The Truth Will Set Us All Free

The only way to clear up this messy saga is for Trump to immediately declassify all documents — without redactions — relating to the Mueller investigation, the FISA court warrants, the Clinton email investigation, and CIA and FBI involvement with the dossier and the use of informants.

Second, there needs to be another special counsel to investigate wrongdoing on the part of senior officials in these now nearly discredited agencies. The mandate should be to discover whether there was serial conflict of interest, chronic lying to federal officials, obstruction of justice, improper unmasking and leaking, misleading of federal courts, and violation of campaign-finance laws.

House Republicans cannot be allowed to obstruct justice

Former U.S. district judge John S. Martin, writing in The Post to debunk the baseless proposal by House Freedom Caucus members to impeach Deputy Attorney General Rod J. Rosenstein, observes:

The actions of the Freedom Caucus members are not only baseless, they are also shameful. While they call for the appointment of a special prosecutor to investigate Rosenstein, it may be more appropriate to appoint a special prosecutor to investigate an attempt to corruptly obstruct justice by members of Congress who so obviously use their office to intimidate the deputy attorney general and to undermine the credibility of special counsel Robert S. Mueller III’s investigation.

.. Their inexcusable acts include:

  • The caper by House Intelligence Committee Chairman Devin Nunes (R-Calif.) in which he scurried over to the White House to review classified documents and then tried to push the fake “unmasking” scandal;
  • Nunes’s memo falsely stating that information about the Christopher Steele dossier’s origins was omitted from the Foreign Intelligence Security Court warrant application to conduct surveillance on suspected spy Carter Page;
  • The outing of a confidential intelligence source;
  • The badgering of Rosenstein for documents from an ongoing investigation and the bogus impeachment articles cooked up by Reps. Mark Meadows (R-N.C.) and Jim Jordan (R-Ohio);
  • False accusations against the FBI (e.g. accusing FBI officials of aiding Hillary Clinton in the campaign) that were discredited by the inspector general’s report; and
  • Refusal to obtain relevant documents (e.g. the blocked phone number that Donald Trump Jr. called in close proximity to the Russia meeting in June 2016).

.. Congressmen, Trump lawyers and White House aides conferring with intent to mislead investigators and the public, to disable the inquiry and/or to discredit law enforcement sounds an awful lot like obstruction of justice. Conversations or documents relating to that sort of conspiracy are in no way privileged.

.. Norman Eisen, Laurence Tribe and Caroline Frederickson wrote in February: “Endeavoring to stop an investigation, if done with corrupt intent, may constitute obstruction of justice. Plotting to assist such action may be conspiracy to obstruct justice. Normally, what is called ‘speech or debate immunity would provide a strong bulwark against any such liability for Mr. Nunes or his staff.” However, they argued, “Mr. Nunes and company may have ranged so far afield that those protections no longer apply. Under the clause, mere peripheral connection to legislative acts cannot serve as a fig leaf to shield criminal conduct.” They argued that if “a member or staff employee of the House Intelligence Committee engaged with the White House to stifle the special counsel inquiry, it would be difficult to see how such collaboration would be” protected by the speech or debate clause.

.. An investigation into Republican House members’ antics is critical if we want to hold them responsible for actions injurious to our criminal justice system. It is also necessary in order to uncover who if anyone they were colluding with on the White House side of the operation. Any White House official and/or lawyer — with or without the president’s knowledge — scheming to obstruct the investigation in concert with members of Congress needs to be investigated and held accountable.

.. Rather than simply play defense on behalf of Rosenstein and the Russian investigators, defenders of the rule of law need to go on offense, demanding Nunes, Meadows and Jordan come clean on their actions in support of a president trying to thwart a legitimate investigation. It all needs to come out.

Beware of Devin Nunes’s Next Move

Every indication is that this is far from the end of the committee majority’s mischief. All signs instead point to this week’s developments as the beginning of a new chapter in the story, in which House Republicans go on the offensive to support President Trump — and fight the special counsel, Robert Mueller.

.. First, the committee’s chairman, Representative Devin Nunes, attempted to provide cover for President Trump’s false allegation that he was wiretapped by his predecessor. Mr. Nunes met with White House officials in secret and then held news conferences in which he claimed that the outgoing national security adviser, Susan Rice, and her colleagues had wrongly sought to “unmask” (i.e., identify by name) certain Trump associates in surveillance reports.

.. When that effort ran out of steam, Mr. Nunes and the majority shifted their attention to the process by which law enforcement agencies obtained Foreign Intelligence Surveillance Act authorization to conduct electronic monitoring of a former Trump campaign adviser, Carter Page.

The committee released a highly misleading memo claiming that the F.B.I. and the Department of Justice had abused their powers — claims which turned out to be unfounded.

The special counsel is examining three core issues:

  1. Did Russia attack the 2016 elections to aid Mr. Trump;
  2. did Mr. Trump or members of his campaign collude with the Russians to do so; and
  3. did Mr. Trump or others obstruct the investigation of these matters?

.. the majority report endeavors to gut the second question, declaring the absence of collusion altogether.

.. It would be a grave error to think the committee will stop here, especially its chairman. There is nothing in Mr. Nunes’s record to suggest that he will let up in the face of opposition

.. The so-called “Nunes memo,” although widely considered a flop, was just the first in a series that he has said he plans to issue.

.. The president and his supporters have argued that his constitutional power to direct the Justice Department and the F.B.I. and to fire their personnel means he cannot as a matter of law be held accountable for obstructing an investigation.

.. we fully expect them to weigh in on the side of the president, and against accountability.

.. Should Mr. Mueller move to compel the president to testify by obtaining a grand jury subpoena, for example, look for them to back arguments circulated by Mr. Trump’s lawyers that the special counsel has not met the threshold for such a step.

.. We also expect more overt attacks on Mr. Mueller himself

.. We must in addition look for Representative Nunes and his ilk to back the president should he seek to install a crony in one of the positions within the Justice Department that oversees the Mueller investigation.

.. Mr. Trump instead can try to throttle him by replacing Attorney General Jeff Sessions or his deputy, Rod Rosenstein, with a compliant soul who can slowly choke off Mr. Mueller by cutting his budget, trimming his staff or curtailing the scope of his review.

.. In a week in which there has already been a major cabinet reshuffle, with the firings of Secretary of State Rex Tillerson and one of his top aides, Steve Goldstein, the possibility of such a move looms larger

.. When Mr. Nunes released his first memo, there were ominous rumblings that it was intended to target Mr. Rosenstein for his alleged role in FISA warrant abuses. When the memo fell flat, the rumors faded away. We would hardly be surprised to see a renewed effort against him — and his boss.

.. The special counsel must gird himself for this battle, and all of us must be ready to defend him.

Trump’s Lawyer Really Wants Jeff Sessions to Appoint a Second Special Counsel to Investigate the FBI

Democrats have argued that such calls are simply an effort to undermine the ongoing Russia investigation. Sessions, moreover, has a serious ethical problem he refuses to acknowledge: He has already recused himself from anything involving the Russia probe, as well as from anything involving the 2016 Trump and Clinton campaigns. Appointing and overseeing a special counsel assigned to investigate conduct related to the Russia investigation would seem to be a direct violation of that recusal.

.. Enter President Trump’s lawyer, who took to his radio show Thursday to urge Sessions to make the appointment and to repeatedly insist that Sessions’ recusal shouldn’t stop him from doing so.

.. Sekulow is also the chief counsel for the conservative American Center for Law and Justice, and he hosts a weekday radio show that he’s used to attack the Mueller investigation.

.. Without saying so explicitly, their letter also suggests that the new special counsel could investigate the DOJ and FBI’s decision not to prosecute Hillary Clinton in the summer of 2016.

.. On Wednesday night, Sessions gave an interview to Fox News’ Shannon Bream, in which he said he was indeed considering appointing a second special counsel.

.. “This is completely independent of what Bob Mueller is doing on the Russia inquiry,” he said, stressing that he was directing his comments to any reporters listening. “It’s completely separate. This is involving the FISA issues.” He went on to add that it could also include an investigation into Clinton’s emails and the bogus “Uranium One” Clinton scandal—both of which Sessions is supposed to be recused from.

.. But in the course of the show, Sekulow and his co-hosts made comments that seemed to confirm that the investigation they were calling for would, in fact, have an impact on the Mueller investigation. The proposed new special counsel could investigate “potential criminal conduct involved in, one, the Clinton investigation; two, what then led to the Russia investigation and the Trump campaign, because it was the same actors, and the FISA abuse,”

“Department of Justice has an opportunity to start cleaning house,” Jordan Sekulow said later in the show. “It involves the Clinton investigation, the Trump-Russia investigation.”

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

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

FISA-Gate Is Scarier Than Watergate 

The press used to uncover government wrongdoing. Today’s press is defending it.

The Watergate scandal of 1972–74 was uncovered largely because of outraged Democratic politicians and a bulldog media. They both claimed that they had saved American democracy from the Nixon administration’s attempt to warp the CIA and FBI to cover up an otherwise minor, though illegal, political break-in.

In the Iran-Contra affair of 1985–87, the media and liberal activists uncovered wrongdoing by some rogue members of the Reagan government. They warned of government overreach and of using the “Deep State” to subvert the law for political purposes.

.. The new FBI director, Christopher Wray, has also reassigned the FBI’s top lawyer, James Baker, who purportedly leaked the Steele dossier to a sympathetic journalist.

.. Once again, an administration is being accused of politicizing government agencies to further agendas, this time apparently to gain an advantage for Hillary Clinton in the run-up to an election.

.. There is a similar pattern of slandering congressional investigators and whistleblowers as disloyal and even treasonous.

.. This time around, the press is not after a hated Nixon administration. Civil libertarians are not demanding accountability from a conservative Reagan team. Instead, the roles are reversed.

.. Barack Obama was a progressive constitutional lawyer who expressed distrust of the secretive “Deep State.” Yet his administration weaponized the IRS and surveilled Associated Press communications and a Fox News journalist for reporting unfavorable news based on supposed leaks.

.. Progressives are not supposed to destroy requested emails, “acid wash” hard drives, spread unverified and paid-for opposition research among government agencies, or use the DOJ and FBI to obtain warrants to snoop on the communications of American citizens.

.. Liberal and progressive voices are excusing, not airing, the excesses of the DOJ and FBI.

Apparently, weaponizing government agencies to stop a detested Donald Trump by any means necessary is not really considered a crime.

The Memo Doesn’t Make Its Case 

The truth requires greater transparency

.. That experience teaches me that the memo simply doesn’t make its case. Indeed, it gets less persuasive — and the material omissions more glaring — with each successive read. It might disclose the existence of troubling FBI misconduct, but the fair-minded reader has no way of knowing whether it does.

.. A good summary always supports assertions with evidence. A good summary provides context. A good summary even includes relevant information that contradicts its thesis so that the reader can evaluate the best counter-arguments. 

.. legal arguments typically depend on lawyers taking thousands (sometimes tens of thousands) of pages of depositions and documents, crafting a concise narrative, and communicating that narrative to a judge — with citations referring to the relevant evidence and quotations of it as well.

.. If there is no citation or quotation, a judge will typically ask the lawyer, “Counselor, what record evidence supports that assertion?”

.. One of the first and most vital assertions in the entire memo is the claim that “the ‘dossier’ compiled by Christopher Steele (Steele dossier) on behalf of the Democratic National Committee (DNC) and the Hillary Clinton campaign formed an essential part of the Carter Page FISA application.” This statement is initially offered without proof. One has to read down to the next page to see any reference to evidence:

Furthermore, Deputy Director [Andrew] McCabe testified before the Committee in December 2017 that no surveillance warrant would have been sought from the FISC without the Steele dossier information.

.. When I read this, I had two immediate thoughts. First, what did he actually say? And second, why the subtle change in language from the argument that the “dossier” was an “essential part” of the FISA application to the statement that the warrant wouldn’t have been sought without the dossier “information”? The “dossier” and the “information” are not the same thing.

.. An effective memo would do more to end the debate. How? By quoting the relevant portions of McCabe’s testimony.

Better yet, it could quote the testimony and attach an appropriately redacted copy of the testimony as an appendix.

.. Even the characterization that the dossier was “essential” is a judgment call based on evidence unavailable to the public. Even worse, it was a judgment call based in part on evidence unavailable even to the rest of the committee.

.. memo should have plainly stated the agreement between the DOJ and the committee, along with the reasons for this agreement.

.. good summaries don’t just support conclusions with evidence, they provide vital and necessary context. On this point, the memo fails utterly.

.. it fails to answer the following questions:

  1. How did the FISA application actually describe Steele?

    .. Democrats are arguing that the political nature of his work was appropriately disclosed.  Don’t we need the actual words used to properly evaluate whether the FBI materially misled the court?

  2. In addition to the information from the Steele dossier, what other information did the FISA application include?
  3. To what extent did the multiple renewal applications depend on the information in the dossier? The memo notes that a FISA order must be renewed every 90 days, and each renewal must be supported by an “independent” probable-cause finding. A Trump appointee, Deputy Attorney General Rod Rosenstein, signed at least one of these FISA applications. He apparently believed that the request was supported by probable cause. Why?
  4.  What is the “information” regarding Papadopoulos that triggered the opening of the investigation in July 2016 — a full three months before the Page FISA application? The memo provides information obviously designed to impair the credibility of that investigation — by referring to FBI agent Peter Strzok’s well-known political leanings — but it provides no information about any facts supporting the opening of the probe, leaving the reader with the impression that it was opened solely because Strzok dislikes Trump.

I also wrote above that a good summary “even includes relevant information that contradicts its thesis.” The memo omits any such information, but a Democratic rebuttal exists.

.. But even if the public reviews the Democratic rebuttal, the process is still flawed. The proper way to resolve explosive claims of political bias at the highest levels of government isn’t by dribbling out short memoranda but by issuing comprehensively researched and comprehensively supported majority and minority committee reports.

..it’s not by itself scandalous to review political opposition research — a politically motivated person is no more suspect than the terrorists and criminals who routinely provide information used to support even the most intrusive warrants.

.. When I was in Iraq, we were constantly aware that our sources had their own axes to grind. They didn’t want to defeat their opponents in an election. They wanted them to die in a hail of gunfire.

.. Biased sources are an inherent part of intelligence-gathering.