Several top legal experts say the New York Times‘ report that the Federal Bureau of Investigations (FBI) launched a criminal and counterintelligence investigation into President Trump after he fired former FBI Director James Comey casts more skepticism on the FBI than on the president.
It was first reported in the Washington Post on June 14, 2017, that Special Counsel Robert Mueller was investigating Trump for obstruction, and that the investigation was launched days after he fired Comey. It was the first time an investigation into Trump himself was revealed. Previously, Comey had told Trump he was not personally under investigation.
But the Times report on Friday revealed more details about the investigation into Trump. It said in addition to a criminal investigation into whether he had obstructed justice by firing Comey, Trump was also being looked at in a counterintelligence investigation on whether he was acting on behalf of Russia by firing Comey.
Legal experts and political strategists on both sides of the aisle said the Times‘ report showed the FBI was motivated by revenge for Comey’s firing rather than by any evidence Trump was acting on behalf of Russia.
Mark Penn, a Democrat and former strategist for Bill and Hillary Clinton, wrote in an op-ed on Sunday that the FBI and the Justice Department’s actions “appear to be wholly without justification — and were based instead on politically inspired emotion and hysteria.”
“I didn’t support Donald Trump, and there are lots of things he does I don’t support,” he wrote. “But the idea that he was the Manchurian candidate working for the Russians when he ran on an America First platform is patently ridiculous.”
Andrew McCarthy, a former federal prosecutor and senior fellow at the National Review Institute, argued that the only thing the report showed was that the FBI was out to get Trump all along. He wrote on Sunday that the Times‘ report was “clearly intended to be a blockbuster report.”
“But in truth, the only thing the story shows is that the FBI, after over a year of investigation, simply went overt about something that had been true from the first. The investigation commenced during the 2016 campaign by the Obama administration – the Justice Department and the FBI – was always about Donald Trump,” he wrote.
McCarthy argued that the FBI and DOJ had “rationalized” that Trump fired Comey to impede the investigation, and coupled that with a memo that Comey himself wrote and leaked to the media that alleged Trump had tried to impede the investigation into former National Security Adviser Mike Flynn.
“Legally, none of this was obstruction. Yet, the FBI and Justice Department settled on this novel and flawed legal theory: Even though the president has constitutional authority to fire subordinates and weigh in on investigations, he may somehow still be prosecuted for obstruction if a prosecutor concludes that his motive was improper,” McCarthy wrote.
“The FBI, hot-headed over the director’s dismissal, concluded that this obstruction theory was a sound enough basis to go overt with the case on Trump they had actually been trying to make for many months,” he wrote.
McCarthy also noted that Deputy Attorney General Rod Rosenstein at the time had also discussed wearing a wire while talking to the president, and invoking the 25th Amendment, before appointing Mueller to take over the FBI’s Russia investigation.
“What this chain of actions supports is that there is a deep state — a group of unelected officials who now wield power far beyond their constitutional authority – who believe, like Comey, that they know best,” Penn said. “In this case it was aided by Obama administration holdovers who never accepted the outcome of the election and sought to prevent it and later reverse it.”
Neither Penn nor McCarthy supported Trump during the election, but have both frequently spoken out about what they believe is improper behavior at the DOJ and FBI.
Jonathan Turley, a professor at the George Washington University Law School and lawyer who has worked for both Democrats and Republicans, said the “real benefit” of the story is exposing the cognitive bias that has led to the “current quagmire.”
“What if there were no collusion or conspiracy but simple cognitive bias on both sides, where the actions of one seemed to confirm precisely the suspicions of the other?” he wrote.
Turley noted that the Times story does not suggest “any basis for the original allegation” that Trump was a Manchurian candidate controlled by Russia, and that the story even notes “no evidence has emerged publicly that Trump was secretly in contact with or took direction from Russian government officials.”
Instead, he wrote, there were two separate narratives that fed off the actions of each other. Turley wrote:
There likely was bias in the initial assumptions, with a willingness at the FBI to believe Trump would be a tool of the Russians, and a willingness by Trump to believe the FBI would be a tool of the Clintons. Every move and countermove confirmed each bias. Trump continued to denounce what he saw as a conspiracy. The FBI continued to investigate his obstructive attitude. One side saw a witch hunt where the other saw a mole hunt.
In other words, there may have been no Russian mole and no deep state conspiracy. Moreover, the motivations may not have been to obstruct either the Trump administration or the Russia investigation. Instead, this could all prove to be the greatest, most costly example of cognitive bias in history, and now no one in this story wants to admit it.
Republican lawmakers who have been investigating the DOJ and FBI are less forgiving.
Rep. Jim Jordan (R-OH) said Sunday that the FBI officials who would have launched the investigation into Trump all exhibited animus towards Trump, and have all either been fired, demoted, or have otherwise left the FBI, including former FBI Deputy Director Andrew McCabe, former FBI lawyer Lisa Page, former FBI Deputy Head of Counterintelligence Peter Strzok, and former FBI General Counsel Jim Baker.
“These four people are the ones who have this extreme animus towards the President. They’re the ones who are saying to start this counterintelligence investigation on the President. It’s ridiculous,” he told Fox News’ Judge Jeanine Pirro.
“And remember when it happened, it happened just days after their best pal, Jim Comey is fired. So remember that critical week, those critical eight days. May 9th, Comey gets fired. May 17th, Bob Mueller gets named Special Counsel. Andy McCabe is running the FBI.”
House Intelligence Committee Ranking Member Devin Nunes (R-CA) said in a statement:
This is yet more evidence that FBI leaders actually had no real evidence against the Trump team. Instead they were simply trying to undermine a president they didn’t like and avenge Comey’s firing. By relying on the Steele dossier — a fraudulent document funded by Democrats and based on Russian sources — FBI leaders were either complicit or too oblivious to notice they were being used in a disinformation operation by the Democratic Party and Russian operatives.
Senate Judiciary Committee Chairman Lindsey Graham (R-SC) said he found the Times‘ report “astonishing” and said he would investigate.
“To me, it tells me a lot about the people running the FBI, McCabe and that crowd. I don’t trust them as far as I throw them. So, if this really did happen, Congress needs to know about it and what I want to do is make sure how could the FBI do that? What kind of checks and balances are there?”