Sheldon Whitehouse and the Russia Investigation Deconfliction

Laura Rozen has me worried.

She pointed to this CNN article — posted sometime this afternoon — describing Sheldon Whitehouse’s worries that the scope of the DOJ inquiry into Trump and Russia might conflict with the Congressional inquiries.

Sen. Sheldon Whitehouse, the top Democrat on a Judiciary subcommittee, told CNN Thursday that it’s possible Flynn is cooperating with the Justice Department — and that Capitol Hill has not been kept in the loop. He warned that congressional probes that have subpoenaed Flynn for records could undercut Mueller’s investigation if the former national security adviser is secretly working with the Justice Department as part of its broader investigation into possible collusion between Russian officials and Trump associates during the campaign season.

“There is at least a reasonable hypothesis that Mike Flynn is already cooperating with the DOJ investigation and perhaps even has been for some time,” said Whitehouse, a Rhode Island Democrat.

Whitehouse added he had no direct evidence to suggest that Flynn is cooperating with the Justice Department. But he said there is circumstantial evidence to suggest that it could be the case, saying Mueller must immediately detail the situation to “deconflict” with probes on the Hill to “make sure that congressional investigations aren’t inadvertently competing with DOJ criminal investigations.”


The Rhode Island Democrat said there are number of factors that suggest Flynn is working the Justice Department in its probe. He pointed out that “all reporting indicates they’ve got him dead to rights on a false statement felony” in his private interview with the FBI over his conversations last year with Russian Ambassador Sergey Kislyak. He also noted that Flynn has gone silent and retroactively signed on as a foreign agent to Turkey. And he noted that a federal grand jury has been summoned and has issued subpoenas to Flynn associates.

“So none of that proves anything but it’s all consistent with the hypothesis that he’s already cooperating,” Whitehouse told CNN.

“But that’s certainly a hypothetical case of a time when we do need need this de-confliction apparatus in place to make sure that congressional investigations aren’t inadvertently competing DOJ criminal investigations.”

Now, in point of fact, that deconfliction has already happened — or at least started. That’s what a May 11 meeting between Rod Rosenstein, Richard Burr, and Mark Warner was described as at the time.

Rosenstein was tight-lipped as he entered and emerged from a secure facility Thursday on Capitol Hill, where he huddled with Senate Intelligence Committee Chairman Richard Burr (R-N.C.) and Vice Chairman Mark R. Warner (D-Va.). The senators said the meeting had been scheduled before Comey’s ouster to discuss “deconfliction” — keeping the FBI’s and committee’s investigations of alleged ties between the Trump campaign and the Russian government from stepping on each other’s toes.

According to reports, the meeting was scheduled before the Jim Comey ouster, so it should reflect the scope of what he was investigating, and therefore presumably resembles the scope of what Robert Mueller will investigate.

But there are three reasons why Whitehouse might be justified in worrying that Congress might fuck up what DOJ is investigating.

Obviously, the first is Mueller: the Comey firing might have reflected some new investigative approach (including Flynn immunity), or Mueller, because of the firing, might be scoping the investigation differently.

A second is jurisdiction. Whitehouse and Lindsey Graham have assumed jurisdiction over the Russia investigation for their subcommittee — and the Senate Judiciary Committee obviously should oversee the FBI. So it may be that former US Attorney Sheldon Whitehouse wants to have a deconflicting conversation for himself, because he knows how investigations work (and for all we know is getting tips from DOJ).

The other is another announcement from this afternoon: that the Senate Intelligence Committee had voted to give Chair Richard Burr and Vice Chair Mark Warner the ability to issue subpoenas themselves going forward, without consulting the committee.

The leaders of the Senate Intelligence Committee now have broad authority to issue subpoenas in the Russia investigation without a full committee vote, Chairman Richard Burr (R-N.C.) said Thursday.

The panel voted unanimously to give Burr and Vice Chairman Mark Warner (D-Va.) the blanket authority for the duration of the investigation into Russia’s election meddling and possible collusion with President Trump’s campaign.

The two Senate leaders must be in agreement in order to issue an order.

Now, as the article notes, thus far, the committee has asked for documents, not testimony. My suspicion is this might have more to do with ensuring Comey’s testimony — promised after Memorial Day — is “compelled” in such a way that DOJ can’t object.

Nevertheless, the power to subpoena does grant someone (like former Trump National Security Advisor Richard Burr) the ability to fuck with the DOJ investigation by potentially working at cross-purposes. To grant immunity (and therefore to fuck up the investigation as happened in Iran-Contra), I think Burr would still need the support of the committee.

Still, this still gives Burr far more power to thwart the investigation, with only Mark Warner (who unlike Whitehouse has never been a prosecutor) to prevent it.

In theory, I think Whitehouse is just pushing for jurisdiction (and for the ability to demand the same kind of deconfliction conversation Burr and Warner have gotten).

But upon reflection, I don’t think his concerns are entirely unjustified.

In any case, I trust Whitehouse (with whatever leftover ties he has to DOJ) to do this review more than Mark Warner.

Update: Burr told Bloomberg he has had a deconfliction conversation with Mueller.

Senate Intelligence Chairman Richard Burr, a Republican from North Carolina, said he has contacted Mueller to discuss their parallel probes of Russian meddling.

10 replies
  1. sponson says:

    Uh, former NSA Richard Burr? Wouldn’t that be Flynn?

    Nevertheless, the power to subpoena does grant someone (like former Trump National Security Advisor Richard Burr)

  2. tryggth says:

    Thanks for these extended writings. I’m having a hard time trying to processing all the incoming data. Much appreciated.
    What do you think of Whitehouse’s speculation about Flynn cooperation? I saw the grandstanding reply. But maybe the Jared sharpening today suggested something.

  3. person1597 says:

    “And some Democrats are wondering whether Burr, who also served as a national security adviser to Trump’s campaign, is too close to Trump to lead an impartial investigation”
    From Politico 02/27/2017 06:52 PM EST

  4. Avattoir says:

    First, and I’d grant more sustainably, I suggest this concern attributed to Senator Whitehouse be read in conjunction with the analysis of Aditya Bamzai posted at Just Security

    (not least because the latter dovetails with some of my own comments made in threads to recent earlier posts on Rosenstein’s order appointing Mueller).

    Second, maybe we should be tying BOTH the above to Comey’s determination both to deliver his public testimony to the Senate Intel cmte and to decline to to appear before the Senate Judiciary cmte.

    It’s been observed previously (perhaps even here; so much going on these days, I have trouble keeping track) that Comey might have one or more ‘presentation’ preferences for going before Intel rather than Judiciary, such as:

    – doin’ it live in public, like with Hospitalgate;

    – ducking Grassley, Cruz & maybe a few other particularly gristly Judiciary jocks; and

    – appearing before a cmte conditioned to showing interest in the topic he WANTS discussed, as opposed to being committed to diffusing/defusing things in order to suit Trump.

    That last on this list, considered in conjunction with Sen. Whitehouse’s concern and the Bamzai analysis, suggests yet another possibility: that Comey is either unconcerned, or at least less concerned, about the risks of Trump et al shutting down the FBI’s work on various criminal investigation fronts (which after all have been underway awhile), and more for the risks Trump et al  & the Congressional Rs present to the FBI’s cointel function with respect to Russia (at least Russia) and the Trump campaign, Trump surrogates, Trump agents, Trump cut-outs, Trump family members, and Trump himself.

    It’s long been my impression Comey is not, and never has been, particularly able in court environments. IMO it’s even insufficient to say he’s no Fitzgerald, or Boente, or even Rosenstein.

    Recall (again) that Comey spent a lot of time – certainly months, possibly years – actively, and AFAWK contentedly, involved in a true witch hunt, being various stages & iterations of the Ken Starr fiasco. In 1996, when he apparently began being involved in that, Comey wasn’t remotely well-grounded in criminal law analysis or forensics.

    He’d spent his first  years in the DoJ mostly as an administrative assistant type, one of Rudy’s hires flying a desk over line prosecutors, facilitating for Rudy’s successors under Poppy Bush. Somehow he’s managed to get himself wikidentified with the very large, long-historied FBI/DoJ task force & team that’d been after the Gambino family for decades (which, while he was technically identified with that team, just happened to coincide with when that team caught its big break, with Sammy Gravano deciding to turn stoolie – when Gravano had himself been sitting for years on massive and growing pile of his own concerns about Gotti setting HIM up).

    From when Bill Clinton was first elected, Comey pretty much floated about in the DoJ admin ether for several years, until the Special Prosecution came along & he, I suggest thru no serendipity whatsoever, ‘found’ himself designated as the DoJ’s Senate liaison contact for that. And otherwise he was, as usual, or ALWAYS, flying an admin desk – but in ED Virginia, so mostly on cointel cases. Closest he ever got in ED Virginia to ‘prosecution’ was issuing a raft of indictments on the Khobar Towers bombing – which eventually all got obviated by either Saudi refusal to extradite or dismissal in the U.S.

    That history simply isn’t impressive to those who’ve spent their careers in the criminal courts system, on either side, particularly both. But it infers a relatively deep involvement in the DoJ end of Cointel.

    Bamzai’s strongest point is if you want to know what the Rosenstein order appointing Mueller is ‘about’, look in particular to the specific reference to importing Comey’s investigation. IMO that was likely way deeper into cointel than into crime per se.

    • greengiant says:

      But GOP consultant claims he has yet to hear from the FBI.  WTF.   The dog that didn’t get investigated.   This is a clue,  there is no net being trawled.   If you believe Roger Stone,  Walker has jacked 6 elections in Wisconsin.   Anyone see any investigations there?   Business as usual,  US for sale to highest bidder and best blackmailers.   Follow Dillinger’s words and then the money,  of which there is a lot of in business and Wall Street.  For every dodged corrupt act and for every financial killing you can find hackers,  bribers,  and little if any investigation.

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