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:
- the counterintelligence investigation of the threat Russia, with its advanced cyber capabilities and anti-American intentions, clearly poses to our electoral system; and
- 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
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 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:
- 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?
- In addition to the information from the Steele dossier, what other information did the FISA application include?
- 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?
- 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.
If the investigation arose from partisan opposition research, what specific crime is he looking into?
The Steele dossier is 35 pages of opposition research on Donald Trump, described by former FBI Director James Comey as “salacious and unverified.” It was paid for by Hillary Clinton’s campaign and the Democratic National Committee, and compiled by Christopher Steele, a former British intelligence agent who had a luminous dislike for Mr. Trump and was also an informant for the FBI.
.. the FBI’s only objection to the House memo at the time of its release was that it was incomplete, not that it disclosed sources and methods.
.. How does possible misconduct by senior FBI officials, which is certainly bad enough, intersect with the Mueller investigation? As follows: The Justice Department regulation that authorizes the appointment of special counsels requires a determination that a “criminal investigation” is warranted, and that there is a conflict or other good reason that prevents ordinary Justice Department staff from conducting it.
.. The letter from Deputy Attorney General Rod Rosenstein appointing Mr. Mueller says he is to “conduct the investigation confirmed by then-Director James Comey before the House Intelligence Committee on March 20, 2017,” which covers “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump,” and any matters that may arise “directly” from that investigation.
.. “links” or “coordination”—or “collusion,” a word that does not appear in the letter of appointment but has been used as a synonym for coordination—does not define or constitute a crime.
.. By contrast, the Watergate, Iran-Contra and Whitewater investigations, whatever you think of how they were conducted, identified specific crimes. The public knew what was being investigated.
.. none of the charges Mr. Mueller has brought thus far involved “coordination” or “collusion” with the Russians.
.. the public should get access to a carefully redacted copy of the FISA application and renewals, so we can see whether officials behaved unlawfully by misleading a court; and Mr. Mueller’s mandate should be defined in a way that conforms with the legal standard of his office