A Rationale for the Leak to the New York Times

Last Friday, the New York Times dropped a bit of a bombshell.

In the days after President Trump fired James B. Comey as F.B.I. director, law enforcement officials became so concerned by the president’s behavior that they began investigating whether he had been working on behalf of Russia against American interests, according to former law enforcement officials and others familiar with the investigation.

As Martin Longman wrote, the news didn’t come as much of a surprise to many of us who have been following this story closely for over two years now. As a matter of fact, just days before the Times story broke, I had written “If Trump Is Not a Russian Asset, What Explains His Behavior?”

The question this bombshell raised for me was more about who those “former law enforcement officials and others familiar with the investigation” are that leaked this story and why they leaked it now. The events described in the piece center around the firing of James Comey, which happened in May of 2017, so they are not recent developments. What we can surmise is that the people who shared this story with the Times wanted events that took place over a year and a half ago to be public now.

I doubt we’ll ever know with any certainty exactly who leaked this story, but the context in which it happened is helpful to consider. As I noted last Friday, we recently learned that Deputy Attorney General Rod Rosenstein will be leaving his job soon. According NBC News, he will do so once Mueller has submitted his report to the Department of Justice, which is expected to be sometime in mid-to-late February.

On the same day as that news broke, we learned that the White House also expects Mueller’s report to be completed soon and is lawyering up with a particular goal in mind.

A beefed-up White House legal team is gearing up to prevent President Trump’s confidential discussions with top advisers from being disclosed to House Democratic investigators and revealed in the special counsel’s long-awaited report, setting the stage for a potential clash between the branches of government.

The strategy to strongly assert the president’s executive privilege on both fronts is being developed under newly arrived White House Counsel Pat Cipollone, who has hired 17 lawyers in recent weeks to help in the effort…

But any effort to fight investigators is likely to further inflame Trump’s relationship with Democratic leaders and could lock the administration and Congress in protracted legal standoffs that may ultimately go to the Supreme Court.

Of particular concern to Democrats: whether the White House will seek to use executive privilege to keep private any portions of Mueller’s report that addresses alleged obstruction of justice by the president.

In other words, the invocation of executive privilege will likely be an attempt to silence what Mueller’s report has to say about Trump’s obstruction of justice. Let’s take that back to what the Times reported.

If the president had fired Mr. Comey to stop the Russia investigation, the action would have been a national security issue because it naturally would have hurt the bureau’s effort to learn how Moscow interfered in the 2016 election and whether any Americans were involved, according to James A. Baker, who served as F.B.I. general counsel until late 2017. He privately testified in October before House investigators who were examining the F.B.I.’s handling of the full Russia inquiry.

“Not only would it be an issue of obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that is what would be the threat to national security,” Mr. Baker said in his testimony, portions of which were read to The New York Times.

That is precisely why, in response to the article in the Times,  Benjamin Wittes wrote, “What if the Obstruction Was the Collusion?” Whoever leaked this story at this particular moment just elevated the question of Trump’s attempt to obstruct justice to a whole new level, which makes it more of a concern to both congress and the American public. That will make the job of Trump’s lawyers to bury Mueller’s report on obstruction much more difficult.

It is clear that one of the items the leakers shared with the Times is portions of James Baker’s closed-door testimony before the House Judiciary Committee last October. CNN is also reporting on the transcript.

In the chaotic aftermath at the FBI following Director James Comey’s firing, a half-dozen senior FBI officials huddled to set in motion the momentous move to open an investigation into President Donald Trump that included trying to understand why he was acting in ways that seemed to benefit Russia.

They debated a range of possibilities, according to portions of transcripts of two FBI officials’ closed-door congressional interviews obtained by CNN…

James Baker, then-FBI general counsel, said the FBI officials were contemplating with regard to Russia whether Trump was “acting at the behest of and somehow following directions, somehow executing their will.”

“That was one extreme. The other extreme is that the President is completely innocent, and we discussed that too,” Baker told House investigators last year. “There’s a range of things this could possibly be. We need to investigate, because we don’t know whether, you know, the worst-case scenario is possibly true or the President is totally innocent and we need to get this thing over with — and so he can move forward with his agenda.”

That tells us that, at least by October of last year, members of congress knew that the investigation included an attempt to determine whether the president was acting as a Russian agent. It also tells us that James Baker had signed off on the line of inquiry as the then-FBI general counsel.

As I said, we might not ever know who did the leaking. But what I’ve described is both some context and a possible rationale to answer the question, “why now?” In the coming months, we could be facing a legal question that will dwarf the one about the release of the Nixon White House tapes. The leakers just made sure that we all know Mueller’s report on alleged obstruction of justice will address one of the most significant national security questions this country has faced in decades, weakening the president’s case that it should be withheld on the grounds of executive privilege.

Update: This piece has been updated to link to James A. Baker, who served as FBI legal counsel.

Nancy LeTourneau

Nancy LeTourneau is a contributing writer for the Washington Monthly. Follow her on Twitter @Smartypants60.