Ever watch one of those games in which it looks like the road team is inadvertently doing everything it can to give the game away but the home team is too inept to capitalize?
Welcome to the “Trump-Russia” investigation and the pro-Trump media’s coverage of the latest “stunning” revelation: a text in which two top FBI counterintelligence officials discuss the fact that the president “wants to know everything we’re doing.”
This has much of the conservative media crowing: The text, commentators exclaim, shows that Obama lied four months earlier when he claimed — hilariously, to be sure — that he never interfered in law-enforcement matters.
Uh, guys, counterintelligence is not law enforcement. If Obama demanded an intelligence briefing, that indicates he was doing what he was supposed to be doing as president.
Your play here is not that Obama is a liar. It is that the president is supposed to “interfere” in intelligence investigations. That makes the Trump-Russia obstruction narrative patently absurd.
If I sound a bit snarky, please cut me some slack. Since a time well before Robert Mueller’s appointment as special counsel, I have been harping on the critical distinction between counterintelligence investigations and criminal investigations. It is often missed, even by lawyers if they are unacquainted with national-security law. You can’t blame people for being confused: Both kinds of inquiries are called “investigations,” just as apples and oranges are both “fruits,” but they are very different things.
Criminal investigations are about prosecuting people who violate the penal law. Political officials are generally supposed to stay out of them because we are a rule-of-law society — we want individual cases to be decided strictly by the law, not by political considerations.
There is not, nor should there be, complete independence between politics and this law-enforcement mission: Law enforcement is an executive political responsibility; the president is accountable for it; he sets the government’s law-enforcement priorities; prosecutors and investigators exercise the president’s power, not their own; and the president has undeniable constitutional authority to wade into investigations — even to the point of pardoning law-breakers. Still, by and large, the president should not interfere in criminal cases. If the president does interfere, he should do so transparently: Issue a pardon or order the investigation closed, and take the political heat for it; don’t stage-manage a farce to make it look like your crony is being exonerated by a real investigation when everyone knows you will not permit charges to be filed (see, e.g., the Clinton emails case).
Counterintelligence investigations, on the other hand, are not criminal investigations. They are not a rule-of-law issue or a judicial matter. The objective is not to prosecute someone who has violated the penal law, so we are not worried that political officials, rather than legal principles, control the outcome. That’s because counterintelligence is national security work, which is the principal duty of the political branches under the Constitution.
To be more succinct: Counterintelligence is an information-gathering exercise undertaken for one purpose and one purpose alone: to inform the president, through his subordinate intelligence officials, of information about threats to, and opportunities to advance, American interests.
The president is never supposed to resist “interference” in counterintelligence. To the contrary, informing the president is the reason the FBI has a counterintelligence mission. Indeed, the information derived from counterintelligence operations is often included in the president’s daily intelligence briefing. It is otherwise folded into other classified reporting that provides the executive-branch intelligence agencies with the information they need to protect the country, and to inform Congress, which created, funds, and conducts oversight of these agencies.
We have now learned that on September 2, 2016, in a text exchange, FBI lawyer Lisa Page told FBI agent Peter Stzok that there would soon be a meeting with the bureau’s then-director, James Comey, in order to provide him with information — “TPs” or talking points — so that he could brief President Obama (“because potus wants to know everything we are doing”).
It appears obvious that the two are referring to “everything we are doing” in what was then their most important counterintelligence initiative: the probe of possible connections between Donald Trump, then the Republican nominee for president, and the Kremlin.
At the time, the bureau had begun receiving self-styled “intelligence reports” from former British spy Christopher Steele, which alleged a corrupt and traitorous conspiracy between Trump (and members of his campaign) and the Russian regime. It is, by now, incontestable that the upper echelon of the FBI and Justice Department believed these reports — Steele had brought them reliable information in the past (in connection with the FIFA soccer investigation), and the wife of top Justice Department official Bruce Ohr was working with Steele on the project.
This information was ultimately sourced to the Hillary Clinton presidential campaign. That is an important factor in evaluating both the veracity vel non of Steele’s unverified information and the Obama administration’s motives in crediting it. But for present purposes, those are secondary considerations. If the FBI truly believed the information was probably true, which it patently did, then it should have briefed the president.
The impulse to play gotcha! politics here is understandable, but it is leading commentators astray.
Put aside what you think about all this politically as we sit here in February 2018. The question is what people were thinking in September 2016. I have no doubt that the Obama administration, including the upper echelons of the Obama-era Justice Department and FBI, believed Donald Trump was unfit to be president and that he was at least vulnerable to blackmail by the Putin regime, if not in cahoots with the Putin regime. I also have no doubt that they were politically aligned with Hillary Clinton, whom Obama was ardently supporting and a criminal investigation against whom the FBI and Justice Department had dropped, despite substantial evidence of guilt, after Obama had signaled that he did not want Mrs. Clinton charged.
The point here is not to sort out the motivations and intentions of officials, which ran the spectrum from a proper desire to protect the country to a politicized loss of objectivity that induced them blindly to accept Steele’s sensational claims as fact. The point is to understand formally what was going on.
Formally, the FBI was doing a counterintelligence investigation of Russian threats to the United States that happened to involve the Kremlin’s potential coopting of the Republican presidential candidate. That was something the FBI was supposed to keep the president of the United States informed about. Informing the president about foreign threats is the FBI’s counterintelligence mission. If the FBI credited the information involved and Director Comey had nevertheless failed to brief President Obama on it, he would have been guilty of an indefensible dereliction of duty.
The impulse to play gotcha! politics here is understandable, but it is leading commentators astray. The trivia that pundits are pounding involves Obama’s statement in an April Fox News interview that he never interfered with Justice Department and FBI investigations. Yes, this statement was dishonest to the point of farce. Obama ran the most politicized Justice Department in history. Even as he was making this comic “no interference” disclaimer, he was actively interfering in the Hillary Clinton emails investigation by signaling that he did not want her indicted.
Yet it is frivolous to claim that Obama’s “no interference” assertion in April was a lie because he got briefed by Comey in September about the Trump-Russia caper.
In April, Obama was speaking about criminal investigations. He was claiming that he never interfered in those because, in our system, they should be decided in the courts under the law, not by political officials. Of course he didn’t really mean what he was saying (“if you like your health insurance, you can keep your health insurance . . . ”). But that is beside the point. In September, what Obama was briefed on was a counterintelligence investigation. That is as it should have been. A president cannot “interfere” with a counterintelligence investigation because keeping the president informed is the reason we have counterintelligence investigations.
Consequently, what this episode ought to focus the commentariat on is the obstruction angle of the Mueller investigation. It is cockamamie.
The theory behind this aspect of the special counsel’s work is that President Trump obstructed the Russia probe by, principally, (a) leaning on Comey to drop the investigation of Michael Flynn, (b) firing Comey, and (c) “threatening” to fire Mueller. Here is the problem: The Russia investigation is principally a counterintelligence investigation into Russia’s interference in the 2016 investigation. The president cannot interfere in a counterintelligence investigation. Trump can no more obstruct the Russia investigation by taking actions that could conceivably affect it than Obama could obstruct the Russia investigation by being briefed on it and giving the FBI directions on it. Counterintelligence investigations are conducted for the president.
The point of the Russia investigation is to gather the information that President Trump needs to protect the country, including our electoral system. You can snicker at that all you want if you are Trump-deranged and invested in the fantasy that Trump “colluded” with Russia to undermine our electoral system. But the following happen to be constitutional facts: Trump is president and counterintelligence operations are conducted for the purpose of informing him, not for the purpose of building criminal prosecutions.
If Mueller was to be engaged in a criminal investigation of Trump, the Justice Department was supposed to make that clear in defining the scope of the special-counsel appointment. It did no such thing.
But let’s set that aside. According to Director Comey, Trump was not a criminal suspect. Asking Comey to go easy on Flynn — who was under criminal investigation for lying to the FBI — cannot legitimately have turned Trump into a suspect. As we’ve covered at length, the president is authorized to exercise prosecutorial discretion (an executive power) by weighing in on the merits of prosecuting a person; Trump did not direct Comey to drop the investigation, though he could have; Trump could have pardoned Flynn, which would have ended the investigation; and the investigation proceeded apace — ultimately leading to Flynn’s guilty plea.
There was manifestly no impropriety in the FBI’s briefing of President Obama.
As for firing Comey and purportedly threatening to fire Mueller (in fact, Trump has not taken any serious step in the direction of removing the special counsel), these are imagined by Trump detractors into obstruction episodes because they show Trump interfering in the Russia investigation. But the Russia investigation is a counterintelligence investigation. Trump gets to “interfere” in it if he chooses to. Though he grouses about it, he does not seem to have much inclination to interfere in it.
It might be different if the Russia investigation were principally a criminal investigation and Trump were a suspect. But it is not (according to the Justice Department’s order appointing Mueller) and he is not (according to Director Comey, in conjunction with the utter absence of evidence that Trump was involved in any criminal conspiracy, much less a criminal conspiracy involving Russian espionage against the United States).
There was manifestly no impropriety in the FBI’s briefing of President Obama about the state of its counterintelligence investigation of what was alleged to be Russia’s efforts to court Trump. Whether that investigation was catalyzed by good faith fear or a sinister political agenda to spy on the opposition candidate, or both, is a question worth exploring. It does not change the constitutional fact: The FBI’s counterintelligence operations are undertaken for the purpose of informing the president.
Just the same, President Trump cannot obstruct a counterintelligence investigation. Such investigations are not undertaken to build prosecutions but to inform him.
That’s the point.