B (4:14)

And it's confusing, I think, a little bit, because we know that the FBI, the CIA, those come under the ambit of the Justice Department. Right. And so it's easy to, I think, conflate, to sort of think that there's perfect overlap between intelligence gathering domestically and foreign and Justice. You're saying they actuallythere is overlap, but they actually also very much have their own disparate lanes when it comes to oversight, right?

A (4:40)

Yeah, that's right. And there's one easy way to think of this that captures most examples. By and large, the FBI is a domestic law enforcement organization, whereas the CIA and the NSA and other associated agencies like the DIA and NGA and all the three letter agencies, by and large, point their activities exclusively abroad. They are foreign intelligence gathering organizations. Where it gets a little tricky is, of course, the FBI does counterterrorism. And when the FBI is doing counterterrorism, they will sometimes rely on their people abroad who begin to do things that in some instances start to look a little bit like traditional intelligence gathering. And that's why we consider the FBI actually, in that guise, one of the intelligence community organizations. So what you hear in the background is the voting bells here in the Capitol. The other way, in which, of course, my example of is, are things pointed outward or inward is I was talking about 702 authorities. Right. That's a little esoteric, a little technical. But when, for example, one of our intelligence agencies is collecting the emails of a, let's just say, a counterterrorism target abroad, every once in a while, that counterterrorism target may be emailing with a US Citizen or a US Person. And if that happens now, all of a sudden, again, there, you know, US Person, constitutional and legal questions at stake.

B (6:14)

So when I used to go around saying that the Mueller probe started its life as a counterintelligence probe, what I was trying to say, even though I didn't know it, is that the thing that I guess initially, Jim Comey, later, Bob Mueller were worried about was more about what Russia had on the US Than what the US Was doing to itself. Right. That's what gives birth to the Mueller probe.

A (6:35)

That's exactly right. And that grows out of the fact that counterintelligence is, by and large, an FBI pursuit. So when they worry that there is a Russian agent running around Washington, D.C. or New York or Los Angeles, it will be the FBI that is charged with finding that individual. So counterintelligence is, by and large, an FBI activity. I say by and large because they will sometimes rely on the assistance of the intelligence community, people like CIA, who may be able to fill out some of the blanks. Yeah. So the reason the Mueller investigation has its origins in a counterintelligence investigation, and it's important to remember this because it's in the interests of the president's supporters to muddy this picture a little bit. But when Jim Comey announces that there has been for some time a counterintelligence investigation into Russian interference and the possibility of the Trump campaigns having colluded with the Russian effort. This all has its origin in the famous story of the Trump campaign staffer, who has a little too much wine in Europe and at a table, brags to a diplomat that he knows of an effort to gather dirt on the part of Russia, to gather dirt on Hillary Clinton's campaign, lo and behold, said, presumably slightly more sober, diplomat alert somebody in the United States Embassy. The FBI takes an interest, because if you say, hey, Russia is trying to gather dirt on a US President candidate, the FBI, of course, will take an interest in that. And that, of course, is what sets off the incredible series of events that ultimately lead to the Mueller report.

B (8:16)

And is that, Jim, the answer to the question that I've had since the Mueller report came down, which is the one thing about which BOB Mueller was 100% unequivocal in his report, the place where he was willing to go all the way, where he was not willing to go all the way in many, many areas, but he was willing to go all the way in Russia interfered with the election. They're doing it again. They're doing it again on a larger scale. So in some sense, this dovetails perfectly with what you just told me, which is this was his principal concern, too, right? More than any domestic wrongdoing and including and up to lawbreaking by the President, his concern was elections are being stolen and nobody cares.

A (9:00)

Yeah, no, that's exactly right. And I mean, the irony here is that the truly devastating stuff for the president, particularly for people of a legal frame of mind or a constitutional frame of mind, the truly devastating stuff in the Mueller report is in volume two, the obstruction of justice counts, right? Ten counts. And again, it's a little esoteric. It's for people who follow things like obstruction of justice. But the volume one details in real detail and real specificity, this across the board effort on the part of the Russians to attack our election. And I mean, there are indictments out there, people associated with the Internet Research Agency, Putin's quote, unquote, chef, and all these efforts that were made, some of those efforts were online and had absolutely nothing to do with the Trump campaign. And of course, those were the efforts that were to penetrate the Democratic National Committee's servers and to get the dirt off of those servers. Of evidence that could be used to suggest that the DNC was not an impartial actor. But it also included, and this is where it got sticky for the President. It included a lot of attempts to reach out to people on the Trump campaign and to see what would come from those relationships. And of course, the meeting in Trump Tower is probably the classic example when the President's son says, sure, let's see what the Russians have on Hillary Clinton. Probably not a wise moment for Donald Trump Jr. And of course, famously, the conclusion in the end by Bob Mueller is that the activities, the interaction between various Trump campaign people, not just Don Jr. But also people like Paul Manafort, did not rise to the level of a chargeable conspiracy. Okay, we got that. But then, of course, the really devastating stuff comes out of the effort of the President to stop that investigation. That leads to volume two and the ten counts of obstruction.

B (10:53)

And now back to our conversation with Congressman Jim Himes of the House Intelligence Committee, who is helping me pick through, well, the spy stuff and also the constitutional stuff of impeachment. So, Jim, one of the revelations that came at the end of last week and maybe didn't get quite as much attention as it, I think ought to have received was hearing, I guess, on Thursday that the bar Justice Department had begun to, quote, investigate the investigators, which is just to say that what was initiated as an administrative inquiry through the U.S. attorney, John Durham in Connecticut into the origins of the Russia probe suddenly had become perhaps a criminal probe. And that what was chasing down this Donald Trump fantasy that he was being spied on and that the deep state was out to get him now may result in what criminal charges for Jim Comey, for Andrew McCabe? Is this an attempt, it feels like an attempt to, in the effort to chase around Donald Trump's conspiracy theories about his enemy, strike a real blow at the heart of the intelligence apparatus and a blow that would have lingering effects.

A (12:07)

Yeah. You know, if you're an overseer, as I am, it's horrifying because the president and the Attorney generalcertainly, the president, but largely the attorney general have sort of lost their standing as impartial. You know, we know what the president does, and that's of course, why we're in impeachment and inquiry right now. But, you know, William Barr, the attorney general, has also demonstrated time and time again that he views his role as much about defending the president as he regards his traditional role as attorney general of overseeing domestic law enforcement. And so it's horrifying because in my opinion, the attorney general is doing this to appease the president, who has a wacky conspiracy theory, and not just one, but many, that there is this deep state arrayed against him that had an insurance policy. And I mean, I could go on and on with all of the traditional Fox News crazy conspiracy theories, including servers in Ukraine. Much of this stuff has been debunked. And at best, the best case scenario is not a good one. It's one where CIA officers and FBI agents are in some sense self censoring. Right. Like, well, I've got this lead that has a political implication, but I'm going to bury it because, my God, there's such downside associated with getting involved in anything that smacks of politics. And so on the one hand, that's the best case scenario, worst case scenario, the entire law enforcement apparatus may be being used in an attempt to buttress this president's deep state theories. And quite frankly, that's the stuff that smacks of banana republics in contrast to what we think of as the United States. And I should add, Dalia, some of this stuff is rooted in the possibility of legitimate review. So if you go back to the fact that Carter Page was subject to a FISA surveillance order by a judge that was renewed a number of times in their saner moment, some of the defenders of the president will say, well, the folks who presented to that FISA judge didn't adequately explain the source of the Steele memorandum. Now, the Steel memorandum, as you know, is a big bunch of raw intelligence, some undoubtedly true, some undoubtedly false. And that's actually a legitimate question to ask. Did the process work? Or in fact, was Carter Page, with the benefit of hindsight, would you perhaps not have allowed a continuation of the FISA warrant? That's legitimate. But that's not what's happening here. What's happening here is the part of a complicit is a complicit attorney general, by all accounts, wandering around the world trying to gather information or data that would buttress these wild deep state out to get Donald Trump conspiracy theories. And by the way, if you'll allow me one more 30 second block of speechifying here, let's remember what actually happened with respect to the deep state. There is an argument to be made that Jim Comey, as director of the FBI, breaks with protocol and precedent and not once but twice announces an investigation into the Democratic candidate for president, Hillary Rodham Clinton, including the second announcement right before the election. I mean, again, if you were a Martian who landed on Earth and said, you know, who was the deep state helping here? The answer would not be they were helping Hillary Clinton.

B (15:56)

The follow on to everything you've just said and what you've said is a little bit frightening. But then we have, as you say, Attorney General Bill Barr, who appears to be all in on this deep state theory and to be really helping push the narrative that, you know, the FBI is this hotbed of corruption and that criminal charges are going to need to be brought against the folks who had anything to do with the beginnings of the Mueller probe. And here he is speaking to Fox News on Monday and saying that he's actually connected, connecting John Durham with countries, with foreign countries that have information on the people that Durham is now investigating. So he's now going beyond just bolstering these claims that everybody who was in Comey's FBI who wasn't supporting Donald Trump by quashing this investigation is somehow a deep state malefactor, but now he's actually helping foreign countries to gather intel on American intelligence apparatus. I mean, it does feel, I don't know, really, really, really creepy, Jim.

A (17:04)

It is really creepy. And I mean we need to remember that Bill Barr, sadly for a guy who had a reputation in Washington, has identified himself very much as a bad actor here. And I point to two facts that caused me to say that. Number one, he, before the Mueller report is released, writes a memorandum that is made public that is so skewed that Bob Mueller, a man of few words and of very limited interventions in the course of history, writes a letter saying, basically, you misconstrued my report. So there's the Attorney general pre spinning the Mueller report. The second thing he did which really resonated with me and he continues to do this, is he continues to use the President's language of the deep state spying on him. That is right out of the right wing crazy conspiracy theory playbooks. If he were a decent actor, he might say, look, is it possible that there was inappropriate surveillance of one of Donald Trump's minor campaign aides? I'm referring here, of course, to Carter Page. That would be the responsible way to put it. But when he uses the word spying, which is both an incorrect use of the word and it's a word, of course, that points right at the fever swamp conspiracy theories. He's taken himself out of any semblance of impartiality in this thing, and he's really playing with fire here, because my bet is that all of this running around the world and all of these reports are going to uncover, surprise, surprise, no deep state conspiracy theory. But this has an impact on the bureaucracy. I mean, there are people who are working in all of these bureaucracies who are terrified about making a misstep that could be misinterpreted. And so in many cases, the damage of Bill Barr's complete selling out to the defense of the President has to.

B (18:59)

Some extent been done on this show. So much time is devoted to what it means when you break the Justice Department, what it means when you break the cords. The fundamentally nihilist project of undermining public confidence in institutions that utterly rely on public confidence. And you've just added the piece of the puzzle that I have been struggling, which is what happens when you undermine public confidence in the FBI and the CIA and the intelligence apparatus of the country. And over and above that, you're saying they actually can't do their jobs if they are chilled from zealously doing the work they have to do because of this kind of dark cloak of politicization, which is really the thing that the Justice Department has striven, I think, to avoid.

A (19:44)

I would point out, too, something that I think we all feel Even if we don't think about it a lot, even the President's defenders have some version of, oh, don't pay attention to him on this topic. You know, I think most of the President's defenders would say not every tweet is meant to be taken literally. So when the President trashes the CIA or the intelligence community or the FBI, you know, we've built up a little bit of an immune system. But when the actual bureaucracies themselves, the storied Department of Justice, you know, the FBI itself, when they get wrapped up in this effort, it's not just another gaseous emanation from the Oval Office on Twitter, it's a really scary thing. And people who understand the history of these agencies, let's say the. The post Hoover tradition of the FBI or the storied history of the Department of Justice, when they hear that the Attorney General is using these bureaucratic mechanisms in the chase of the President's fever dreams, it's a terrifying moment.

B (20:58)

And can you just put the cherry on top? Because I think one of the reasons that the foreign emoluments clause exists, the campaign finance laws that preclude foreign interference in campaigns, other laws that the House is investigating, this isn't just about domestic lawbreaking. It's about national autonomy. It's about the deep fear the framers had that foreign entities were going to buy elections, use political influence to kind of commandeer American autonomous decision making. And so, just to get back to our initial conversation about counterintelligence, I think we get, again, very, very focused on domestic law breaking. But there is a constitutional part of this story that is the framers weren't just worried about law breaking. They were worried about foreign powers inserting themselves into American affairs. That's one of the things you're trying to figure out, too.

A (21:58)

And I think that that question has two parts we've talked about. Part one, which is what were the Russians actually doing? Or in this last election, it would appear that maybe the Iranians were active. What can foreign powers do that they couldn't do before because we all live in this networked world? The other piece that is probably the subject of a whole other lengthy conversation is what happens in a free society when foreign bad actors get to contribute to the conversation. Contribute not being quite the right word. But as I said, I had an opportunity to asked Mark Zuckerberg a few questions in my other committee last week. And what does it do to us when, at the push of a button in St. Petersburg, all kinds of visual imagery can pop up on tens of thousands of screens all over the United States that might involve race baiting or. One of the things that still sticks with me is I saw a Twitter ad that had been bought by the Russians that was in Spanish, and it showed a lovely, presumably Latino family. And in Spanish, this ad said, hey, you don't need to go down to the voting booth to vote. All you need to do if you want to vote for Hillary Clinton is dial this number. And, you know, I don't know that we have any idea how many presumably Latinos thought they were voting for Hillary Clinton and dialed that number. And so, yes, there is the question of direct influence that I think the founding fathers were very, very worried about. But then there's also the question in this highly networked world of what does it mean in an open society where malefactors get to, in a very big way, contribute to our national civic dialogue. Contribute, again, being the wrong word, but get to sort of bastardize our civic conversation.

B (23:49)

And I want to just ask you two quick questions about Skiffgate. Again, it's a little counterintuitive that, you know, it looks like this big stunt, right? And there are Republicans who are not on the relevant committees being denied access to a scif, which is standard. There are other Republicans who are, you know, evaluating, questioning, witnesses, seeing evidence. So it looks like it's all a big joke. But can you just explain to us, just from your intel goggles, why it is that some of this stuff has to be kept secret?

A (24:19)

We know why Skiffgate is happening here, right? It is telling that none of the critics of the impeachment inquiry are engaging on the substance here. Like, should the president be asking, asking for a favor of a brand new foreign president? So instead they're engaging on process. And so, as you know, inside the scif, Republican and Democratic members of three committees have the right to sit and listen because those are the committees that are actually undertaking the inquiry. Now, the reason these depositions are happening behind closed doors, I would answer with the opinion of one Trey Gowdy, who, as you know, is sort of the lead inquisitor on Benghazi, who in a famous quote said, hey, you can get an awful lot more out of a closed deposition in which people aren't playing for the cameras, in which council can do the questioning, and the rather self satisfied members don't feel the need to play to the camera. You can get an awful lot more done. That's one reason. Another reason is that particularly when you have people who may have been working together And I'm of course referring famously to the now famous three amigos, you would like to get testimony without people having the benefit of coordinating their stories. And then lastly, when you're dealing with ambassadors, and by and large, we've been dealing with ambassadors, these are people who have access to lots of classified information. And so if you really want an open give and take, you want a venue in which which though they may try not to offer up classified information, where they can speak freely without worrying about doing that. So what's happening right now is happening behind closed doors the way any grand jury or any other investigation would happen, which of course is why the Republican critique falls down. And all of the process that they are demanding will in fact be layered in once we get out of the investigative phase. So, as you know better than me, if there is ultimately a trial in the Senate, there will be prosecutors in defense, there will be a judge, the Supreme Court, chief Justice. There will be an opportunity for the president's lawyers to cross examine, et cetera, et cetera. But this all boils down to desperately trying not to engage on what is pretty devastating substance, but instead trying to cast doubt on the fairness of the process.

B (26:43)

And I just have to ask you, the flip of Skiffgate is after Sunday's successful execution of Al Baghdadi, head of isis, the president, again guest tells Russia that this happens, but not the Intelligence Committee, not Pelosi. And so then there's this mirror image of what you've just been talking about, which is in some instances, there is a need for secrecy. In some instances, the President keeping something secret from the relevant Intelligence Committee chiefs seems different. And I guess I'm just driving inchoately, Jim, at this question about it seems that now secrets are not to protect the country, secrets are to protect the party. And that seems also like a very, very dispiriting new turn.

A (27:31)

I would distinguish the question of what the President decides to tell the congressional leadership from everything else that we've just talked about here. There has always been a push and pull between the President and the executive branch generally doing things, and they're telling Congress about it. And, you know, all the things like the FISA court and the arrangement that exists for a gang of eight where only the leadership of Congress is briefed come out of that tension. I think we have such other bigger fish to fry that I'm not too freaked out by the failure to tell the congressional leaders. I will point out that that's not a good trend. And I will also point out that there is something Very wise about involving the Congressional leadership because it appears that this raid went right. But when it goes wrong, you really would like to have had the benefit of some enormously experienced people. I mean, take Nancy Pelosi's party hat off. She's been working in or around intelligence for 30 years. I mean, famously long term member of the Intelligence Committee. And there's just virtue, I think, in having people who've been around this kind of thing for a long period of time. You know, as they say, if you're not there at the takeoff, don't expect them to be there at the landing. And in this case, it went right. But, you know, it's a better process if the President relies on the good counsel of a bipartisan group of leaders prior to doing something something like this.

B (28:56)

Can I ask you one last question that you're not going to like?

A (28:58)

Of course.

B (28:59)

Okay. Charles Kupperman, served as deputy to former National Security Adviser John Bolton, did not show up on Monday despite a congressional subpoena and a warning that a failure to appear could result in a contempt citation. You know, it's coming. What are you going to do? Is tiny jail for him, huge stiff fines?

A (29:20)

Well, you know, the traditional remedy for, you know, failure to appear before Congress or contempt of Congress has been to ask the Justice Department to do something about it or to go to a judge to enforce an order. And so, yeah, we're at a weird impasse here. And when you talk about tiny jail, what you're talking about is the long disused. And boy, is this the topic for a podcast. At some point, the long disused Teapot.

B (29:43)

Dome is the last time. No inherent contempt. Yes, right, I know it.

A (29:47)

Yeah, yeah. So there's much discussion and I mean, I think in the 21st century people say we're not going to actually reopen the tiny jail, but you know, presumably a fine of, you know, 25,000 a day for non compliance might get the attention of people who otherwise might ignore the Congress. But you know, it points to a much larger issue, which is that, you know, the President does have some right to privacy in discussions with his advisers. And that, of course, is where you get executive privilege. But it cannot be used for blanket things and it needs to be very, very pointed and specific. And so Kupperman should have shown up. You know, he's defying a congressional subpoena right now, which is very serious business. He should have shown up and he should have required the White House to detail precisely what their claims were of privilege around specific topics. If we don't Have a world like that. If we have the world that we're living in today, we are on the way to doing away with the traditional checks and balances in our system.

B (30:47)

A lot of listeners who want to know what they should be paying attention to, how to triage the news, what is wheat and what is chaff? What's your best advice to folks on what to pay attention to, what to focus on? I know that, you know, so much of the battle cry right now is don't be distracted. But, of course, all the distractions are distractions from other distractions. It's hard to center what is the most important thing? What is the most important thing we should be watching in the coming weeks?

A (31:19)

Look, what happens in the Congress is not terribly unpredictable, I'll tell you that. Nothing is certain in this world, but it is almost certain that there will be articles voted on in the House and the President will be impeached in the House of Representatives. There will be a trial in the Senate, and the Senate will not convict Donald Trump. Okay, That, I think, is 95% probable to occur. So. So for those people who are politically opposed to this president, the moment of accountability is the November 2020 election. And people should think about what that means to them and what they're willing to do along those political lines. There's another interesting question, which is how do we go about rebuilding the norms and the conventions and the institutions that have really taken a beating in these last three years to some extent. There's an interesting kind of legal, technical conversation about how do we make explicit what exactly the bounds are of executive privilege, and how do we get away from the Trump administration's belief that if you worked for the campaign at some point and you never worked for the White House, nonetheless, you are sort of not testifying in Congress because of executive privilege. That's obviously insane. We need to make explicit what those things mean. The classic sort of, you know, taking norms and making them explicit. The other thing that people need to start thinking about is that a lot of the crazy that we're all suffering these days comes from a profoundly polarized citizenry. And I sometimes have to remind my Democratic colleagues and Democratic supporters who are in full activation mode, that, yes, by all means, let's win. I think it's existential for the democracy that we win in November of 2020, but let's also spare a thought to what we do and say to get us to a place that we can start restitching the civic dialogue in this country and move it away from the almost violent tribalism, the black and white Manichean framing of our politics today to a calmer, more open, more humble politics. Because frankly, we don't survive in the long run if we are fully tribal and Manichean. We survive because there is flow of ideas and people change their minds and they're a little bit humble about their political opinions. I think that's a great undiscussed project for hopefully the very near future.

B (33:51)

Jim Himes represents Connecticut's 4th district in the U.S. house of Representatives, where he is serving his sixth term and he sits on many, many committees. But for our purposes, the Intelligence Committee and I will follow your restitching wherever it takes us. Jim, thank you so much for being so generous with your time today.

A (34:10)

Thank you, Dalia.

B (34:15)

And that is a wrap for for this special bonus episode of Amicus. Thank you so much for listening. If you would like to get in touch, our email is amicuslate.com and you can find us@facebook.com Amicus Podcast. We have been getting so much mail. We appreciate it. We really love the feedback. Today's show was produced by Sarah Burningham. Gabriel Roth is Editorial Director of Slate Podcasts and June Thomas is senior Managing Producer of Slate Podcast Podcast. And we will be back with another episode of amicus in about 10 days.