(Joshua Roberts/Reuters)

The justice department’s office of legal counsel should answer the question.

It has become more urgent to ask: Why is there a special counsel in the Russia investigation? At this point, that question should be put to the Justice Department’s Office of Legal Counsel — in the federal government, it’s the lawyers’ lawyer. To get down to brass tacks: May the president of the United States be charged with obstruction based on non-criminal discretionary acts that are unquestionably within his constitutional authority as chief executive?


Readers of these columns may recall that I opposed the appointment of a special counsel and have argued that the appointment was illegitimate. This has nothing to do with Robert Mueller, who has had a distinguished law-enforcement career for which he is justly admired. It has to do with first principles and clear regulations. As a matter of principle, the law-enforcement arm of government must operate on a presumption of innocence. Therefore, in this country, a prosecutor should be assigned only if there is strong evidence that a crime has been committed; in the absence of such evidence, a prosecutor should never be assigned to investigate whether an American may have committed some unknown crime.

This, as we’ve repeatedly observed, is reflected in the regulations that control when the Justice Department may appoint a special counsel. The question should never come up unless there is some “criminal investigation or prosecution” that creates a conflict of interest for Justice Department leadership. A special counsel may be appointed only for purposes of this “criminal investigation or prosecution.” In the absence of strong evidence of a crime, there is no basis for a criminal investigation or prosecution.


The Russia Investigation’s Two Components

The Russia investigation, as it has been amorphously defined by the Justice Department (in March 20, 2017, testimony by former FBI director James Comey and in the May 17, 2017, order appointing Mueller by Deputy Attorney General Rod Rosenstein) has two components.


There is, first, the overarching counterintelligence investigation of Russia’s interference in the 2016 election. As we have pointed out many times, a counterintelligence investigation is not a criminal investigation, and therefore cannot legitimately predicate the appointment of a special counsel.

The objective of a counterintelligence investigation is to collect intelligence about the actions and intentions of a foreign power to the extent they may affect American interests. The aim is not prosecution. Indeed, prosecution can undermine counterintelligence since the latter relies on secrecy (counterintelligence investigations are highly classified), while the former mandates public disclosure of allegations, evidence, and witnesses. Consequently, while Justice Department prosecutors are routinely assigned to criminal investigations, they are not assigned to counterintelligence investigations — government lawyers get involved when intelligence agents need the assistance of court process, such as warrants from the Foreign Intelligence Surveillance Court.


The second component of the Russia investigation is studiously vague. It was described by then-director Comey as an inquiry into “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.”

There are a couple of salient things to notice here. First, this was not a standalone investigation; Comey explicitly described it as included within the just-described counterintelligence probe of Russian election interference — i.e., it was not described as a criminal investigation. Second, what is outlined here is not a predicate for a criminal investigation: It is not a federal crime to have “links” — whatever that means — to the Russian government; and whatever the equally slippery word “coordination” may mean, there can be no federal crime unless (a) “Russia’s efforts” transgressed some penal law (e.g., anti-hacking statutes) and (b) the “coordination” rose to the level of knowing complicity in that transgression (e.g., conspiracy to commit hacking).

Even if one believes that the Putin regime had a strong preference for Donald Trump, such support is not a concern of prosecutors unless criminal laws are broken.

Even if one believes that the Putin regime had a strong preference for Donald Trump (personally, I believe the Kremlin hoped to sow discord and create havoc regardless of who won), such support is not a concern of prosecutors unless criminal laws are broken. And even that would not implicate “individuals associated with the Trump campaign” in the absence of strong evidence that they aided, abetted, or conspired in the law-breaking.


Bottom line: What Comey described, and Rosenstein later adopted in defining Mueller’s jurisdiction, was not a criminal investigation or prosecution, nor did it provide a factual basis for a criminal investigation or prosecution.


What should have happened here is what should always happen. The FBI should have proceeded with its counterintelligence investigation of Russian interference in the election, and because such investigations are classified, not a word should have been said about it publicly. Then if, in the course of that non-criminal investigation, strong evidence of crimes was uncovered, that evidence should have been referred to the criminal-investigative arms of the FBI and the Justice Department. At that point, if the strong evidence of crime pointed at Trump-campaign associates or even the president himself, Attorney General Jeff Sessions should have recused himself (because of his involvement in the Trump campaign), and Deputy Attorney General Rosenstein should have appointed a special counsel to investigate and, if appropriate, prosecute the crime that had been uncovered.

Why a Special Counsel?

This is not what happened. Mueller was appointed in the absence of strong evidence of a crime that would legitimately trigger a criminal investigation or prosecution. Since that should not have happened, one must ask: Why?

In a column on Thursday, I argued that the Obama administration saw the Russia probe as an opportunity to paralyze President Trump. As I noted in the column, the motivation for this could have been sinister or public-spirited — how you see it probably depends on what you think of Obama and Trump. President Trump’s political opponents would have seen the Russia probe as a chance to strangle his capacity to govern and pursue his agenda; some investigators who suspected that the disturbing allegations in the Steele dossier were true, even if they had not and probably could not be proved, may have harbored good-faith concern that Trump could be blackmailed by Russia.

Regardless of the motivation, the scheme to sustain the Russia investigation even after Obama left office and Trump was in a position to end it had three parts: (1) important information about the investigation needed to be withheld from the new president; (2) Trump had to be led to believe he was not under investigation (even though he was central to the investigation) so that he would not feel threatened by the investigation; and (3) Trump had to be admonished about respecting the independence of law-enforcement, to instill the fear that if he invoked his constitutional authority to shut down the investigation, he would be accused of obstruction.


This audacious strategy worked for four months, but it was done in by its core contradiction: It called for informing the president that he was not a suspect when he clearly was.

Since the FBI, with the encouragement of Obama holdovers in the Justice Department, was being outrageously public about the existence of the counterintelligence probe and the fact that the Trump campaign was being investigated, the president naturally wanted it to be equally public that the FBI director had assured him he was not under investigation. The refusal of the FBI director to absolve the president was not tenable: Since he should not have said anything publicly about the investigation at all, it made no sense that he would publicly say things suggestive of Trump’s guilt yet refuse to reveal that he had privately told Trump and Congress that Trump was not a suspect.

Comey’s refusal to absolve Trump naturally led to greater focus on the alleged misconduct he appeared, by implication, to be a suspect in: ‘collusion with Russia.’

This refusal to absolve Trump naturally led to greater focus on the alleged misconduct he appeared, by implication, to be a suspect in: “collusion with Russia.” But after many months, no evidence of actionable, criminal collusion had emerged. Trump understandably saw himself being whipsawed: There was no crime and he had been told he was not a suspect, yet the FBI was conducting itself as if there had been a shocking crime in which he was the main suspect.

Consequently, Trump fired Comey, but he did not shut down the Russia investigation. The administration badly botched the explanation for Comey’s firing (and amateurishly failed to anticipate the fervid Democratic opposition to it). The president’s true rationale for the dismissal was the dichotomy between the director’s public and private posturing; the point was not to halt a counterintelligence probe of Russian election-meddling, which continued apace.

Remember: The Obama strategy was to straitjacket Trump by making him the focus of a continuing investigation, even if there was no apparent crime and even though Trump, as president, had the power to end the investigation. With Comey now sidelined, the only way to continue exploiting the Russia counterintelligence investigation for this purpose was to get a special counsel appointed.


This is no doubt why Comey went to such inappropriate lengths — the leaking to the media of a government memo involving his communications with the president about an investigation — to try to instigate the appointment, as he has testified. (“I asked a friend of mine to share the content of the memo with a reporter, . . . because I thought that might prompt the appointment of a special counsel.”) The administration’s appalling mishandling of Comey’s removal, which had Rosenstein reeling as the target of Democratic and media wrath, induced the deputy attorney general to submit. Mueller was appointed, and Trump is stuck with the investigation for as long as it lasts.

Weakness of the Collusion Case

The ultra vires appointment of a special counsel provides a structure for keeping the president under investigation notwithstanding his ostensible authority over the Justice Department. Nevertheless, it cannot paper over the fatal weaknesses of the underlying case.

It has long been manifest that there is no criminal “collusion with Russia” case. If there had been, there would have been no need for the legerdemain of conducting a criminal probe surreptitiously, under the label of “counterintelligence.”

It is now clear that the collusion narrative was catalyzed by an unverifiable dossier of rank, anonymous hearsay, commissioned by the Hillary Clinton campaign and compiled by Christopher Steele, a former British spy who lied to the FBI about his communications with the media — which the bureau should have anticipated since, as a mercenary retained by an opposition-research operation working for Democrats, Steele’s job was to get Mrs. Clinton elected, not to investigate Russia. These facts were kept from the FISA court when the Justice Department and the FBI used the dossier to seek surveillance warrants. It increasingly appears that the officials who made these judgments may have more to answer for than the Americans on whom they were spying.

Weakness of the Obstruction Case

This brings us to the other focus of the Mueller investigation, obstruction. From a prosecutor’s standpoint, obstruction has two advantages over “collusion with Russia”: (1) It is an actual statutory crime, and (2) it is unquestionably within the scope of a special counsel’s jurisdiction. (See section 600.4(a) of the Code of Federal Regulations.)

We do not know everything the special counsel knows, but as publicly understood, the obstruction allegation against Trump seems to be based on two, or perhaps three, incidents: (a) the request that Comey drop the criminal investigation of former national-security adviser Michael Flynn, (b) the firing of Comey, and (c) an impulse to fire Mueller. The third is difficult to take seriously because, if it happened, it is at most an unconsummated directive: White House Counsel Donald McGahn reportedly declined to carry out an order to fire Mueller that he had not gotten directly from the president. So let’s deal with the first two.

There is no legal doubt that a president may obstruct justice by the performance of illegal acts aimed at corruptly influencing legal proceedings. The plan to bribe Watergate witnesses in the Nixon impeachment proceedings and the subornation of perjury in the Clinton impeachment proceedings are illustrative. It is anything but clear, however, that a president may be found guilty of obstruction based on the performance of legal acts that are patently within his constitutional authority.

In connection with Flynn, we must note that prosecutorial discretion is an executive power. In our system, all executive power is vested in the president. Thus, federal prosecutors who exercise discretion hundreds of times a day in weighing the merits of continuing investigations or filing charges are exercising the president’s power. They are delegates; they do not have power of their own. It would therefore be absurd to suggest that they are authorized to exercise the president’s power but the president is not. The president had no less authority to weigh in on the merits of continuing the Flynn investigation than his Justice Department and FBI subordinates had.

Clearly, it would be better if a president did not get involved in criminal cases. That, however, is because of prudential policy aimed at protecting the public integrity of the legal system; there is no legal prohibition against it.

Clearly, it would be better if a president did not get involved in criminal cases. That, however, is because of prudential policy aimed at protecting the public integrity of the legal system; there is no legal prohibition against it. Moreover, the president is constitutionally empowered to end a criminal investigation or prosecution by issuing a pardon or ordering that it be shut down. Since our law thus allows the president to obstruct an investigation conclusively, it is specious to contend that criminally actionable obstruction occurs if he merely requests that the investigator exercise discretion in a suspect’s favor. That is especially the case when, as here, (a) the president did not demand that the investigation be closed; (b) objectively, there was a very good argument on the merits that Flynn did nothing wrong but had suffered mightily; and (c) the investigation nevertheless continued — and Flynn was eventually prosecuted — without any presidential interference.


As for Director Comey, he was a subordinate executive officer. As such, he served at the pleasure of the president, who did not need a reason to remove him. Even if we assume, as I do, that Trump fired Comey over his handling of the Russia investigation, the president undeniably had the authority to do this.

It is worth repeating that the Russia investigation is a counterintelligence probe; it was not a judicial proceeding or a criminal investigation. Counterintelligence probes are not conducted to enforce the law through judicial proceedings; they are conducted to inform the president of threats posed by foreign powers. The president may shut them down at will, and doing so does not obstruct justice in any way.

Significantly, Trump did not terminate Comey because the Russia investigation was being conducted; he did it, again, because Comey publicly intimated that Trump was a suspect but refused to disclose his assurances that Trump was not a suspect. While I think it was unwise to fire Comey, this was hardly an irrational basis for doing so. In fact, it is a basis that would have been less controversial had the president been forthright about it, rather than disingenuously relying on Rosenstein’s memo (which based the justification for removal on the director’s public statements about the Clinton emails case).

While Trump could have ordered the Russia investigation to be shut down, Comey’s dismissal clearly was not intended to have that effect. Far from being obstructed, the investigation has continued despite the director’s dismissal and replacement. That is to be expected, since the rubber-meets-the-road work of such an investigation is done by counterintelligence agents, not by the FBI director.

Have the Office of Legal Counsel Resolve the Obstruction Question

That, in any event, is my view of it — which is worth what you’ve paid for it. By contrast, an analysis that would really matter is that of the Justice Department’s Office of Legal Counsel. By federal regulation, it is the task of OLC to prepare formal opinions on questions of law for the attorney general, which opinions are binding on the executive branch, including the Justice Department, subject to the approval of the attorney general and, ultimately, the president.

I do not believe a president can commit an obstruction crime by lawful actions that are within his discretionary authority under the Constitution — although I do not doubt that a president could be impeached for abusing his discretionary authority. (Concrete example: A president would not commit obstruction by mass-pardoning a category of dangerous offenders, but Congress could well decide that doing so was an abuse of power worthy of impeachment and removal.) But my view is hardly unanimous. Other analysts contend that ostensibly lawful presidential acts shed their legitimacy if corruptly motivated and therefore qualify as obstruction — i.e., as corrupt endeavors to influence official proceedings.

Who is right? That is a straight legal question of critical importance. Under federal law, the attorney general (or his deputy if, as here, the AG is recused) routinely delegates the OLC to prepare formal legal opinions for the purpose of guiding prosecutors and other government officials, and these opinions may be published for the benefit of the three branches of government, the bar, and the public. So why not let the OLC settle the matter?

An OLC opinion would be invaluable guidance for Deputy Attorney General Rosenstein and Special Counsel Mueller. An OLC opinion would help clarify whether there truly is a basis for an obstruction allegation against President Trump. This would either lift a cloud of suspicion that makes it very difficult for a president to govern, or put Trump and future presidents on notice of what seemingly lawful presidential actions carry the hazard of potential legal jeopardy.

Let’s get to the bottom of this. If there are real grounds for accusing the president of criminal misconduct, he and the American people should know what they are. If there are no such grounds, the Justice Department should make it known that President Trump is not the subject of a criminal investigation.