The Latest "Just Like Watergate" Idiocy

[Buzzsaw Checkerling]

The ‘obstruction of justice’ claim is phony.

by Andrew C. McCarthy
May 16, 2017
http://www.nationalreview.com

There is so much legal ignorance in the reporting and commentary about
the “Russia investigation,” it is hard to keep up. The latest is that
we need a special prosecutor because the firing of FBI director James
Comey could amount to Watergate-type obstruction of justice.

The claim is half-baked, but I suppose it is an improvement. Up until
now, as I pointed out over the weekend, Senate minority leader Chuck
Schumer (D., N.Y.) and the media-Democrat echo chamber agitating for a
special prosecutor had forgotten the little matter of . . . a crime.
Putting aside all the downsides of a special prosecutor that I have
outlined on other occasions (e.g., the constitutional flaws of the
arrangement, the fact that a special prosecutor is not actually
independent of the president and Justice Department, the reality that a
special prosecutor undermines an administration’s capacity to govern .
. . ), it is foundational that there must be a crime before a
prosecutor is assigned to investigate it.

Even under the 1983 Ethics in Government Act (which lapsed in 1999),
Congress required a finding (by the attorney general) that there was
information indicating a serious criminal-law violation before the
appointment of a special prosecutor (or independent counsel) would be
triggered. (See Section 591(a) of Title 28, U.S. Code.) By contrast,
Trump detractors have failed to identify any penal-law violation as to
which there is a basis to believe President Trump or someone in his
campaign may be guilty.

The only criminal offense arising out of the Kremlin interference in
the 2016 election is hacking. It is not enough to say there is no
evidence that the Trump campaign was complicit in this hacking. We must
add that U.S. intelligence agencies have told us who carried it out –
Russian intelligence – and have further explained that the Russian
scheme targeted both Republicans and Democrats.

So now, at last, we have a gambit to fill this gaping hole in the
demand for a special prosecutor: Trump’s dismissal of the FBI director
is said to interfere with the FBI’s ongoing Russia investigation;
therefore, the theory goes, it could amount to obstruction of justice,
a felony. This suggestion is legally and factually specious. It is
based (not for the first time) on a misrepresentation of the kind of
investigation the FBI is doing.

As we have repeatedly pointed out, and as former director Comey stated
in congressional testimony, the FBI is conducting a counterintelligence
investigation. It is not a criminal investigation. The subject of the
investigation is not an American (specifically, Trump) suspected of
committing a crime. The subject of the investigation is Russia. The
purpose of the investigation is not to develop a prosecutable offense.
The purpose is to gather intelligence of the Putin regime’s actions and
intentions so that our government can develop countermeasures.

Intelligence gathering is not a judicial proceeding. It is an
executive-branch security function. In point of fact, there is no
evidence that President Trump has impeded the Russia investigation (a
point we’ll expand on momentarily). But even if the president had taken
such a measure, that would not be obstruction of a judicial proceeding,
or of a law-enforcement investigation aimed at bringing a court
prosecution.

The president (assisted by executive-branch intelligence agencies) is
in charge of setting intelligence-gathering priorities for the United
States. His discretion in determining which collection efforts to
begin, which ones to alter, and which ones to curtail, is unreviewable.

Since 1978 (with the enactment of the Foreign Intelligence Surveillance
Act), Congress has fashioned a judicial-oversight role over certain
collection procedures (e.g., it is necessary to obtain a warrant to
conduct electronic surveillance of an American suspected of acting as a
foreign agent). That, however, does not change the basic nature of
foreign-intelligence operations: They remain executive exercises in
information-gathering and analysis regarding foreign powers; they are
not law-enforcement probes for the purpose of developing criminal cases
to be litigated in the justice system.

To repeat a point I have made a number of times, the FBI is not
permitted to use its counterintelligence powers as a pretext to conduct
criminal investigations. Therefore, if the Bureau wanted to investigate
the commission of a crime, it would have to open a criminal
investigation and resort to ordinary criminal procedures – search
warrants, criminal wiretap orders, grand juries, arrests, indictments,
and criminal trials before federal judges.

Under federal penal law, obstruction of justice arises from
interference with judicial proceedings, grand-jury proceedings, the
administration of law in proceedings conducted by a federal department
or agency, or congressional investigations. Thus, if the Russia
investigation were a criminal investigation, and if there were a basis
to believe Trump was interfering with, say, a grand-jury or trial
proceeding, it might be claimed that an obstruction-of-justice offense
was afoot.

What the FBI is actually doing in the Russia investigation, however, is
intelligence-gathering in connection with a foreign power. The
president has every right to intervene in intelligence activities.
Indeed, the purpose of intelligence activities is to provide the
president and his advisers with information, so they can make policy or
take action against foreign threats to U.S. interests. Congress and the
courts have no power to compel the executive branch to commence or
continue particular intelligence operations.

Now, put aside that curtailing an intelligence operation would not be
obstruction of justice. The stubborn fact is that Trump’s firing of
Director Comey has not curtailed the Russia investigation at all. Even
NBC News, no Donald Trump fan, has reported that acting FBI director
Andrew McCabe testified that there has been “no effort to impede” the
investigation. McCabe further explained, in the same congressional
hearing, that resources for the investigation were adequate, debunking
a claim that requested budgeting had been withheld.

So even though it would not be obstruction of justice if the Russia
investigation had been curtailed, it has not been curtailed. Therefore,
we need not even address an additional proof hurdle: Under federal law,
even an actual interference with a criminal investigation or a judicial
case would not amount to obstruction of justice unless it was done
“corruptly” – i.e., done with an understanding that the interference
was illegal and an intention to subvert the truth-seeking function.
Suffice it to say that the closest thing we have seen to a corrupt
obstruction of investigative activity has been the leaking of
classified information about the investigation to the media during the
Obama administration – a felony that surely induced the Kremlin to
adopt new tactics that make it harder for our intelligence services to
monitor Russian operatives.

Intelligence-collection operations are saliently different from
law-enforcement investigations. They do not involve “justice” in the
sense of a proceeding in which someone is to be held accountable in a
court for a law-violation. To speak of “obstruction of justice” in the
context of foreign counterintelligence is inapposite – like speaking of
the infield-fly rule in the context of football, or the Oxford-style
debate format for a bar fight.

Special prosecutors are appointed in order to investigate a known
crime, not to search for the possibility of a crime. The Watergate
special prosecutor was appointed because there had been a felony
break-in at DNC headquarters. The Iran-Contra special prosecutor was
appointed after discovery of an illegal scheme in which proceeds for
arms sales to Iran (then under an arms embargo) were to be used to fund
the Nicaraguan Contras in violation of a congressional funding ban. The
Whitewater special prosecutor was appointed due to the discovery of
fraudulent financial arrangements in connection with land deals that
led to the collapse of a savings-and-loan, costing taxpayers tens of
millions of dollars. The Valerie Plame special prosecutor was appointed
as a consequence of the disclosure of her status as a CIA officer, in
alleged violation of a federal law (the Intelligence Identities
Protection Act) that makes it a crime to expose covert agents.

Obviously, there is no need for the Justice Department to consider the
appointment of a special prosecutor unless and until there has been a
demonstration that there is something to prosecute – a specific,
serious criminal-law violation. Senator Schumer and his allies do not
fill that void by gibbering about obstruction of justice.

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"Dr. Thomas E. Price was sworn in as the 23rd U.S. Secretary of Health
and Human Services on February 10, 2017."