Thursday, April 11, 2019

James Baker Enunciates His Obstruction Theory

Day Two of former FBI top lawyer James Baker's House testimony, now available, contains some fascinating moments. By far the major portion of the testimony was devoted to the question of obstruction of justice, and Baker was quite forthcoming with regard to his own views as well as the obstruction discussions that took place within the FBI. Before turning to that, however, I'd like to address some other matters that tie into recent blog posts here.


In discussing the various levels of FBI investigations yesterday (James Baker: Light On Informants And The "Russia" Investigation) I mentioned once again what I refer to as "consensual monitoring" -- I'm not sure what the current terminology is. This term simply refers to recordings, whether in person or over a phone, made with the consent of one of the parties. Obviously the consenting party is either an FBI agent or a cooperating witness/informant. Unlike FISA, a special court order is not required to conduct consensual monitoring, although specific approval is required. Nor is it necessary, as with FISA, to have a Full Investigation in place (Crossfire Hurricane). Nothing, to my mind, would be less surprising than to learn that this technique was deployed against Trump associates, such as Carter Page, George Papadopoulos, and others--whether before the opening of Crossfire Hurricane or after. Rep. Mark Meadows seemed to be under the impression that this technique is "extraordinary," but such is not the case. Here's a portion of Meadow's exchange on this subject with Baker (I've removed interjections by the FBI's lawyer):

Mr. Meadows: Was George Papadopoulos surveilled by extraordinary measures?
Mr. Meadows: So, in any event, you're instructed not to answer it. Would it surprise you to know that there is credible evidence that Mr. Papadopoulos was surveilled in a manner with either tapes or some kind of recording device? Would that surprise you?
Mr. Meadows: So, Mr. Baker, then, let me ask it in more of a generic sense. Is it common practice for the FBI to actually surveil individuals without their knowledge, U.S. citizens, and tape them for investigative purposes with confidential human sources?
Mr. Baker: So, as a general matter, it is an approved investigative technique under Attorney General guidelines and internal FBI policy to allow that to occur with appropriate predication and appropriate approvals. (pp. 101-102)

Now, the context in which the possibility of such consensual monitoring becomes particularly important relates to George Papadopoulos (who, unlike Carter Page, was prosecuted and pled guilty). The question would be, did Stefan Halper--for example--record any of his conversations with Papadopoulos? Did those recordings contain exculpatory statements by Papadopoulos (as he claims), and were those recordings made available to Papadopoulos' lawyers--as they should have been?

That's exactly where the questioning led, although Baker disclaimed any knowledge of such matters. John Ratcliffe takes over the questioning, focusing on Papadopoulos' contacts with Australian "diplomat" Alexander Downer (that focus has to do with possible use of this contact in the FISA application, but the principles remain the same). Again, non-relevant portions have been excluded:

Mr. Ratcliffe: All right. And also it's been reported in the press and in testimony, it was opened based on intelligence relating to George Papadopoulos having a conversation with an Australian diplomat?
Mr. Ratcliffe: So that conversation and the basis for which the Russia probe was opened allegedly related to Trump campaign officials working with the Russian Government to access hacked emails of either  Hillary Clinton or the DNC, correct?
Mr. Baker: I don't remember the specifics of the reporting. If you had a piece of paper to look at it, but generally speaking, that sounds correct to me. I'm not 100 percent sure, but I --

Mr. Ratcliffe: Okay. So question for you. Prior to the October 21, 2016, FISA application, the initial FISA application, had you seen contradictory or exculpatory evidence about whether or not George Papadopoulos had any knowledge about Trump campaign officials working with the Russian Government?
Mr. Baker: Exculpatory information about Papadopoulos. Exculpatory in what sense?
Mr. Ratcliffe: Exculpatory or contradicting --
Mr. Baker: Contradicting his initial report? 

Mr. Ratcliffe: Yes. 

Mr. Baker: Not to my recollection, sitting here today. 

Mr. Ratcliffe: Okay. If there was exculpatory or contradictory evidence, would you agree with me that that should have been presented to the Foreign Intelligence Surveillance court in October of 2016? 

Mr. Baker: Again, not knowing what you're talking about, but generally speaking, the government has a very high duty of candor to the FISA court and should make -- and must make sure that all material information is provided to the FISA court. So, if there is information that undercuts the reliability of information that we're putting forward, then generally speaking, yes, it should be -- the court should be informed of that. (pp. 104-106)

So, again, my point is how useful it is to understand the various levels of FBI investigations, what investigative techniques are available at each level, and how those techniques can be deployed to build to ever more intrusive levels of investigation. Obviously, however, a weak or unjustified link at an earlier level can call the whole structure into question.


There was a brief exchange between Meadows and Baker regarding the actual number of FISA applications in the Crossfire Hurricane case. We of course know about the Carter Page FISA, but Meadows suggests that there may have been as many as 17--although whether all the FISAs in question related to Crossfire Hurricane is not certain (IG Horowitz and AG Barr undoubtedly know). Unfortunately, the FBI lawyer doesn't allow Baker to answer most of these questions. However, what we learn is that Meadows' question is based on multiple text messages between Lisa Page and Andy McCabe in which the possibility of as many as 17 FISA application "packages" being approved by DoJ is discussed.

The timing of the texts is what drew attention--they were sent two days before the Carter Page FISA application was submitted. Obviously this is potentially blockbuster stuff--if true.


So, on to obstruction!

John Ratcliffe--a knowledgeable former DoJ attorney, but without deep national security experience--conducts most of the questioning of Baker on the obstruction issue. Ratcliffe begins by attempting to draw a false distinction that has unfortunately been widely disseminated on the internet by Andy McCarthy and Gregg Jarrett--the distinction between criminal and counterintelligence investigations. Obviously Ratcliffe's intended line of reasoning is this: Let's grant that maybe the President can commit obstruction in the case of a criminal investigation, but we all know that Crossfire Hurricane started out as a counterintelligence investigation so that makes it different. As I keep repeating, in fact Crossfire Hurricane did have a criminal predicate. Baker, rightly, blows Ratcliffe's supposed distinction completely out of the water.

Mr. Ratcliffe: We know at some point in time that elements of the counterintelligence investigation into Russia's actions gave rise to criminal investigation, because of the appointment of Special Counsel Robert Mueller, correct?

Mr. Baker: I'm not sure I understand the premise of your question.

Mr. Ratcliffe: Well, what I'm trying to find out, Mr. Baker, is at what point in time, as the FBI general counsel, can you tell us that this counterintelligence probe became a criminal investigation?

Mr. Baker: From its inception.

Mr. Ratcliffe: Explain that to me.

Mr. Baker: That as a general -- so when the FBI -- the FBI has numerous authorities and numerous responsibilities, and whenever it investigates anything, especially in the national security area, it brings to bear with respect to that issue or that investigation all of its authorities. So, when we confront a problem, yes, we're looking at it from a counterintelligence or intelligence perspective using our intelligence authorities, but to the extent that that same activity at the exact same time also involves criminal activity, we're investigating that as well. And so this is one of the fundamental changes that occurred post-9/11 with the bringing down of the wall, that this line that people try to draw between intelligence or terrorism, counterterrorism, counterintelligence and criminal is really illusory. It doesn't really exist, and the FBI has all of its authorities all the time and can look at something from -- look at a set of the facts from a counterintelligence perspective trying to understand what the foreign adversary is doing, their tradecraft is, things along those lines, and whether a crime was committed and be looking at it simultaneously from both of those perspectives. So they occur at the same time; they're part and parcel of each other. They're not easily separated. That's the hard part, I think, about this, and I think unfortunately has led to the -- the fact that this is how it's done and a, you know, especially in the media, lack of understanding about that leads to confusion, unfortunately.

Mr. Ratcliffe: Okay. So let me drill down on that a little bit further. The purpose of a counterintelligence probe and the reason that it's not defined as a legal proceeding in the U.S. attorney's manual and under the penal code is because it's specifically for the purpose of advising the President as to foreign threats, correct?

Mr. Baker: Well, so you're -- so the purpose of a counterintelligence investigation is to thwart the activities of an adversary, to identify, understand and thwart, disrupt, defeat, whatever words you want to use, the activities of the adversary. To the extent that that produces intelligence information, then, yes, that should be reported to appropriate officials within the U.S. Government and our foreign partners, including the President of the United States if it warrants his attention, but at the same time, you're also -- the FBI is also, because it's the FBI, not the Justice Department prosecutors, the FBI is investigating to assess whether or not any crimes were committed. In a typical counterintelligence case, you would be looking at espionage, for example, let's say, which is a crime, obviously, and so you're investigating that from the get-go and you're also trying to figure out, you know, let's say the Russians, what were the Russians doing, how were they doing it, what Russian diplomats might have been involved in this kind of a thing, intelligence officers, that thing. You're trying to understand the full nature and scope of everything that happened, including whether there were any crimes committed, including whether there were any Americans who were involved in these offenses. (pp. 36-38)

Ratcliffe decides to move on to more general questions on obstruction. He wants to know from Baker whether Baker agrees that 

the President, as the head of the executive branch, has the ability to end a counterintelligence probe at any point in time; lawfully, lawfully end a counterintelligence probe at any point in time?

Baker's position is that this is, indeed, the general rule, but that it's not a simple question. So Ratcliffe adds criminal investigations to the equation and gets a fairly forthright response. What emerges is that Baker wants intent to be part of the mix. In other words, Baker is maintaining that a President may commit obstruction even if his overt action is perfectly lawful--if his purpose, his intent, is "improper." This is precisely the type of subjective test that Barr rejects, but we'll find out later why Baker is adamant on this score.

Ratcliffe: Does a President have the ability to, as the chief executive, end a criminal investigation at any point in time?
Baker: ... Does the President have the authority to end a criminal investigation at any point in time? I would answer in this way: Yes, insofar as his doing so, either with respect to a criminal investigation or an intelligence investigation, is not otherwise in contravention of his other responsibilities under the Constitution. 
Mr. Ratcliffe: So, again, let me -- I'm trying to understand, since you were the general counsel lawyer for the FBI Director at the time, to understand here about how anything could be improper or how the President could have possibly been obstructing justice at any point in time. I'll just say for the record, I'm not one of those folks that say that a President cannot obstruct justice. I think that there are times if performing illegal acts aimed at corruptly influencing legal proceedings, for instance, suborning perjury or bribing witnesses, those types of things, but would you agree with me as the FBI general counsel that a President cannot commit obstruction by performing lawful acts to which he is authorized under the Constitution? 

Mr. Baker: If those acts are in fact lawful with respect to all of his duties and responsibilities under the Constitution, I would say yes. 

Mr. Ratcliffe: Okay. Well, let's talk about what lawful actions may encompass. A President has the lawful authority to dismiss executive officers, including FBI Directors, correct?

Mr. Baker: Well, so, yes. We could go down a list of things that the President can do, but at the end of the day, if the President's purpose is in contravention of his other duties under the Constitution, in my view, he cannot do those things. 

Mr. Ratcliffe: Yeah. And so I guess we need to get to that in terms of the things that when you talk about his other duties and how those would come into play here, I think it's important that we try and understand that, but -- so you agree that generally a President has -- it is a lawful action to dismiss executive officers, correct?

Mr. Baker: Well, again, so is the President executing his responsibilities in connection with his oath of office to preserve, protect, and defend the Constitution in connection with that particular action? If it's not, then I say no. If he's not -- the President has a solemn obligation under the Constitution to take care that the laws are faithfully executed, all of the laws simultaneously. It's a hard job to do that and to reconcile how that actually has to be done, but if he is somehow in this particular action not doing that, then I would say no, that is not a constitutionally authorized activity.

Mr. Ratcliffe: So it's your opinion that the termination of an FBI Director can be a violation of lawfully and faithfully executing the laws and the Constitution of the United States?
Mr. Baker: Yes.
Mr. Ratcliffe: Okay. So do you -- back to the question I had before. We can talk about whether or not a President shouldn't interfere in pending criminal investigations. What is your opinion about whether or not -- whether or not -- regardless of whether one shouldn't or historically doesn't, whether or not a President can?

Mr. Baker: Interfere in a criminal investigation?

Mr. Ratcliffe: Yes.

Mr. Baker: Again, in theory, the President can. But if it's for a purpose that is contrary to his other responsibilities on the Constitution, then he can't.
Mr. Ratcliffe: Okay. So, again, I'm going to --

Mr. Baker: A narrow reading of Article II would lead you to conclude that he could do that because the -- all the executive branch is under his command. But if he is doing that for some purpose that is not appropriate, I'll use that word, not lawful, then I don't believe he can. I don't believe he has that authority. (pp. 37-46)

At this point the questioning moves in other directions. When the obstruction discussion resumes Ratcliffe takes a slightly different tack and begins asking about internal FBI discussions of the obstruction issue--Baker, as chief FBI counsel, being a logical person to ask about such discussions. And here, to my mind, we get into tin foil hat territory.

Ratcliffe begins his line of questioning by eliciting the fact that, following Comey's firing, Baker had discussions with others at the top of FBI leadership regarding whether President Trump had somehow obstructed justice precisely by firing James Comey. I have previously argued that this could not be the case, since Trump in fact cooperated fully with the Team Mueller continuation of the Crossfire Hurricane investigation--there were no acts that obstructed the investigation in any way. And here we see why Baker was so insistent that intent or purpose should be part of the whole obstruction equation. Recall: Baker asserted that even if a particular presidential action--like, firing the FBI Director--is perfectly lawful, if it's done in a way that the president is "somehow" not living up to his oath of office, that could be obstruction!

What in the world could that "somehow" be, if the act itself is perfectly lawful? Well, that's precisely what the legal Solons at the FBI were trying to suss out. And they came up with an answer:

Mr. Ratcliffe: All right. What was the question? I think it was did you have a discussion with Director Comey about the possibility that the Russian Government may have ordered his firing.

Mr. Baker: ... no, I did not discuss that with Director Comey. 

Mr. Ratcliffe: Okay. Did you discuss it with anyone? 

Mr. Baker: ... yes. 

Mr. Ratcliffe: Who did you discuss it with? 

Mr. Baker: ... the same people I described earlier: Mr. McCabe, possibly Mr. Gattis, Mr. Priestap, possibly Lisa Page, possibly Pete Strzok. ...

Mr. Ratcliffe: So there was -- there was a discussion between those folks, possibly all of the folks that you've identified, about whether or not President Trump had been ordered to fire Jim Comey by the Russian Government? 

Mr. Baker: I wouldn't say ordered. I guess I would say the words I sort of used earlier, acting at the behest of and somehow following directions, somehow executing their will, whether -- and so literally an order or not, I don't know. But --
Mr. Ratcliffe: And so --

Mr. Baker: As a -- it was discussed as a theoretical possibility. 

Mr. Ratcliffe: When was it discussed? 

Mr. Baker: After the firing, like in the aftermath of the firing. (pp. 137-138) 

So there's the theory of obstruction that the FBI was discussing, and it was presumably on that basis that McCabe opened an obstruction investigation on President Trump just before a Special Counsel was authorized by Rod Rosenstein. Put simply, according to this theory, if the President was "acting at the behest of and somehow following directions, somehow executing their [Putin's, "the Russians'"] will," then he was no longer "faithfully executing the laws and the Constitution of the United States"--he was obstructing justice! And note that, at this point, obstruction is completely dependent on "collusion". Unless the President of the United States is an agent of a foreign power, then this "obstruction" theory completely falls apart.

I begin to understand how Rosenstein just might have been shaken out of his post Comey firing funk by the realization that a madman was now in charge of the FBI, even if only on an acting basis, and the realization of just how much stuff would hit the fan and come back at him (Rosenstein) if word of this ever came out. Because Rosenstein had been in discussions with McCabe that were--at the very least--insubordinate. In that sense, craven as Rosenstein's act was, appointing a Special Counsel may have been the act of a cornered rat, desperate to cut McCabe out of anything to do with President Trump.

But wait a minute you say, What possible basis for this could there have been--something, anything, in the real world? Imagine John Ratcliffe's incredulity as he pursues this:

Mr. Ratcliffe: Okay. And what do you recall about that conversation, the dialogue between the five or six of you that were in that --

Mr. Baker: So the basic idea was that we were trying to under -- throughout the whole investigation, we were trying to understand what was going on here. And at -- that [obstruction] was one extreme. The other extreme is that the President is completely innocent, and we discussed that too. And so -- and then you have things in the middle. And so -- so that was how it came up. There's a range of things this could possibly be. We need to investigate, because we don't know whether, you know, the worst-case scenario is possibly true or the President is totally innocent and we need to get this thing over with -- and so he can move forward with his agenda.

Imagine--they actually discussed the possibility that Trump was "completely innocent." And did they, at the "other extreme," have any articulable reason for suggesting that Trump was taking direction from Putin? I think we know the answer--they knew there was "no there there"--and we got the same answer from Mueller. It was a witchhunt, pure and simple.

But this also explains why Mueller tried to con John Dowd, at the time Trump's lawyer, into permitting an interview of Trump. According to Dowd, Mueller came to him and said: "Well, John, I need to know what was in the president's head." Overt actions weren't enough--intent and purpose were the issues. No, there was no need to know what was in the president's head. How would anyone like to be subjected to that sort of an inquisition--what was in your head? Dowd unquestionably did the right thing by insisting that there be no such interview.

And yet here's the truly galling part. These same people knew all about real collusion. Who knew better the nature of the Clinton Foundation as a money laundering pay-to-play operation trading on Clinton's status as Secretary of State to draw in huge amounts of money from foreign governments including Russia--who knew that better than the FBI?

Moreover, the whole world had seen collusion with Putin by a US President in real time:

Three years later, in the midst of what he thought was a private conversation about arms control with then-Russian President Dmitri Medvedev, Obama was famously caught on an open microphone promising that he would have “more flexibility” (that is, be able to make even more concessions to Moscow) after the presidential election that fall. (Imagine the uproar if Trump had a similar hot mic moment with Putin.) 

Now that's some kind of evidence. An actual corrupt quid pro quo. "If you help me with my re-election by playing nice, I can be more flexible regarding US national security." That's as close to a promise of concessions for political help as it gets. Here's the NYT transcript:

As a pool of television journalists gathered for a news conference on the leaders’ meeting, Mr. Obama leaned in to deliver private assurances to Mr. Medvedev. But speaking inadvertently into an open microphone, he offered a frank assessment of the difficulty of reaching a deal — on this or any other subject — in an election year. 
“On all these issues, but particularly missile defense, this can be solved, but it’s important for him to give me space,” Mr. Obama could be heard saying to Mr. Medvedev, according a reporter from ABC News, who was traveling with the president.

“Yeah, I understand,” the departing Russian president said. “I understand your message about space. Space for you ... .” 
Mr. Obama then elaborated in a portion of the exchange picked up by the cameras: “This is my last election. After my election I have more flexibility.” 
“I understand. I will transmit this information to Vladimir,” Mr. Medvedev said, referring to Prime Minister Vladimir V. Putin, who just won an election to succeed Mr. Medvedev.

Who thinks the FBI discussed opening an obstruction investigation on Obama?

And finally, maybe we also see the inspiration for the Trump Tower entrapment scheme that the Hillary campaign hatched on Trump--unsuccessfully. Could it have been the spectacle of Obama colluding with Russia live on TV that gave Glenn Simpson the idea that Trump could be ensnared using another collusion scheme--sanctions relief for political help?

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