Impeachment and the “Spy Stuff”
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S2: 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 you know banana republic.
S3: Hi and welcome to anarchists. This is Slate’s podcast about the law the courts the Supreme Court and the rule of law. I’m Dahlia Lithwick I covered the law for Slate and this is a special bonus edition of the podcast to try to help us understand the House Intelligence Committee which is doing work that is kind of adjacent to what we often talk about on this show but not always squarely in it for two years now I’ve been parroting the language of Adam Schiff and saying that the Mueller Report had its genesis as a counterintelligence probe. But the truth is I have no idea what that really meant.
S4: And so this week as the House of Representatives moves forward with formalizing the impeachment inquiry with a vote I wanted to unpack a part of the impeachment parcel we haven’t ever fully unwrapped on this show. That is the intelligence piece. The intelligence committee deals with well some spy stuff with what we know about foreign countries what they know about us. And while that has a thousand point A-list connections to the Mueller Report and the last half the things we talk about on the show I am very aware that we aren’t always speaking about the same things. And because so much of what has unschooled in the impeachment context has to do with intelligence and the Intelligence Committee. And because I am Intelligence Committee curious but not well read. I’ve invited my friend Jim Himes on the show to help understand what I don’t actually understand. Jim Himes represents Connecticut’s 4th district in the US House of Representatives where he is serving his sixth term. He serves on several committees including the Select Committee on Intelligence and that is important because he’s become kind of my go to guy when it comes to fitting domestic legal questions into questions that are larger geopolitical and spy related. So with all that Jim Himes welcome to Amadeus Thank you Dahlia.
S5: And is it correct for what I just said which is short handing all of the things I said in my intro maybe physically saying that judiciary does law stuff and you do spy stuff. What exactly is the mandate of the intelligence committee please.
S6: Yeah great great question and I loved your warm up because there’s there’s actually a great deal more commonality between the two committees than you might just think off the top of your head. I mean I can tell you my own personal experience I’ve been on the committee now for some five maybe six years and somehow I made it through five decades of life never regretting not being a lawyer but when I got put on the Intelligence Committee I for the first time largely around Fourth Amendment issues regretted not having legal training. And the reason for that which I think gets to the answer to your question is that yes of course judiciary the judiciary committee deals with the judicial branch writ large and you know all of the things that are tangential to it but when it comes to questions of the overlap of intelligence and our constitutional rights and the law that lives squarely in the Intelligence Committee for for jurisdictional reasons but also for for security reasons the Intelligence Committee is Dave deals day in and day out with issues of classification and being very very careful with the nation’s secrets.
S7: And so for example all of the issues that have to do with the authorities that were either promulgated by the FISA legislation or by the Patriot Act. These are things like 7 0 2 surveillance authorities the famous 215 authorities that was the metadata. Those are overseen on the Intelligence Committee so that’s where the the overlap is most clear when you have intelligence gathering collection and surveillance that touch on U.S. citizen equities.
S5: 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 the two to sort of think that there’s perfect overlap between intelligence gathering domestically and foreign and justice. You’re saying they actually there is overlap but they actually also very much have their own disparate lanes when it comes to oversight right.
S7: Yeah that’s that’s that’s right. And there’s there’s one easy way to think of this that captures most examples you know by and large the FBI is a domestic law enforcement organization whereas the CIA and the NSA and other associated agencies like the DEA and NJ 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 in that guise one of the intelligence community organizations.
S8: 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 you know there are things pointed outward or inward is I was I was talking about 7 0 to authorities right. That’s a little little esoteric a little technical.
S7: 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 maybe e-mailing with a U.S. citizen or a U.S. person and if that happens. Now all of a sudden again there are no US person constitutional and legal questions at stake.
S5: 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 leader Bob Mueller were worried about was more about what Russia had on the U.S. than what the U.S. was doing to itself. Right. That’s what gives birth to the Mueller probe.
S8: That’s exactly right. And that grows out of the fact that counterintelligence is by and large an FBI pursuit.
S2: So you know 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 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. But yes. So 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 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 campaign’s 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 U.S. presidential 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.
S9: And is that Jim.
S5: 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 percent 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 saying 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 to 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.
S8: 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 your constitutional frame of mind. The truly devastating stuff in the Mueller report is in volume to the obstruction of justice counts. Right. Ten counts. And again it’s a little esoteric as 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 it had. And I mean you know there are indictments out there are people associated with the internet research agency. You know Putin’s quote unquote chef and all these efforts that were made some of those efforts were 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 the dirt off of those servers of you know the evidence that could be used to suggest that the DNC was not a impartial actor.
S2: 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 and Trump Tower is probably the classic example when the president’s son says you know sure. Let’s let let’s let’s see what the Russians have on on Hillary Clinton probably not a wise moment for Don Donald Trump Junior.
S10: And of course famously that conclusion in the end Bye bye Bob Mueller is that that the activities the interaction between various Trump campaign people not just on gender but also people like Paul Manafort did not rise to the level of a chargeable conspiracy.
S2: OK. 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 2 in the 10 counts of obstruction.
S5: 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 have 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 if 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.
S2: Yeah. You know if you’re an overseer as I am and it’s horrifying because the president and the attorney general certainly the president but largely the attorney general have sort of lost their standing as impartial.
S11: You know we know what the president does and of course why we’re an impeachment 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 as he regards as traditional role as attorney general of overseeing domestic law enforcement. And so it’s 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 you know Fox News crazy conspiracy theories including servers in Ukraine. Much of this stuff has been debunked and at best the best case scenario is is not a good one. It’s one where you know CIA officers and FBI agents are in some sense self censoring right like well I’ve got this leak 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 of politics and so you know on the one hand that’s the best case and our 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 you know banana republics in contrast to what we think of as as the United States. And you know I should add Dahlia it’s not you know some of this stuff is rooted in the possibility of legitimate review.
S12: 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 moments 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 steel memorandum not a steel memorandum as you know is a big bunch of you know raw intelligence some undoubtedly true some undoubtedly false. And that’s actually a legitimate question to ask. You know did the process work or in fact was Carter Page you know it with the benefit of hindsight would you perhaps not have allowed a continuation of the of the FISA warrant. That’s 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 on 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 enough that 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.
S5: The follow on to everything you’ve just said and what you’ve said it is a little bit frightening. But then we have as you say Attorney General Bill Barr who 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 Miller probe and here he is speaking to Fox News on Monday and saying that he’s actually 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 Comm is FBI who wasn’t supporting Donald Trump by quashing this investigation is somehow a deep state Mal factor. 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.
S12: It is really creepy and I mean we need to remember that 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 that caused me to say that no one he before the Muller report is released writes a memorandum that is made public that is so skewed that Bob Mueller a man of few words and a 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 as 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 refrain here of course the Carter Page.
S11: 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 a surprise surprise no deep deep state conspiracy theory.
S13: 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 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 courts.
S5: That the fundamentally nihilists 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 with 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.
S10: I would point out to something that I think we all feel even 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.
S13: You know 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 is themselves there’s the story department of justice you know the FBI itself when they get wrapped up in this effort. It’s not just a you know another gaseous emanation from the Oval Office on Twitter.
S11: It’s a really scary thing. And and you know people who understand the history of these agencies would say the you know the post Hoover tradition of the of the FBI or the storied history of the Department of Justice when they hear that the attorney general as you are is using these bureaucratic mechanisms in the chase of the president’s fevered dreams. It’s a terrifying moment.
S5: And can you just to 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 lawbreaking. But there is a constitutional part of this story that is the framers weren’t just worried about lawbreaking. They were worried about foreign powers inserting themselves into American affairs. That’s one of the things you’re trying to figure out too.
S12: And I think that that question has two parts. We’ve talked about part 1 which is what were the Russians actually doing or in this last election it would appear that maybe the Iranians were active. You know what. What can foreign powers do that they couldn’t do before. Because we all live in this networked world.
S13: 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 you know as I said I had an opportunity to ask Mark Zuckerberg a few questions and my other committee last week.
S12: And you know what.
S14: 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 involved race baiting or you know 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.
S11: 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 of 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 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 where malefactors get to in a very big way contribute to to our national civic dialogue contribute again being the wrong word but get this sort of bastardized are our civic conversation.
S5: And I wanted to ask you two quick questions about Skip gate. Again it’s a little counterintuitive that you know it looks like this big stunt raid and there are Republicans who are not on the relevant committees being denied access to a skiff which is standard. There are other Republicans who are you know evaluating questioning witnesses seeing evidence. So it’s 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.
S12: We know why skiff gate 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 for a favor of a brand new foreign president. So instead they’re engaging on process. And so as you know inside the skiff 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 these depositions are happening by close 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 you know rather self-satisfied members don’t feel the need to play to the camera. You can get an awful lot more done. That’s 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 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 given take you want a venue in 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.
S15: So as you know better than me if there is ultimately a trial in the Senate there will be prosecutors and defense there will be a judge of 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.
S5: And I just have to ask you the flip of skiff gate is after Sunday’s successful execution of al-Baghdadi the head of ISIS. The president I guess tells Russia that this happens but not the intelligence committee not Pelosi and so then there’s this 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 and I guess I’m just driving the inchoate Lee 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.
S15: 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 you know 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 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 had off. She’s been working in or around intelligence for 30 years I mean famously a long term member of the Intelligence Committee. And there’s just virtue I think and having people who’ve been around this kind of thing for a long period of time. You know as they say if you’re if you’re not there at the takeoff off don’t expect them to be there at the landing. And at this case 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 like this.
S5: Can I ask you one last question that you’re not going to let go. Okay. Charles Koppelman 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. Well what are you going to do. What’s left is tiny jail for him. Huge stiff fines.
S10: Well you know the traditional remedy for failure to appear before Congress or contempt of Congress has been to ask for just 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 county jail what you’re talking about is the long disused and boy is this this topic for a podcast at some point along this teapot dome is the last time an inherent term.
S5: Yes. Right. I know it.
S12: 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 25000 a day for noncompliance might it might might get the attention of of people who otherwise might 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 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 Koppelman 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.
S4: A lot of listeners who want to know what they should be paying attention to how to triage the news what is we and what is chaff. What’s your 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.
S2: Look what happens in the Congress is not terribly unpredictable.
S10: I’ll I’ll I’ll tell you that that nothing is certain in this world but it is almost certain that there will be articles and 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 will not convict Donald Trump. OK. That I think is 95 percent probable to occur.
S12: So for those people who are you know 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 is 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 is an interesting kind of legal slash 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 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 that 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 you know 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.
S14: But let’s also spare a thought to what we do and say to get us to a place that we can start researching 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 a flow of ideas and people change their minds.
S16: They’re a little bit humble about their political opinions. I think that’s a great undiscussed project for hopefully the very near future.
S5: Jim Himes represents Connecticut’s 4th district in the US 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 re stitching wherever it takes us. Jim thank you so much for being so generous with your time today. Thank you. Dalia.
S17: And that is a wrap for the special bonus episode of Amicus. Thank you so much for listening. If you would like to get in touch our email is Amicus at Slate dot com and you can find us at Facebook dot com slash Amicus podcast. We have been getting so much mail we appreciate it. We really love the feedback. Today’s show was produced by Sara Birmingham. Gabriel Roth is editorial director of Slate podcasts and June Thomas is senior managing producer of Slate podcast. And we will be back with another episode of Amicus in. About 10 days.
