If the President Is Not the Subject of a Criminal Investigation, Then Say So

succeeding Louis F. Freeh in Washington, DC. Robert Mueller named special prosecutor for Russia probe, Washington DC, USA - 17 May 2017 (Rex Features via AP Images)

Well is he, or isn’t he?

Almost everything in a counterintelligence investigation is classified. And much of what goes on in a criminal investigation is secret, kept confidential by investigators and prosecutors. But there is one thing that need be neither classified nor otherwise concealed from the American people: the status of the president.


Is the president of the United States the subject of a criminal investigation?

If he is not, then the Justice Department and special counsel Robert Mueller owe it to the country to say so. There is no reason to be coy about it. In fact, because a president under criminal suspicion would be crippled, his inability to govern detrimental to the nation, it is imperative to be forthright about his status.

Instead, political games are being played and the public is forming an impression — which I strongly suspect is a misimpression — based on semantics. There is no guaranteed outcome in an investigation, but the government should not be able to keep from us the precise nature of the investigation when it involves the president and when the fact that there is an investigation has already been disclosed publicly.

We’ve been told that the main investigation, the one that deputy attorney general Rod Rosenstein has appointed special counsel Mueller to conduct, is a counterintelligence investigation. That is what former FBI director James Comey revealed (with the approval of the Justice Department) in House testimony on March 20:

I have been authorized by the Department of Justice to confirm that 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. (Emphasis added.)


In appointing Mueller on May 17, Rosenstein issued an internal Justice Department order stating:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including (i) any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump[.]

Thus, to the extent it involves the president, the investigation announced to the public is a counterintelligence probe. That matters because it would mean the president is not a criminal suspect. A counterintelligence probe is not intended to build a criminal prosecution. It is intended to collect information. Its purpose is to uncover the actions and intentions of foreign powers to the extent they bear on American interests.

Yet the New York Times reports that Rosenstein, in briefing the Senate Thursday:

 … affirmed that the Justice Department’s inquiry was focused on possible crimes.

This portrayal of the purported “focus” of the investigation was echoed by several senators, including Republicans Lindsey Graham and John Cornyn.

To be clear, I don’t believe Graham and Cornyn are trying to create a misimpression. To the contrary, I think they are hoping to scale back high-profile congressional hearings about the controversy. Hearings that are paralyzing the administration and frittering away the legislative time needed to push forward the Trump agenda of addressing Obamacare’s ongoing collapse, tax reform, border enforcement, the confirmation of executive officials and judges, and so on.


Yet, listen to Sen. Graham:

You’ve got a special counsel who has prosecutorial powers now, and I think we in Congress have to be very careful not to interfere.

What he means is that once a Justice Department investigation gears up, Congress should back off. But his choice of words would lead any reasonable person to infer: “Ah-hah! Now we have a serious criminal investigation. People are going to be prosecuted.”

On the Democrats’ part, this conflation of intelligence and criminal investigations is quite intentional.

If the probe of Trump’s campaign is about crimes (rather than intelligence about Russia), then they move much closer to the ultimate goal of impeachment, to say nothing of the immediate goals of derailing Trump’s agenda and reaping an electoral windfall in 2018.

This has been one of my main objections to the appointment of a special counsel. To this point, after months of congressional and intelligence-community investigations, there appears to be no evidence, much less strong proof, of a crime committed by Trump. But Democrats calculate that the assignment of a prosecutor implies that there must be an underlying crime — an implication that Sen. Graham’s comments reinforce. That is why they pushed so hard for a special counsel. It fills a big hole in their narrative. They can now say, “What do you mean no crime? They’ve appointed a prosecutor, so there must be a crime — collusion, obstruction, Russia … it’s a crime wave!”


In advancing this storyline, Democrats have gotten plenty of help from the FBI and the Justice Department.

In his March 20 testimony, Comey elaborated:

As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

With due respect, this is a heavy-handed way of putting it. As is well-known throughout the FBI and Justice Department, it is not permissible to use counterintelligence investigative authority to conduct what is in reality a criminal case. It is true enough that if, in the course of a counterintelligence probe, FBI agents incidentally discover that crimes have been committed, they are not required to ignore those crimes. But the agents do not go into a counterintelligence probe with an eye toward collecting criminal evidence. If the point is to build a criminal case, you do a criminal investigation.

Rosenstein’s clumsily worded order also contributes to the confusion. The Comey testimony cited by Rosenstein made it clear that there is a broad investigation of Russian interference in the 2016 election, and that examining the nature of links and coordination — if any — between the Trump campaign and the Russian regime is just a part of it. Rosenstein’s order, by contrast, describes the investigation as if its sole focus is ties between the Trump campaign and Russia. For the life of me, I don’t understand why he framed it that way; he could simply have referred to “the investigation confirmed by” Comey and left it at that. Why would the Trump Justice Department gratuitously highlight the notion of Trump-Russia ties when, so far, none have been proved?


Moreover, Rosenstein’s memo goes on to explain that Mueller’s investigative jurisdiction includes any “matters” that arise out of the investigation. This is unavoidable: it needs to be clarified that the special counsel has authority to prosecute any crimes he may stumble upon while conducting the counterintelligence investigation. But the expression of this happenstance reinforces the notion that crimes have been committed.

And of course, crimes may well have been committed … but not, so far as we know, by Trump.

We might think about the main investigation, the counterintelligence investigation, as the mother ship. Attached to it, but not part of its core, are barnacles. There is the investigation of Michael Flynn, which is known to be a criminal probe — there is a grand jury issuing subpoenas, which is not something that happens in a counterintelligence investigation. There have also been suggestions of a barnacle, potentially criminal in nature, related to former Trump campaign chairman Paul Manafort, related to shady dealings with Ukrainian pols tied to Putin, in the years prior to the campaign.

Evidence of this (potentially) criminal activity came to light because the FBI and Justice Department were conducting the main counterintelligence investigation. Consequently, the activity comes within the special counsel’s jurisdiction — he is authorized investigate and prosecute it. But this does not convert the main investigation into a criminal investigation. It is still a counterintelligence investigation.


So notice the cynical game: the public statements of the FBI, the Justice Department, and Democrats exploit the fact of the counterintelligence investigation as a basis for saying that agents are investigating Trump. But they are not investigating him as a criminal suspect — the subject of the counterterrorism investigation is Russia; Trump is relevant only to the extent that people connected to his campaign may have ties to Russia.

In tandem, the public statements of the FBI, the Justice Department, and Democrats exploit the fact that the activities of Flynn and Manafort are part of the investigation in order to describe the investigation as “criminal.” But the criminal aspects of the investigation are tangential to the main event, Russia and any potential ties to Trump, which is not criminal.

See the trick? Trump is part of the investigation, the investigation is part criminal, ergo: Trump must be a criminal suspect.

Such word games should not happen.

No one appreciates more than I do the importance of discretion in official public announcements about investigations. But when officials choose to make highly unusual public acknowledgments that an investigation is taking place, they should never create a misimpression. If they have done so, however inadvertently, they must clarify the record.

It is very simple, if President Trump is the subject of a criminal investigation, the Justice Department owes it to the American people, and to Trump, to say so. If he is not the subject of a criminal investigation, they should say so — and they should cease and desist suggestions to the contrary.



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