Benjamin Wittes has written a long and careful note over at Lawfare called What if the Obstruction Was the Collusion? In it, he argues for an analysis that the investigation, at the FBI and in Robert Mueller’s office, was reasonably and correctly investigating obstruction of justice in the White House under the umbrella of the investigation of Russian involvement in US politics. That is, the FBI, investigating Russian involvement as a national security matter, needed to investigate the putative obstruction of that investigation as a national security matter, even if there is no criminal case to be made.
That troubles me.
Looking at it as a precedent outside the immediate context, it seems to saying that the FBI can investigate lawful oversight of their investigations as a national security matter, based on their own assessment that there are national security implications. Since the history of the FBI is replete with assessments of national security implications that do not exist as well as resistance to lawful oversight, I find that, well, troubling. It troubles me.
Of course, the immediate context is important. As Jonathan Bernstein says, the President’s attempts to exploit the presidency [are] inextricable from his larger assault on the republic. This specific investigation, under this specific President, is justifiable on its face—in fact, on its face, it barely needs justification at all. When a President looks like a duck, walks like a duck and quacks like a duck, while he may not in fact be a duck, at least some investigation into the question of his anatine nature is obviously in order. Isn’t it?
And yet it was obvious to various people around the country that Hillary Clinton was a crook who was covering up malfeasance by deleting tens of thousands of emails. It was obvious to lots of people that Our Previous President was supporting ISIS. It was obvious to lots of people that the President before that took us in to war to support a monarchy and foreign interests opposed to the US. I think every single President of my lifetime has been accused of having someone inconvenient killed, or at least of having a suspicious death covered up. I’m pretty sure that the precedent once in place will be followed, and will be used as a threat to resist lawful oversight. I’m not saying that it was a wrong choice, just that even if was the best of all possible terrible choices, that it was still terrible.
And even more than that, this whole conversation highlights what, to me, is one of the most distressing parts of the whole national conversation right now. I wrote about it almost a year ago when I laid out the two competing Stories of What Happened. Since that time, I feel that the evidence for “my” story has only increased, and the evidence for “Sean Hannity’s” story has only weakened. But of course I would think that. What is distressing is that it looks to me as if the middle ground, or the likelihood that both stories are fundamentally wrong, has nearly disappeared. The recent reporting feels to me as if it narrows down the possibilities: either the investigation is a legitimate investigation into active malfeasance by the President of the United States connected to attempts by Russia to interfere with US elections, or it is a dangerous and terrifying attempt by an lawless group within the nation’s law enforcement office to interfere with US elections and discredit the President. Either one political Party is obstructing a legitimate investigation, or the other Party is supporting an illegitimate one. Even if one story winds up being persuasive to the bulk of the country, the effects will be devastating.
Tolerabimus quod tolerare debemus,