And the step is, in fact, highly controversial even among those with deep expertise in national-security law and investigations. On Lawfare alone, we have seen a vibrant debate on the subject. The former Justice Department national-security chief David Kris sees the FBI’s action as a natural, perhaps inevitable, reflection of the state of the evidence at the time, writing, “Although I find the president’s behavior shocking, I am not shocked, or at least not surprised, at the FBI’s investigative response.” By contrast, Jack Goldsmith—who ran the Office of Legal Counsel at the Justice Department—describes it as “premised on an inversion of the normal assumptions of Article II of the Constitution.” And Stewart Baker, who was general counsel at the National Security Agency and a policy guru at the Department of Homeland Security, saw in the Times story the long shadow of former FBI Director J. Edgar Hoover, writing of the bureau, “There is only one American agency with a history of destroying American politicians to serve its own bureaucratic interests.”
There are important uncertainties remaining here regarding what precisely happened. It is not entirely clear from the Times’ story what exact step the FBI took when it opened this matter, and what taking that step might have allowed it to do—if anything. As Goldsmith writes, it’s not clear whether the bureau’s action fulfilled some practical investigative need or whether it was “just a formal bureaucratic step on which nothing of substance turned.” The action might, indeed, have been mostly an administrative matter, fulfilling some expectation that the FBI doesn’t investigate a domestic party without first opening an investigative file based on an appropriate factual predicate. What’s more, the relationship between the counterintelligence and criminal elements of what the Times contends was a two-pronged investigative predicate remains murky. Was the FBI’s principal concern criminal, or was its principal concern that the president’s actions posed a national-security threat?
This last question is a crucial one, and it bears directly on what we should expect from Mueller when his much-awaited report materializes. The public has long known that the Mueller investigation is composed of both counterintelligence and criminal strands, and that Mueller inherited both from the FBI’s initial investigation. But this story should change the way we understand the relationship between the so-called collusion components of the investigation and the obstruction components. Specifically, as one of us argued the evening the Times story broke, the overlap between the portion of the investigation focused on obstruction of justice and the portion focused on “collusion” may be much greater than previously understood.
If Mueller shares the concerns he inherited from the initial FBI investigation into Trump, his report might be expected to address Trump’s interactions with law enforcement, including the firing of Comey and subsequent events, not only as possible discrete violations of the obstruction of justice statutes, but also as part of a pattern of suspicious activity on the part of Trump and those close to him that effectively supported Russian intelligence objectives. To be clear, we do not know that Mueller is heading in this direction; but the Times story raises the likelihood that he would have at least thought about the matter in these terms.