How much goalpost moving should be tolerable in the Trump-Russia collusion investigation?
Remember, we started with an allegation that the Trump campaign may have been complicit in the Putin regime’s “cyber-espionage”—i.e., the hacking our intelligence agencies have concluded that Russian government operatives carried out against email accounts tied to Democrats. The investigation took a more serious turn last week, when it was revealed that Trump campaign officials met in June 2016 with a suspected emissary of the Putin regime. Yet, there is currently no basis to believe that meeting had anything to do with hacking. So, while the meeting warrants investigation, the original allegation is no closer to being proved.
Of course, it is certainly possible for a political campaign and a foreign government to engage jointly in unsavory behavior that does not rise to the level of crime. The less objectionable the behavior, however, the further afield we would be from the egregious allegation that prompted the investigation in the first place. Unless one is a rank partisan whose goal is to damage the president (rather than hold him accountable for actual, significant wrongdoing), this should be a matter of concern. Investigations are debilitating. They erode an administration’s ability to govern.
The investigation is a moving target because of its slippery vocabulary. It has been discussed and analyzed through the prism of “collusion” and “counterintelligence.”
When we think of an “investigation,” the connotation is a criminal proceeding—crimes, penal law, grand juries, subpoenas, warrants, arrests … prosecution. In that thicket, the terms “collusion” and “counterintelligence” are outliers. The former is a vague term that blurs the legally salient lines between mere association and conspiracy—that is, the difference between innocence and guilt. The latter is an unnecessary term: a counterintelligence investigation is an information-gathering exercise designed to divine the intentions of foreign powers to the extent they bear on American interests; a criminal investigation, by contrast, is an evidence-gathering exercise designed to build a prosecutable case that a specified person has committed a suspected penal-law offense.
The Trump Tower meeting on June 9, 2016, between Trump campaign figures and suspected Russian agents illustrates our difficulty.
In the criminal law, our sights are trained on conspiracy, which makes things easy. A conspiracy is an agreement to commit a violation of law. If Smith and Jones have a meeting, it is of no concern to the police unless the meeting is for the purpose of, say, arranging a heroin shipment or robbing a bank. It is the criminal offense that is the objective of the meeting, and nothing else, that makes the meeting relevant.
To speak in terms of collusion rather than conspiracy—as the Russia investigation coverage often does—only confuses matters. Contrary to what you may have heard from sundry “strategists” and “analysts,” collusion is neither a crime nor a term that has a legally consequential meaning. The word has a pejorative feel, especially in the last seven months. But literally, all it means is “concerted activity.” That could be criminal or noncriminal, sinister or benign.
Thus, if we insist on asking about “collusion” in the context of a criminal investigation, we’re really asking two questions: was there any concerted activity between two or more people, and, if yes, what was the precise nature of the activity—i.e., collusion in what?
That is where we are at with respect to the Trump Tower meeting. In light of the Donald Trump, Jr. emails and the meeting that followed them, it makes little sense to me to claim there was no “concerted activity.” Yet, the “in what?” question remains vital.
In an ordinary federal criminal case, if the “what” is not a felony, there is no cause to investigate further. Here, of course, we are not talking about an ordinary criminal investigation. The president is involved. Our standards for presidents are higher than whether an indictable crime has been committed. They involve fitness for the high responsibilities of the office. Since there is now indisputable proof of some kind of concerted activity between Trump campaign staff and potential Russian operatives, it is worth focusing investigative attention on the exact purpose of that activity and the nature of the relationship.
Nevertheless, a counterintelligence investigation is the wrong vehicle for such an inquiry. It is not designed to investigate wrongdoing. Its purpose is to collect intelligence in order to understand a foreign power’s designs and to predict its behavior. It is forward-looking, whereas criminal investigations are retrospective. It seeks to assess, not to prove. As such, there are no natural limitations on the investigator’s warrant; it is completely open-ended.
The lack of jurisdictional confines exacerbates a problem that exists in every special counsel investigation: the assignment of a prosecutor with prodigious resources to probe a single target (or set of targets) with a mandate and a high incentive to make a case if there is one to be made.
In an ordinary prosecutor’s office, a lawyer is assigned to investigate, say, a suspected fraud crime. The assignment is finite. Depending on the complexity of the fraud scheme (most are not that complicated), the prosecutor and the police working on the investigation know what kind of evidence are looking for. They will either find it or not in relatively short order. If they find it, the case is indicted; if they do not find it within a reasonable time, the case is closed. The office has lots of cases and cannot afford the luxury of too much time and resources spent on any single one.
To the contrary, a special counsel such as Mueller, has only one case to worry about—he can pour into it all the resources at his disposal into it. The only solace for an investigative subject in such a heavy-handed arrangement is that the prosecutor is supposed to be looking for something specific. The regulations for assigning special counsels when the Justice Department is beset by a conflict-of-interest call for there to be a basis for a criminal investigation—a specific, suspected crime—before the special counsel is assigned.
To make the special counsel investigation a counterintelligence investigation eviscerates this modicum of protection and investigative discipline. Mueller has virtually unlimited resources, one set of targets to focus on, and no jurisdictional restrictions.
This is how it becomes so easy to slide from hacking conspiracy to “collusion” in something (who knows what?), to obstruction of the limitless investigation, to whatever crimes Mueller and his swelling staff of notoriously aggressive prosecutors might reasonably suspect . . . or creatively imagine.
It is fair to observe that there was more interaction between Donald Trump’s campaign and the Russian regime (including Putin’s oligarch cronies) than the president and his subordinates acknowledged. Even if that interaction is unrelated to Russia’s cyber-espionage, the nature and extent of the relationship merits investigation.
But an investigation of a president necessarily compromises an administration’s capacity to govern. That can harm the country. Therefore, the investigation must have parameters.
The applicable regulations make it incumbent on the Justice Department to specify what exactly a special counsel is authorized to investigate. The Justice Department has failed to do this, a dereliction that must be rectified. Complying with this requirement would not prevent special counsel Mueller from seeking an expansion of his jurisdiction were he to discover behavior that warrants additional investigation. But limits must be imposed.
If they are not, there is no telling where the probe will wander, how long it will take, and how paralyzing it will be. And that does not serve the country well.
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