← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
We’re Back to Where Mueller Began: Counterintelligence
00:48:17
Yale’s Asha Rangappa takes us inside “the spy stuff.”
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- [00:10]
Asha Rangappa
What the FBI would be doing is saying on the criminal side, we believe the firing of James Comey was obstruction of justice. And by opening the counterintelligence side, they are formalizing the suspicion of underlying collusion which the obstruction was trying to prevent from being discovered.
- [00:34]
Dahlia Lithwick
Hi, and welcome to Amicus, Slate's podcast about the courts, the Supreme Court and the rule of law. I'm Dahlia Lithwick. I cover those things for Slate. A whole lot of Supreme Court happenings this past week, including Ruth Bader Ginsburg sitting out oral arguments as she continues to recover from major surgery and a surprising unanimous decision this past week holding that independent contractors who work in transportation cannot be forced into mandatory arbitration. Arbitration court also handed down a 5, 4 decision about use of force under the Armed Career Criminal act. And that 5, 4 breakdown was not the usual suspects. The court now enters its long winter break. RBG is promising she'll be back on the bench for the February sitting, and we are, I should note, well into the longest partial government shutdown in American history. But that said, we thought this is a good week to look back and try to make some sense out of what we've come to think of as the law of Trump on this show, since we've had not one, not two, but three massive new developments on that score in this week alone. Last Friday, we learned for the first time from the New York Times that the FBI had started a counterintelligence inquiry into whether Donald Trump himself was somehow working for the Russians during the campaign. Over the weekend, we learned from the Washington Post that Trump had had several meetings with Vladimir Putin for which there are no not. The notes had been confiscated and destroyed. And then late Thursday night, BuzzFeed offered up another bombshell to suggest that Donald Trump had actually directed his longtime attorney, Michael Cohen to lie to Congress about negotiations to build a Trump Tower in Moscow. Now, if that latter reporting proves true, this is evidence for what I think is the kind of obstruction that made its way into the articles of impeachment against both Richard Nixon and Bill Clinton, who were alle to have encouraged witnesses to make false statements under oath. And we've talked a lot about the Mueller probe on this show. We've talked to government lawyers, we've talked to white collar crime experts and former federal prosecutors. But we haven't ever really done, I don't think, a deep dive with somebody who understands the FBI counter intel piece, what I have come to think of as just the spy stuff. Asha Rangappa is here today to fix all that. She is A former head of admissions at Yale Law School, she is a senior lecturer at the Jackson Institute for Global affairs at Yale, and she teaches National Security Law. She was also a special agent with the FBI, and she focused on counterintelligence investigations from 2002 to 2005. And so, Asha, with that long windup, welcome to the podcast.
- [03:29]
Asha Rangappa
Thank you so much for having me.
- [03:31]
Dahlia Lithwick
So the one thing I've just been parroting mindlessly for the past couple of months is that folks should always remember this started as a counterintelligence probe. It was not initially a criminal investigation. But I have to confess, I say that all the time, but I don't quite know what it means. So I want you to explain what it means that this starts as a counterintelligence probe and what it means that essentially, in the beginning, the FBI was just looking at what foreign powers were doing. Right. Can you unpack for us? Talk to me like I'm seven and unpack the difference between a counterintelligence probe and a criminal investigation, please.
- [04:09]
Asha Rangappa
Yes. So the counterintelligence side of the FBI and the criminal side are two different parts of the Bureau, and they have different missions. The criminal side is to investigate violations of U.S. law, the criminal code, and to resolve them by ultimately either pursuing charges in court or declining to pursue charges in court. The counterintelligence side of the Bureau is charged with identifying and neutralizing foreign intelligence activities activity in the United States. You know, since the 1970s, after the church hearings exposed a lot of sketchy things that the FBI and CIA were doing, there have been rules put in place through executive orders, through the Attorney General guidelines, which makes the FBI the only agency that can really operate within the geographic bounds of the United States and monitoring foreign intelligence activity. And the CIA has jurisdiction abroad. Now, you are right that this started as a counterintelligence investigation, so this would fit in with that mission to identify what the Russians were doing. They got wind, saw signals that foreign intelligence officers were trying to interfere in the US election in 2016. And the idea was, we need to identify what they're doing and take steps to stop it. One thing that I do want to emphasize is it doesn't. You know, these are not mutually exclusive sides of the Bureau. In other words, it is probably still a counterintelligence investigation to some degree. That piece has continued on. Anything that is dealing with the foreign intelligence services that's collecting intelligence, either through electronic means, getting it from our allies, tasking CIA sources abroad. All of those would have to go into those top secret national security counterparts, counterintelligence files, criminal cases can exist parallel to this. So what happens is, is that you're doing a counterintelligence investigation. If you come across criminal activity, that can be the basis of then opening a criminal case on the criminal side of the FBI. This is kind of. It's easier to do this now since 9 11, because we've all heard about the wall that used to exist, and then this prevented information sharing, which led to the intelligence failures of 9 11. That wall came down as a result of the Patriot Act. And as a result, it is much easier for the criminal side of the FBI to open criminal investigations when that is uncovered. And these will. These will use different kinds of techniques because they are going to collect evidence that will have to be revealed in court potentially. So they're going to, you know, scrub classified sources and methods and use techniques that they are willing to put their cards on the table if and when the time comes.
- [07:14]
Dahlia Lithwick
And can you just explain you were a special agent? When we talk about a counterintelligence investigation, it seems to me, I know you wrote about this this week. There's just a lot of, like, sitting around watching people, right, and listening to people. It's not. This is often just like trying to figure out who is compromised, who is compromising. And when the folks you're watching become vulnerable to the point that something needs to be done right? I mean, this is kind of not what we necessarily think special agents do, right?
- [07:48]
Asha Rangappa
This is. I mean, you know, this isn't kicking down doors and arresting people. You know, most foreign intelligence officers are operating here under diplomatic cover. So, for example, in New York, the counterintelligence division will often be monitoring people who are working at foreign consulates or the UN mission and trying to figure out who are the diplomats here who really aren't diplomats and who are really spying. And once they identify those people, then they need to know what are they trying to do, what are they trying to collect. Different countries are going to have different collection priorities. So, for example, China is very interested in stealing trade secrets, economic espionage. So that's going to take, you know, their agents, the people that their intelligence officers recruit to do things for them are going to be in different places than, say, you know, Pakistan, who might want our defense secrets because they're interested in beefing up their, you know, nuclear arsenal or something. I mean, so what intelligence services are doing will be different depending on that country's interests and priorities. You know, Russia is unique because their intelligence services are only partially engaged in collection A Good chunk of what they do is subversion. So what they are trying to do often is recruit people who are going to help them execute operations that serve to agitate, create chaos and help delegitimize our institutions. And that's kind of, broadly speaking, what their election interference in 2016 was about.1.
- [09:37]
Dahlia Lithwick
Last just table setting question, and that is when Kellyanne Conway, having read this New York Times report, turns around and says, well, this just proves that there is a deep state. This just proves that Jim Comey and Andrew McCabe and everybody else was in the tank trying to go after Donald Trump, even during the campaign. The answer is no. They weren't actually targeting Donald Trump or the campaign. They were trying to figure out they were sort of pressing on the spots that they thought were susceptible to the kind of manipulation you're describing, right?
- [10:17]
Asha Rangappa
That's right. So if they're watching the Russians and what they know is that people associated with Russian intelligence are in communication with people that are in the campaign, then they need to figure out what that is about. Are they targeting these people for development? That's the intelligence term for we see somebody who has some vulnerabilities and we can work these over time, and they become our assets, whom we can task. Are these people that they've already developed and recruited that are in the campaign, people like Paul Manafort and Carter Page, who had already been on the FBI's radar well before Donald Trump even ran for president. So you can see that they would be incredibly alarmed to see those people coming in and then they're watching all of this activity, whether it's social media, they discover the hack of these servers. So they're trying to piece this together. Counterintelligence is often chasing ghosts. You're seeing little bits and pieces, and it's like if you are watching a movie and it keeps going fuzzy and you just see a little bit and then it goes fuzzy again. And so what you're trying to do is make sense of it all and put it all together. So, yes, the focus would have been on what is Russia trying to do? What are they trying to do with this campaign? Because we see all these contexts and communication converging right here.
- [11:49]
Dahlia Lithwick
What's so confusing to us, Asha, is that again, the blockbuster reporting from the New York Times was met with a little bit of a, like, we knew all this already, right? We already knew that Robert Mueller was conducting a counterintelligence probe of links between Trump's campaign and the Russia government. This is stuff that the Washington Post had already reported this is stuff that we knew had all been happening in that summer of 2017. And so even I think the authors of the. The New York Timespiece later said they weren't even completely sure what was new about the story they were reporting last Friday.
- [12:28]
Asha Rangappa
Yeah, I mean, in sort of a common sense way, everybody has felt that Trump's position and attitude and relationship with Russia has been incredibly suspicious. But what we knew until last week was that the FBI had a counterintelligence investigation open on any links or coordination between Russia and the Trump campaign. So that would mean that they were looking at, as we just discussed, people from Russia and then people that they were in communication with. Those would be. So these are, you know, there's no one case that's like, you know, links with Russia. That's not the name of the case there. There's, you know, an umbrella name perhaps called. Maybe it's still crossed by a hurricane. I don't know if they've changed it now that that was published in the New York Times. But what that would be is really an umbrella name for a set of discrete cases on individuals or organizations that may be related to this broader theme of election interference. And so, you know, there'd be an individual case on Paul Manafort and on Carter Page and on George Papadopoulos and Michael Flynn. We didn't know until last week that there was actually an individual case opened on Donald J. Trump, the President himself. And the reason that the opening of a case is significant is that to open the case, you can't just say, you know, I think that he's just been acting very sketchy. I feel like opening a case and checking this out. That's not how it works. I mentioned before the rules that were put in place in the 70s, and one of those is called the Attorney General Guidelines. And these specify the basis on which you can open a case, both on the criminal side and the counterintelligence side. And what you would need to open, just even the most limited kind of case, is a reasonable suspicion that somebody is working for or on behalf of a foreign power and may pose a national security threat to the United States. And you would have to provide all of the evidence or all of what you. You'd have to substantiate that. You can't just say, this is what I believe. You have to point to a lot of things. And so what it told me is that they had collected enough to actually document that into an opening. EC is what they call them, electronic communication, opening documentation for a formal investigation. And what's interesting to me about Kellyanne Conway and these other people who kind of thought this was the evidence of the deep state, I think it's quite the opposite of the evidence of the deep state, because what they are doing is formalizing this. There are agents, the general counsel, people putting their name to documents saying, we believe that this person may pose a threat to national security. If you really had people going rogue, they would. They'd be using, you know, loopholes in the shadows to try to gather dirt on the president and leak it or something like that. This is a non, you know, damage. You can't do any. You can't delete these files. I mean, these will live on forever, can be subject to oversight, and people who worked on these things can be held accountable for the things that they were doing, and they were willing to do that. And to me, that tells me that they were actually wanting more transparency about what they believed was going on.
- [15:55]
Dahlia Lithwick
So actually, that leads kind of seamlessly to my next question, which is giving voice to the meh contingent. You know, this doesn't matter. One of the things that they say is, well, of course they opened a probe because everything was kind of sketchy, but we have no idea whether it was closed the next week. We don't know anything. And certainly there's nothing in the Times reporting that tells us what happened after the FBI opened this investigation. So isn't the real value of the story, well, okay, now, conceitedly, it was open, but absent any understanding of whether it's ongoing, whether it was closed, what has been found, the story, again, effectively just tells us that they did what they should have done at the FBI, which is start to look.
- [16:41]
Asha Rangappa
Exactly. And I think you've hit the nail on the head. To me, the more interesting question is, what happened? Did they. Did they close that investigation? That one individual thread, as I mentioned, there are a lot of different threads. Some of them don't go anywhere and they close them. And here in particular, what we know from the reporting is that this was really an initial, like, assessment, Right. The question was, is, is Trump working on behalf of Russia or is he innocent and just kind of a doofus and doing bad policy? I mean, which he's, I guess, entitled to do as the President of the United States. And when you are at that stage at that is, you know, if you are really just determining whether or not the threat exists, that's something in the FBI that's called a preliminary investigation. It's an investigation that can last no longer than six months. And you have a more limited arsenal of investigative techniques that you can use. But the point is that you are trying to determine whether this person does in fact, pose a threat. So, for example, if there was a contact between a foreign intelligence service and a person, it might be to determine, is this contact because they're actually helping this intelligence service spy, or are they being targeted unwittingly? What happens is, by six months, you need to have gathered enough information to make it into a full investigation, which is, I have a reasonable factual basis to know that this person is acting on behalf of a foreign power and poses a threat to national security. That then becomes an indefinite investigation and authorizes all kinds of other more intrusive techniques. But if you have not met that next threshold by six months, you need to shut it down. You are required by law to shut it down. And so to me, this was open in May 2017, by November of 2017, what was the status of this case? Because that is what will tell us what happened in that investigation.
- [18:43]
Dahlia Lithwick
And then you wrote this slightly terrifying piece in the Washington Post in response to the New York Times piece, where you said the usual methods for dealing with a national security threat were never intended for a situation where the President himself is the threat. Can you lay out the option? Well, first of all, explain why that's the case, and then you lay out sort of the options for when it's the President himself who is the thing that we're looking at. Can you explain just briefly what it is that this intended to deal with and what the options are when it's the President himself?
- [19:18]
Asha Rangappa
Yeah, this is kind of the situation from the movie When a stranger Calls, where she's calling the police, you know, about prank calls, and they finally say the calls are coming from inside the house, you know, which is very scary because that's not what she was prepared to be dealing with. And that's what's happening here. So let's say that they do assess that he is working for on behalf of a foreign power and, you know, are pursuing this investigation. In a normal investigation, once you've identified a national security threat, intelligence threat, you need to neutralize it and neutralize, Neutralize it. Neutralizing involves taking steps to make that intelligence services activities ineffective. And so, you know, the FBI can do this in a number of ways. Sometimes they can just monitor the activity. So, you know, the FBI actually gains a lot of information once they're onto an operation, just by seeing what's the tradecraft, what are the codes they're using, who are they Talking to, how are they doing their dead drops, like those kinds of things. And they gather a lot of intelligence about the priorities and tradecraft of that country's intelligence service. And so a lot of people will say, why haven't there been any charges filed? Well, sometimes there may not be charges filed, even if they believe someone's spying because they want to keep it under wraps. They don't want the adversary to know. Another way you can neutralize a foreign intelligence operation is to flip the person. If they have vulnerabilities, if you feel like their loyalty to the foreign power is not so tight, you can get them to work for the United States and become a double agent. If they are passing classified information, you can kind of surreptitiously move them away from that and not let. Again, you're doing this simultaneously while you're monitoring them and making it so that what they're passing on isn't going to damage the United States. And all of these you can't do with the President. I mean, you cannot. He's the President of the United States. He is the chief of the intelligence agencies. He is the ultimate consumer of the intelligence that they collect. So to the extent that they monitor him or, you know, collect information, he's. He's technically ultimately entitled to see it. You can't move him away from sensitive information. That's what he's entitled to see. And you're not going to flip the President of the United States. You kind of assume that he's already working for our team. So, you know, the FBI is. This is not. This is not a situation in which the normal protocols of a counterintelligence investigation would be applicable.
- [22:16]
Dahlia Lithwick
Right. You can't just send him to Russia. Yeah. No. I think the other thread I want you to pull on for us is immediately after the Times story broke, Ben Wittes was up saying, look, this is where the counterintelligence bucket is bleeding into the obstruction bucket. The obstruction is the thing we should be looking at. Can you help explain for those of us who have. I've tried really hard to chunk out on this show, there's an obstruction piece, there's a collusion piece. Now there's this counterintelligence piece. Can you just draw the straight line for our listeners between how this counterintelligence probe starts to bleed into the obstruction probe itself?
- [23:04]
Asha Rangappa
Yes, and I think that there can be two ways, because I read Ben Wittes piece in. You know, I wasn't totally clear on his argument, but I understand his argument as being that the firing of James Comey was itself believed to be something that was done for or on behalf of Russia or for their benefit. And so that firing, while it would be obstruction because it would be impeding, you know, the FBI's ability to investigate the matter, so that would be criminal obstruction, that that act was also potentially collusion, something that was done as a secret implicit, or explicit or indirect agreement with Russia. And so that would also form the basis of a counterintelligence operation. You know, I think that's. That could be one thing. I would think that if even if that were the case, there would be much more, again, in that opening predicate for the counterintelligence investigation that would substantiate why there was a belief that the firing of James Comey was done at Russia's behest or with the intent to benefit that foreign power. I just don't think that would be taken alone enough predicate, but I think that's possible. One thing I also thought after reading William Barr's memo where he talks about obstruction, he has this very expansive idea of the President and his article 2 powers, and believes that the firing of James Comey could not on its own, form the basis of a criminal obstruction investigation. And he goes on with this. He says that it would only be permissible to open in a criminal obstruction case on the President if you knew that there was underlying collusion that he was trying to prevent the FBI from uncovering. And I think what he's saying there is that normally you don't have to have any merit to an underlying case to obstruct justice. Just because I think that there is something there and I try to thwart it, that doesn't immunize me. If the underlying case either didn't exist or wasn't going to go anywhere. But he's saying in the case of the President, you would need that because he is the chief executive. And so I think that having opening the counterintelligence case kind of actually fits in with that model as well. Because what the FBI would be doing is saying on the criminal side, we believe the firing of James Comey was obstruction of justice. And by opening the counterintelligence side, they are formalizing the suspicion of underlying collusion, which the obstruction was trying to prevent from being discovered. There might be a very fine line between what I just described and Ben witnesses. I think they're very similar, but those are kind of the two ways that I see them being connected.
- [26:26]
Dahlia Lithwick
We know you value the journalism that we do here at Slate, and now more Than ever, this work needs your support. And the very best way to support it is through our membership program, Slate Plus. With a Slate plus membership, you can enjoy this and all of Slate's podcasts ad free. And you will also be supporting our journalism at the same time. There's a free trial to be found@slateplus.com amicus. Now back to our conversation with Asha Rangappa, former FBI agent, senior Lecturer at the Yale University's Jackson Institute for Global affairs, and a former Associate Dean at Yale Law School. So. So one question I do have is we've been sort of fiendishly chasing the money, the money laundering, the Deutsche bank, you know, the, the Jared Kushner stuff. But this whole piece of it that you're describing here, this counterintelligence piece, is this the piece we will never hear about? In the end, is this the least likely thing to be? Whether it's leaked or whether it's openly discussed, are we ever gonna find out the part of it that seems as though in some ways it's the most brain exploding piece, that Trump may have secretly or unknowingly been working for Russia? Is this the part that we never find out about?
- [27:46]
Asha Rangappa
So in any kind of normal counterintelligence case, I would say yes. It's, you know, these are, these typically don't see the light of day. They don't see the inside of a courtroom. We never know what happens. And like I said, that's because, you know, it really depends on whether the FBI decides that exposing all of this and giving our adversary a heads up on what we know and how we know it, that that trade off, you know, is worth the gain from, you know, whatever public interest. And usually it's not. Usually we want to keep what we know close to the chest. I think in this case it's different. And this kind of goes back to the Washington Post piece that you referenced earlier. I mentioned all the ways that the FBI cannot neutralize the President. You know, there is one option for them, and that is exposure. This is another way you neutralize a foreign intelligence service. What you do is you. You pull the curtain back and you say, aha, we know you did this, and this is how we know it. And while that gives them a lot of information about our capabilities and what we know, it does force them to abandon their operation. We burn their sources, they can't use them anymore. They know that the jig is up. And really, I think that is the only option in this case. To some extent, Mueller has already been pursuing this strategy. So when he has filed indictments against 13 Russian nationals and three Russian companies for their social media and disinformation campaign or 12 GRU officers for their hack into the DNC server, he's not filing those indictments because he actually thinks that he's going to be able to get those people into court and take them to trial and put them to jail. That's never going to happen. He did it because the indictments provide a vehicle for him to let the American public and also Russia and Vladimir Putin know, hey, guys, we know exactly what you did. We know every single post that you put on Facebook. We know every keystroke that you made to hack into the DNC server, and we are onto you. And this is going to stop. And so I think the question is going to be, you know, will they get to a point where Mueller is able to do this in a report to the Attorney General? Because he cannot give a public report to. He can't give a public report. He can't give one directly to Congress where he can do this while keeping our own sources safe. You know, we do have human sources. You don't want to burn them if they're in Russia. I mean, you don't want to make Putin mad and send him on a polonium spree. Right. So I think that's where this is going. But I do think exposure is really the only way to fully neutralize whatever Russia did and what they might be continuing to do.
- [30:55]
Dahlia Lithwick
Asha, what you're saying is so interesting because it gives voice to the sense that, like I said, every week we've got a smoking gun. Every week we say, okay, this is the end. Right? This is the end. But in a way, Mueller is kind of rolling out the smoking guns in front of us. It creates this strange jarring effect where we keep finding out things we already sort of knew. But I think that what you're saying is, even though this lessens the chance of a aha at the end of it, it's certainly is the way to get the information out to make whatever is happening stop now.
- [31:33]
Asha Rangappa
Yeah. And I think also because remember what I said about, you know, how counterintelligence operations and criminal cases operate, they're doing the counterintelligence case as they come across criminal activity if they believe the equities are worth it and the trade offs that might spin off into a criminal charge case and then ultimately a charge. So these criminal charges that were fine, that ultimately make it into court and result in indictments and convictions and pleas are just Slivers of the big story. So one of the my pet peeves is when people, like, look at a charge like, you know, Paul Manafort's original, you know, whatever the 20 some odd charges that he had, and said, well, this has nothing to do with collusion. And so, you know, if you're someone who's worked in intelligence or counterintelligence, you can read between the lines. I mean, you know, a guy who owes $10 million to a Russian oligarch tied to Putin and shows up on Trump's doorstep willing to work for free, and, you know, who's been engaging in money laundering and, you know, has a lot of baggage that can be held over him, is someone who would be an ideal asset for a foreign intelligence service, but that, you know, all of that is not part of the criminal charge. So that's not gonna be laid out in the indictment. And so, you know, the counterintelligence story will put all of these criminal charges in context to say, here's what you know, here's why all of these money laundering charges are relevant, because they are how, you know, Russia roped Manafort in to do their dirty work for them. And we need those pieces. We need that whole backstory, the full movie, to make sense of what we see in the foreground.
- [33:20]
Dahlia Lithwick
Can you talk just for a minute about the other big blockbuster story that came out this week? One of three, by my count, which is that there are no notes, there are no contemporaneous notes of several conversations between Trump and Putin, and even some of Trump's own folks who should have been read in to what was going on, don't know what was going on. Again, one of those things that it could be a huge deal could just be Trump being weird. How on the Richter scale, how consequential is it, in your view, that we just don't know what happened in these conversations and Trump didn't want us to know?
- [33:58]
Asha Rangappa
Yeah, I mean, to me, this is again, from an intelligence perspective, a 10 on the consequential scale. Why do you meet with a former KGB officer when you're the President of the United States by yourself, when that allows them to potentially, you know, not only spin the conversation to their benefit and manipulate it, but also perhaps use the contents of what was discussed as leverage over you? You know, there's literally no. There is literally no policy and legitimate job based reason for him to do that. I think especially problematic is what we know after he came out of those meetings, I mean, he came out of the meeting with Putin at the G20 wanting to create a cyber partnership with Russia. This is in the wake of our intelligence services, our intelligence community, concluding unanimously that Russia had attacked us, had attacked our democracy, and interfered in our elections. You know, he comes out of that meeting, he later mentions that they discussed adoptions. Flying home from that meeting, he helps draft Donald Jr's cover story for the Trump Tower meeting. And the COVID story was what adoptions? I mean, so there's all these, like, you know, both this weird allegiance and partnership that he kind of has and parroting of talking points that apparently they discussed in things that happened later. These are not good signs for someone who holds, you know, all the national security powers basically vis a vis the the rest of the world. You know, when it comes to the United States, like, you just don't want that. But again, I think until we know the full story of how that relationship developed, what was going on behind the scenes, I don't think we can fully get the magnitude of what those meetings could have possibly been about.
- [36:05]
Dahlia Lithwick
And so then that takes us finally to the big Thursday night buzzfeed story that we've got now. Trump allegedly actually instructing Michael Cohen to testify falsely about the whole timeline for the Trump Towers Moscow project. This is now creeping up on what looks like real obstruction, suborning perjury. This is serious if it's borne out. And I should say, I don't think other as of this taping, nobody has confirmed the buzzfeed story.
- [36:35]
Asha Rangappa
You know, the buzzfeed reporting says that this is based on texts and emails and other communications that's in black and white. And that can show that Trump was directing him to lie. And this is, you know, this is important for two reasons. One is it's not just lying to the FBI, which is bad. I can tell you that you don't want to lie to the FBI. That's what Michael Flynn pleaded guilty to and George Papadopoulos. But this was lying to Congress. And this is while the President was the president. And so when you are actually impeding the functions, the legitimate oversight functions of a co equal branch, you're really.
- [37:17]
Dahlia Lithwick
Violating.
- [37:19]
Asha Rangappa
The structure of the Constitution and the checks and balances that it's created. So it's lying, but it's lying to Congress. And that is something that Congress as an institution should be very angry about. The other thing is what he was telling him to lie about. He wanted him to lie about the duration and nature of the development plans or negotiations for the Trump Tower. Moscow. Now, Trump was a businessman. He had buildings everywhere. He should have been transparent about these plans and the fact that he stood to make a lot of money, since he was also promoting overtly, a very pro Russia foreign policy stance. So you have that right there. But you have to ask why, even when it was over, he was asking Michael Cohen to lie about it. He didn't want any more digging into what that negotiation involved. And that's when you start to get into questions about what is the relationship with Russia? What was this being promised in exchange for, if anything? Because otherwise you have the sketchy but not necessarily illegal defense of, you know, I can pursue business deals. I'm not obligated to tell anybody. But now you're starting to get into, I don't want something to ever be discovered.
- [38:47]
Dahlia Lithwick
And I guess that leads me to this last lingering headache that I have, which is that everything you're laying out sounds perfectly plausible. But of course, hilariously, Trump tweets back at you, like, what? I just wanted a better relationship with Russia. What? I was just a businessman. I wasn't sure I was going to win the election, so I thought I'd just keep doing my deals. What? You know, I'm just. All I did was like, fire Jim Comey because he's annoying. I mean, there seems to be a weird way in which what you lay out, what Mueller lays out as this sophisticated, you know, obstruction, collusion, you know, self enrichment enterprise, he just kind of weirdly cops to afterwards and says, eh, there's nothing wrong with, you know, anything I did. And by the way, Michael Cohen is a big fat liar. It's just such a strange. He's so open about asserting that, yes, he did these things, but it's all totally fine because whatevs.
- [39:42]
Asha Rangappa
Well, you know, I mean, he'll cop to it when he's finally backed into a corner. But, you know, as an investigator, the thing is that people don't lie about things in the first place if there's nothing wrong with what they're doing. And we're not talking about a one off here, Dalia. We're talking about. And we're not just talking about Donald Trump. We're talking about every single person associated with this campaign, even including the former Attorney General Jeff Sessions, when confronted with potential contacts with Russia, have lied about it. They have tried to conceal it. Even when these contacts were happening. And the FBI briefed the campaign in August of 2016 saying, we believe Russia might be targeting our political campaigns. Let us know if you have any unusual contacts. None of them contacted the FBI. And even after they Continued to remain in communication with Russians in some instances after that. And so, you know, he's kind of copying to it, and he's also not acknowledging what the problem is from an intelligence standpoint. The problem is that when you are lying about something and a foreign adversary and their intelligence services know the truth, even if the truth can only be politically damaging to you, not even necessarily criminally or legally damaging to you, that is leverage. And every. And the more that they have, and the deeper you get in the lie, the more that they have over you, because you will be willing to do more in order to prevent the truth from coming out. And so, you know, yes, he could pursue this business deal. He was not being transparent about his interest to the American people when they were voting. But once he became president, by keeping it secret, Putin basically had something to hold over Trump, to say, look, I could put out there right now our recorded conversations about how psyched you were to make a million dollars from here in. And that is itself a national security issue. That's an issue of foreign influence that we never want for someone in the Oval Office.
- [42:01]
Dahlia Lithwick
I just want to underline that because I think it's so important. I think we get so fixated on the Steele dossier. Is there a pee tape? You know, is there this thing that is so compromising that Putin has over Trump that Trump will do what he wants? And your point is correct? It doesn't matter what there is, and it doesn't matter if it's true, as long as Trump is susceptible to being influenced. Because there is something. That's the only question, right?
- [42:29]
Asha Rangappa
Yeah. And he is so image conscious. I mean, you know, at this point, like, I actually believe that what would be the most motivating, shall we say, for Trump is any evidence that Putin has that he is not. That Trump is not as rich as he has claimed himself to be. Because that is the entire basis on which Trump has created his image and his identity. And he fears humiliation and exposure above all else. And if somebody had the ability to expose him in that way, to basically humiliate him and show that he is, you know, broke or dependent on, you know, Daddy Putin for money, that itself, I think, could be a motivation for Trump to want to ensure that that never comes to pass. So, yeah, the underlying secret need not be criminal, and it just has to be something that the person really wants to keep concealed.
- [43:36]
Dahlia Lithwick
Last question. Okay, so you brought this up, and I think it's a good place to both start and finish. This week, William Barr had confirmation hearings and as you mentioned, also, he had this lavish secret 19 page memo in which he expansively defined what obstruction could be in Trump's case in ways that rope out the firing of Jim Comey. But let's just listen for one little second. Here's Amy Klobuchar asking Barr if there's any reason to believe that meaningful obstruction happens like false testimony. Is that different? Let's listen.
- [44:16]
Amy Klobuchar
In your memo, you talked about the Comey decision and you talk about obstruction of justice, and you already went over that, which I appreciate. You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?
- [44:34]
Asha Rangappa
Yes.
- [44:34]
Amy Klobuchar
Okay.
- [44:35]
Dahlia Lithwick
Or any, well, you know, any person who persuades another.
- [44:39]
Amy Klobuchar
Okay. You also said that a president or any person convincing a witness to change testimony would be obstruction. Is that right?
- [44:47]
Asha Rangappa
Yes.
- [44:48]
Amy Klobuchar
Okay. And on page two, you said that a president deliberately impairing the integrity or availability of evidence would be an instruction. Is that correct?
- [44:57]
Asha Rangappa
Yes.
- [44:58]
Dahlia Lithwick
I guess my last question for you is this is important, right? This is Barr expressly and avowedly saying, if Donald Trump did The thing that BuzzFeed says he did, I can't help him. Right. It's just that simple.
- [45:15]
Asha Rangappa
He has laid it out in black and white what his whole point was that the firing of James Comey is substantially different than a direct attempt to.
- [45:27]
Dahlia Lithwick
Conceal.
- [45:30]
Asha Rangappa
Or tamper with evidence. And he uses suborning perjury, directing someone to lie as an example of a way that you can directly conceal or tamper with evidence. And that that would. That would definitely be obstruction. And he was trying to use that example as a way to distinguish it from the firing of James Comey. So he has actually laid out the theory, the legal theory, that of how Mueller would frame this in such a way that it would comport with his own, with Barr's own view of obstruction and, you know, wouldn't be able to say, no, this is not legally valid. The other thing is that, you know, Barr kind of hedged a little bit on what he would share with Congress in terms of Mueller's final report. As I mentioned before, Mueller is allowed to present a confidential report to the Attorney general. And then it's up to the Attorney General to both provide that to Congress or release it to the public. And I think that there is. The President has a big problem here because as I mentioned before, lying to Congress goes directly to Congress's own ability as an institution to fulfill its functions. So I don't see any legitimate basis on which Barr could withhold what Mueller has found with regard to that crime, suborning perjury and obstruction of justice. When it comes to Congress, even if Mueller says, I don't believe we should indict because of Department of Justice policy, I think Barr would be obligated to pass that information on to Congress.
- [47:06]
Dahlia Lithwick
Asherangapa is a former head of admissions at Yale Law School. She's a senior lecturer at the Jackson Institute for Global affairs at Yale, where she teaches national security law. She was also a special agent with the FBI, specializing in counterintelligence investigations and I for one, feel exponentially smarter than I did a few minutes ago. Asha, thank you so, so, so much for taking your time.
- [47:29]
Asha Rangappa
You're welcome.
- [47:32]
Dahlia Lithwick
And that's all there is for this episode of amicus, the 400th smoking gun edition. Thank you so much for listening. If you'd like to get in touch, Our email is amicuslate.com we love your letters and you can always find us@facebook.com Today's show was produced by Sara Burningham. Gabriel Roth is editorial director of Slate Podcasts and June Thomas is managing producer of Slate Podcasts. We will be back with another episode of Amicus in two weeks.