The public understanding of and debate over the Mueller investigation rests on several discrete premises that I believe should be reexamined. The first is the sharp line between the investigation of “collusion” and the investigation of obstruction of justice. The second is the sharp line between the counter-intelligence components of the investigation and the criminal components. The third and most fundamental is the notion that the investigation was, in the first place, an investigation of the Trump campaign and figures associated with it.
These premises are deeply embedded throughout the public discussion. When Bill Barr challenges what he imagines to be the predicate for the obstruction investigation, he is reflecting one of them. When any number of commentators (including Mikhaila Fogel and me on Lawfare last month) describe separate investigative cones for obstruction and collusion, they are reflecting it. When the president’s lawyers agree to have their client answer questions on collusion but draw a line at obstruction, they are reflecting it too.
But I think, and the Times’s story certainly suggests, that the story may be more complicated than that, the lines fuzzier, and the internal understanding of the investigation very different along all three of these axes from the ones the public has imbibed.
Yada yada yada... And in conclusion:
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. [...]
Second, if it is correct that the FBI’s principle 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.
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