Notwithstanding his impressive academic and professional credentials, Gabriel Schoenfeld either has a poor grasp of obstruction law or has developed reading-comprehension problems. He has also become quick to level accusations of bad faith at people he has misunderstood, or who simply disagree with him. That makes it hard to have a conversation, which is too bad because I used to enjoy our conversations.
In his latest tirade at Lawfare, Gabe accuses me of “egregious misrepresentation.” He professes that I have “repeatedly insist[ed] that for an obstruction charge to be lodged, someone has to obstruct a ‘pending proceeding.’” But far from “repeatedly insisting” that this is the case, I have never said any such thing. Gabe has misread what I wrote in a column responding to his earlier attack on me. Rather than assume that I may have misspoken (or maybe even go back and read what I actually said), he accuses me of deception.
He further contends that I have changed my position on the Justice Department’s separate treatment of criminal and counterintelligence investigations. This is almost amusing. The 14-year-old column from which he claims I have “pirouetted” was about the infamous “wall” erected by the Justice Department in the mid-1990s. That is, I wrote the column precisely to stress that the Justice Department recognizes a sharp divide between the two types of probes, and to criticize how the divide was policed — on what turns out to be my incorrect assumption that Justice Department officials could be trusted to follow rules.
I haven’t changed my position. Gabe has failed to grasp the difference between the issue in 2004, which was intelligence-sharing, and the issue today, investigation and prosecution under governing regulations. Whether it was 1996, when the wall went up; 2001, when it was razed; 2004, when my column was written; or 2018, during a special-counsel investigation, it has never been permissible for the Justice Department to conduct a stealth criminal investigation under the guise of a counterintelligence investigation.
Obstruction: Proceeding Must Be Official, Not Pending
To recap the debate, our fundamental disagreement involves the question of whether a president may be found guilty of obstruction based on legal acts that influence or disrupt investigations — i.e., acts that are within the president’s constitutional authority to take even if they impede investigators (e.g., firing the FBI director, urging that an investigation be dropped). I say no, Gabe says yes.
This contrasts with what I believe is our agreement that a president may indeed be found guilty of obstruction for influencing or disrupting investigations by illegal acts (e.g., bribing witnesses, suborning perjury). In the illegal-act situation, we seem to differ only over the manner of proceeding against the president: I see such an obstruction offense as grounds for impeachment, possibly followed by criminal prosecution once the president is out of office; Gabe’s position, I think, is that there could theoretically be an immediate indictment, as well as impeachment.
In debating these matters, we ended up discussing federal obstruction statutes. That was because of an omission on Gabe’s part: Though he argued that the president could be charged, he failed to cite a criminal statute that would fit the alleged conduct. Rather than throw that ball back in his court, I undertook to go through the possibilities, there being several federal obstruction statutes.
Here is what I wrote — and note that I am using bold underlining to highlight portions made relevant by Gabe’s new claim that I’ve “egregiously misrepresented” what the law says (the italicized portions were emphasized in the original):
The closest one [i.e., the obstruction statute that is the closest fit] is Section 1505 of the penal code. It proscribes (in pertinent part) obstruction of “the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States.” The U.S. Attorneys’ Manual, which presumably constrains [Special Counsel Robert] Mueller, expressly instructs that an FBI probe is not a “proceeding” under this criminal statute. (See Section 1727 of the criminal-resource section: “Investigations by the Federal Bureau of Investigation (FBI) are not section 1505 proceedings.”) Thus, while Congress has made it a crime to lie to the FBI (in Section 1001), the manual shields other arguably obstructive conduct from prosecution.
Contrary to Gabe’s claim, I have never suggested that, in all of the many obstruction offenses prescribed in federal law, an official proceeding has to be pending for a charge to be valid. Far from “repeatedly” harping on the purported need for a pending proceeding, I barely mentioned the word “pending” — just two times: once in quoting the Section 1505 obstruction offense (in the above excerpt), and once to criticize President Trump for his practice of commenting on pending proceedings. Otherwise, I saw no reason to discuss a supposed “pending proceeding” requirement because (a) it is well known that, for the most part, there isn’t one, and (b) even if there were one, there would be no point raising it here given that the FBI appears to have had a pending investigation of Flynn.
Contrary to Gabe’s claim, I have never suggested that, in all of the many obstruction offenses prescribed in federal law, an official proceeding has to be pending for a charge to be valid.
There Probably Was a Pending Proceeding — So Why Argue About It?
I want to emphasize how nonsensical Gabe’s latest argument is. Put aside that he has misread what I wrote about obstruction law; let’s go through the facts of the Flynn scenario.
It is alleged that on February 14, 2017, President Trump pressured the FBI’s then-director, James Comey, not to pursue Michael Flynn, the former national-security adviser whom Trump had just fired. We cannot be certain there was a pending investigation at the time because some relevant facts are not public. But we do know that Flynn had been interviewed by the FBI on January 24, 2017. Comey has testified that in the February 14 conversation with Trump, he “understood the President to be requesting that we drop any investigation of Flynn in connection with false statements about his conversations with the Russian ambassador in December.” As a result, the former director decided “that it was important not to infect the investigative team with the president’s request, which we did not intend to abide.” (Emphasis added.) That sure sounds like the FBI had a team actively investigating Flynn for possible criminal-law violations.
At some point, the FBI concluded that Flynn did not lie, and a decision was made not to recommend charges. We cannot be sure whether that happened before or after February 14, or whether a decision not to pursue a false-statements prosecution would have ended all aspects of the Flynn probe. In any event, Director Comey told Congress in March that Flynn had not been charged because the agents who interviewed him found him truthful. That aside, a grand-jury investigation was opened, though we don’t know when, to probe Flynn’s business activities and, presumably, his contacts with Russian officials. Ultimately, of course, Flynn pled guilty to a false-statements charge in Special Counsel Mueller’s investigation.
I’ve outlined this factual background to illustrate that it is very likely an investigation was pending at the time of the alleged obstructive conduct. Why, then, in arguing against an obstruction charge, would I waste time “repeatedly insisting” that the government must be able to prove that there was a pending investigation? It looks like the government could establish that, probably easily.
Pending or Not, DOJ Says an FBI Investigation Is Not an Official Proceeding Under Obstruction Law
Let’s get back to obstruction law. I’m quite confident that the paragraph from my prior column about Section 1505 (excerpted above) was clear to most readers, even if not to Gabe. It says that, of all the many obstruction statutes in federal law, I believe Section 1505 states the “closest one” to being a fit for the Flynn situation. Now, it so happens that 1505 does require the government to prove that there was a “pending proceeding.” That, however, was not the issue I homed in on. Quite clearly, I focused on the word “proceeding,” not the word “pending.”
It is the nature of the proceeding that causes me to believe 1505 is the closest fit. The FBI is an agency of the executive branch. Section 1505 addresses obstruction of proceedings before federal agencies (as well as departments and congressional committees). Most other obstruction statutes do not address agency proceedings — compare, e.g., Sections 1503 (judicial proceedings), 1509 (court orders), 1511 (state and local law enforcement); see also Section 1510 (which applies to federal criminal investigations but only if the obstruction is done by means of bribery, or by an officer of a financial institution). There is another relevant obstruction statute, Section 1512, which I’ll come to shortly.
While I opined that 1505 is the “closest” fit because the FBI is an agency, “closest” turns out not to be good enough. Ultimately, 1505 does not apply because, as the above excerpt straightforwardly explains, the Justice Department’s guidance manual instructs that an FBI investigation is not an official “proceeding” under 1505 — i.e., it’s not a proceeding cognizable for prosecution under federal statutes and jurisprudence. That conclusion, driven by the reasoning of decades-old lower-court cases, rests on the view that a law-enforcement investigation is not the kind of endeavor Congress had in mind when it enacted 1505. Again, the issue is not whether the investigation is “pending.”
I also made it clear that I believe the Justice Department is wrong about this, at least when it comes to FBI criminal investigations (as opposed to counterintelligence investigations):
I think this is dubious law as applied to FBI criminal investigations. The cases on which the U.S. Attorneys’ Manual relies are from lower courts and are more than 35 years old. It should be a felony corruptly to impede a federal criminal investigation.
You would think this would please Gabe — I am put in mind of Bill Buckley’s quip about his fellow titan, Harry Jaffa: If you think he’s hard to argue with, try agreeing with him. If it were up to me, the Justice Department would revisit this question. But assuming that Special Counsel Mueller is governed by the U.S. Attorney’s Manual, 1505 would be unavailable.
The Frivolous Witness-Tampering Argument
This brings us to Section 1512, which deals with witness-tampering. Here is what I wrote in the prior column to which Gabe objected:
Similarly, Section 1512 of the penal code prohibits witness-tampering in official proceedings, including corrupt attempts to influence a person to withhold testimony or information about a federal crime. But again, the U.S. Attorneys’ Manual instructs prosecutors that the Section 1512 definition of “official proceedings” (found in Section 1515) is a “restatement of the judicial interpretation of the word ‘proceeding’ in . . . [Section] 1505.” (See Section 1730 of the criminal-resource section.) As we’ve just seen, the Section 1505 interpretation excludes FBI investigations.
Preliminarily, I note that the evidence that Trump tampered with potential witness Flynn is so microscopic that Gabe cannot bring himself to make a full-throated allegation. He refers, instead, to a “witness-tampering-like exhortation” found in a March 2017 Yahoo News report. Flynn told friends that Trump encouraged him to “stay strong.”
The evidence that Trump tampered with potential witness Flynn is so microscopic that Gabe cannot bring himself to make a full-throated allegation.
That’s it. “Stay strong.” No prosecutor in his right mind would charge witness-tampering based on so ambiguous a statement. To the extent we can draw any tentative conclusions (under circumstances where the presumption of innocence would apply), the Yahoo report indicates not a corrupt attempt to influence Flynn’s testimony, but a sympathetic effort to buck Flynn up with his family facing steep financial pressure and dim business prospects.
Factual baselessness aside, Gabe, again, mistakenly believes my point here relates to pending proceedings. I don’t know what makes him think that — maybe he misconstrued my quote of 1512’s allusion to “official proceedings” as a claim that a proceeding cannot be “official” unless it is pending (which is not true, nor did I imply that it was). Anyway, having groundlessly surmised that I’ve made a claim about pending proceedings, he accuses me of hiding the ball: I omitted both (a) a 1512 provision stating that “an official proceeding need not be pending or about to be instituted at the time of the [obstruction] offense” and (b) portions of the U.S. Attorney’s Manual emphasizing that Section 1512 “does away with the pending proceeding requirement for . . . matters within the jurisdiction of . . . Federal agencies.”
But . . . so what? Why would I have included all of that when I was not claiming that a proceeding had to be pending in order for an obstruction charge to be valid? My discussion of the term “official proceedings” in 1512 was to underscore that, under Justice Department guidance, FBI investigations do not qualify as such. I was making an argument about the nature of the proceeding, not about whether a proceeding needed to be pending.
It is undoubtedly true that if there were actual evidence of witness-tampering, it would make no difference whether an official proceeding of some kind was pending when the tampering happened; the tampering would be actionable. I never came close to suggesting otherwise.
Remember my synopsis of the debate at the beginning of this column. I noted the agreement between Gabe and me that if a president performs an illegal act that influences legal proceedings, such as bribery or the subornation of perjury, an obstruction charge would be valid. Well, witness-tampering is an illegal act. The Justice Department would not allege that an FBI investigation was obstructed; it would allege that the tampering obstructed some other kind of proceeding — e.g., a criminal trial, grand jury — that is clearly cognizable under obstruction jurisprudence. Whatever proceeding was alleged, there would be no need to prove it was pending at the time of the tampering, and I never said otherwise.
Gabe says National Review owes our readers a correction over my discussion of obstruction law. But my discussion was correct and his distortion of it is indefensible. Lawfare is an invaluable site, but Gabe could use an editor.
Gabe says National Review owes our readers a correction over my discussion of obstruction law. But my discussion was correct and his distortion of it is indefensible.
Criminal vs. Counterintelligence Investigations
Gabe recounts that, some 14 years ago, I wrote the following passage:
[T]he theoretical divide between what is a “criminal” matter and what is a national-security “intelligence” matter does not track reality. Espionage, for example, is both a dire national-security issue and a serious crime.
This, you are to understand, makes me a hypocrite because “the very same Andrew McCarthy . . . today vociferously holds the opposite view.” Of course, this is idiotic. I hold precisely the same view. Gabe, despite having just accused me of hiding the ball on obstruction law, tries to make it seem otherwise by not telling the reader what the topic was in 2004 — “the wall.”
My argument then was: Just because terrorists typically commit ordinary crimes in the course of plotting mass-murder attacks, and foreign spies often violate criminal laws in conducting espionage, we should not treat them as if they were ordinary criminals, entitled to full-blown due process protections. We should instead regard them as enemies who, primarily, should be countered by military and intelligence means, not law-enforcement prosecution. If, while using counterintelligence authorities (like FISA surveillance) in good faith, we acquire evidence of crimes and can thus prosecute the terrorists and spies, that was something to celebrate, not to be alarmed about.
But the Clinton Justice Department was alarmed about a hypothetical problem that was unsupported by real-world experience: That rogue FBI agents, who did not have enough evidence to obtain an ordinary criminal-law surveillance warrant under Fourth Amendment strictures, would pretend that the case involved a foreign threat to national security in order to obtain a surveillance warrant under FISA’s less rigorous strictures.
Justice Department leaders became so worried about this unlikely scenario – the misuse of FISA to “steer” criminal investigations – that they forgot about a more dire concern: If, in order to address this hypothetical problem, the Justice Department erected a barrier to information-sharing between counterintelligence agents and law-enforcement investigators, we would not have a complete picture of the threats against the United States — the left hand would not know what the right hand was doing, critical dots could not be connected, and mass-murder plots would succeed . . . as one ultimately did on September 11, 2001. (See “Wall Nuts,” a bravely forthright account, written in 2003 by former NSA general counsel Stewart Baker, about how “the wall between intelligence and law enforcement is killing us.”)
Those of us who opposed the wall, argued something different to the Justice Department, along the lines of this:
The ability to share information is too essential to be impeded over hypothetical concerns about misconduct. You can trust us to obey the law. If we say we will conduct a counterintelligence investigation, we will do it in good faith, with the objective of gathering information about foreign threats. If we are instead seeking to build a criminal case for prosecution, we will honor the Fourth Amendment and the rules of criminal due process. If everyone acts in good faith, you need not concern yourself that each different kind of investigation often yields evidence or intelligence helpful to the other. You will know that we came about the information legitimately, not by conducting a criminal investigation under the guise of a counterintelligence investigation.
I’m betting Gabe believes in that, just as he said he concurs with what I said in the passage he has torn out of context. Yet, in his haste to try to portray me as a fraud, he is undermining the rule-of-law foundation that is vital if we expect the public to accept the information-sharing arrangement that allows counterintelligence and law-enforcement to help each other and, by so doing, to protect the country.
That foundation is simply this: Everybody must follow the rules. That is good faith: If you’re going to do a criminal investigation, make sure there is first a crime to investigate, then comply with the Fourth Amendment and other due-process standards — don’t pretend it’s a counterintelligence investigation as a pretext to look for some unknown crime to prosecute.
No one is saying it is inappropriate to have a counterintelligence investigation to probe Russia’s interference in the election — a classified venture (not a leak machine) aimed at understanding the Kremlin’s intentions and thwarting its designs.
The problem with the Mueller investigation has nothing to do with the unremarkable fact that there is often overlap in the information discovered in counterintelligence and law-enforcement investigations. The problem is threefold: (1) the regulations do not authorize the Justice Department to appoint a special counsel to conduct a counterintelligence investigation; (2) before a special counsel is appointed, the regulations require a good-faith basis for a criminal investigation — crimes — that the Justice Department is too conflicted to conduct; those crimes then define the limitations on a special counsel’s jurisdiction; and (3) to the contrary, Mueller was improperly appointed to conduct a counterintelligence investigation, a pretext that enables him to hunt for crimes to prosecute without having had a preexisting basis for a criminal investigation, and thus without any limits on his jurisdiction.
No one is saying it is inappropriate to have a counterintelligence investigation to probe Russia’s interference in the election — a classified venture (not a leak machine) aimed at understanding the Kremlin’s intentions and thwarting its designs. It is critical that there be such an investigation, but there is no need for a special counsel (or any prosecutor) to run it. Moreover, it is obviously true that, if counterintelligence officers incidentally find evidence of crimes while conducting their intelligence-gathering in good faith, then the criminal evidence should absolutely be referred to the law-enforcement side of the Justice Department’s house for investigation and prosecution. That is not only legitimate; it is how we leverage criminal prosecution to pressure foreign operatives to cooperate; it is what gives us singularly valuable human intelligence that would otherwise be unobtainable.
What is inappropriate, though, is to operate outside the rules, to exploit counterintelligence authority when the real purpose is criminal investigation. Gabe Schoenfeld does not seem to realize that the counterintelligence authorities he and I both see as indispensable to national security stand to be restricted or repealed if the public comes to believe that the government uses them pretextually to spy on and build criminal cases against Americans.