What is this investigation about? In his congressional testimony this fall, as [New York Times reporters] Schmidt and Goldman had discovered, Baker made an arresting comment: the investigation “was about Russia, period, full stop.” The purpose of the investigation, he explained, was to assess what the Russians were up to with respect to the 2016 election. The FBI was trying to learn what the Russians had done and whether any Americans had done things in support of those efforts, either knowingly or unknowingly, so that they could understand the full scope of what the Russians had sought to do.
This quoted testimony immediately above reminded me of a passage Baker had written elsewhere, a passing discussion in an essay on a different subject which Baker wrote for Lawfare but has not yet published. This passage was cleared in pre-publication review by the FBI some months ago when we at Lawfare thought the essay’s publication was imminent. Here, too, Jim stressed that the investigation was about Russian activity. Here is the relevant passage:
A lot of the criticism seems to be driven by the notion that the FBI’s investigation was, and is, an effort to undermine or discredit President Trump. That assumption is wrong. The FBI’s investigation must be viewed in the context of the bureau’s decades-long effort to detect, disrupt and defeat the intelligence activities of the governments of the Soviet Union and later the Russian Federation that are contrary to the fundamental and long-term interests of the United States. The FBI’s counterintelligence investigation regarding the 2016 campaign fundamentally was not about Donald Trump but was about Russia. Full stop. It was always about Russia. It was about what Russia was, and is, doing and planning. Of course, if that investigation revealed that anyone—Russian or American—committed crimes in connection with Russian intelligence activities or unlawfully interfered with the investigation, the FBI has an obligation under the law to investigate such crimes and to seek to bring those responsible to justice. The FBI’s enduring counterintelligence mission is the reason the Russia investigation will, and should, continue—no matter who is fired, pardoned or impeached (emphasis added).
There is a lot packed into this little paragraph, so let’s pause for a moment to unpack it. First, note the structure of Baker’s fundamental understanding of the investigation as fundamentally about Russia, with the U.S. component subsidiary to the investigation of Russian government activity. Note also that this construction is fully consistent with Jim Comey’s Mar. 20, 2017, congressional testimony in which he disclosed the existence of the investigation in the first place:
I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts (emphasis added).
Comey’s construction of the investigation here is really the same as Baker’s. The investigation is not at its core an investigation of Trump campaign “coordination” with Russia, much less of Trump himself. The core of the investigation is of Russian government activity; the U.S. side is subordinate to that. It is an investigation of a foreign target that includes any “links” to “individuals associated with the Trump campaign” and “coordination between the campaign and Russia’s efforts.” Remember as well that throughout the winter of 2017, Comey felt able to assure President Trump that the FBI was not investigating him.
This construction as, in Baker’s words, “always about Russia” is also consistent with the pattern of indictments brought by Mueller. With the partial exception of the Paul Manafort cluster of cases, which were—in any event—the subject of an additional, clarifying referral letter to Mueller and appear to have resulted from a preexisting U.S. attorney’s office investigation, nearly all of the people prosecuted by Mueller are charged in connection with Russian government activity or their own links to that activity. The Internet Research Agency and hacking indictments both involve Russian activity itself. The Michael Flynn and George Papadopoulos cases both involve lies by “individuals associated with the Trump campaign” about their “links” to “the Russian government.” The portion of the Michael Cohen case that Mueller retained deals with lies about, among other things, interactions between the Trump Organization and the Russian government. Even the relatively obscure case against Richard Pinedo fits this pattern; Pinedo, after all, was accused of identity fraud in connection with Russian activity designed to interfere with the election. Anything that does not fit this pattern tightly—for example, the Turkish lobbying case against Flynn’s associates (spun off from the Flynn matter) or the Michael Cohen/Stormy Daniels matter—Mueller has kicked to other actors.
It was about Russia. Full stop. It was always about Russia. And it still is about Russia. [Continue reading…]