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.

Trey Gowdy’s total rebuke of Trump’s ‘spying’ narrative — and the pattern it fits

Rep. Trey Gowdy (R-S.C.) has spent the better part of the past 15 hours poking holes in President Trump’s dubious trial balloon about a spy in his campaign.

Gowdy, who was one of the few people to get briefed on the situation last week, told Fox News on Tuesday night that the briefing vindicated the FBI: “I am even more convinced that the FBI did exactly what my fellow citizens would want them to do when they got the information they got, and that it has nothing to do with Donald Trump.”

.. Even House Intelligence Committee Chairman Devin Nunes (R-Calif.), Trump’s most important ally in the House, has been quiet since receiving the briefing alongside Gowdy. That, perhaps more than anything, speaks volumes.

.. But we’ve been here before, and the lack of any real backup for Trump’s claims hasn’t stopped the GOP base from buying into them.

.. Few top Republican members of Congress are calling the Russia investigation a “witch hunt,” as Trump has, yet 82 percent of Republican voters and 44 percent of all Americans believe it is.

The Nunes memo that alleged a political and abusive predicate for the Russia probe wasn’t exactly embraced by Republicans, but it has  contributed to Trump’s narrative.

.. Almost none of these conspiracy theories have been embraced by the broader, official Republican Party. Almost all of them have broken through, thanks to Trump’s singularity, his saturation of media coverage and the lack of a concerted pushback beyond people like Gowdy, Graham and Rubio

.. Gowdy is not seeking reelection after this term, so he does not have to worry about the political consequences of speaking out against Trump.

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.

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.

 

y Justice Dept. told court of source’s political influence in request to wiretap ex-Trump campaign aide, officials say

A now-declassified Republican memo alleged that the Foreign Intelligence Surveillance Court was duped into approving the wiretap request by a politicized FBI and Justice Department.

.. The Justice Department made “ample disclosure of relevant, material facts” to the court that revealed “the research was being paid for by a political entity,” said one official

.. “No thinking person who read any of these applications would come to any other conclusion but that” the work was being undertaken “at the behest of people with a partisan aim and that it was being done in opposition to Trump,” the official said.

.. “We didn’t put in every fact, but we put in enough facts to allow the court to judge bias and motive and credibility of the sourcing,” said Matthew G. Olsen, former deputy assistant attorney general for national security who oversaw the Justice Department’s FISA program from 2006 to 2009.

.. Robert S. Litt, former general counsel to the director of national intelligence and a surveillance law expert, said, “I don’t find any of the allegations hugely problematic, in part because of the lack of context.”

.. Nunes said that the Page wiretap was “outrageous” and that it was based on “salacious information paid for by a political campaign.”

.. At issue was an application for surveillance on Page obtained in October 2016 under the Obama administration and renewed three times

.. To secure the warrant, the government had to persuade a federal judge there was probable cause to believe that Page was acting as an “agent of a foreign power” and engaged in criminal conduct.

.. “Only very select parts of what Christopher Steele reported related to Carter Page were included within the application, and some of those things were already subject to corroboration.”

.. A potentially damaging allegation is that the FISA application, which was based in part on information from Steele about Page’s July 2016 trip to Moscow, also cited a September 2016 Yahoo News article by reporter Michael Isikoff. “This article,” the memo states, “is derived from information leaked by Steele himself to Yahoo News.

In other words, the memo alleges the Yahoo News article amounted to circular reasoning.

.. Schiff said the article was not included in the application to corroborate Steele.

.. Kris said it’s more likely that the Justice Department cited the Yahoo News article “to show that the investigation had become public and that the target [Page] therefore might take steps to destroy evidence or cover his tracks.”

 

Inside the FBI: Anger, worry, work — and fears of lasting damage

In the 109 years of the FBI’s existence, it has repeatedly come under fire for abuses of power, privacy or civil rights. From Red Scares to recording and threatening to expose the private conduct of Martin Luther King Jr. to benefiting from bulk surveillance in the digital age, the FBI is accustomed to intense criticism.

What is so unusual about the current moment, say current and former law enforcement officials, is the source of the attacks.

The bureau is under fire not from those on the left but rather conservatives who have long been the agency’s biggest supporters, as well as the president who handpicked the FBI’s leader.

.. Wray’s defenders say there is a more strategic reason for the new director’s approach — by relying on long-standing law enforcement policies and procedures, he believes the FBI can navigate through the current political storms and get back to a position of widespread trust across the political spectrum, according to people familiar with his thinking.

.. “Following established process is important,” one person said. “Process can protect us.”

.. Comey’s firing shocked the FBI’s workforce. In the aftermath, many employees posted pictures of him at their desks or other workspaces.

.. Others express doubts about emulating Mueller’s detached approach, worried that Wray’s calculation not to publicly spar with the president may lead to a gradual erosion of the bureau’s reputation and clout.

.. On Friday, over Wray’s objection, Trump authorized the release of the Nunes memo and declared, “A lot of people should be ashamed of themselves and much worse than that.’’

.. He has called his own attorney general “beleaguered” and claimed the bureau’s reputation was “in tatters.”

.. Sen. Ron Johnson (R-Wis.) said on Fox News there was “evidence of corruption — more than bias but corruption — at the highest levels of the FBI,” and pointed to texts between two key officials who were once assigned to both the Clinton and Trump probes suggesting a “secret society” at the FBI. Those messages about a “secret society” are now widely seen to be a joke, but that has not diminished Republicans’ fervor

.. it conducts criminal investigations independently and without regard to the will of the chief executive. Trump has defied that norm. He asked Comey for a vow of loyalty, then inquired with Andrew McCabe, who replaced Comey after Trump fired him, for whom he voted.

.. The memo itself, though, doesn’t prove the case. It doesn’t have the kind of evidence in it that you would need to see to say that there was an abuse of that authority.”

..  While the president might now feel he wants the bureau under his firm control, Hosko said, he might regret that if a like-minded president took office and ordered investigations of Trump or his family.

.. Current and former law enforcement officials expect the struggle for control of the FBI to intensify.

.. “Republicans think this is just part of the war they are fighting.”