Here are some things to watch for today to assess in real time how bad the current situation is:
(1) The key threshold question is whether the White House follows up on President Trump’s tweet yesterday promising “officially” to direct the Justice Department to investigate supposed infiltration of the Trump campaign for political purposes.
If it doesn’t, the whole episode may peter out—at least for now. That has happened before. It could happen again. Remember that Trump is, among other things, a wuss.
(2) If the directive does materialize, pay particular attention to its precise wording. Many people will jump with a hot take on what it means. Don’t be one of those people. Take the time to read it very carefully.
And think as you do both about what the message White House staff are sending to DOJ with it and what wiggle room the text leaves to the DOJ officials who receive it.
Here are some DOJ insiders and watchers on Twitter who are likely to have useful insight into this question when the time comes: @marty_lederman, @steve_vladeck, @JoyceWhiteVance, @EricColumbus, @PreetBharara, @joshscampbell, @Susan_Hennessey, @YesMomsCan, @jacklgoldsmith.
(3) Look, in particular, for whether it directs an actual investigative action or whether it merely directs the provision of some kind of information or conclusion.
If it does not direct specific investigative conduct, ask yourself whether that is the White House Counsel’s office trying to give the Department space to comply with the President’s directive without improperly launching a criminal investigation.
In other words, ask yourself whether that is White House staff trying to create a mechanism to deflate the situation.
(4) If the directive actually demands an investigation, look for whether that action could reasonably be encompassed within the action the Justice Department already took yesterday: referring the matter to the DOJ inspector general.
In other words, ask yourself whether that is also the White House Counsel’s office tamping down the situation by ordering the department to do what it has already done.
(5) If the order demands an investigation not encompassed in yesterday’s IG referral, think like a person who does not want to receive such a directive, believes it is corrupt, but does not want to resign if he doesn’t have to because there’s an investigation to protect.
Such a person will ask himself what wiggle room there is in the language. This is what the folks at DOJ will be looking for. Is there a way to comply with the order without doing something unconscionable? If such a path exists, look for it to be taken.
If Rosenstein and Wray wanted to be this era’s Saturday Night Massacre victims, they would have resigned long ago.
(6) Look for whether the directive requires the disclosure to Congress of information about the FBI’s confidential source. Separately from the opening of any investigation, that would, I think, be a red line for certain key DOJ/FBI people.
(7) Most of all ask yourself this question: If I were Rod Rosenstein or Chris Wray, is there any way I could comply with this order and still look a line prosecutor or agent in the face again as a credible leader? That’s the needle these men will have to thread.
I don’t envy them. And I most sincerely wish them the best.
That’s all I got.
