...Nor is it a surprise that the news has Trump antagonists clamoring for full disclosure of the special counsel?s final report. Mind you, when skeptics of the Trump-Russia investigation asked what the criminal predicate for it was, and on what basis the Obama administration had decided to monitor the opposition party?s presidential campaign, we were admonished about the wages of disclosure ? the compromise of precious defense secrets, of deep-cover intelligence sources and methods. Why, to ask for such information was to be an insurrectionist seeking to destroy the FBI, the Justice Department, and the rule of law itself. Now, though, it?s only the uncharged president of the United States at issue, so disclose away!
Well, if we?re going to have disclosure, fine. But let?s have full disclosure: Mueller?s report in addition to the FISA applications; the memoranda pertinent to the opening and continuation of the investigation; the testimony in secret hearings; the scope memorandum Deputy Attorney General Rod Rosenstein issued on August 2, 2017, after failing to cite a crime when he appointed Mueller ? let?s have all of it.
As far as the special counsel?s report goes, because of the way the regulations work (at least when the Justice Department deigns to follow them), we now have Mueller?s bottom line, but not his reasoning and the underlying facts. It is the opposite of the Trump opposition?s preferred Roger Stone and George Papadopoulos scenario, where Mueller?s team spins pages and pages of ?Gee, sure seems like a lot of almost-collusion here? before you flip to the end and find that there?s no case ? just a campaign hanger-on who lied to an investigator long after the imaginary espionage conspiracy occurred. At the moment, we just have Mueller?s conclusion: There is no basis to indict the president for a crime ? not collusion, not obstruction, not false statements. The collusion-peddlers, who took great umbrage at the suggestion that ?VERIFIED? FISA surveillance-warrant applications should be disclosed, now demand Mueller?s full report so they can get to the familiar work of obscuring the bottom line and spinning the spin.
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This was not to dismiss Russia?s provocations (which Democrats spent most of the Obama years ignoring, and ? when it comes to hacking ? which Obama himself spent the 2016 campaign mostly ignoring). It was always essential that the FBI use its counterintelligence authorities for their proper purpose ? to monitor and undermine foreign powers. It still is.
But investigations targeting Americans for violating the law have to be premised on crime. Even FISA, which allows a court to authorize spying on an American citizen suspected of being an agent of a foreign power, requires the Justice Department and the FBI to show probable cause that the American is knowingly engaged in clandestine activity on behalf of the foreign power ? and that this clandestine activity is a probable violation of American criminal law. (See FISA, section 1801(b)(2) of Title 50, U.S. Code ? the definition of ?agent of a foreign power? that applies to American citizens.)
That is why, as we have repeatedly pointed out, ?collusion? is a weasel word. ?Collusion? is just association ? concerted activity that could be benign, sinister, or somewhere in between. It is not a crime to have relationships, even troubling ones, with Russians. Fortunately for the Clinton campaign, it is not a crime to attempt to gather opposition research from foreign sources ? even former British spies who purport to have Kremlin-connected sources. When Americans are involved, the only collusion that federal criminal and counterintelligence law trouble themselves over involves conspiracy (or its close cousin, aiding and abetting). There must be knowing complicity in a crime. If you don?t have a good-faith basis to believe a crime has been committed, you don?t have an investigation.
Again, we were pointing that out before Mueller was appointed. In order to justify a special-counsel appointment, the regulations require two things: (1) the attorney general (or the deputy AG when, as here, the AG is recused) must be able to articulate the factual basis for a criminal investigation or prosecution; (2) that investigation or prosecution must create a conflict of interest so profound that the Justice Department cannot ethically conduct the investigation ? a lawyer must be brought in from outside the government. It is the alleged crime that determines what is to be investigated and whether there is a conflict.
Here, the issue was solely the president. The Justice Department and FBI did not need a special counsel to conduct a counterintelligence investigation of Russia, or a criminal investigation of, say, Michael Flynn or Paul Manafort. Indeed, such investigations were underway before Mueller?s appointment. A special counsel would have been needed only for the president, on the rationale that the president cannot credibly be investigated by his own Justice Department. That is fine: The president is not above the law, and if there is evidence that he committed a crime, he should be investigated. But there has to be evidence that he committed a crime.
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Finally, unlike criminal investigations, which are conducted to vindicate the rule of law in judicial proceedings and which should be insulated from politics, counterintelligence investigations are done strictly for the president ? to assist him in carrying out his national-security duties. If a president were to shut down a counterintelligence investigation ? which Trump has never done in connection with Russia, even after the FBI director publicly portrayed Trump?s campaign as a suspected collaborator ? that could not be an obstruction crime, even if it were a reckless decision. It is the politically accountable president, not the administrative state, who determines the nation?s intelligence needs.
In sum, we have endured a two-year ordeal in which the president of the United States was forced to govern under a cloud of suspicion ? suspicion of being a traitor, of scheming with a foreign adversary to steal an election. This happened because the Obama administration ? which opened the probe of the Trump campaign, and which opted to use foreign counterintelligence spying powers rather than give Trump a defensive briefing about suspected Russian infiltration of his campaign ? methodically forced its suspicions about Trump into the public domain.
It is not just that FISA warrants were sought on the basis of the Steele dossier, an uncorroborated Clinton-campaign opposition-research screed that the Obama Justice Department and FBI well knew was being peddled to the media at the same time. There was a patently premeditated stream of intelligence leaks depicting a corrupt Trump-Russia arrangement.
After Hillary Clinton lost the 2016 election, Obama, after doing virtually nothing about Russian aggression for most of eight years, suddenly made a show of issuing sanctions, seizing Russian assets, and expelling Russian operatives. He then rushed the completion of an intelligence assessment that would ordinarily have taken months to complete, so that it would be issued on his watch; and presto: The public was told not only that Russia interfered in the campaign, but that Russia did so because Putin was trying to get Trump elected. (Of course, the public was not told that Obama had known what Russia was doing during the campaign, but concluded it was too trivial to warrant a response; and the public was not reminded that, just days before the election ? when Russia?s perfidy was well known to the Obama administration ? both Obama and Hillary Clinton chastised Trump for daring to suggest that an American presidential election could be rigged.)...