by Clarice Feldman
This week, we learned that former FBI Director James Comey will probably be a witness in any proceeding brought by his close friend Special Counsel Robert Mueller. Rod Rosenstein, a former Mueller staffer, appointed Mueller because Attorney General Jeff Sessions, who handed the oversight of this matter to his Deputy Rosenstein, had recused himself and that recusal was based on a misreading of the law by career Department of Justice attorneys. Sessions’s recusal, moreover, was engendered by illegal leaks. And the investigation by Mueller is being fanned by more of them.
President’s Trump’s “one great advantage in all of this is that he has done nothing wrong
At the center of the narrative is James Comey, who, in a girlish recital, testified about a brief conversation he had with the President in which he was told General Flynn was a “good guy” and that the President hoped the FBI investigation would “let this go.”
Comey has a long history of prosecuting questionable obstruction cases. Among other overreaches, it was Comey, who with almost certain knowledge (as I have explained previously) that there was no leak of a covert CIA agent by Dick Cheney or any of his staff, sicced former colleague, Southern District of New York (SDNY) prosecutor Patrick Fitzgerald on Lewis Libby and got a conviction on a dubious process crime.
He also confessed to having leaked through a third-party friend, Columbia University Law Professor Daniel C. Richman, his version of the discussion with the President.
His explanation was self-serving and inconsistent. Linda Shelley writes:
Comey wanted to prevent the appointment of a special counsel for Hillary Clinton, who was the subject of an FBI investigation, but he wanted to “prompt” the appointment of a special counsel for President Trump, who was not the subject of an FBI investigation.Sessions' Recusal Was Based on an Erroneous Reading of the Law
He understood that the appointment of a special counsel “would send the message, ‘Uh-huh, there’s something here’” and that it would be “many months later or a year later” before the special counsel would announce that, in fact, “there was no case there.”
Here’s one: Is President Trump alleged to have done anything illegal or is this investigation just war, by any means necessary, against someone who has put a lot of swamp creatures out of power and out of work?
Comey testified that while he was FBI director, Trump was not under investigation by the FBI -- not in a criminal investigation, and not in a counter-intelligence investigation, which, in Comey’s words, “tend to be centered on individuals the FBI suspects to be witting or unwitting agents” or “covertly acting as an agent” of a hostile foreign nation, or “targeted for recruitment.”
In the FBI’s judgment, Trump was none of those.
Comey revealed to Congress in March that the bureau was investigating “possible coordination between Russia and the Trump campaign,” yet he flatly refused to tell the public, until his testimony on Thursday, that Trump wasn’t under investigation.
Comey testified that after he was fired, he orchestrated a selective leak in order to prompt a lengthy special counsel investigation of the president, knowing full well that the FBI had found no reason to place the president under investigation.
That is genuinely deplorable.
Sessions was misled by the Department of Justice lawyers upon whom he relied into recusing himself from any matter involving “Russian” interference with the election.
Sessions had no conflict warranting his recusal.
Andrew McCarthy, also a former attorney with the SDNY U.S. Attorneys Office explains:
Sessions says that he recused himself, on the advice of career ethics experts at the Justice Department, because he thought this was required by the federal regulation controlling “Disqualification arising from personal or political relationship” (28 CFR Sec. 45.2). But judging from the public testimony that former FBI director James Comey has given about the investigation into Russia’s election-meddling, the regulation did not mandate recusal.“Russian Collusion”: Not a Crime in any Event
Section 45.2 states that an official is disqualified from “a criminal investigation or prosecution” if he has a personal or political relationship with a “subject of the investigation or prosecution,” or with a person or organization whose interests would be affected by the outcome “of the investigation or prosecution.” …
The probe of Russia’s interference in the 2016 presidential campaign is not a criminal investigation or prosecution. Moreover, when the reg[ulation] speaks of the “subject of the investigation or prosecution,” it is using “subject” as a criminal-law term of art. A “subject” is a person or entity whose actions are being examined by a grand jury with an eye toward a possible indictment. There are no “subjects” in that sense in a counterintelligence investigation because the objective is not to build a criminal case and there is no grand jury.
In the first place, the "Russian collusion" accusation is utterly pretextual, concocted by the media and the Democrats, and it began when President Obama ordered the intelligence chiefs to compose a report on Russian Interference. The Obama administration then spread the flimsy report, hastily put together across the intelligence community, through a supine if not complicit media.
According to the pertinent federal regulation, a special counsel should only be appointed when the Justice Department’s leadership “determines that criminal investigation of a person or matter is warranted,” and that “investigation or prosecution of that person or matter” by the Justice Department “would present a conflict of interest or other extraordinary circumstances.” (Emphasis added.)McCarthy elaborates on why a counterintelligence investigation (not a legal basis for a special counsel appointment) is not a criminal investigation:
So, what is the crime based on which Trump’s deputy attorney general, Rod Rosenstein, authorized the appointment of a special counsel?
There isn’t one.
When Rosenstein named Mueller special counsel on May 17, he cited as grounds for the appointment Comey’s testimony at a March 20 House hearing. Here is the pertinent testimony:
the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating 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. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.
Again, a counterintelligence investigation is not a criminal investigation. And the regulations do not authorize the appointment of a special counsel to perform “an assessment of whether any crimes were committed.” There is supposed to be evidence showing the need for a criminal investigation before a special counsel is appointed.
Prior to this March 20 testimony, Comey had assured Trump that he was not under investigation. These assurances continued after this testimony, even though the testimony happened more than a month after the February 14 meeting in which Trump had lobbied Comey on Flynn’s behalf -- you know, the “Obstruction!” Moreover, in closed session in connection with his testimony, Comey told members of Congress that Trump was not under investigation—a detail omitted from the director’s public testimony.
Thus, what Comey informed Congress about was a counterintelligence investigation, which had generated no evidence of Kremlin coordination with the Trump campaign, and no suspicion of wrongdoing by Trump.
Based on that, Rosenstein appointed a special counsel.
This is a huge problem with defining Mueller’s jurisdiction in terms of the counterintelligence investigation, as deputy attorney general Rod Rosenstein did, in violation of the governing regulation.There are some who argue that Mueller is, in fact, going after the illegal leaking and “unmasking” that formed the basis of the “Russian collusion” story, notably Sundance at Conservative Treehouse. But given Mueller’s prior history with respect to the raid on Congressman William Jefferson’s office, in which he -- like Comey -- showed insufficient respect for constitutional prosecutorial limits, I have my doubts.
A counterintelligence investigation is not a criminal investigation. The latter focuses on specified factual transactions in which there is reasonable suspicion that a specified crime has been committed. A counterintelligence investigation, in stark contrast, is an information-gathering exercise. There are no limiting parameters to an information-gathering exercise -- intelligence agents always want to know more. Unlike criminal investigations, in which investigators need to prove exactly what happened under rules that limit the kinds of evidence that may be considered, intelligence is all about probabilities. It is a predictive discipline in which all manner of information is gathered since you never know what morsel of triple-hearsay (that would never be admissible in a criminal trial) may help you figure something out down the road.
The counsel called for him to “determine that a criminal investigation of a person or matter is warranted.” He did not do that. As a rationale for appointing a special counsel, he cited the investigation then-FBI director James Comey had described in his March 20 congressional testimony. Comey said the investigation was a counterintelligence probe -- not a criminal investigation. He described it as a counterintelligence investigation focused on Russia’s interference in the 2016 election, including any ties between Trump associates and Putin’s regime, as well as any “coordination” between the Trump campaign and Russia’s interference efforts.
None of what Comey described -- other than the hacking that has been attributed to the Russian efforts -- is necessarily, or even probably, criminal. Having ties to Russians is not a crime, and “coordination” with Russians is not a crime unless it rises to the level of a criminal conspiracy to violate a federal criminal statute.
In sum, Rosenstein has failed to describe, in a “specific factual statement,” the basis for the criminal investigation that purportedly triggered the need to appoint a special counsel -- as the regulations require him to do. That description is supposed to state the parameters of the special counsel’s jurisdiction so that we don’t end up with a fishing expedition.
The Unending Leaks About the Investigation from Anonymous Sources
Leakers are essentially liars. They want the benefit of being trusted with confidences without suffering the cost of keeping what they know to themselves. They sit in meetings and review documents and implicitly promise to keep the secrets, but their actual plan is to decide for themselves which juicy nugget to share with others. In philosophical terms, the leaker always does a moral wrong to the person who entrusted him with the secret.If these leaks are investigated and come from Mueller’s shop, the leakers should be prosecuted. But they could come from many sources -- congressmen and senators on the relevant committees, their many staffers (most of whom supported Hillary) their colleagues in the Department of Justice, the FBI and Intelligence Agencies -- in other words, the Deep State. They may think they are only harming the President, but to my eye they are harming their ally, Mueller as well.
But like most moral wrongs, the leak can be excused if the cause is sufficiently vital. Consider the corporate whistle-blower who brings to the authorities details of horrific misfeasance by his employer. I argued last time that one might plausibly excuse, for example, the leaks by former FBI Director James Comey, who explained his conduct as an effort to force the appointment of a special counsel to look into links between Russia and the Trump campaign. 1 Perhaps others in the rash of leakers in recent months had the same motive.
You can decide for yourself whether the motive is sufficient to justify the underlying lie. In any case, now that special counsel Robert Mueller III has begun his investigation, that rationale no longer exists. The individual who leaks what’s going on inside the investigation has no excuse. To share the special counsel’s secrets with a reporter is self-indulgence. To go to work the next day is to intensify the underlying wrong.
One might object that the public has the right to know what the prosecutor is doing, but this seems to me mistaken, at least in the short run. The reason to have an investigation is to take the time to work out what’s happened. Leaks from within make the job of finding the truth that much harder. In other contexts, prosecutors have rightly been sanctioned by judges for leaking to the press details of their investigations. Here, the identity of the leaker makes little difference. Once we know that the special counsel’s office -- or perhaps the Federal Bureau of Investigation -- lacks the capacity to keep its secrets, the cost to the witness of cooperating goes up. Now anyone the prosecutors want to interview must weigh the possibility that what he or she says will wind up on the front page of tomorrow’s paper. 2
It is for just this reason that I argued before that editors are wrong when they insist that their reporters explain to readers why the leaker insists on anonymity. Those explanations (which usually amount to “because he was not authorized to comment publicly”) are essentially meaningless. What would be enormously helpful to the news-consuming public would be if reporters would disclose instead the leaker’s motivation.
Deputy Attorney General Rosenstein warned this week about relying on stories attributed to “anonymous officials”. But I am certain given the partisan interests of the press and the leakers, they will continue.
In the meantime, Comey, who leaked at least one or more of his self-serving memos -- memos he surely wrote in anticipation of buttressing his testimony in any criminal trial as “recollection recorded,” an exception to the hearsay rule -- turned them over to the FBI. That agency has refused a FOIA request to hand them over on the grounds that releasing them could “reasonably interfere with enforcement proceedings” because they are part of “a pending or prospective law enforcement proceeding”.
President’s Trump’s “one great advantage in all of this is that he has done nothing wrong, notes Spengler. Let’s hope that advantage outweighs all the dishonest maneuvering by the Deep State.
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