Late Friday night, The New York Times provided a new window into how top FBI officials’ perception of the Russia investigation shifted after Trump fired then–FBI Director James Comey, who was leading the federal probe of Trump’s campaign team. “Not only would it be an issue of obstructing an investigation,” the FBI’s former top lawyer, James Baker, told lawmakers last year, “but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security.” FBI leaders, in other words, felt that Trump’s attempt to obstruct the Russia investigation—he told NBC’s Lester Holt that he fired Comey because of “this Russia thing”—was itself a serious national-security issue.
Read: Trump picks a Washington insider as his next attorney general
That’s why, in the chaotic days following Comey’s firing in May 2017, they opened a counterintelligence investigation into the president to determine whether he was acting in Russia’s interests rather than in America’s. That decision would not have been made lightly—opening such an investigation, especially into a sitting president, would’ve required “layers of review,” Frank Figliuzzi, the FBI’s former assistant director for counterintelligence, told me. “It’s going to the general counsel of the FBI and being reviewed by the best national-security lawyers. Only then is it going across the street to DOJ” for approval.
Deputy Attorney General Rod Rosenstein was notified, according to the Times, and ultimately handed off the investigation to Mueller. It isn’t clear whether it’s still open, but the revelation that Trump himself either was or remains the target of a counterintelligence investigation has made Barr’s views on the probe, which he would oversee as attorney general, even more significant. Democratic Senator Patrick Leahy “believes that Barr’s best course of action, given his past comments and actions, would be to commit to recuse himself,” his spokesman told me last week. Senator Mazie Hirono of Hawaii also believes that Barr should recuse himself, according to her spokesman, and that at the very least he “should have to publicly address it during the hearing.” In a call with reporters on Tuesday, Coons, who sits on the Judiciary Committee, said he found the memo “unusual” and intended to press Barr on whether he would recuse himself if advised to do so by ethics officials at the Department of Justice.
In a letter sent to the Justice Department’s inspector general last week, Senate Judiciary Committee Democrats, including Ranking Member Dianne Feinstein, expressed concern that Acting Attorney General Matthew Whitaker’s decision to disregard ethics officials’ advice that he recuse himself (due to his past statements and writings criticizing the Mueller investigation) could set a precedent for the incoming attorney general. “The poor judgment Mr. Whitaker demonstrated in rejecting the advice of career ethics officials should not establish a precedent for Mr. Barr or any other senior DOJ official to similarly disregard the independent assessment of conflicts of interest by career DOJ staff,” they wrote.