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Comey’s Notes and the Wages of the Special Counsel Investigation

The editors of the Wall Street Journal detail a controversy brewing in Congress over James Comey’s private memos. We use “private” here in the sense that these are memoranda the former FBI director wrote to himself. They are not “private” in the sense of belonging to Comey; clearly, they are government records of FBI business.

I would wager, moreover, that significant parts of the memos may be classified: Recall the Obama Justice Department’s prosecution of former CIA director David Petraeus. That case centered on journals that General Petraeus had kept when he was commanding American and allied military forces. According to the Justice Department’s outline of the case against Petraeus, his diaries contained highly classified information, including notes of the general’s conversations with the president of the United States. Although Petraeus was under no obligation to make these notes, and although they were clearly (and quite properly) intended for his own use, they were obviously not his property. They related to government business, were thus government files, and -- to the extent they contained classified information -- were required to be retained in a repository designed to protect such materials.

The Senate Judiciary Committee, in conjunction with its Subcommittee on Crime and Terrorism, has issued a letter asking Comey to answer a series of questions. These include questions about his memos. Based on a New York Times report, we know only of a snippet of one such memo, said to detail a meeting between the former director and the president. Trump, it is related, expressed hope that the FBI would drop an investigation of former National Security Adviser Michael Flynn.

The Times indicated that Comey may have written many more memos-to-self. The Judiciary Committee letter asks him to provide copies of any such memos he has retained.

The former director is said to have refused, rationalizing that he is now a private citizen and need not comply.

To be sure, we are not talking about a subpoena, which is a lawful demand for production of evidence; the committee’s letter is a request for voluntary cooperation. Nevertheless, the Journal has a point when it argues that Comey, who has voluntarily agreed to appear before the Senate Intelligence Committee in highly anticipated testimony on Thursday, should not be able to pick and choose which committees he will indulge and which requests he will entertain.

Naturally, the question arises as to whether Comey is the only source the Judiciary Committee can turn to for the information it seeks. Since any such memos are FBI property, one would think the committee could seek them directly from the FBI and the Justice Department (of which the FBI is a component agency).

Moreover, if Comey is stymying the committee, one might think the Trump administration would want to intervene. Since the president appears to be at odds with the former FBI director over what was said in their various conversations, it could cast the president in a favorable light were he to direct the Justice Department to cooperate with all congressional committees regarding the production of documents.

Alas, we run headlong into the complication discussed here in mid-May, when I was arguing against the appointment of a “special counsel,” particularly in the absence of any apparent crime to be investigated. Special counsels, whom the public thinks as independent prosecutors, tend to paralyze an administration’s capacity to govern and to exercise its judgment.

There is still no crime. Nevertheless, special counsel Robert Mueller has been appointed to head up the sprawl that is spreading under the heading of “the Russia investigation.” This probe lacks a specific criminal transaction to target -- i.e., it lacks the thing that gives direction and discipline to other investigations. Thus, virtually anything tangentially connected to Russia’s interference in the 2016 election can be brought into Mueller’s capacious jurisdiction. That includes any discussion the former FBI director had with the president regarding Flynn -- even if whatever Flynn is being investigated for (failure to disclose speaking fees in Russia? Failure to register as a foreign agent for work done for Turkey?) turns out to be far afield from Russia’s “cyberespionage” activities during the campaign.

Consequently, the Trump White House must fear that any order it might give the Justice Department to cooperate with the Republican-controlled Congress’s investigations would be spun by Democrats and their media friends as interference with Mueller’s investigation. Similarly, the Judiciary Committee and other congressional investigative bodies do not want to be seen as impeding Mueller. So, they are apt to avoid demanding of him the sorts of documents they would ordinarily demand in conducting oversight of the Justice Department.

The result is that the public is likely to be kept in the dark about many relevant matters that might have become known had there not been a special counsel appointed.

Here is another example of how this could play out at Thursday’s hearing. When the president fired Comey, he took pains to say that the former director had told him on three separate occasions that he was not under investigation. Pre-hearing reporting suggests that Comey does not remember it this way. The matter is thus being teed up as though one or the other man must be lying.

We’ll have to see what happens, but to my mind, the seeming contradiction may be reconcilable. According to Comey’s own prior testimony, the Russia investigation is a counterintelligence investigation. As I have repeatedly pointed out, a counterintelligence investigation is very different from a criminal investigation. It does not have “subjects” and “targets,” which are terms-of-art in criminal investigations, designating suspects who may be indicted by the grand jury. The purpose of a counterintelligence investigation is to focus on a foreign power -- in this instance, Russia -- in order to determine what threats it might pose to American interests.

It is not the purpose of a counterintelligence investigation to build a prosecutable criminal case against a suspect. Nevertheless, if evidence of criminal wrongdoing turns up, the FBI’s national security division reserves the right to refer that evidence to its criminal division and the Justice Department, which can then determine whether prosecution is warranted.

It could well be that President Trump, a non-lawyer, was told the Russia investigation is a counterintelligence investigation, which would not be designed to build a case against him or anyone else.

If so, he might understandably have taken that to mean he is not a suspect under investigation. At the same time, Comey realizes that you never know what evidence an investigation will turn up until it has been completed. Since the Russia investigation had not been completed, the former director may well believe that could not, and did not, make commitments regarding any information that had not yet been uncovered.

That’s just my educated speculation -- and, as noted above, we’ll have to see what happens. But given the complications posed by the special counsel investigation, I doubt we are going to get to the bottom of all the questions that need answering in a Senate committee hearing.