Drudge Retort: The Other Side of the News
Wednesday, February 07, 2018

he most bitter dispute over the Nunes memo involves Special Counsel Robert Mueller's investigation. This might seem odd since the memo, published last week by Republicans on the House Intelligence Committee chaired by Devin Nunes (R. Calif.), does not address the Mueller investigation. Rather, it homes in on potential abuses of foreign-intelligence-collection authorities by Obama-era Justice Department and FBI officials, said to have occurred many months before Mueller was appointed. Nevertheless, it is simply a fact that many ardent supporters of President Trump claim the legitimacy of the Mueller investigation is destroyed by revelations in the Nunes memo -- particularly, the improper use of the unverified Steele dossier to obtain a FISA-court warrant to spy on Carter Page...The idea is that without the Steele dossier, there would be no Trump-Russia narrative, and thus no collusion investigation -- which is how Trump supporters perceive the Mueller probe.

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I am posting this thread with the intention of it being informative. In order for that intent to bear fruit, it's critically important to read the linked piece in its entirety.

Straw man arguments, personal attacks and/or obvious ignorance of the content of the embedded link will either be ignored, or will receive a very terse response from me.

#1 | Posted by JeffJ at 2018-02-07 01:42 PM | Reply | Funny: 1

"or will receive a very terse response from me"

HARDYHAR!

#2 | Posted by ChiefTutMoses at 2018-02-07 01:55 PM | Reply

"The idea is that without the Steele dossier, there would be no Trump-Russia narrative, and thus no collusion investigation"

You'd think they'd worry more whether there was collusion.

Instead, they look at the clear evidence, and go into arse-saving mode. Understandable, if you believe in party over country.

Currently, the defense is You didn't have the proper warrant when you found my murder weapon.

#3 | Posted by Danforth at 2018-02-07 01:57 PM | Reply | Newsworthy 3

Currently, the defense is You didn't have the proper warrant when you found my murder weapon.

#3 | POSTED BY DANFORTH

That's not it at all. My guess is you didn't read the article.

It's critically important that you understand the key differences between a counter-intelligence investigation (which is what the Mueller investigation is) and a criminal investigation. Your response suggests ignorance on this, sans clarification.

#4 | Posted by JeffJ at 2018-02-07 02:01 PM | Reply | Newsworthy 1

"It's critically important that you understand the key differences between a counter-intelligence investigation (which is what the Mueller investigation is) and a criminal investigation."

I thought Mueller's investigation was both? I believe Comey testified the FBI had both a CI and a criminal investigation open on Team Trump.

#5 | Posted by Gal_Tuesday at 2018-02-07 02:03 PM | Reply | Newsworthy 1

I thought Mueller's investigation was both? I believe Comey testified the FBI had both a CI and a criminal investigation open on Team Trump.

#5 | POSTED BY GAL_TUESDAY

They don't have a criminal investigation open on Team Trump.

That doesn't mean a counter-intelligence investigation can't yield criminal charges (Flynn, Padaplous, Manafort) but this is a counter-intelligence investigation.

Hang on a sec and I'll add some sourced info...

#6 | Posted by JeffJ at 2018-02-07 02:06 PM | Reply

"understand the key differences "

Um, yeah...I know there was no murder committed. My metaphor might've been severe.

Maybe You didn't have the right to find all that evidence against me. Better?

#7 | Posted by Danforth at 2018-02-07 02:06 PM | Reply | Newsworthy 1

Jeff, what happened to the criminal investigation the FBI had open on Trump, I wonder?

#8 | Posted by Gal_Tuesday at 2018-02-07 02:10 PM | Reply

Trump-Russia Investigation and Facebook: Why Mueller's Counterintelligence Effort Is Just as Important as His Criminal Probe

The Trump-Russia investigation: Every day, we hear something new about Robert Mueller's criminal probe -- from rumors of Kremlin-connected money laundering to questions about why the president fired former FBI Director James Comey. Considering how polarized this country is, it's understandable that much of the focus has centered on Mueller's criminal probe.

But as the special counsel investigates possible coordination between Moscow and the Trump team, he's not only looking at potential crimes. He's also overseeing a counterintelligence operation, delving into Russian meddling in the 2016 U.S. presidential election. It's this counterintelligence effort, not the criminal investigation, that will unravel why and how Moscow-connected groups spent at least $100,000 on Facebook ads during the campaign. Among other things.

www.newsweek.com

#9 | Posted by Gal_Tuesday at 2018-02-07 02:13 PM | Reply | Newsworthy 1

Here:

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government's efforts to interfere in the 2016 presidential election.

While unnecessary and unwise, this opening salvo was comparatively harmless. It had already been well-known for three months that the government was investigating the Kremlin's election-meddling. President Obama had imposed sanctions and expelled Russian operatives. At his direction, the FBI and other intelligence agencies had issued a declassified public version of a report on the matter in early January. The report made it clear that the investigation was continuing. The real problem with Director Comey's announcement involves what he said next.

The counterintelligence investigation, he elaborated, includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia's efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed. [Emphases added.]

None of this should have been said. Let's take it as a given that the FBI had good-faith reasons to suspect that some people connected to the Trump campaign had troubling connections to Putin regime operatives. (Apart from the Steele-dossier allegations, we know it is true, for example, that former Trump campaign manager Paul Manafort consorted for years with a Kremlin-backed Ukrainian party.) There was still no reason to broadcast these suspicions. The public announcement created the perception that the bureau strongly suspected that a nefarious, overarching Trump–Russia conspiracy was afoot. This would have been indefensible under any circumstances, but the lapse is especially glaring given that Director Comey was privately telling President Trump and congressional leaders that Trump himself was not a suspect. Why gratuitously say something that could only lead people to believe he was?

Moreover, there was no reason for Comey to publicly mention "an assessment of whether any crimes were committed" in the context of a counterintelligence, rather than criminal, investigation. While the FBI is not required to ignore evidence of crimes if agents stumble upon it in the course of a counterintelligence probe (or any other non-criminal investigation, such as a background check of a prospective government appointee), that does not turn a counterintelligence investigation into a criminal investigation or justify presenting it to the public as one.


#10 | Posted by JeffJ at 2018-02-07 02:14 PM | Reply

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It appears that mi amigo Heffy is getting his National Review intravenously these days.

#11 | Posted by Corky at 2018-02-07 02:15 PM | Reply

I messed up the blockquote a bit in #10. Everything past [emphases added] should have been in larger block.

#11 | POSTED BY CORKY

:-)

#12 | Posted by JeffJ at 2018-02-07 02:17 PM | Reply

Maybe Et_Al will weigh in on this, as it is above my paygrade:

Counterintelligence Investigations and the Special Counsel's Mandate: Part I

www.lawfareblog.com

#13 | Posted by Gal_Tuesday at 2018-02-07 02:18 PM | Reply

Counterintelligence Investigations and the Special Counsel's Mandate: Part II

www.lawfareblog.com

#14 | Posted by Gal_Tuesday at 2018-02-07 02:21 PM | Reply

"understand the key differences"

reminds me of the time jeffyj was an expert on the Laffer curve, before ultimately denying everything and anything about it.

Hey jiffy, do you now understand the difference between a reproduction and a fake birth certificate?

#15 | Posted by ChiefTutMoses at 2018-02-07 02:22 PM | Reply

Maybe You didn't have the right to find all that evidence against me. Better?

#7 | POSTED BY DANFORTH

The point of this article is to point out that The DOJ and Comey-led FBI violated a number of standard procedures that has made this investigation far more polarized than it should be. Comey, in particular.

This is not a criminal investigation, it's a counter-intelligence investigation. A criminal investigation is initiated when evidence of an individual (or a group of individuals) engaging in criminal activity comes to the attention of law enforcement. When Comey made his announcement, no such evidence existed. He correctly labeled it as a counter-intelligence investigation but never mentioned a criminal investigation.

#16 | Posted by JeffJ at 2018-02-07 02:22 PM | Reply

From Gal's link:

The Rosenstein Order, however, appears to delegate a counterintelligence investigation to the Special Counsel under the criminal-prosecution-focused Part 600 regulations, thereby creating some confusion on the appropriate scope and type of investigation. By seemingly directing Mueller to conduct a counterintelligence investigation while at the same time limiting his authority to the criminal investigations authorized by the Part 600 regulations, the Rosenstein Order points in different directions on the scope of the Special Counsel's mandate.

Yes. My source says the same thing. I have found that McCarthy's analyses usually track pretty closely to those presented at lawfareblog but he's a bit more concise and writes in a manner that is a bit easier for a layman to follow.

#17 | Posted by JeffJ at 2018-02-07 02:25 PM | Reply

From what I gather from the articles I linked to, putting a CI investigation under the special counsel law is problematic to begin with, as special counsel investigations are designed for criminal investigations. Here is the conclusion of the second Lawfare article:

Finally, and irrespective of the scope of the Rosenstein Order's delegation, the foregoing analysis throws into stark relief the unique nature and the unique complications attending an "independent" counterintelligence investigation conducted by a Special Counsel, as opposed to the criminal investigations apparently envisioned by the Part 600 regulations. The regulations seek to create "independence" by limiting the reasons for removal of a Special Counsel to "misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause." If Director Mueller relies on standard foreign-intelligence investigative tools, however, he will need the approval of the Department of Justice's political appointees, thereby prompting a level of coordination with other Department personnel that may well be unusual compared to other investigations conducted by independent and special counsels. This point bolsters what others have already suggested -- that, in the context of a counterintelligence investigation, the very notion of a Special Counsel's legal "independence" may be tested. But the lack of "independence" in law does not necessarily mean that the nation will be deprived of "independence" -- or more importantly, a fair and just investigation -- in fact. For that, however, we will have to rely, not on technical "independence" by statute or regulation, but rather the good faith and probity of the relevant Department of Justice personnel.

#18 | Posted by Gal_Tuesday at 2018-02-07 02:26 PM | Reply

Here is the key point from Gal's second link:

First -- and concretely -- there is a mismatch between the Rosenstein Order's declaration that the Part 600 regulations are "applicable" to the Special Counsel and the Order's delegation of a counterintelligence investigation. The appropriate fix, in my view, would be to clarify the Order with a subsequent writing, either by specifying that the Special Counsel possesses solely the authority to pursue a criminal investigation or by specifying that the Part 600 regulations, in whole or in relevant part, do not apply to the investigation. That course would be consistent with then-Deputy Attorney General Comey's actions, both in his initial delegation of authority and in a subsequent clarification that his "conferral ... of the title of ‘Special Counsel' [on Patrick Fitzgerald] in this matter should not be misunderstood to suggest that [his] position and authorities are defined and limited by 28 C.F.R. § 600."

Absent a clarification, there may be questions about whether the Special Counsel is acting ultra vires and, to the extent that Director Mueller relies on national security investigative tools, whether he has properly invoked them. To be sure, any such concerns are speculative at this stage, and there would also be questions whether the Part 600 regulations' declaration that they "may not be relied upon to create any rights ... enforceable at law or equity" precludes any such legal arguments. But were litigation to occur, the uncertain basis for the Special Counsel's authority could prompt disputes over, for example, whether the "purpose" of any information-gathering under FISA or other related authorities was truly foreign-intelligence-related.


This is what my source says about this:

Deputy Attorney General Rosenstein could do a great service by amending his special-counsel appointment to make clear that (a) Mueller is to investigate Russia's actions to interfere in our election; (b) the previous statements about possible Trump campaign "coordination" with the Russian government were unnecessary and are withdrawn; and (c) President Trump is not personally suspected of wrongdoing in connection with the 2016 election.

#19 | Posted by JeffJ at 2018-02-07 02:34 PM | Reply

From what I gather from the articles I linked to, putting a CI investigation under the special counsel law is problematic to begin with, as special counsel investigations are designed for criminal investigations. Here is the conclusion of the second Lawfare article:

Yes!

My source says the same thing:

In mid May 2017, Deputy Attorney General Rod Rosenstein appointed Mueller to take over the Russia counterintelligence probe. I have repeatedly pointed out that this was in contravention of regulations that reserve special-counsel appointments for criminal investigations. Even beyond that, it was unusual: Ordinarily, prosecutors are not assigned to intelligence cases because intelligence work is not prosecution -- it is the work of trained analysts assessing threats, not lawyers proving statutory offenses.

#20 | Posted by JeffJ at 2018-02-07 02:36 PM | Reply

What sucks is that these errors and violations of procedure create an unfair perception of the Mueller investigation through no fault of Mueller or his team.

#21 | Posted by JeffJ at 2018-02-07 02:40 PM | Reply

"Deputy Attorney General Rosenstein could do a great service by amending his special-counsel appointment to make clear that (a) Mueller is to investigate Russia's actions to interfere in our election; (b) the previous statements about possible Trump campaign "coordination" with the Russian government were unnecessary and are withdrawn; and (c) President Trump is not personally suspected of wrongdoing in connection with the 2016 election."

Those two last points are basically what Trump asked Comey to testify to and Comey would not.

#22 | Posted by Gal_Tuesday at 2018-02-07 02:40 PM | Reply

#22

Again, yes.

#23 | Posted by JeffJ at 2018-02-07 02:42 PM | Reply

#22 - Bearing in mind on those last 2 points that a counter-intelligence investigation could stumble across evidence that would obviate those final 2 points, but, so far we have nothing to suggest that has happened yet.

#24 | Posted by JeffJ at 2018-02-07 02:44 PM | Reply

(b) the previous statements about possible Trump campaign "coordination" with the Russian government were unnecessary and are withdrawn;

I don't see how they can be withdrawn when they are at the heart of the investigation:

FBI director James Comey has said there was no basis for Donald Trump's claims to have been wiretapped by Barack Obama, but confirmed for the first time that the agency is investigating possible collusion between the Trump campaign and Moscow to influence the outcome of the presidential election.
Russia hearing: Comey says no information to confirm Trump's wiretap claims – as it happened

Comey had previously refused to comment on the existence of any such investigation but addressing the House intelligence committee, Comey reversed course and said he had been authorised to depart from that policy and give some basic details.

www.theguardian.com

#25 | Posted by Gal_Tuesday at 2018-02-07 02:45 PM | Reply

Comey seems to be saying the criminal investigation related to Flynn:

And when Republicans asked why he had not told the president he was out of line for asking Mr. Comey to "see your way clear to letting this go, to letting Flynn go," Mr. Comey said perhaps he should have.

"I don't want to make you -- sound like I'm Captain Courageous," he replied. "I don't know whether, even if I had the presence of mind, I would have said to the president, ‘Sir, that's wrong.'"

But he said he had no doubt about Mr. Trump's intentions. "I took it as a direction," he said. If the president had his way, Mr. Comey said, "we would have dropped an open criminal investigation."

www.nytimes.com

#26 | Posted by Gal_Tuesday at 2018-02-07 02:49 PM | Reply

don't see how they can be withdrawn when they are at the heart of the investigation:
FBI director James Comey has said there was no basis for Donald Trump's claims to have been wiretapped by Barack Obama, but confirmed for the first time that the agency is investigating possible collusion between the Trump campaign and Moscow to influence the outcome of the presidential election.

Keeping in mind that the Muller investigation is a counter-intelligence investigation, not a criminal investigation.

The problem with your Guardian and NYT links is the backgrounds of the writers. None of them have a background in this area. I don't say that to slaughter the source as I have no doubt they are all fine writers and uphold journalistic standards. The problem, as Et Al so often points out, is NEVER rely on mainstream media outlets when it comes to reporting on legal matters. They so often get it wrong.

The reason I've come to rely on McCarthy at NRO is both his background and that his analyses usually track along the same lines at sources like lawfareblog.

#27 | Posted by JeffJ at 2018-02-07 02:57 PM | Reply

Other takes on the issue:

The Scope of the Mueller Probe: Will the Public Learn What Was Uncovered?

What does it mean to have empowered Mueller to take over the counterintelligence investigation announced by Comey, an investigation that involves both criminal and non-criminal aspects?

www.lawfareblog.com

Quick Thoughts on Bob Mueller

The appointment order also expressly authorizes Mueller to investigate "(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and (ii) any matters that arose or may arise directly from the investigation; and (iii) any other matters within the scope of 28 C.F.R. § 600.4(a)." Section 600.4(a) refers to "federal crimes committed in the course of, and with intent to interfere with, the Special Counsel's investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses."

www.lawfareblog.com

#28 | Posted by Gal_Tuesday at 2018-02-07 03:00 PM | Reply

"The problem with your Guardian and NYT links is the backgrounds of the writers. None of them have a background in this area."

Hmm, well, I cited those articles for the Comey quotes, not for the journalists' legal analysis.

#29 | Posted by Gal_Tuesday at 2018-02-07 03:01 PM | Reply

I deleted and undeleted this post.

This kind of link is a challenge for me because it's a lie. Why allow a bunch of dishonest spin from Andrew McCarthy of National Review to sit on here all day? The New York Times news division isn't creating a collusion "narrative." It's relating the facts it gathers as they come in.

McCarthy, on the other hand, is creating a "narrative." His job is to push a right wing agenda that deflects from those facts.

#6 | Posted by rcade at 2018-01-04 02:34 PM | Reply | Flag:

#30 | Posted by LauraMohr at 2018-02-07 03:47 PM | Reply

I deleted and undeleted this post.
This kind of link is a challenge for me because it's a lie. Why allow a bunch of dishonest spin from Andrew McCarthy of National Review to sit on here all day? The New York Times news division isn't creating a collusion "narrative." It's relating the facts it gathers as they come in.
McCarthy, on the other hand, is creating a "narrative." His job is to push a right wing agenda that deflects from those facts.
#6 | Posted by rcade at 2018-01-04 02:34 PM | Reply | Flag:

#30 | POSTED BY LAURAMOHR

Well, Laura, given how the analysis McCarthy provides pretty well matches up with the lawfareblog links Gal provided, I would say that Rcade quote isn't applicable on this thread. I would argue he was dead wrong on that other thread back on 1-4, but he kept the thread open, so we can agree to disagree about that.

You might actually find this interesting, if you decide to read the embedded link.

#31 | Posted by JeffJ at 2018-02-07 03:51 PM | Reply

It's critically important that you understand the key differences between a counter-intelligence investigation (which is what the Mueller investigation is) and a criminal investigation. Your response suggests ignorance on this, sans clarification.
#4 | Posted by JeffJ

wrong the intelligence investigation had been going on for months resulting in an appointment of a special prosecutor to investigate and find out if crimes were committed.

#32 | Posted by truthhurts at 2018-02-07 04:02 PM | Reply

FWIW, I didn't bother to read McCarthy's article as I knew a bunch of BS would be interwoven with the legal stuff in order to promote his narrative, which is the real purpose of article. I only read the text Jeff posted in the thread.

#33 | Posted by Gal_Tuesday at 2018-02-07 04:07 PM | Reply

Currently, the defense is You didn't have the proper warrant when you found my murder weapon.

#3 | POSTED BY DANFORTH

Kinda sounds like the lame comment from Comey on not charging Hillary by saying she didn't mean to do it please you guys are so full of Trump derangement syndrome you can't see the sun on a clear day

#34 | Posted by WTFIGO at 2018-02-07 04:18 PM | Reply

"Kinda sounds like the lame comment from Comey on not charging Hillary "

No, nothing like that at all.

Tell me...are you hanging your hat on this manure? That Trump's investigators have no right to investigate Trump's wrongdoing???

"you guys are so full of Trump derangement syndrome you can't see the sun on a clear day"

Speaking of a clear day, Team Trump has now lied to you at least three dozen provable times. Why do you think that's okay? Why is lying to you, repeatedly, okay with you???

#35 | Posted by Danforth at 2018-02-07 05:54 PM | Reply | Newsworthy 1

Trump derangement syndrome

#34 | Posted by WTFIGO at 2018-02-07 04:18 PMFlag: (Choose)FunnyNewsworthyOffensiveAbusive

He's a bad man over his head.

#36 | Posted by Zed at 2018-02-07 06:06 PM | Reply | Newsworthy 1

"the Muller investigation is a counter-intelligence investigation, not a criminal investigation."

What part of any crimes he might discover don't you understand? It's like you're purposefully misinterpreting the English language.
www.washingtonpost.com

It began as a CI investigation. If it morphs into a criminal investigation, it's probably because the subjects are criminals.

#37 | Posted by Danforth at 2018-02-07 11:05 PM | Reply | Newsworthy 1

#37

Agreed.

Not sure what you are arguing.

#38 | Posted by JeffJ at 2018-02-07 11:10 PM | Reply

"Currently, the defense is You didn't have the proper warrant when you found my murder weapon."

OK. So exactly what laws did Trump supposedly violate? So far we hear the term "collision" a lot. However, collusion is not a crime unless you are a part of the government (See: State Dept. employee colluding with a foreign government).

#39 | Posted by bogey1355 at 2018-02-08 04:19 PM | Reply

BOGEY

" So exactly what laws did Trump supposedly violate? "

Obstruction of justice (so far). Or better yet, whatever charges Mueller has against Junior and Kushner to force Trump to resign.

Of course, Mueller has been very good so far at getting witnesses to flip so there's no telling what other charges will result from Bannon's testimony.

It seem like it's "Let's Make A Deal" time in the Special Proecutor's office.

Maybe you should hold your questions until everybody is done.

#40 | Posted by Twinpac at 2018-02-08 04:43 PM | Reply

"So exactly what laws did Trump supposedly violate?"

My, you've moved those goalposts a long way. First, it was "No Russia", then it was "Russia, but no collusion", then it was "Ok, we tried to collude, but we failed, so no collusion", and now it's "Yeah? So what?"

Which all begs the question: why do you put up with folks lying to you, dozens of times?

#41 | Posted by Danforth at 2018-02-09 06:09 AM | Reply

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