9

 

UPDATE: This might be a chapter worth transferring to main manuscript

 

None dare call it treason-but the FBI started investigating Trump for what amounts to it.

It’s important to appreciate what is new here. Remember that in February of 2017 Trump had tried to get Comey to publicly state that Trump wasn’t under investigation-Comey had told him this privately as a way of mollifying him. To be sure this was always something of a quibble-even if Trump himself wasn’t under investigation his campaign was. Since the end of July, 2016 there was an FBI counterintelligence investigation into collusion between the Trump campaign and Russia-it’s hard to argue Trump isn’t part of the Trump campaign. Imagine if Hillary Clinton tried to differentiate between herself and her campaign?

However, after Trump fired Comey it was no longer true that he himself wasn’t under investigation. But until now the assumption has been that he was ‘only’ under investigation for ‘obstruction’-what the GOP dismisses as a ‘process crime’-though a ‘process crime’ was sufficient to impeach Clinton on.

However, what’s new here is that he was not only under investigation for obstruction but what amounts to treason-literally if the ‘President of the United States’ was a Russian asset.

We can and should debate the FBI’s actions during the 2016 election itself-did they slow walk the investigation? Why were they so vocal about Clinton’s emails and yet not only were silent about the Russia investigation but actually denied it?

 

But better late than never and what’s notable is that not only was Trump under investigation for obstruction but also for being a Russian asset-and national security threat. In what sense was/is he a threat to national security? To understand this we have to adjust the common attitude you’ve seen about the obstruction investigation.

But the key difficulty has been in misconceiving the obstruction investigation. It turns out that obstruction itself is collusion or at least part of it as Ben Wittes explains:

Shortly before the holidays, I received a call from New York Times reporter Michael Schmidt asking me to meet with him about some reporting he had done. Schmidt did not describe the subject until we met up, when he went over with me a portion of the congressional interview of former FBI General Counsel James Baker, who was then my Brookings colleague and remains my Lawfare colleague. When he shared what Baker had said, and when I thought about it over the next few days in conjunction with some other documents and statements, a question gelled in my mind. Observers of the Russia investigation have generally understood Special Counsel Robert Mueller’s work as focusing on at least two separate tracks: collusion between the Russian government and the Trump campaign, on the one hand, and potential obstruction of justice by the president, on the other. But what if the obstruction was the collusion—or at least a part of it?”

The FBI considered Trump’s obstruction in itself a national security threat-after all his obstruction could impede our ability to know how Russia interfered in 2016 and wether any Americans were involved:

The criminal and counterintelligence elements were coupled together into one investigation, former law enforcement officials said in interviews in recent weeks, because if Mr. Trump had ousted the head of the F.B.I. to impede or even end the Russia investigation, that was both a possible crime and a national security concern. The F.B.I.’s counterintelligence division handles national security matters.

If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved, according to James A. Baker, who served as F.B.I. general counsel until late 2017. He privately testified in October before House investigators who were examining the F.B.I.’s handling of the full Russia inquiry.

“Not only would it be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security,” Mr. Baker said in his testimony, portions of which were read to The New York Times. Mr. Baker did not explicitly acknowledge the existence of the investigation of Mr. Trump to congressional investigators.

This is a very important point-Trump’s obstruction is in itself a national security threat as it hurts our ability to know what had been done.

Back to Ben Wittes:

“The analysis that follows is lengthy and takes a number of twists and turns before laying out what I think is the significance of the whole thing. Here’s the bottom line: I believe that between today’s New York Times story and some other earlier material I have been sifting through and thinking about, we might be in a position to revisit the relationship between the “collusion” and obstruction components of the Mueller investigation. Specifically, I now believe they are far more integrated with one another than I previously understood.”

“The public understanding of and debate over the Mueller investigation rests on several discrete premises that I believe should be reexamined. The first is the sharp line between the investigation of “collusion” and the investigation of obstruction of justice. The second is the sharp line between the counter-intelligence components of the investigation and the criminal components. The third and most fundamental is the notion that the investigation was, in the first place, an investigation of the Trump campaign and figures associated with it.”

“These premises are deeply embedded throughout the public discussion. When Bill Barr challenges what he imagines to be the predicate for the obstruction investigation, he is reflecting one of them. When any number of commentators (including Mikhaila Fogel and me on Lawfare last month) describe separate investigative cones for obstruction and collusion, they are reflecting it. When the president’s lawyers agree to have their client answer questions on collusion but draw a line at obstruction, they are reflecting it too.”

In Wittes’ reading obstruction and collusion are not discrete criminal investigations but part of the larger umbrella of the counterintelligence investigation into Russia’s interference in 2016.

“Put simply, I don’t believe the FBI, having an open counterintelligence investigation, simply opened a new criminal investigation of obstruction in the wake of the Comey firing. I think there likely was—and still is—one umbrella investigation with a number of different threads. That one investigation was (and is) about Russia. And it had (and still has), as a subsidiary matter, a number of subsidiary files open about people on the U.S. side who had links to Russian government activity. Each of these files had (and still has) all of the counterintelligence and criminal tools available to the U.S. government at its disposal.”

“So when the president sought to impair the investigation, having declared both in the draft letter dismissing Comey and to Lester Holt that his action was connected in some way to the Russia investigation, that raised both potential criminal questions and major counterintelligence questions—questions that could only have been reinforced when Trump later announced to senior Russian government officials that he had relieved pressure on himself by acting as he did. It did so both because it threatened the investigation itself and because it fit directly into a pattern of interface between Trump campaign officials and Russian government actors that they were already investigating.”

“What is the significance of all of this? I have two big takeaways.”

First, if this analysis is correct, it mostly—though not entirely—answers the question of the legal basis of the obstruction investigation. The president’s lawyers, Barr in his memo, and any number of conservative commentators have all argued that Mueller cannot reasonably be investigating obstruction offenses based on the president’s actions within his Article II powers in firing Comey; such actions, they contend, cannot possibly violate the obstruction laws. While this position is disputed, a great many other commentators, including me, have scratched their heads about Mueller’s obstruction theory.

But if the predicate for the investigation was rooted in substantial part in counterintelligence authorities—that is, if the theory was not just that the president may have violated the criminal law but also that he acted in a fashion that may constitute a threat to national security—that particular legal puzzle goes away. After all, the FBI doesn’t need a possible criminal violation to open a national security investigation.

The problem does not entirely go away, because as the Times reports, the probe was partly predicated as a criminal matter as well. So the question of Mueller’s criminal theory is still there. But the weight on it is dramatically less.

So Trump is a national security threat and today is the biggest national security threat faced by our country.

Remember what James Clapper said about a treasonous path. 

Trump’s cultivation as an asset goes back to the 1980s.

P.S. Rayne over at EmptyWheel has a nice timeline of the NYT’s very questionable coverage of Russia over the last few years. This is why all things being equal I usually go to the Washington Post first these days for authority-accept for cases like this where the story is reported by the Times.

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October 28, 2016: a Day That Will Live in Infamy Copyright © by . All Rights Reserved.

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