openpolitics.com

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.

.. 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

.. 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

.. 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.

.. 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.

.. 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.

.. 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.

.. 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.

.. 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.

.. 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.

.. 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.

.. 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

.. 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.

.. 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.

.. 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.

.. there is no basis in the regulations for the assignment of a special counsel to a counterintelligence investigation.

.. 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

.. 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

.. Rosenstein should relieve the president of the burden of this suspicion if that can be done honestly.

.. If Rosenstein did that, Mueller’s investigation would have the public support it should have