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Fri Jan 11, 2019, 09:24 PM

LAWFARE: It was about Russia. It was always about Russia. Full stop. [View all]

What if the Obstruction Was the Collusion? On the New York Times’s Latest Bombshell
By Benjamin Wittes Friday, January 11, 2019, 8:43 PM



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What is the significance of all of this? I have two big takeaways.

First, if this analysis is correct, it mostly—though not entirely—answers the question of the legal basis of the obstruction investigation. The president’s lawyers, Barr in his memo, and any number of conservative commentators have all argued that Mueller cannot reasonably be investigating obstruction offenses based on the president’s actions within his Article II powers in firing Comey; such actions, they contend, cannot possibly violate the obstruction laws. While this position is disputed, a great many other commentators, including me, have scratched their heads about Mueller’s obstruction theory.

But if the predicate for the investigation was rooted in substantial part in counterintelligence authorities—that is, if the theory was not just that the president may have violated the criminal law but also that he acted in a fashion that may constitute a threat to national security—that particular legal puzzle goes away. After all, the FBI doesn’t need a possible criminal violation to open a national security investigation.

The problem does not entirely go away, because as the Times reports, the probe was partly predicated as a criminal matter as well. So the question of Mueller’s criminal theory is still there. But the weight on it is dramatically less.

This possibility, of course, raises a different legal puzzle, which is whether and under what circumstances the president can be a national security investigative subject of his own FBI given that it is ultimately he who defines national security threats for the executive branch. But that’s a question for another day.

Second, if it is correct that the FBI’s principle interest in obstruction was not as a discrete criminal fact pattern but as a national security threat, this significantly blurs the distinction between the obstruction and collusion aspects of the investigation. In this construction, obstruction was not a problem distinct from collusion, as has been generally imagined. Rather, in this construction, obstruction was the collusion, or least part of it. The obstruction of justice statutes become, in this understanding, merely one set of statutes investigators might think about using to deal with a national security risk—specifically, the risk of a person on the U.S. side coordinating with or supporting Russian activity by shutting down the investigation.

It was about Russia. It was always about Russia. Full stop.




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WAY MORE:
https://www.lawfareblog.com/what-if-obstruction-was-collusion-new-york-timess-latest-bombshell
https://www.democraticunderground.com/100211658856

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kpete Jan 11 OP
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