On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat? - Lawfare

On What Grounds Can the FBI Investigate the President as a Counterintelligence Threat? - Lawfare: Questions about the legal basis for, and prudence of, treating the president as a national security threat.
by Jack Goldsmith (Harvard Law School)

Because the president determines the U.S. national security interest and threats against it, at least for the executive branch, there is an argument that it makes no sense for the FBI to open a counterintelligence case against the president premised on his being a threat to the national security. The president defines what a national security threat is, and thus any action by him cannot be such a threat, at least not for purposes of opening a counterintelligence investigation.

On this view of the presidency, the perverse and very controversial steps Trump has taken toward Russia as president—his disclosure of classified information to the Russian ambassador in the Oval Office; his firing of Comey because of the Russia investigation; his persistent refusal to acknowledge what his director of national intelligence described as Russia’s “ongoing, pervasive efforts to undermine our democracy”; and more—are all part of his ultimate discretion to conduct foreign policy and U.S. intelligence operations. Those actions, therefore, cannot pose a threat to a national security as a justification for a counterintelligence investigation. That may sound like an extreme conclusion, but I might follow from Article II, and I think (as I explain below) that not accepting this conclusion leads to equally if not more problematic consequences.