On Tuesday, in a National Review Online column, I contended that the reported involvement of former national-security adviser Susan Rice in the unmasking of Trump officials appears to be a major scandal — it suggests that the Obama White House, of which she was a high-ranking staffer, abused the power to collect intelligence on foreign targets, by using it to spy on the opposition party and its presidential candidate.
It should come as no surprise that the defense Ms. Rice and Obama apologists are mounting is heavily reliant on a fact that is not in dispute: viz., that the intelligence collection at issue was legal.
To analogize, if a judge imposed a 20-year jail term on a man for passing a marijuana cigarette to a second man, the sentence would be perfectly legal — a distribution of a Schedule I narcotic drug controlled substance calls for a sentence of up to 20 years’ imprisonment, see 21 U.S.C. §841(b)(1)(C). Nevertheless, the sentence would also be an outrageous abuse of judicial power. A judge who did such a thing would be unfit — worthy of condemnation, if not impeachment.
Abuses of power are offenses against the public trust. They often overlap with a criminal offense, but they are not the same thing as a criminal offense.