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Collusion After the Fact

Benjamin Wittes
Saturday, September 28, 2019, 2:18 PM

The Washington Post reported last night:

President Trump speaks with Russian Foreign Minister Sergey Lavrov in the Oval Office, Wednesday, May 10, 2017, at the White House in Washington, D.C. (Official White House Photo by Shealah Craighead)

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The Washington Post reported last night:

President Trump told two senior Russian officials in a 2017 Oval Office meeting that he was unconcerned about Moscow’s interference in the 2016 U.S. presidential election because the United States did the same in other countries, an assertion that prompted alarmed White House officials to limit access to the remarks to an unusually small number of people, according to three former officials with knowledge of the matter.

The comments, which have not been previously reported, were part of a now-infamous meeting with Russian Foreign Minister Sergei Lavrov and Russian Ambassador Sergey Kislyak, in which Trump revealed highly classified information that exposed a source of intelligence on the Islamic State. He also said during the meeting that firing FBI Director James B. Comey the previous day had relieved “great pressure” on him.

A memorandum summarizing the meeting was limited to a few officials with the highest security clearances in an attempt to keep the president’s comments from being disclosed publicly, according to the former officials, who spoke on the condition of anonymity to discuss sensitive matters.

Shortly after the story broke, I received a message from a person directly involved with the FBI’s decision to open a counterintelligence and obstruction investigation of President Trump in the immediate aftermath of the firing of FBI Director James Comey. To say this person, who had clearly learned about the matter for the first time from the Post, was angered by the story would be to understate the matter.

The message read in relevant part: “None of us had any idea. Multiple people had opportunity and patriotic reason to tell us. Instead, silence.”

It is a big deal that the FBI did not know when it opened its investigation that the president—in addition to boasting about relieving pressure on himself by firing Comey—had specifically disclaimed concern over Russian electoral interference to senior Russian officials.

The public already knew that the FBI was concerned about the national security implications of Comey’s dismissal when it opened its investigation in the chaotic days after the firing. We’ve known this since January 2019, when the New York Times reported that the bureau had opened both a counterintelligence and an obstruction probe of the president’s conduct. Central to the Times story were transcripts of former FBI General Counsel James Baker’s closed testimony before the House Judiciary and Oversight Committees, which have now been publicly released. As Baker put it in that interview, “[N]ot only would it be an issue about obstructing an investigation, but the obstruction itself would hurt our ability to figure out what the Russians had done, and that ... would be the threat to the national security.”

In other words, the bureau was concerned, as the Times put it, about “whether [Trump] had been working on behalf of Russia against American interests.” The bureau’s “counterintelligence investigators had to consider whether the president’s own actions constituted a possible threat to national security. Agents also sought to determine whether Mr. Trump was knowingly working for Russia or had unwittingly fallen under Moscow’s influence.”

Former FBI Deputy Director Andrew McCabe—who was serving as the bureau’s acting director during the period when the FBI opened the counterintelligence and obstruction probes into the president—has stated publicly that the Oval Office meeting with Lavrov and Kislyak played a role in his decision-making:

There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt … publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president's mind. Then, the president made those public comments that you've referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

… It's many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the FBI to negatively impact or to shut down our investigation of Russia's malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder, is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

It seems obvious, in the context of these concerns, that information that the president informed Russian officials that he did not care about Russian election interference would have been key to this analysis on the FBI’s part—and, later, on the part of Robert Mueller.

But it seems preponderantly likely that Mueller never learned of this information. His report includes plenty of material on Trump’s Oval Office meeting with Lavrov and Kislyak the day after Comey’s firing, including Trump’s comments that “I just fired the head of the FBI. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” And it includes detail about Trump’s exchange with an apparently concerned White House Counsel Don McGahn following the meeting. But there is nothing in the report about any comment by Trump informing the Russian delegation that he did not care about election interference. And there are no redactions in this section whatsoever where such information might be hiding.

In the wake of the Post’s reporting, there has been a great deal of speculation among journalists and commentators as to whether Mueller was aware of this information and, if so, why it didn’t make it into the report. “[A]pparently the ‘Lavrov memo’ never reached Robert Mueller,” tweeted New York Times political reporter Trip Gabriel. My colleague Susan Hennessey wondered “whether one motivation for putting things like the Lavrov meeting memo and the Putin call transcripts in the codeword system was to hide them from Mueller.”

I don’t know for sure that Mueller never learned of this information, but I know his investigation began without it, and I know what is obvious to everyone who has read his report: that it plays no role in his analysis of collusion. This raises a significant question to me about the completeness of Mueller’s collusion analysis.

Consider what happened in that meeting—assuming for a moment that the Post’s report is accurate. The president of the United States, acting in his capacity as president in a meeting with two senior officials of an adversary state that had just interfered in an American election on his behalf, retroactively declared that this wasn’t a significant source of bilateral problem between that adversary country and the one he leads. Here’s the Post’s account of the meeting:

White House officials were particularly distressed by Trump’s election remarks because it appeared the president was forgiving Russia for an attack that had been designed to help elect him, the three former officials said. Trump also seemed to invite Russia to interfere in other countries’ elections, they said.


According to the fourth former official, Trump lamented to Lavrov that “all this Russia stuff” was detrimental to good relations. Trump also complained, “I could have a great relationship with you guys, but you know, our press,” this former official said, characterizing the president’s remarks.


On some areas, Trump conveyed U.S. policy in a constructive way, such as telling the Russians that their aggression in Ukraine was not good, one of those former officials said.

“What was difficult to understand was how they got a free pass on a lot of things — election security and so forth,” this former official said. “He was just very accommodating to them.”

Such actions by the president would surely have raised the question for the bureau, and likely for Mueller, about whether the president was retroactively absolving the Russians of electoral interference. It also would have raised the question of whether he was in some sense greenlighting future electoral intervention, at least tacitly. Both possibilities would have obviously heightened concerns that he was in some sense working with or for the Russians, knowingly or unknowingly, in a fashion that threatened American national security.

I actually doubt that this fact would have fundamentally changed the criminal analysis in the Mueller report on “collusion.” The fundamental finding there, after all, was that there was no evidence of any agreement between the Trump campaign, or Trump himself, and the Russians to violate U.S. law. I’m not sure I see how this would have changed that, it not being evidence of an agreement, just a kind of mutual aid without one. It also takes place after the fact, which would complicate things.

But it rather dramatically affects the “no collusion” narrative. And had Mueller been aware of it, I feel certain that it would have warranted investigation and discussion. The fact that nobody privy to the fact of its having happened came forward even though Comey had publicly announced that the bureau was investigating possible collusion represents—as my correspondent indicated—a triumph of omertà over patriotism.

Benjamin Wittes is editor in chief of Lawfare and a Senior Fellow in Governance Studies at the Brookings Institution. He is the author of several books.

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