OPINION - The FBI’s counterintelligence investigation of Russia’s involvement in the 2016 election is not a criminal investigation, and even the president's abrupt firing of FBI Director James Comey on May 9th couldn’t reasonably be considered an attempt to obstruct the investigation. It is most likely President Trump’s purported interference in a related manner that prompted Deputy Attorney General Rod Rosenstein to ask former FBI Director Robert Mueller to take over the investigation and “any matters that arose or may arise directly” from it.
Through routine surveillance of Russia’s Ambassador to the U.S., Sergey Kislyak, national security officials reportedly caught national security adviser-designate, Michael Flynn, discussing sanctions in a late December phone call. The FBI interviewed Flynn, who was already under separate investigations for his work as an unregistered foreign agent. He was reportedly not forthcoming about the discussions and even though the FBI cleared him of a potential perjury charge, President Trump reportedly told Director Comey, “I hope you can see clear to let this go. Michael Flynn is a good guy and I hope you’ll let this go.” The account of this meeting first appeared in an article by the same New York Times reporter that broke the story about Hillary Clinton’s use of a private email server and it has since been confirmed by multiple outlets. The report indicates that Comey wrote about the meeting in a memo he shared with senior staff. If this is true, the only charitable way to interpret Trump’s remarks is ‘I hope you’ll be able to let this go since Flynn will be found innocent.’ Anything else would be inappropriate, especially in light of what followed.
Rather than disappearing, the Flynn investigation has since intensified. Flynn’s failure to disclose payments from Russian entities and Turkey constitute a federal crime and Flynn’s associates have been called to give depositions. A grand jury in Virginia issued subpoenas for related financial documents on May 9th. Trump fired Comey that afternoon. Together, these three acts - pressuring Comey to drop the investigation, the Flynn investigation continuing, and firing Comey - are enough to warrant the appointment of a special counsel. The White House, the president, cannot be trusted to refrain from putting pressure on the federal officials overseeing an investigation of his associates.
Rosenstein had to appoint a federal prosecutor that operates outside the normal chain of command to shield the law enforcement personnel from political pressure. He couldn’t have found a better person for the job than former FBI Director Robert Mueller, a clear indication that the appearance of impropriety is being taken very seriously. You don’t get Bobby “Three Sticks” Mueller to leave his highly lucrative public practice and hop on any old investigation.
Rosenstein’s order establishing Muller as a special counsel in charge of the investigation gives him wide latitude to pursue the facts wherever they may lead. Even though Rosenstein declares the appointment of a special counsel was “not a finding that crimes have been committed or that any prosecution is warranted,” that power officially belongs to Mueller. He is essentially a U.S. attorney empowered to investigate political appointees and answerable only to the Department of Justice and the president himself.
Mueller, a fierce opponent of leaks damaging to national security and a strong defender of most civil liberties, could pursue criminal charges against those suspected of leaking Flynn’s name in the first place. Political appointees from the previous administration should watch their backs, but, of course, everyone is focused on how this affects the current administration.
President Trump appears to have stumbled into this scandal entirely on his own. Should Mueller investigate the president’s conduct, he would have to determine the following:
1) If authentic, is James Comey’s memo an accurate account of his private meeting with President Trump on February 14th?
2) Was Trump aware that Flynn was facing a criminal investigation and attempting to influence it?
3) Did Trump fire the FBI Director because the Flynn investigation was not dropped and firing him was meant to ensure a more favorable outcome?
4) Is President Trump aware that this conduct constitutes corruption of a criminal investigation?
The obstruction of justice statute requires that all four criteria are met. A fifth standard routinely ensnares officials: has the president or someone working on his behalf done anything else to corrupt an investigation, including the one overseen by the special counsel? It is that prospect that has cast a pall on the White House already. Friday’s revelation that Trump boasted of “relief” to Russian emissaries the day after firing Comey only strengthens the case against him.
There’s a much more important reason to praise the appointment of Robert Muller as special counsel, however. The Department of Justice is an invaluable agency, essentially engineered to ensure everyone else is following the law, including the president and his staff. It has been heavily politicized by recent administrations but it has a critical law enforcement function that cannot afford to be corrupted. Every member of Congress should be on record supporting reforms to help fulfill that promise, but failing that, federal law enforcement officials need to be shielded from political pressure from the White House. “I hope you can let this go.” Sorry, Mr. President, we can’t.
You can follow the author on Twitter @CACoreyU
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