There is so much legal ignorance in the reporting and commentary about the “Russia investigation,” it is hard to keep up. The latest is that we need a special prosecutor because the firing of FBI director James Comey could amount to Watergate-type obstruction of justice.
The claim is half-baked, but I suppose it is an improvement. Up until now, as I pointed out over the weekend, Senate minority leader Chuck Schumer (D., N.Y.) and the media-Democrat echo chamber agitating for a special prosecutor had forgotten the little matter of . . . a crime. Putting aside all the downsides of a special prosecutor that I have outlined on other occasions (e.g., the constitutional flaws of the arrangement, the fact that a special prosecutor is not actually independent of the president and Justice Department, the reality that a special prosecutor undermines an administration’s capacity to govern . . . ), it is foundational that there must be a crime before a prosecutor is assigned to investigate it.
Even under the 1983 Ethics in Government Act (which lapsed in 1999), Congress required a finding (by the attorney general) that there was information indicating a serious criminal-law violation before the appointment of a special prosecutor (or independent counsel) would be triggered. (See Section 591(a) of Title 28, U.S. Code.) By contrast, Trump detractors have failed to identify any penal-law violation as to which there is a basis to believe President Trump or someone in his campaign may be guilty.
The only criminal offense arising out of the Kremlin interference in the 2016 election is hacking. It is not enough to say there is no evidence that the Trump campaign was complicit in this hacking. We must add that U.S. intelligence agencies have told us who carried it out — Russian intelligence — and have further explained that the Russian scheme targeted both Republicans and Democrats.
So now, at last, we have a gambit to fill this gaping hole in the demand for a special prosecutor: Trump’s dismissal of the FBI director is said to interfere with the FBI’s ongoing Russia investigation; therefore, the theory goes, it could amount to obstruction of justice, a felony. This suggestion is legally and factually specious. It is based (not for the first time) on a misrepresentation of the kind of investigation the FBI is doing.
As we have repeatedly pointed out, and as former director Comey stated in congressional testimony, the FBI is conducting a counterintelligence investigation. It is not a criminal investigation. The subject of the investigation is not an American (specifically, Trump) suspected of committing a crime. The subject of the investigation is Russia. The purpose of the investigation is not to develop a prosecutable offense. The purpose is to gather intelligence of the Putin regime’s actions and intentions so that our government can develop countermeasures.
Intelligence gathering is not a judicial proceeding. It is an executive-branch security function. In point of fact, there is no evidence that President Trump has impeded the Russia investigation (a point we’ll expand on momentarily). But even if the president had taken such a measure, that would not be obstruction of a judicial proceeding, or of a law-enforcement investigation aimed at bringing a court prosecution.
The president (assisted by executive-branch intelligence agencies) is in charge of setting intelligence-gathering priorities for the United States. His discretion in determining which collection efforts to begin, which ones to alter, and which ones to curtail, is unreviewable.
Since 1978 (with the enactment of the Foreign Intelligence Surveillance Act), Congress has fashioned a judicial-oversight role over certain collection procedures (e.g., it is necessary to obtain a warrant to conduct electronic surveillance of an American suspected of acting as a foreign agent). That, however, does not change the basic nature of foreign-intelligence operations: They remain executive exercises in information-gathering and analysis regarding foreign powers; they are not law-enforcement probes for the purpose of developing criminal cases to be litigated in the justice system.
To repeat a point I have made a number of times, the FBI is not permitted to use its counterintelligence powers as a pretext to conduct criminal investigations. Therefore, if the Bureau wanted to investigate the commission of a crime, it would have to open a criminal investigation and resort to ordinary criminal procedures — search warrants, criminal wiretap orders, grand juries, arrests, indictments, and criminal trials before federal judges.
Under federal penal law, obstruction of justice arises from interference with judicial proceedings, grand-jury proceedings, the administration of law in proceedings conducted by a federal department or agency, or congressional investigations. Thus, if the Russia investigation were a criminal investigation, and if there were a basis to believe Trump was interfering with, say, a grand-jury or trial proceeding, it might be claimed that an obstruction-of-justice offense was afoot.
What the FBI is actually doing in the Russia investigation, however, is intelligence-gathering in connection with a foreign power. The president has every right to intervene in intelligence activities. Indeed, the purpose of intelligence activities is to provide the president and his advisers with information, so they can make policy or take action against foreign threats to U.S. interests. Congress and the courts have no power to compel the executive branch to commence or continue particular intelligence operations.
Now, put aside that curtailing an intelligence operation would not be obstruction of justice. The stubborn fact is that Trump’s firing of Director Comey has not curtailed the Russia investigation at all. Even NBC News, no Donald Trump fan, has reported that acting FBI director Andrew McCabe testified that there has been “no effort to impede” the investigation. McCabe further explained, in the same congressional hearing, that resources for the investigation were adequate, debunking a claim that requested budgeting had been withheld.
So even though it would not be obstruction of justice if the Russia investigation had been curtailed, it has not been curtailed. Therefore, we need not even address an additional proof hurdle: Under federal law, even an actual interference with a criminal investigation or a judicial case would not amount to obstruction of justice unless it was done “corruptly” — i.e., done with an understanding that the interference was illegal and an intention to subvert the truth-seeking function. Suffice it to say that the closest thing we have seen to a corrupt obstruction of investigative activity has been the leaking of classified information about the investigation to the media during the Obama administration — a felony that surely induced the Kremlin to adopt new tactics that make it harder for our intelligence services to monitor Russian operatives.
Intelligence-collection operations are saliently different from law-enforcement investigations. They do not involve “justice” in the sense of a proceeding in which someone is to be held accountable in a court for a law-violation. To speak of “obstruction of justice” in the context of foreign counterintelligence is inapposite — like speaking of the infield-fly rule in the context of football, or the Oxford-style debate format for a bar fight.
The Russia investigation has not even been curtailed.
Special prosecutors are appointed in order to investigate a known crime, not to search for the possibility of a crime. The Watergate special prosecutor was appointed because there had been a felony break-in at DNC headquarters. The Iran-Contra special prosecutor was appointed after discovery of an illegal scheme in which proceeds for arms sales to Iran (then under an arms embargo) were to be used to fund the Nicaraguan Contras in violation of a congressional funding ban. The Whitewater special prosecutor was appointed owing to the discovery of fraudulent financial arrangements in connection with land deals that led to the collapse of a savings-and-loan, costing taxpayers tens of millions of dollars. The Valerie Plame special prosecutor was appointed as a consequence of the disclosure of her status as a CIA officer, in alleged violation of a federal law (the Intelligence Identities Protection Act) that makes it a crime to expose covert agents.
Obviously, there is no need for the Justice Department to consider the appointment of a special prosecutor unless and until there has been a demonstration that there is something to prosecute — a specific, serious criminal-law violation. Senator Schumer and his allies do not fill that void by gibbering about obstruction of justice.