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rational security, chatter, law fair no bull, and the aftermath.

I'm Benjamin Wittis and this is the LawFair podcast special edition emergency edition January 12th, 2019.

Yesterday evening, Friday evening, the New York Times reported that in the wake of the firing of Jim Comey,

the FBI opened a counterintelligence investigation of the president of the United States is conduct in firing Comey.

The investigation was predicated partly as a counterintelligence and partly as a criminal investigation and covered the issues we have come to understand as the obstruction of justice components of what is now the Mueller investigation.

There's a lot to talk about here and we have an incredible group of people to talk about it with.

In the Jungle Studio with me is Susan Hennessy and on a conference line are Chuck Rosenberg, Jack Goldsmith, David Chris and Carrie Cordero.

Where to start guys? David, I want to start with you.

If you could give us as clinical an account as you can of what legally happened that we as we understand it from this New York Times story when the FBI opened this investigation, what do we know and how should we understand what happened?

I think the FBI had an ongoing investigation initially into Russian election interference and that should not be much of a surprise given that the Russians have tried to interfere with US elections for many, many years.

There's famous story of Russian ambassador and a totally doble and trying to offer money to you would Humphrey for example in the 1968 election.

There was an ongoing investigation it seems into Russian activity this is what the New York Times article describes based on congressional testimony from Jim Baker and that investigation then led to questions about connections between the Russians and the Trump campaign which are documented in the appointment order for Mueller in May of 2017 and in Jim Comey's earlier congressional testimony.

It appears that at some point the president's behavior and other evidence and information that the FBI had was focused enough to warrant opening or documenting separately a focus on him individually and there are about six or seven factors outlined in the New York Times story that seemed to be cited in support of that and that really just reflect I think at some fundamental level the idea that the FBI had.

The FBI is conducting this investigation and following the evidence where it leads and where it leads for purposes of the investigation continuing includes a review of the president individually and his behavior David what is what here's what I don't understand about the step the FBI took what is the practical concrete consequence in terms of what they're doing inside the FBI of opening up what appears to be a separate.

The FBI investigation of the president as opposed to investigating the president as part of what what can't became Rosenstein's description of the Mueller investigation what what turns on what is the FBI able to do what are the implications of opening up with the career to be a separate file or separate investigation.

Jack I'm sorry that I am probably not sufficiently versed in the fact or the niceties of internal FBI procedure to give you a satisfactory answer I have the impression from reading the story that they opened a sub file that included the president a particular US person who was within the scope of the investigation but I don't think that's a separate investigation so much as an administrative step within the office.

The investigation of which his behavior is now documented as being a part you know you really have to go or I would have to go and review even deeper than the level of the dialogue which is itself a phone book size document to get into their filing practices.

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