Is Trump the sub­ject of a crim­i­nal in­ves­ti­ga­tion?

The an­swer lies in what the FBI means by a ‘tar­get’

The Washington Times Daily - - OPINION - By An­drew P. Napoli­tano An­drew P. Napoli­tano, a for­mer judge of the Su­pe­rior Court of New Jersey, is a con­trib­u­tor to The Wash­ing­ton Times. He is the au­thor of seven books on the U.S. Con­sti­tu­tion.

Iwas sur­prised last week­end when one of Pres­i­dent Trump’s lawyers told my col­league Chris Wal­lace twice on “Fox News Sun­day” that the pres­i­dent is be­ing in­ves­ti­gated by the FBI and then told him twice that he is not. This same lawyer re­peated the “not be­ing in­ves­ti­gated” ar­gu­ment on a half-dozen other Sun­day shows but did not re­peat the “is be­ing in­ves­ti­gated” re­mark.

This pro­duced sub­stan­tial con­ster­na­tion in the news me­dia and at the White House, since the pres­i­dent him­self had tweeted over the week­end that he is be­ing in­ves­ti­gated for fir­ing FBI Di­rec­tor James Comey by the same per­son — Deputy At­tor­ney Gen­eral Rod Rosen­stein — who rec­om­mended Mr. Comey’s fir­ing and that the in­ves­ti­ga­tion is a “witch hunt.”

So, who is cor­rect, the pres­i­dent or his lawyer? Is the pres­i­dent under crim­i­nal in­ves­ti­ga­tion by the FBI? If he is be­ing in­ves­ti­gated as he claims, is the in­ves­ti­ga­tion a witch hunt? Here is the back story.

When Don­ald Trump be­gan run­ning for the Repub­li­can nom­i­na­tion for pres­i­dent in June 2015 and made novel ar­gu­ments in­di­cat­ing that his view was that Europe should es­sen­tially pay for its own mil­i­tary de­fense, this trig­gered con­cern in Euro­pean cap­i­tals, and it re­sulted in the com­mence­ment of now well-doc­u­mented Bri­tish sur­veil­lance of Mr. Trump and his prin­ci­pal ad­viser on national se­cu­rity mat­ters, re­tired Lt. Gen. Michael Flynn. The for­eign sur­veil­lance was even­tu­ally passed on to Amer­i­can spies, who ac­ceded to de­mands from the West Wing of the Obama White House and handed over tran­scripts of con­ver­sa­tions and names of par­tic­i­pants.

This went on through­out the pres­i­den­tial cam­paign and into the tran­si­tion pe­riod af­ter Mr. Trump had been elected. Pres­i­dent Obama’s national se­cu­rity ad­viser, Su­san Rice, re­cently con­firmed that she or­dered tran­scripts of surveilled con­ver­sa­tions and names of par­tic­i­pants — this is called “un­mask­ing” in in­tel­li­gence com­mu­nity lingo — and James Clap­per, the Obama ad­min­is­tra­tion’s di­rec­tor of national in­tel­li­gence, re­cently ac­knowl­edged under oath the ex­is­tence of the for­eign and do­mes­tic sur­veil­lance of Mr. Trump in 2015 and 2016, as well as the un­mask­ing.

One of the un­masked con­ver­sa­tions handed over to Ms. Rice was be­tween Mr. Flynn and the Rus­sian am­bas­sador to the U.S., Sergey Kislyak. Por­tions of that con­ver­sa­tion were leaked to The Wash­ing­ton Post, and that gen­er­ated in­ter­est in the re­la­tion­ship, if any, of the Trump cam­paign and tran­si­tion team to the Rus­sian gov­ern­ment. This pro­voked a pre­lim­i­nary FBI in­ves­ti­ga­tion into

Mr. Flynn. Mr. Flynn ap­par­ently was in­ter­viewed by the FBI while ig­no­rant of the FBI’s pos­ses­sion of tran­scripts of his con­ver­sa­tions with Mr. Kislyak. If Mr. Flynn lied in that in­ter­view as has been re­ported and spec­u­lated in the press, he com­mit­ted a felony.

When Mr. Trump learned Mr.

Flynn had lied to oth­ers, he fired

Mr. Flynn.

Mr. Flynn’s fir­ing ratch­eted up the in­ves­ti­ga­tion of him, as well as the in­ves­ti­ga­tion of whether any­one from the Trump cam­paign had as­sisted Rus­sian in­tel­li­gence agents in hack­ing into com­put­ers in Amer­ica in or­der to af­fect the out­come of the elec­tion. When Mr. Trump asked then-FBI Di­rec­tor Comey whether he, Don­ald J. Trump, was be­ing in­ves­ti­gated by the FBI, Mr. Comey thrice said no. That was, no doubt, true at the time. The Trump cam­paign and the Trump tran­si­tion team were be­ing in­ves­ti­gated, but not Mr. Trump per­son­ally.

Then the pres­i­dent, ac­cord­ing to Mr. Comey, asked Mr. Comey to drop the in­ves­ti­ga­tion into whether Mr. Flynn had lied to FBI agents and oth­ers. Then, ac­cord­ing to Mr. Comey, the pres­i­dent sug­gested to him that he could keep his job as FBI di­rec­tor if he dropped the Flynn in­ves­ti­ga­tion. Then the pres­i­dent fired Mr. Comey.

Af­ter Mr. Comey re­leased a por­tion of a memo con­tain­ing his rec­ol­lec­tions of his con­ver­sa­tions with Mr. Trump, Deputy At­tor­ney Gen­eral Rosen­stein ap­pointed for­mer FBI Di­rec­tor Robert Mueller as in­de­pen­dent prose­cu­tor to in­ves­ti­gate and charge, if ap­pro­pri­ate, any­one crim­i­nally im­pli­cated in the Flynn in­ves­ti­ga­tion, the in­ves­ti­ga­tion of Rus­sian at­tempts to in­flu­ence the 2016 elec­tion, the in­ves­ti­ga­tion of whether any as­sis­tance was pro­vided to the Rus­sians by any Amer­i­cans, and all re­lated mat­ters.

Be­cause Mr. Comey pre­sented a cred­i­ble case for the pos­si­bil­ity that the pres­i­dent in­ter­fered with a fed­eral crim­i­nal in­ves­ti­ga­tion, Mr. Mueller no doubt is in­ves­ti­gat­ing that as one of the re­lated mat­ters. In that re­spect, Mr. Trump is under in­ves­ti­ga­tion by the FBI, which seeks to de­ter­mine whether he at­tempted to in­flu­ence a fed­eral crim­i­nal in­ves­ti­ga­tion for a cor­rupt pur­pose.

Yet as a sitting pres­i­dent, Mr. Trump can­not be in­dicted for any crim­i­nal be­hav­ior com­mit­ted while in of­fice. Hence he can­not be a “tar­get” of an FBI in­ves­ti­ga­tion. I use the word “tar­get” in quo­ta­tion marks be­cause it has a tech­ni­cal mean­ing — namely, that the De­part­ment of Jus­tice plans to seek an in­dict­ment. So though it is true that the pres­i­dent is be­ing in­ves­ti­gated by the FBI, it is also true that he is not a tar­get of that in­ves­ti­ga­tion.

Of what value is a crim­i­nal in­ves­ti­ga­tion of a per­son if that per­son can­not be charged crim­i­nally? Can’t the pres­i­dent fire an FBI di­rec­tor with­out fear of a crim­i­nal in­ves­ti­ga­tion of his pur­poses? Can’t he or­der the ces­sa­tion of a crim­i­nal in­ves­ti­ga­tion with­out fear­ing that the FBI will in­ves­ti­gate the rea­sons for his or­der?

Some­times crim­i­nal in­ves­ti­ga­tions ex­on­er­ate a per­son, and the FBI, with­out fan­fare, will just drop it. In the case of the pres­i­dent, any ev­i­dence of guilt will go to the House Ju­di­ciary Com­mit­tee, not a grand jury, as the con­sti­tu­tional rem­edy for pres­i­den­tial crim­i­nal be­hav­ior is im­peach­ment, not in­dict­ment. Of course, the pres­i­dent can fire a di­rec­tor of the FBI for any non-cor­rupt rea­son, but if he does so af­ter a re­jected quid pro quo as Mr. Comey has pub­licly claimed that Mr. Trump did, that can trig­ger the woes Mr. Trump now en­dures.

We live in per­ilous times — times that de­mand fi­delity to first prin­ci­ples. The core of those prin­ci­ples is the rule of law: No one is be­neath laws’ pro­tec­tions, and no one is above their re­quire­ments. No one.

Be­cause Mr. Comey pre­sented a cred­i­ble case for the pos­si­bil­ity that the pres­i­dent in­ter­fered with a fed­eral crim­i­nal in­ves­ti­ga­tion, Mr. Mueller no doubt is in­ves­ti­gat­ing that as one of the re­lated mat­ters.

Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.