Update 8/29/20: Since it turns out that Deputy Attorney General Rosenstein shut down the FBI's counterintelligence investigation into Trump's Russian ties around the same time as he appointed the spccial counsel, it looks like Toobin was right and I was totally wrong on a central point below.
Zandar
flagged some important and at first sight kind of depressing reporting from
Jeffrey Toobin at the New Yorker, showing how the fix was in on the Mueller investigation from the start,
with some new details on two meetings from the beginning, one in which Andrew
McCabe (in his brief time as acting director of the FBI) briefs Mueller on
what the FBI knows about the stuff Mueller will be investigating, and one in
which Mueller gets initial instructions from acting attorney general Rod
Rosenstein. It's in the latter that the fix comes:
Rosenstein wasn’t as familiar with the evidence as McCabe and his team
were, but he had a broader piece of advice for Mueller. Now that he was
Mueller’s boss, it could be interpreted as a command. “I love Ken Starr,” Rosenstein said, according to people present. (Starr was the
independent counsel who oversaw the Clinton Whitewater investigation;
Rosenstein had been a prosecutor on the Arkansas portion of that inquiry.)
“But his investigation was a fishing expedition. Don’t do that. This is a
criminal investigation. Do your job, and then shut it down.”
In other words, far from authorizing a wide-ranging investigation of the
President and his allies, the Justice Department directed Mueller to limit
his probe to individuals who were reasonably suspected of committing
crimes.
I always forget how good Toobin is (as a TV pundit I find him annoying, but on
the page he's still a real New Yorker writer), but in this case I think he's mistaken; Rosenstein was right about the danger of emulating Starr, and Mueller was right to take heed. But I also think Toobin is
missing something important that we here in Left Blogistan just happen to know
about, and it's causing him to misread his evidence.
That has to do with the McCabe meeting, and the investigation that had started
back in the previous July, which Rosenstein knew very little about and McCabe
was running, which was a
counterintelligence investigation.
McCabe said, according to people who attended the briefing. “It’s too long and complicated. We will tell you how we got here.” McCabe told Mueller that Crossfire Hurricane—the code name for the Russia investigation—had begun shortly after the hack of the Democratic National Committee e-mails, which surfaced in July, 2016. The e-mails, which were released by WikiLeaks, showed that some Party officials had favored Clinton over Bernie Sanders, poisoning relations between the two candidates’ supporters on the eve of the Party’s convention. Around that time, the Australian government informed the F.B.I. that, in the spring of 2016, George Papadopoulos, an official from the Trump campaign, had told Alexander Downer, an Australian diplomat, that the Russians were planning to release hacked e-mails related to Clinton’s campaign. After the hacking took place, McCabe explained, the Australians told the F.B.I. about the conversation. “We’ve known for years that the Russians were probing our political systems,” McCabe said. “But July is when we say, Fuck, this is actually happening.”
Which turned to
investigating Trump himself at the same time as Mueller began his criminal
investigation, and carried on in parallel as long as McCabe was at the FBI...
Fired FBI Deputy Director Andrew McCabe said on Tuesday that no members of
the "Gang of Eight" congressional leaders objected when he informed them in
May 2017 that the FBI had opened a counterintelligence investigation into
President Donald Trump over his ties to Russia.
McCabe, who was serving then as acting FBI director after Trump fired
Director James Comey, said on NBC’s “Today" show that no one in the
briefing objected to the bureau’s inquiry of whether Trump was being used
as a Russian asset — “not on legal grounds, constitutional grounds or
based on the facts.” (Politico, 19 February 2019)
... and after,
as we were reminded recently. It was still going on a year ago, months after Mueller submitted his report,
as Mueller informed the House Intelligence Committee:
MUELLER: I cannot get into that, mainly because there are many elements
of the FBI that are looking at different aspects of that issue.
KRISHNAMOORTHI: Currently?
And there's no reason to think it's over yet. Why is US intelligence so convinced they know Russians are working to interfere with the 2020 election as well? If I'm right, there is shit out there that has barely approached the fan, and some of it should reflect on Trump and his family and the whole awful thing. McCabe would be able to assure Mueller that the limitations on his role wouldn't be limitations on the ongoing work of the FBI; all he needed to do was roll out the indictments and lay out the obstruction case. Only the Gang of 8 needed to be informed.
It's a shame the obstruction case didn't lead to a successful impeachment, no doubt, and it may be that Mueller really had a kind of failure of nerve on that, as Toobin suggests. But the truth itself is still developing, and we will some day not too far off know more about what happened between Trump and Russia than we know now.
Bonus: That investigation can demand a look at Trump's financial records at any institution, if it determines that he's an agent of a foreign power, without getting a court order (I think that's dependent on its not being a criminal investigation, and evidence obtained thereby couldn't be used in a criminal proceeding, lawyers please feel free to comment) or really telling anybody at all—it's like one of those National Security Letter things, where the financial institution isn't allowed to notify the client—unless Congress thinks to ask:
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