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Before we get to the show notes, I want to hone in on what I read that stuck with me the most this week, from Brian Beutler of the New Republic.
If Trump gets away with firing Comey—if Republicans let him nominate any director he wants; if they resist the pressure to insist on appointing a special prosecutor, or to convene an investigative body; if they squash inquiries into the firing itself—he will read it as permission to run amok. As The Atlantic’s Ron Brownstein wrote, Trump’s “appetite for shattering democratic constraints is only likely to grow.”
Absent consequences, Trump will rightly feel liberated to appoint whomever he wants to run the IRS when the current commissioner’s term expires later this year. More alarmingly, he will know that he can get away with ordering a crackdown on voting rights or investigations of his political enemies. And, perversely, these are the reasons he is more likely to prevail.
Show Notes (Intelligence Leaks)
The timeline of events with regards to the intelligence leak is dense. We’ll start with the Washington Post article that kicks it all off, an incredible piece of journalism.
The information the president relayed had been provided by a U.S. partner through an intelligence-sharing arrangement considered so sensitive that details have been withheld from allies and tightly restricted even within the U.S. government, officials said.
The partner had not given the United States permission to share the material with Russia, and officials said Trump’s decision to do so endangers cooperation from an ally that has access to the inner workings of the Islamic State.
. . .
It was during that meeting, officials said, that Trump went off script and began describing details of an Islamic State terrorist threat related to the use of laptop computers on aircraft.
For almost anyone in government, discussing such matters with an adversary would be illegal. As president, Trump has broad authority to declassify government secrets, making it unlikely that his disclosures broke the law.
. . .
“It is all kind of shocking,” said a former senior U.S. official who is close to current administration officials. “Trump seems to be very reckless and doesn’t grasp the gravity of the things he’s dealing with, especially when it comes to intelligence and national security. And it’s all clouded because of this problem he has with Russia.”
Read the whole thing.
Israeli intelligence officers are “boiling mad and demanding answers” after President Trump reportedly shared classified information from Israel with Russia, according to a new report.
. . .
“We have an arrangement with America which is unique to the world of intelligence sharing,” one intelligence officer told BuzzFeed. “We do not have this relationship with any other country.”
“To know that this intelligence is shared with others, without our prior knowledge? That is, for us, our worst fears confirmed,” the officer added
Will this impact American intelligence gathering capabilities? Yes, according to Israel, by way of CBS.
“We will think twice before conveying very sensitive information,” said Danny Yatom, Israel’s former head of Mossad.
Oh, and maybe Trump doesn’t have the discretion that everyone argues he has.
McMaster’s defense of the whole affair did not respond to the specific allegations made in the Washington Post piece, and when he reappeared to defend Donald Trump, he didn’t take questions from reporters—that’s pretty telling.
Lawfare blog takes great pains to point out why this is distinct from typical partisan bickering over classified information.
[T]his is not a garden variety breach, and outrage over it is not partisan hypocrisy about protecting classified information.
. . .
The information allegedly disclosed here appears to be of an extremely sensitive nature. According to the Post, President Trump’s own aides “appeared to recognize immediately that Trump had overstepped and moved to contain the potential fallout” by contacting the directors of CIA and NSA.
The information in question is of particular significance both because the Russians might be able to infer sources and methods, notwithstanding General McMaster’s careful statement that sources and methods were not “discussed,” and because it was shared with the United States by a foreign partner. Indeed, the Post story discusses the concern of U.S. officials that the Russians might inferentially “identify the U.S. ally or intelligence capability involved, and one official is quoted as saying that “Russia could identify our sources or techniques” based on what was disclosed. If true, Trump did not just jeopardize our own intelligence sources, but those of another country. Intelligence sharing relationships are critical to U.S. security interests around the world, and in particular in the fight coalition against ISIS. The United States intelligence community and military are simply not able to access every relevant source of intelligence and thus depends on a network of intelligence sharing partnerships. Breaching the trust of a foreign partner could substantially harm that relationship moving forward and could undermine the confidence of other foreign governments in the U.S. government’s ability to safeguard information.
Also, they argue that not all Top Secret information is equal:
[I]t is important to recognize that not all Top Secret information is created equal. The most sensitive category by far is that related to the protection of “sources and methods,” which relates not just to the substance of intelligence but to the manner by which it was obtained. If sources and methods information is revealed, it risks losing the method of collection in the future, which poses much larger long-term security consequences.
Oh, and without violating the law, he may have violated his oath of office.
Violating the oath of office does not require violating a criminal statute. If the President decided to write the nuclear codes on a sticky note on his desk and then took a photo of it and tweeted it, he would not technically have violated any criminal law–just as he hasn’t here. He has the constitutional authority to dictate that the safeguarding of nuclear materials shall be done through sticky notes in plain sight and tweeted, even the authority to declassify the codes outright. Yet, we would all understand this degree of negligence to be a gross violation of his oath of office.
Show Notes (James Comey Firing)
I mentioned that much of the characterization of the FBI comes from an episode of Pod Save the World with a former spokesperson for the Department of Justice. That’s here.
The Washington Post rundown on how the White House communications staff were put into an impossible position and failed even within those parameters is amazing.
Spicer had wanted to drop the bombshell news in an emailed statement, but it was not transmitting quickly enough, so he ended up standing in the doorway of the press office around 5:40 p.m. and shouting a statement to reporters who happened to be nearby. He then vanished, with his staff locking the door leading to his office. The press staff said that Spicer might do a briefing, then announced that he definitely wouldn’t say anything more that night. But as Democrats and Republicans began to criticize and question the firing with increasing levels of alarm, Spicer and two prominent spokeswomen were suddenly speed-walking up the White House drive to defend the president on CNN, Fox News and Fox Business..
. . .
After Spicer spent several minutes hidden in the darkness and among the bushes near these sets, Janet Montesi, an executive assistant in the press office, emerged and told reporters that Spicer would answer some questions, as long as he was not filmed doing so. Spicer then emerged.
“Just turn the lights off. Turn the lights off,” he ordered. “We’ll take care of this. … Can you just turn that light off?”
Jason Chaffetz is seriously concerned! Or rather, he has cause to act like he is this time. He has asked the acting director of the FBI to turn over all memoranda, notes, summaries and recordings related to the investigation.
Incidentally, this is the information from the New York Times that indicates that Comey asked for more resources to prosecute his investigation shortly before being fired.
PBS has an excellent summary of the differences between a special prosecutor and special counsel and how the expiry of the 1977 law in 1999 killed the special prosecutor in American law.
The National Review put together a pretty smart argument against the designation of a special prosecutor (or counsel) and they argue in favor of the historically more successful bipartisan commission.
But the well-established dynamic of special prosecutors is that instead of focusing on providing answers about the specific controversy that brought them to life, they quickly become attached to the extraordinary power they’ve been given.
That means that their investigation becomes not a means to the end for which they were purposed, but an end in itself. Few of those put in charge of what generally amounts to unlimited budgets and the full force of the federal government, without any effective check on their decisions, have ever been content to leave office without indicting someone for something, even if it is entirely unrelated to their original brief.
Here’s the compelling argument that Benjamin Wittes at Lawfare Blog makes for why Rod Rosenstein’s memo was particularly spineless and how he must resign. Wittes does not hold back.
The only decent course now is to name a special prosecutor and then resign.
I say this with not a trace of joy. Comey’s firing has shaken me very deeply, and no aspect of it has shaken me more than the apparent corruption of Rosenstein, on whom I was counting to be a support base for the career men and women of the Justice Department in their efforts to continue honorable service in difficult times.
… I have known Rosenstein for a long time. I have always thought well of him. I’ve admired his ability to serve at senior levels in administrations of both parties and impress both sides with apolitical service… I quietly told many people anxious about Sessions that I was not worried that anything too terrible would happen at the department with Rosenstein
I was profoundly wrong about Rosenstein.
Rosenstein’s memo in support of Comey’s firing is a shocking document… And it’s gutless too. Because at the end of the day, the memo greases the wheels for Comey’s removal without ever explicitly urging it—thus allowing its author to claim that he did something less than recommend the firing, while in fact providing the fig leaf for it.
In other words, Rosenstein’s actual role was even less honorable than the one he reportedly objected to the White House’s tagging him with. If the original story that Rosenstein’s recommendation drove the train had been true, after all, that at least would involve his giving his independent judgment. But the truth that Trump told is far worse than the lie Rosenstein insisted the White House correct. Rosenstein was tasked to provide a pretext, and he did just that.
Show Notes (Impeachment)
Senior aides close to Trump think he’s fucked.
A senior official in the Trump administration, who previously worked on the president’s campaign, offered a candid and brief assessment of the fallout from that string of bad press: “I don’t see how Trump isn’t completely fucked.”
There are some of those scary quotes alluded to in the show, too. An active FBI agent told the Daily Beast of Comey, “You’ve got to kill him, metaphorically. You can’t just wound him.”
I don’t know, we’ve seen how FBI overreach can cripple the country in the past, so it’s something to watch out for.
Vox not only has an excellent explainer on the process of impeachment, but the history of it, too—going over the Andrew Johnson, Bill Clinton and Richard Nixon eras.