National Security & Defense

‘Delegitimizing’ Mueller? Don’t Blame the Nunes Memo

(Reuters photo: Aaron P. Bernstein)
The FBI and Justice Department hyped Trump–Russia collusion. Rod Rosenstein can right that wrong.

The most bitter dispute over the Nunes memo involves Special Counsel Robert Mueller’s investigation. This might seem odd since the memo, published last week by Republicans on the House Intelligence Committee chaired by Devin Nunes (R. Calif.), does not address the Mueller investigation. Rather, it homes in on potential abuses of foreign-intelligence-collection authorities by Obama-era Justice Department and FBI officials, said to have occurred many months before Mueller was appointed.

Nevertheless, it is simply a fact that many ardent supporters of President Trump claim the legitimacy of the Mueller investigation is destroyed by revelations in the Nunes memo — particularly, the improper use of the unverified Steele dossier to obtain a FISA-court warrant to spy on Carter Page, who had been a Trump campaign adviser. The idea is that without the Steele dossier, there would be no Trump-Russia narrative, and thus no collusion investigation — which is how Trump supporters perceive the Mueller probe.

Naturally, this has prompted a vitriolic response. Trump critics see the Mueller investigation as the path to impeachment, and thus anathematize Chairman Nunes as a Trumpist hack bent on razing the FBI — longtime bête noire of the Left, which, through the alchemy of Trump derangement, has suddenly become great a pillar of Our Values.

But the Trump-deranged have only themselves to blame.

We can certainly lament the effort by Trump defenders to use the Nunes memo as an attack on Mueller’s investigation — I did as much in this column on Sunday. Even as we do, though, we must remember that it was not they who brought us to this pass. It was the FBI and the Justice Department.

The Mueller investigation is supposed to be a counterintelligence probe of Russia’s interference in the 2016 election. Getting to the bottom of Russia’s perfidy is a goal every American should support, just as possible abuse of the government’s surveillance powers ought to concern everyone, regardless of party or ideology.

Yet the FBI and the Justice Department went out of their way, and outside their own policy, to frame the Russia investigation within an innuendo-laden narrative of Trump collusion. They did so by selectively broadcasting investigative information that is supposed to be confidential and non-public. Anti-Trump factions of all political stripes were delighted with this branding of the probe, which Mueller took over last May. That was foolish. Their strategy made it inevitable that, unless solid evidence of a traitorous Trump pact with the Kremlin materialized, Mueller’s investigation would face blistering attack.

Now that strategy is blowing up on them.

Thus the bleating about how Republican worries over FISA abuse are just a smokescreen for discrediting Mueller’s investigation. But they did the same thing: exploiting concerns about Russian interference in our election process as camouflage for a campaign to delegitimize Trump’s presidency. In each instance, the same sleight of hand is at work: The distortion of the Mueller counterintelligence investigation of Russian election-meddling into a hunt for proof of a traitorous Trump conspiracy with the Kremlin.

The culprit here is the ambiguous way what is now known as the “Mueller investigation” was described when it was first announced to the country. This was back in March 2017, two months before Mueller was appointed. In truth, there should never have been such an announcement.

The decision to confirm the existence of a counterintelligence investigation of Russia’s interference in the 2016 election was made jointly by the FBI and the Justice Department. Significantly, (a) the announcement was a stark departure from prudent Justice Department policy; (b) there was no apparent justification for it; and (c) with Attorney General Jeff Sessions recused and none of Trump’s other Justice Department nominees confirmed, no Trump appointees took part in the decision. Thus, Trump defenders can hardly be blamed for believing it was fueled by anti-Trump animus, an appearance given credence by the bracing contempt for Trump manifested in FBI text messages. I must assume this contempt was exacerbated by the fact that at least some top bureau agents believed that the lurid and traitorous allegations in the Steele were probably true, even if there was doubt by March 2017 about whether they could ever be proved — otherwise, the allegations would never have found their way into FISA-warrant applications.

The Justice Department’s Policy of Not Commenting on Investigations

The wisdom behind the policy of refusing to confirm or deny the existence investigations, and to withhold non-public investigative information, is worth explaining.

From a law-enforcement perspective, the government should speak publicly about an investigation only in court, when it formally charges a person with a crime, and when that person thus enjoys all the due-process protections our system affords. Prior to that point, confirming an investigation would stigmatize a suspect who has not been charged and is presumed innocent; while denying that an investigation is ongoing would create a need to confirm or deny in every case. (That is, if the government denied investigations in some cases, the public would assume silence meant an investigation must be taking place, which might be untrue and would effectively stigmatize people identified as suspects.)

The FBI and Justice Department should always resist acknowledging that an investigation is under way.

From a counterintelligence perspective, the wisdom of the no-comment policy is even more obvious. Intelligence work is classified. The point is not to prosecute crimes; it is to derive information about foreign governments and actors who threaten American interests. When Americans are involved in such investigations, it is often to cooperate with our intelligence agencies, though it is sometimes because they are believed to be acting as foreign agents. The latter is not necessarily a crime, but could be. Thus, to speak publicly about intelligence investigations would be to disclose classified information and to frame Americans as subjects of FBI attention — which, of course, would stigmatize them as likely criminals. 

Bottom line: The FBI and Justice Department should always resist acknowledging that an investigation is under way. Even when the fact of an investigation is unavoidably public (because, for example, people find out a search warrant has been executed, or someone has been subpoenaed to the grand jury), the no-comment rule enables prosecutors and investigators to decline to answer questions about their work. That promotes investigative secrecy while minimizing harm to innocent people and claims that the government is trying to prejudice the jury pool.

The Announcement: Trump–Russia Collusion

Yet in House Intelligence Committee testimony on March 20, 2017, the FBI’s then-director, James Comey, announced with great fanfare that the bureau was conducting a counterintelligence investigation of Russia’s interference in the 2016 election. He started his announcement this way:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election.

While unnecessary and unwise, this opening salvo was comparatively harmless. It had already been well-known for three months that the government was investigating the Kremlin’s election-meddling. President Obama had imposed sanctions and expelled Russian operatives. At his direction, the FBI and other intelligence agencies had issued a declassified public version of a report on the matter in early January. The report made it clear that the investigation was continuing.

The real problem with Director Comey’s announcement involves what he said next. The counterintelligence investigation, he elaborated,

includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [Emphases added.]

None of this should have been said.

Let’s take it as a given that the FBI had good-faith reasons to suspect that some people connected to the Trump campaign had troubling connections to Putin regime operatives. (Apart from the Steele-dossier allegations, we know it is true, for example, that former Trump campaign manager Paul Manafort consorted for years with a Kremlin-backed Ukrainian party.) There was still no reason to broadcast these suspicions. The public announcement created the perception that the bureau strongly suspected that a nefarious, overarching Trump–Russia conspiracy was afoot. This would have been indefensible under any circumstances, but the lapse is especially glaring given that Director Comey was privately telling President Trump and congressional leaders that Trump himself was not a suspect. Why gratuitously say something that could only lead people to believe he was?

Moreover, there was no reason for Comey to publicly mention “an assessment of whether any crimes were committed” in the context of a counterintelligence, rather than criminal, investigation. While the FBI is not required to ignore evidence of crimes if agents stumble upon it in the course of a counterintelligence probe (or any other non-criminal investigation, such as a background check of a prospective government appointee), that does not turn a counterintelligence investigation into a criminal investigation or justify presenting it to the public as one.

By invoking ‘crimes,’ the director signaled that the FBI and Justice Department believed the Trump–Russia investigative angle might well lead to indictments.

By invoking “crimes,” the director signaled that the FBI and Justice Department believed the Trump–Russia investigative angle might well lead to indictments. Regardless of whether the bureau believed this, there was no reason to say it. Any eventual indictments would speak for themselves.

It was a commonplace for Comey to refuse to discuss investigations in congressional testimony and other public settings — as it is for all FBI directors. His extraordinary diversion from this practice on March 20 can only have led the public to infer high-level government suspicion that egregious wrongdoing had taken place — that Trump may have criminally conspired with Russia to subvert the electoral process for his benefit, and that his election and presidency could be illegitimate.

The stunning announcement conflated two things it has always been important to keep discrete: (1) the counterintelligence investigation of the threat Russia, with its advanced cyber capabilities and anti-American intentions, clearly poses to our electoral system; and (2) the dubious Trump–Russia collusion angle. For much of the public, they became one and the same.

Rosenstein Can Remedy the Problem

In mid May 2017, Deputy Attorney General Rod Rosenstein appointed Mueller to take over the Russia counterintelligence probe. I have repeatedly pointed out that this was in contravention of regulations that reserve special-counsel appointments for criminal investigations. Even beyond that, it was unusual: Ordinarily, prosecutors are not assigned to intelligence cases because intelligence work is not prosecution — it is the work of trained analysts assessing threats, not lawyers proving statutory offenses.

But let’s set those objections to the side. The governing regulations called for Rosenstein to describe Mueller’s assignment. In doing so, the deputy attorney general did not undertake his own description; he instead adopted as his own Comey’s description of the probe in the March 20 House testimony — i.e., the portrayal of the probe that emphasized Trump–Russia collusion.

This is really quite astonishing, and not just because of the policies we’ve discussed. Only a week before appointing Mueller, Rosenstein had authored a memorandum arguing that Comey should be removed as FBI director for failing to adhere to traditional Justice Department policies and norms. In particular, Rosenstein scolded Comey for publicly revealing derogatory investigative information about people who have not been formally charged with crimes.

Rosenstein was referring specifically to the director’s public statements about the Hillary Clinton emails investigation. The principle on which he relied, however, was a timeless one. Rosenstein reserved his most withering critique for Comey’s defensive claims that he had tried merely “to say what is true,” and to protect the FBI from charges that it had “concealed” from the public important information about a politically fraught investigation. The deputy attorney general countered that it is not for federal investigators to announce their “thoughts” about what may be true. When investigations are “quietly opened,” Rosentein added, federal officials

are not concealing anything; we are simply following the longstanding policy that we refrain from  publicizing non-public information. In that context, silence is not concealment.

This is an exquisite statement of the controlling standards. So here is my question: How could the deputy attorney general, just days later, defend adopting public statements that aired non-public information about law-enforcement suspicions that should not have been made at the time, and that were unnecessary to a description of a counterintelligence investigation of Russia’s interference in the election?

Again, there is no basis in the regulations for the assignment of a special counsel to a counterintelligence investigation. But that aside, why did Rosenstein reaffirm the Trump–Russia collusion narrative? Under the regulations, his task was to describe the factual basis for a criminal probe and the crimes that he was giving Mueller jurisdiction to investigate. The Comey testimony that he adopted had done neither of these things — it floated speculation about “links” and “coordination” that were not tied to any concrete federal offense, while vaguely implying that Trump and his campaign might have engaged in espionage with an adversary regime.

Put another way: If he had been deputy attorney general on March 20, 2017, would Rosenstein have authorized the announcement of the investigation made in Comey’s March 20 House testimony? Would Rosenstein have permitted the public confirmation of the classified counterintelligence investigation and the innuendo about Trump campaign collusion with Russia?

Applying the principles that Rosenstein eloquently stated in his memo, I don’t see how he could have.

It is more than a little rich to hear Democrats and other Trump critics caterwaul about how Special Counsel Mueller’s probe is being undermined by an examination of alleged abuses of the FISA process.

In light of this history, it is more than a little rich to hear Democrats and other Trump critics caterwaul about how Special Counsel Mueller’s probe is being undermined by an examination of alleged abuses of the FISA process — the use of unverifiable hearsay claims by anonymous Russians to attempt to prove the sensational Trump–Russia collusion suspicions that the FBI and Justice Department willfully and indelibly stamped on Mueller’s probe.

Deputy Attorney General Rosenstein could do a great service by amending his special-counsel appointment to make clear that (a) Mueller is to investigate Russia’s actions to interfere in our election; (b) the previous statements about possible Trump campaign “coordination” with the Russian government were unnecessary and are withdrawn; and (c) President Trump is not personally suspected of wrongdoing in connection with the 2016 election. Obviously, the last clarification would require Rosenstein to consult with Mueller; but given that the matter was under investigation for a year before Mueller’s appointment, that Comey repeatedly told Trump he was not a suspect prior to Mueller’s appointment, and that no other evidence of actionable collusion between Trump and Russia has publicly come to light, Rosenstein should relieve the president of the burden of this suspicion if that can be done honestly.

Note: What I am proposing would not preclude Mueller from continuing to explore possible obstruction offenses — notwithstanding my personal view that the obstruction angle is meritless.

If Rosenstein did that, Mueller’s investigation would have the public support it should have, and Congress could proceed with its inquiry into possible investigative abuses. The two are important and separate. They should not be at odds.


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