Comey's Game (II): The Mueller Gambit
James Comey testified that he leaked his infamous memo in order to prompt the appointment of a special counsel. In order to understand his game, the task assigned to the special counsel must be identified. It is a very unusual one.
The order signed by Acting Attorney General Rosenstein states that the remit is to be in the realm of foreign counterintelligence. Robert Mueller, the special counsel, is to investigate possible collusion between the Russians and the Trump campaign.
It is definitely not a criminal investigation. For one thing, the order explicitly states that if “the Special Counsel deems it necessary and appropriate, [he] is authorized to prosecute federal crimes arising from the investigation of these matters.” Secondly, Rosenstein in his statement accompanying the order says that his “decision is not a finding that crimes have been committed or that any prosecution is warranted.”
So, the special counsel is to conduct a foreign counterintelligence investigation. What is that, anyway?
Few people realize it, even amongst those who work in government, but the most important activity that the FBI performs is in the field of counterintelligence. It identifies and counters the clandestine activities of foreign intelligence services operating in the United States. The subjects of these investigations, in essence, are foreign governments.
The FBI's counterintelligence activity has little or nothing to do with the Department of Justice. These are not criminal investigations. Prosecutors do not get involved, except in very limited roles, such as in obtaining FISA court warrants.
This means two things. Prosecutors, such as Mueller and his team, have no expertise in foreign counterintelligence. (Mueller is a former FBI director: this does not mean he has the expertise to actually conduct such an investigation; neither do those he has hired as special counsel.) Secondly, they can't do it; it requires expertise, of course, but also an apparatus, such as that the FBI possesses.
Rosenstein's order makes it clear that a criminal case can be investigated by Mueller if warranted.
This is what the pertinent regulation – the AG guideline -- says as to when a criminal, as opposed to a foreign counterintelligence, investigation can be initiated by the FBI (and presumably by the special counsel):
(1) A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The investigation may be conducted to prevent, solve, and prosecute such criminal activity.
The standard of "reasonable indication" is substantially lower than probable cause. … However, the standard does require specific facts or circumstances indicating a past, current, or impending violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient. [Emphasis added]
This makes Mueller's authority similar to that of the FBI, which can also investigate criminal cases arising out of its foreign counterintelligence investigations. Many have been perplexed by Comey's game in seeking a special counsel. After all, Comey formerly testified there is no evidence regarding collusion by the Trump campaign and the Russians.
In pondering this question, it should be kept in mind Comey during his conversation with President Trump was not Joe Citizen. He was the director of the FBI. He was the master of an investigative agency with the appropriate jurisdiction and resources.
The foreign counterintelligence investigation into Russian activities during the election was ongoing.
Nothing prevented Comey as FBI director from pursuing an obstruction of justice investigation against persons in the White House if warranted. Indeed, as a matter of law, he was obligated to report to the Deputy Attorney General (the FBI director's “supervisor,” Rosenstein), if he believed anyone, such as the president, had sought to obstruct justice in his own regard. He didn't.
All of this is confirmed by the testimony of acting FBI Director McCabe, taken after Comey had been fired. McCabe testified no one had interfered with the FBI's investigation, that the White House had never even contacted him. And most tellingly, when asked by Senator Rubio whether he needed to have this investigation taken away from him, he replied succinctly: “No, sir.”
If Comey doubted the FBI's or the DOJ's ability to act fairly, he should have said so. Publicly. One cannot fairly believe Mueller's ad hoc team is going to do better than the FBI would. We must disbelieve Comey had real doubts as to the FBI and DOJ's ability to perform this investigation. He as the FBI director could have ensured all relevant investigation was properly conducted. And according to the acting FBI director McCabe, it was being pursued without interference.
So as far as justice is concerned, there is no discernible reason to appoint a special counsel.
So why did Rosenstein appoint one?
Comey may have exploited a unique situation. Rosenstein had in his memo recommended Comey be fired as FBI director. Rosenstein had authored it as “supervisor” of the FBI by virtue of his position as Deputy Attorney General (DAG). But because of Attorney General Session's recusal, Rosenstein was also the (acting) AG. As such he could appoint a special counsel.
Rosenstein may have felt vulnerable by the AG's recusal in the situation exploited by Comey. Comey's leaked memo was used to fuel speculation that not only was Trump & Co. in league with the Russians, but that there was an active coverup. Not wanting to be tarred with the same brush (he had, after all, recommended Comey be fired and was, as DAG, the “supervisor” of the FBI), Rosenstein may have caved and appointed the special counsel. An action which, as established above, was not necessary in order to have these matters investigated and thus not strictly speaking in the service of justice.
What did Comey's gambit gain by getting a special counsel appointed?
But this maneuver by Comey has resulted in the appearance of an investigation into the president for obstruction, for collusion with the Russians, and for a coverup. (Some news outlets are reporting Mueller has actually pursuing such investigations.)
Further, even if Mueller's probe ends with no prosecutions, Comey's gambit will have succeeded in putting the president under a cloud for the next several years and in strengthening the narrative that his election was illegitimate.
Further, in the same vein, leaks and reactions to leaks will continue to dominate the headlines, taking away from any real achievements of the administration.
All of this is rather certain to affect the congressional elections coming up next year (2018). If the Republicans lose the House, the question of impeachment arises. At this moment, certainly this would be groundless, but it probably would destroy Trump's presidency.
Not a bad play from Comey's point of view.
The will of the people in electing this president may wind up being thwarted, but that apparently is of little import.
The right person in the right place can make all the difference. As exemplified by the case of Mr. Comey, so can the wrong one.
The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).