently against the possibility of impeaching Trump.
But Paul was actually very careful and nuanced in how he discussed the surveillance and the investigation in the Fox appearance. And he didn't attack Amash so much as explain why he sees the situation differently. What he's describing as un-libertarian is the "feel" of the investigation: "You have an intelligence community that has so much power that many libertarians have said, 'Gosh, this much power could be abused.' And when I look at it I see abusive power from Comey, from Clapper, from Brennan, from all these guys…who took this great power we've entrusted in them to spy on foreigners and they directed it against Americans for partisan reasons…"
It's interesting that the example of bad surveillance Paul provides in this interview is not the wiretapping of former Trump aide Carter Page but that of Gen. Michael Flynn, Trump's former national security advisor, whose phone conversations with Russian ambassador Sergey Kislyak had been picked up by the FBI just a couple of months before Trump was to take office.
Why does it matter if Paul talks about Flynn rather than Page, when part of the Republican defense of Trump has been characterizing the surveillance of Page as illegal or somehow invalid? Page was never charged with a crime. Flynn, on the other hand, has pleaded guilty to making false statements to the FBI about those conversations with Kislyak.
It matters because so much of the reform effort that Amash and Paul have pushed forward has focused on the unwarranted surveillance of American citizens by the federal government. The FBI got a warrant to wiretap Page; the debate there is whether its agents had properly disclosed to the Foreign Intelligence Surveillance Court relevant information about the controversial Steele dossier. There was no warrant with Flynn, and that's why Paul focuses on him.
In Flynn's case, this is because he wasn't actually the initial target of the surveillance. Under the Foreign Intelligence Surveillance Act, the FBI and the National Security Agency are able to wiretap foreign officials without having to get a warrant. They don't have the same level of surveillance protections that Americans get.
What can happen, is in Flynn's case, is that the FBI listens in when a foreign official has a conversation with an American citizen, and then everything gets complicated. There are supposed to be strict guidelines on minimizing access to this information and controls over who is allowed to view info incidentally collected about Americans this way. There have been serious concerns about what are called "backdoor" searches, where the FBI uses this information—intended to investigate espionage actions and terrorist plots—as evidence for completely unrelated domestic crimes. And right as Obama was leaving office, he loosened the rules for secret information sharing within departments of the executive branch.
My point is that Paul is expressing his disagreement with Amash in a way that nevertheless keeps the focus on policy shifts that they both share. They both want to restrain the ability of the federal government to spy on Americans without warrants.
What's different here is that, unlike Amash, Paul has the president's ear. This is not to say that I think Paul's position is calculated or insincere or that Paul's support of Trump is dependent on access. But in this same Fox interview, Paul notes that he had just spoken with Trump himself. He is using Trump's anger at this surveillance to try to convince the president to permit important policy changes that would reduce the FBI's authority to access information collected from Americans' communications without getting a warrant.
In the end, Paul is trying to push through much-needed surveillance reforms in an administration that, despite all its screaming about snooping, has resisted any scaling back of domestic surveillance and has, in fact, expanded it.
So Amash and Paul have come to differing conclusions about how to interpret the information of the special counsel Robert Mueller's report and what next steps to take. But there's more to politics and policy than whether or not to impeach Trump (believe it or not), and despite what seems like a huge disagreement, the two of them still do not seem that far apart.
Bonus link: At the Washington Examiner, Jack Hunter looks at both Amash's and Paul's positions and, like me, doesn't necessarily think one of them has to be wrong.
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