Benjamin Wittes of Lawfare is having some trouble digesting Alan Dershowitz’s arguments against Trump indulging in obstruction of justice. He has four questions for Dershowitz, the first being this:
James Comey has testified that the FBI first opened an investigation of Russian interference in our election in July of 2016. This was presumably a counterintelligence investigation, in the first instance. To comply with Justice Department guidelines, it could only have arisen because some information came in—probably as a result of ongoing monitoring of foreign intelligence targets—indicating a degree of interaction between the Russians and Trump campaign officials or figures. That is, the FBI would have had to make a judgment, at a minimum, that a counterintelligence investigation touching the Trump campaign or someone within it “may obtain foreign intelligence that is responsive to a foreign intelligence requirement.” If there was a criminal component to that investigation, it would also have had to have information suggesting that “An activity constituting a federal crime or a threat to the national security has or may have occurred, is or may be occurring, or will or may occur.”
So here’s my first question to Dershowitz: Assuming that the information that came to the FBI in July 2016 properly met the standards for predication of either a national security investigation or a criminal investigation, should the FBI have declined to investigate it? That is, should the FBI have shrugged at the possibility of Russian recruitment of Trump campaign officials because Dershowitz concludes without the benefit of that investigation that “Even if it were to turn out that the Trump campaign collaborated, colluded or cooperated with Russian agents, that alone would not be a crime”? Note that Trump was not president at the time and that, therefore, no question arises at this stage as to whether a president can obstruct justice by exercising his constitutional authority to supervise the executive branch.
The story does not end there. Because when the FBI began investigating this matter, evidence arose of potential crimes among senior members of the Trump campaign. For example, in the course of investigating L’Affaire Russe, the FBI—and later the special counsel’s investigation—developed information suggesting that Paul Manafort and Rick Gates had engaged in a giant money-laundering scheme. Acting Attorney General Rod Rosenstein’s appointment letter for Mueller specifically gave him jurisdiction over “any matters that arose or may arise directly from the investigation.”
The rest are interesting questions, as I think Benjamin more or less ridicules Dershowitzs’s arguments.
