Lawfare

Congress Is Dropping the Ball on Trump’s Obstruction of Justice

And six other things we’ve learned about the Senate’s Russia investigation.

Senate Intelligence Chairman Richard Burr (L), R-N.C.; and Senate Intelligence Vice Chair Mark Warner, D-Va., hold a news conference on the status of the committee's inquiry into Russian interference in the 2016 election on Capitol Hill in Washington, DC, October 4, 2017. (JIM WATSON/AFP/Getty Images)
Senate Intelligence Chairman Richard Burr (L), R-N.C.; and Senate Intelligence Vice Chair Mark Warner, D-Va., hold a news conference on the status of the committee's inquiry into Russian interference in the 2016 election on Capitol Hill in Washington, DC, October 4, 2017. (JIM WATSON/AFP/Getty Images)

The bipartisan leadership of the Senate Select Committee on Intelligence held a press conference this week to give a status update on its Russia investigation. In some ways, Chairman Richard Burr (R-N.C.) and Vice Chairman Mark Warner (D-Va.) said relatively little. There were no bombshell revelations. And press coverage was muted.

But the two committee leaders actually communicated quite a lot to those willing to listen closely — and they offered a pile of tea leaves to those who care to study them carefully for gleanings.

We’d previously noted the various issues the Intelligence Committee’s report would need to address to be satisfactory. The precise scope of the investigation still isn’t clear. But here are seven major readouts we took from the press conference, some based on things Burr and Warner said explicitly, some based on things they conspicuously did not say, and some based on inferences from what they said. Taken together, a useful portrait emerges of the state of the intelligence panel’s investigation, what questions it will and will not seek to answer, and what work that means other actors will have to pick up.

Takeaway #1: The committee remains committed to producing a bipartisan product, but it is up against considerable partisan tensions.

Burr and Warner were both keen to present their work with a brave bipartisan face. It’s an attractive look in riven partisan times. There have been a few missteps, but for the most part the pair has done a good job since the outset of this investigation in working together. In sharp contrast to those leading the House Permanent Select Committee on Intelligence’s investigation, Burr and Warner continue to supervise a unified investigation that they can talk about together in public without sounding like they’re talking about two entirely different enterprises. Their demeanor toward one another is not merely professional but actively warm. They don’t contradict each other. They are not publicly airing any disagreements they might have. There are not a lot of institutions in Washington performing at this level right now in high-stakes matters on which the parties are divided.

That said, you could see in the press conference outlines of some considerable tensions they must be managing behind the scenes: pressure from some corners to wrap the investigation up quickly, pressure to release interim findings dispensing with some issues, and pressure from other corners to add new lines of inquiry and to be exhaustive before letting go of things. Their announcements reflect these tensions. Burr and Warner effectively announced that the committee was done with certain matters but wouldn’t formally close them out yet in order to allow for new information to emerge. And they acknowledged that other matters were metastasizing. The goal seemed to be to signal that certain areas of the work were done, that the committee’s findings on them aren’t earth-shattering, and by doing so they bought more time and political space to keep investigating the areas that might potentially prove more explosive.

Takeaway #2: The committee has investigated some matters and found them innocuous.

Burr effectively announced five areas in which the committee was, for all intents and purposes, done with its investigation. For four of them, at least, that promises — and Burr all but announced that the committee would deliver — reassuring answers. He said that the committee had interviewed everyone involved in the preparation of the intelligence community assessment of Russian interference in the 2016 election and that he expected the committee to validate it. In other words, the committee won’t be announcing that the intelligence community got this whole thing wrong, as the president has repeatedly alleged. He also said the committee had largely finished its review of the Barack Obama administration’s response to the Russian operation and that former officials had been “unbelievably cooperative” with the probe; so, expect recommendations here but probably not bombshells that will fundamentally reorient our understanding of what the former administration did or didn’t do. Burr also teased — and Warner did not dissent on — two pieces of good news for Trump: that the infamous meeting at the Mayflower Hotel between Trump campaign officials and Russian ambassador Sergey Kislyak would prove benign, as will the weird process of drafting the GOP platform on Ukraine. In both cases, Burr emphasized that the matters are not closed but that the committee had conducted a lot of interviews. If the committee were sitting on major evidence of wrongdoing, Burr just wouldn’t be talking about it this way. In other words, for these four areas, the committee is signaling that its final product will supplement, not supplant, what we already know.

Takeaway #3: The committee is dropping the ball on the Comey firing.

The fifth area where Burr announced that the committee is effectively finished is the investigations into the firing of former FBI Director James Comey and the memos he wrote about his interactions with President Donald Trump. Burr’s comments about this aspect of the investigation are curious and somewhat opaque:

The last one I want to cover is the Comey memos. This topic has been hotly debated and the committee is satisfied that our involvement with this issue has reached a logical end as it relates to the Russia investigation. Now again this is not something that we’ve closed, but we have exhausted every person that we can talk to to get information that’s pertinent to us relative to the Russia investigation. Questions that you might have surrounding Comey’s firing are better answered by the general counsel or by the Justice Department, not the Select Committee of Intelligence in the United States Senate.

If Burr means by this that questions of obstruction of justice or the institutional relationship between the White House and the FBI on investigative matters are not the proper purview of the Intelligence Committee, he’s right. The oddity of his remarks, however, are that both obstruction and the White House meddling in FBI matters are inextricably intertwined with the matter directly at issue in the SSCI investigation: Russian interference in the election and the intelligence community’s response to it. It’s not entirely clear from Burr’s remarks what aspects of Comey’s dismissal the committee is and is not considering within its purview. What is clear, however, is that the committee is signaling publicly that broad institutional integrity questions regarding the President’s interactions with law enforcement are not. That leaves a huge hole, presumably for the Senate Judiciary Committee to fill. Someone, after all, needs to address the question of the president’s interaction with his law enforcement apparatus over his time in office and what, if any, remedial steps are necessary and appropriate. To the extent the question implicates criminal law, special counsel Robert Mueller will take the lead. But to the extent it merely implicates the institutional integrity and independence of the Justice Department and the FBI, someone else — most obviously Congress — is going to have to pick up the torch.

Takeaway #4: The committee is actively investigating collusion between the Trump campaign and the Russian active measures operation.

Burr had a lot of opportunities to hint — as he did with the Mayflower meeting and the platform committee — that the committee was winding things down with respect to larger questions of collusion. He passed up every last one. He didn’t say he had seen evidence of collusion. But he also didn’t splash any cold water on the notion that there were serious questions here to examine. Here’s what he said:

There are concerns that we continue to pursue: collusion. The committee continues to look into all evidence to see if there was any hint of collusion.

Now I’m not going to even discuss initial findings, because we haven’t any. We’ve got a tremendous amount of documents still to go through. And just to put it in perspective, I said we’ve done over 100 interviews, over 250 hours. We currently have booked for the balance of this month 25 additional interviews. That may not end up being the total, but as of today there are 25 individuals booked to meet with our staff before the end of this month alone pertaining to the Russian investigation. We have more work to do as it relates to collusion, but we’re developing a clearer picture of what happened. What I will confirm is that the Russian intelligence service is determined, clever; and I recommend that every campaign and every election official take this very seriously as we move into this November’s election and as we move into preparation for the 2018 election.

If you’re Trump and you’ve been crowing about a “witch hunt” for the past nine months, having the Republican chairman of the Intelligence Committee stating publicly that the only thing he’ll say about collusion allegations is that the committee, after numerous interviews, has a lot more work to do and that the Russians are talented and serious simply cannot be reassuring news. Put simply, while Burr was willing to say that the committee was effectively done on a bunch of matters, he and Warner are signaling something very different on the collusion question: It’s not even close to finished.

Takeaway #5: The committee is not dismissive of the Steele dossier.

Perhaps the most dramatic evidence that the committee is taking collusion seriously is that Burr went out of his way to appeal to former British intelligence operative Christopher Steele to cooperate with the committee regarding his preparation of his now famous “dossier.” Trump and some Republicans have dismissed the dossier out of hand. Burr, by contrast, emphasized that he could not assess it without cooperation the committee has not yet received:

As it relates Steele dossier, unfortunately the committee has hit a wall. We have on several occasions made attempts to contact Mr. Steele, to meet with Mr. Steele, to include personally the vice chairman and myself as two individuals making that connection. Those offers have gone unaccepted. The committee cannot really decide the credibility of the dossier without understanding things like who paid for it. Who are your sources and sub-sources? We’re investigating a very expansive Russian network of interference in U.S. elections. And though we have been incredibly enlightened at our ability to rebuild backwards the Steele dossier up to a certain date, getting past that point has been somewhat impossible. And I say this because I don’t think we’re going to find any intelligence products that unlock that key to pre-June of 2016. My hope is that Mr. Steele will make a decision to meet with either Mark and I or the committee or both so that we can hear his side of it versus for us to depict in our findings what his intent or what his actions were. And I say that to you, but I also say that to Chris Steele.

Burr’s comment is especially notable in light of a new report that Mueller’s team met with Steele over the summer. Note what Burr did not say here. He did not say that the document was not credible. He did not say the committee was uninterested in it and its allegations. He did not say the committee did not concern itself with trash. He actually brought up the subject on his own and mentioned that the committee had reached out several times. He even ended with a public appeal to Steele himself. The strong implication is that the committee regards this matter as something worth talking about. That’s also not good news for the president.

Takeaway #6: There’s no timeframe.

Despite Burr’s signaling that certain matters are effectively wrapped up, one of the strong messages from the press conference was there’s no timeframe for concluding the larger investigation. Burr nodded to the notion that it’s still his “aspirational goal to finish the entire investigation this calendar year.” But he also made clear that this is just an aspiration. Warner was even more explicit on this point: “It is taking a long time, but getting it right and getting all the facts is what we owe the American people. And as we’ve seen, for example, stories that emerged in the late summer around Mr. Trump Jr.’s meeting or possibilities of the Trump Tower Moscow. You know, the chairman and I would love to find ways to close things down, but we also still see strains and threads that we need to continue to pursue.” Translation: Don’t hold your breath — this investigation will continue well into next year.

Takeaway #7: The committee is very worried about future elections.

Finally, both Warner and Burr made clear that they are worried about the integrity of future elections, including the upcoming ones in New Jersey and Virginia next month and next year’s congressional races. Burr issued a specific warning to all campaigns, quoted above, and Warner talked at length about the need for a whole-of-government response on election security matters. Surely this is a matter on which the political system should come together, both legislatively and in terms of state-federal cooperation. If President Trump insists on obfuscating or denying the fact of Russian interference in the 2016 election, perhaps his administration can at least get behind the notion that such interference must never happen again.

Photo credit: JIM WATSON/AFP/Getty Images

Susan Hennessey is managing editor of Lawfare.

Benjamin Wittes is editor in chief of Lawfare.

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