Posted by Curt on 17 February, 2018 at 10:10 am. 4 comments already!


It has become more urgent to ask: Why is there a special counsel in the Russia investigation?At this point, that question should be put to the Justice Department’s Office of Legal Counsel — in the federal government, it’s the lawyers’ lawyer. To get down to brass tacks: May the president of the United States be charged with obstruction based on non-criminal discretionary acts that are unquestionably within his constitutional authority as chief executive?

Readers of these columns may recall that I opposed the appointment of a special counsel and have argued that the appointment was illegitimate. This has nothing to do with Robert Mueller, who has had a distinguished law-enforcement career for which he is justly admired. It has to do with first principles and clear regulations. As a matter of principle, the law-enforcement arm of government must operate on a presumption of innocence. Therefore, in this country, a prosecutor should be assigned only if there is strong evidence that a crime has been committed; in the absence of such evidence, a prosecutor should never be assigned to investigate whether an American may have committed some unknown crime.

This, as we’ve repeatedly observed, is reflected in the regulations that control when the Justice Department may appoint a special counsel. The question should never come up unless there is some “criminal investigation or prosecution” that creates a conflict of interest for Justice Department leadership. A special counsel may be appointed only for purposes of this “criminal investigation or prosecution.” In the absence of strong evidence of a crime, there is no basis for a criminal investigation or prosecution.

The Russia Investigation’s Two Components
The Russia investigation, as it has been amorphously defined by the Justice Department (in March 20, 2017, testimony by former FBI director James Comey and in the May 17, 2017, order appointing Mueller by Deputy Attorney General Rod Rosenstein) has two components.

There is, first, the overarching counterintelligence investigation of Russia’s interference in the 2016 election. As we have pointed out many times, a counterintelligence investigation is not a criminal investigation, and therefore cannot legitimately predicate the appointment of a special counsel.

The objective of a counterintelligence investigation is to collect intelligence about the actions and intentions of a foreign power to the extent they may affect American interests. The aim is not prosecution. Indeed, prosecution can undermine counterintelligence since the latter relies on secrecy (counterintelligence investigations are highly classified), while the former mandates public disclosure of allegations, evidence, and witnesses. Consequently, while Justice Department prosecutors are routinely assigned to criminal investigations, they are not assigned to counterintelligence investigations — government lawyers get involved when intelligence agents need the assistance of court process, such as warrants from the Foreign Intelligence Surveillance Court.

The second component of the Russia investigation is studiously vague. It was described by then-director Comey as an inquiry into “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.”

There are a couple of salient things to notice here. First, this was not a standalone investigation; Comey explicitly described it as included within the just-described counterintelligence probe of Russian election interference — i.e., it was not described as a criminal investigation. Second, what is outlined here is not a predicate for a criminal investigation: It is not a federal crime to have “links” — whatever that means — to the Russian government; and whatever the equally slippery word “coordination” may mean, there can be no federal crime unless (a) “Russia’s efforts” transgressed some penal law (e.g., anti-hacking statutes) and (b) the “coordination” rose to the level of knowing complicity in that transgression (e.g., conspiracy to commit hacking).

Even if one believes that the Putin regime had a strong preference for Donald Trump, such support is not a concern of prosecutors unless criminal laws are broken.

Even if one believes that the Putin regime had a strong preference for Donald Trump (personally, I believe the Kremlin hoped to sow discord and create havoc regardless of who won), such support is not a concern of prosecutors unless criminal laws are broken. And even that would not implicate “individuals associated with the Trump campaign” in the absence of strong evidence that they aided, abetted, or conspired in the law-breaking.

Bottom line: What Comey described, and Rosenstein later adopted in defining Mueller’s jurisdiction, was not a criminal investigation or prosecution, nor did it provide a factual basis for a criminal investigation or prosecution.

What should have happened here is what should always happen. The FBI should have proceeded with its counterintelligence investigation of Russian interference in the election, and because such investigations are classified, not a word should have been said about it publicly. Then if, in the course of that non-criminal investigation, strong evidence of crimes was uncovered, that evidence should have been referred to the criminal-investigative arms of the FBI and the Justice Department. At that point, if the strong evidence of crime pointed at Trump-campaign associates or even the president himself, Attorney General Jeff Sessions should have recused himself (because of his involvement in the Trump campaign), and Deputy Attorney General Rosenstein should have appointed a special counsel to investigate and, if appropriate, prosecute the crime that had been uncovered.

Why a Special Counsel?
This is not what happened. Mueller was appointed in the absence of strong evidence of a crime that would legitimately trigger a criminal investigation or prosecution. Since that should not have happened, one must ask: Why? 

In a column on Thursday, I argued that the Obama administration saw the Russia probe as an opportunity to paralyze President Trump. As I noted in the column, the motivation for this could have been sinister or public-spirited — how you see it probably depends on what you think of Obama and Trump. President Trump’s political opponents would have seen the Russia probe as a chance to strangle his capacity to govern and pursue his agenda; some investigators who suspected that the disturbing allegations in the Steele dossier were true, even if they had not and probably could not be proved, may have harbored good-faith concern that Trump could be blackmailed by Russia.

Regardless of the motivation, the scheme to sustain the Russia investigation even after Obama left office and Trump was in a position to end it had three parts: (1) important information about the investigation needed to be withheld from the new president; (2) Trump had to be led to believe he was not under investigation (even though he was central to the investigation) so that he would not feel threatened by the investigation; and (3) Trump had to be admonished about respecting the independence of law-enforcement, to instill the fear that if he invoked his constitutional authority to shut down the investigation, he would be accused of obstruction.

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