Russian To Judgment, Con't

The media, specifically the NY Times, still has a lot to answer for as far as their absolute failure in coverage of Trump's perfidy ahead of the 2016 election, while ruthlessly attacking Hillary Clinton and helping to cost her the election.  Now the Times comes clean on just how much of a total collapse of any real investigation into Trump was for them, with a story admitting that the FBI opened an investigation into Trump actively being an Russian agent.

In the days after President Trump fired James B. Comey as F.B.I. director, law enforcement officials became so concerned by the president’s behavior that they began investigating whether he had been working on behalf of Russia against American interests, according to former law enforcement officials and others familiar with the investigation.

The inquiry carried explosive implications. Counterintelligence investigators had to consider whether the president’s own actions constituted a possible threat to national security. Agents also sought to determine whether Mr. Trump was knowingly working for Russia or had unwittingly fallen under Moscow’s influence.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

Agents and senior F.B.I. officials had grown suspicious of Mr. Trump’s ties to Russia during the 2016 campaign but held off on opening an investigation into him, the people said, in part because they were uncertain how to proceed with an inquiry of such sensitivity and magnitude. But the president’s activities before and after Mr. Comey’s firing in May 2017, particularly two instances in which Mr. Trump tied the Comey dismissal to the Russia investigation, helped prompt the counterintelligence aspect of the inquiry, the people said.

The special counsel, Robert S. Mueller III, took over the inquiry into Mr. Trump when he was appointed, days after F.B.I. officials opened it. That inquiry is part of Mr. Mueller’s broader examination of how Russian operatives interfered in the 2016 election and whether any Trump associates conspired with them. It is unclear whether Mr. Mueller is still pursuing the counterintelligence matter, and some former law enforcement officials outside the investigation have questioned whether agents overstepped in opening it.

The criminal and counterintelligence elements were coupled together into one investigation, former law enforcement officials said in interviews in recent weeks, because if Mr. Trump had ousted the head of the F.B.I. to impede or even end the Russia investigation, that was both a possible crime and a national security concern. The F.B.I.’s counterintelligence division handles national security matters.

If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved, according to James A. Baker, who served as F.B.I. general counsel until late 2017. He privately testified in October before House investigators who were examining the F.B.I.’s handling of the full Russia inquiry.

I'm glad that Robert Mueller has this information now, but this is information America should have been told in 2017, not 2019.   It also means that as Lawfare's Ben Wittes points out, the if Trump fired James Comey in order to throw a wrench into the Russia investigation, that itself could be the collusion.

Put simply, I don’t believe the FBI, having an open counterintelligence investigation, simply opened a new criminal investigation of obstruction in the wake of the Comey firing. I think there likely was—and still is—one umbrella investigation with a number of different threads. That one investigation was (and is) about Russia. And it had (and still has), as a subsidiary matter, a number of subsidiary files open about people on the U.S. side who had links to Russian government activity. Each of these files had (and still has) all of the counterintelligence and criminal tools available to the U.S. government at its disposal.

So when the president sought to impair the investigation, having declared both in the draft letter dismissing Comey and to Lester Holt that his action was connected in some way to the Russia investigation, that raised both potential criminal questions and major counterintelligence questions—questions that could only have been reinforced when Trump later announced to senior Russian government officials that he had relieved pressure on himself by acting as he did. It did so both because it threatened the investigation itself and because it fit directly into a pattern of interface between Trump campaign officials and Russian government actors that they were already investigating.

Remember that the standards of predication are quite low. To open an investigation, the FBI doesn’t need proof of a crime, or even probable cause of criminal activity. It need only see evidence that “An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur and the investigation may obtain information relating to the activity or the involvement or role of an individual, group, or organization in such activity” (emphasis added). “May” is a very flexible word. So ask yourself this: If you were the FBI and already investigating Russian activity and you saw the president’s actions in May 2017, would you believe that it “may” constitute a criminal offense or “may” constitute a threat to national security or both?

What is the significance of all of this? I have two big takeaways.

First, if this analysis is correct, it mostly—though not entirely—answers the question of the legal basis of the obstruction investigation. The president’s lawyers, Barr in his memo, and any number of conservative commentators have all argued that Mueller cannot reasonably be investigating obstruction offenses based on the president’s actions within his Article II powers in firing Comey; such actions, they contend, cannot possibly violate the obstruction laws. While this position is disputed, a great many other commentators, including me, have scratched their heads about Mueller’s obstruction theory.

But if the predicate for the investigation was rooted in substantial part in counterintelligence authorities—that is, if the theory was not just that the president may have violated the criminal law but also that he acted in a fashion that may constitute a threat to national security—that particular legal puzzle goes away. After all, the FBI doesn’t need a possible criminal violation to open a national security investigation.

The problem does not entirely go away, because as the Times reports, the probe was partly predicated as a criminal matter as well. So the question of Mueller’s criminal theory is still there. But the weight on it is dramatically less.

This possibility, of course, raises a different legal puzzle, which is whether and under what circumstances the president can be a national security investigative subject of his own FBI given that it is ultimately he who defines national security threats for the executive branch. But that’s a question for another day.

Second, if it is correct that the FBI’s principal interest in obstruction was not as a discrete criminal fact pattern but as a national security threat, this significantly blurs the distinction between the obstruction and collusion aspects of the investigation. In this construction, obstruction was not a problem distinct from collusion, as has been generally imagined. Rather, in this construction, obstruction was the collusion, or at least part of it. The obstruction of justice statutes become, in this understanding, merely one set of statutes investigators might think about using to deal with a national security risk—specifically, the risk of a person on the U.S. side coordinating with or supporting Russian activity by shutting down the investigation.

It was about Russia. It was always about Russia. Full stop.

People keep forgetting this.  It was always about Russia damaging our country as much as possible, and to that end they have succeeded beyond their wildest dreams.