In court filings last week the Department of Justice deployed what could be the nuclear option in its latest effort to prevent President Trump from declassifying information regarding FISA warrants used to spy on his campaign aide Carter Page: It is claiming that such a move would interfere with Special Counsel Robert Mueller’s investigation.
This is the first time the DOJ has explicitly made this argument implying personal peril for the president, since interference could open Trump to charges of obstruction of justice. Until now, the department has argued that declassifying the documents threatened national security.
In the 178-page court document, DOJ officials said they had “determined that disclosure of redacted information in the Carter Page FISA documents could reasonably be expected to interfere with the pending investigation into Russian election interference."
That rationale has heightened suspicions among congressional investigators that the special counsel is being used to prevent the disclosure of possible FBI abuses and crimes committed during the Russia probe. Opened by the FBI in July 2016, the Russia investigation was taken over by Mueller when Deputy Attorney General Rod Rosenstein appointed him special counsel in 2017.
By the DOJ’s logic, according to one source, the fact that the investigation is ongoing protects it from scrutiny, including the president’s.
Neither the Department of Justice nor the Office of the Special Counsel would respond directly to this charge.
"The obstruction trap was built into the special counsel," a congressional investigator told RCI, speaking, like the two other sources in this article, only on condition of anonymity. “If Trump fires Mueller, or Rosenstein, or declassifies documents [embarrassing to the FBI] it’s likely to bring an obstruction charge.”
And that would mean double jeopardy for Trump. “Obstruction is the instrument the Democrats are likely to use to impeach Trump if they win the House,” said the congressional source.
The upshot is that the president will likely hold off on declassification, at least until after the midterms in November, and congressional investigators are likely to be stymied, at least for now, in their quest to expose what they call Obama-era surveillance abuses.
The DOJ’s latest decision to not declassify the documents came in response to a March 2017 Freedom of Information Act request from a nonprofit, the James Madison Project, seeking records related to Foreign Intelligence Surveillance Act applications or warrants to monitor the Trump campaign and associates.
In July, the Justice Department released heavily redacted versions of the four warrants taken out on Page. They confirmed the House Intelligence Committee’s February memo arguing that the warrant relied on Clinton-funded opposition research, the so-called Steele dossier. Now congressional oversight committees are requesting declassification of 20 pages from the final Page warrant.
The response to the Madison Project further fed a suspicion that the special counsel was intended from the beginning to be a mechanism to protect senior officials, by circumventing lines of authority that might have proved more favorable to shedding light on the Russia investigation.
“Rosenstein knew there was no collusion case,” said a second congressional source. “But he still appointed Mueller as special counsel. That took the Russia investigation away from the FBI and gave Rosenstein ultimate control of it. It’s not an investigation, it’s leverage.”
The sources told RCI that the president and the DOJ are at a standoff. “Trump knows that what’s in those documents clears him of all the collusion stuff,” said a third congressional source, “and it shows the FBI was doing some very bad things.”
But what’s now keeping Trump from pulling the curtain back on the Russia investigation is the probe itself. “That’s the leverage the DOJ has on Trump,” explained this source. “Nothing on Russia or collusion or anything like that — it’s the actual investigation. If he’s seen to be interfering, they move to obstruction.”
Supporters of this view note that by the time Rosenstein appointed Mueller in May 2017, the FBI had been monitoring Page’s communications for more than half a year. It appears they had nothing on him, but the warrant was renewed one last time in June. “If the FBI had evidence against Page for collusion,” said the third source, “you’d think he’d have been indicted.”
Rosenstein’s leverage may explain why Trump has resisted the calls of congressional Republicans and other allies who believe he can clear his name by unveiling evidence of abuses and possible crimes committed during the Russia probe.
The release of the court documents makes it clear that any such move would potentially push the investigation into a different and even more dangerous phase.
Trump’s ability to push back on the special counsel is limited. What may look to some like a series of well-plotted countermeasures are instead events that have worked to his fortune.
For instance, Attorney General Jeff Sessions has announced that there are 27 open investigations of leaks. But the recent indictment of a Senate intelligence staffer for lying to the FBI regarding Russia investigation-related incidents and the arrest of a Treasury Department official for leaking Russia probe-related information appear to be unrelated to that announcement.
The recent news that Rosenstein had considered recording the president for the purpose of removing him from office in 2017 was not unearthed by Trump allies. Rather, it emerged as the result of a public feud between the deputy attorney general and former Deputy FBI Director Andrew McCabe, now facing a grand jury. Rosenstein said he had been joking about the wiretap.
Trump, according to one source, knows that Rosenstein is not on his side. If he were to fire him, however, that would provide a Democratic-controlled House with another possible case for obstruction.
For at least the next two weeks until the midterms, Trump’s hands are tied.
If Republicans hold the House, congressional investigators will become even more aggressive – especially if Trump replaces Sessions, who has recused himself from the Russia probe.
If Democrats win the House, it is likely they will shut down many of the investigations into the DOJ and FBI. That outcome, sources say, helps explain why DOJ keeps raising roadblocks to transparency.
“DOJ is just playing to delay,” said one of the sources. “They’re banking on Democrats taking the House back in November, at which time the [congressional] investigations go away.”