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National security journalist Marcy Wheeler of discusses the nomination of Christopher Wray as FBI Director just as would-be predecessor James Comey is set to testify on his recent firing

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AARON MATÉ: It’s The Real News. I’m Aaron Maté. President Trump is set to nominate Christopher Ray as Director of the FBI. Ray’s a criminal defense attorney who served in the Justice Department under President George W. Bush. At the DOJ, he had undetermined ties to the Bush era torture program, and he also have inappropriate briefings to then Attorney General John Ashcroft, about the investigation into outed CIA operative Valerie Plame. Those briefings led to Ashcroft’s recusal. Well, my next guest says all this means that Ray is likely to ensure his bosses never see any consequences for their actions, and that’s particularly important to know, especially as the main who Ray would replace, James Comey, is set to testify to the senate on whether Trump interfered with the probe into his alleged ties to Russia. Marcy Wheeler is a journalist, focused on national security and civil liberties. Her website is Marcy, welcome. MARCY WHEELER: Thanks for having me. AARON MATÉ: As I indicated, you think as you’ve written on your website, that Ray’s time in the DOJ is pretty significant, and is an indicator of what direction he’s going to go in. Can you talk about his record and who he is? MARCY WHEELER: Right, so he was in the Deputy Attorney General’s Office, and then was the Assistant Attorney General for the Criminal Division, I think until 2005, in the Bush administration. There are a number of things that he was involved in. As you said, he has some ties to the torture program, but most of the records on his involvement are redacted. They were released under FOIA to ACLU and they’re completely redacted on what role he had. Probably, though, stuff on whether or not they were going to prosecute torture, that he was involved I believe, in the prosecution of a guy named David Passaro who’s the only CIA related person who was ever prosecuted. But that prosecution I believe did not give Passaro due process. That’s a little concerning there. AARON MATÉ: And Passaro was also a contractor, right? MARCY WHEELER: He was a contractor. He wasn’t a real CIA guy, yeah. Basically, Passaro I think had materials to show the entire chain of command at the CIA had bought off on torture, and that was seized from him. He wasn’t able to bring that into his defense, and DOJ waited to declassify specifically those items, and related torture items, until after his appeal on this issues was lost. An interesting prosecution. Then, he was also involved, for example, in a negotiation with Chiquita, who had materially supported both left wing and right wing terrorists in Colombia and none of the white, rich executives who were involved in materially supporting these listed foreign terrorist organizations, none of them were prosecuted. Interesting example where a rich white man doesn’t get prosecuted for something that a Muslim brown person would get thrown in person for the rest of their life for. He was part of those negotiations as well. AARON MATÉ: Marcy, also interesting in that, this is an example of where this dynamic transcends partisan lines because Eric Holder was a lawyer for Chiquita. MARCY WHEELER: Right. I mean, Ray gets a lot of … There are a lot of people complaining already that Ray was Christie’s lawyer in Bridgegate. I think people should allow defense attorneys to do what defense attorneys do, which is represent people, and that was the role that Holder was in there, but it’s very different for prosecutors, somebody overseeing the government’s prosecution wing, to make decisions that really apply the law, completely unfairly, or differently for rich white people, and poor brown people. That’s the kind of stuff that I think is worth complaining about and is worth reviewing. Particularly for a guy who would run FBI, right? Because we cannot have the FBI pursuing just certain kinds of terrorists. There’s already I think too much of that. But the thing that you mentioned, which is I think the most direct issue, particularly in light of everything that’s gone so far, is that in 2003, remember there was an investigation into who had exposed Valerie Plame’s identity to Robert Novak and some other journalists. In the initial period of that investigation, John Ashcroft, who of course was close to everyone who was a suspect in that leak, was getting very involved briefings on it from Ray … AARON MATÉ: Guys like Karl Rove, right? MARCY WHEELER: Yeah. Karl Rove was the big one. You know, it wasn’t that Ray was doing something inappropriate. Ashcroft was his boss, and he was telling his boss what was going on in the investigation. I’m not accusing him of impropriety per se, but it’s that the briefings were inappropriate. The briefings were inappropriate in the same way that Trump continues to ask for information from Comey, as you mentioned, but also from all of his agency heads, all of his spook agency heads. He keeps asking for information about this investigation and so precisely the pattern that we saw and see in advance of the firing of Jim Comey, we saw back in 2003, with Ray and his then boss who was John Ashcroft. That actually in 2003, this story seems so circular all the time. Those briefings in 2003 are what led to John Ashcroft recusing, leading then Deputy Attorney General Jim Comey to appoint Patrick Fitzgerald to be a special counsel in the Plame investigation. Very similar situation. Ray was involved in the past, Ray at the time didn’t think that Ashcroft had to recuse, and subsequent parts of that investigation, it’s very clear he needed to recuse. Yeah, I think it’s a real lesson about the kind of guy he would be at the FBI, and the reason why he would be really inappropriate, especially given the investigation into Trump’s associates. AARON MATÉ: On the point, let’s move then to Comey’s testimony on Thursday. His prepared statement has already been released. He basically confirmed media reports that Trump leaned on him to lay off Mike Flynn. He also says that Trump asked him to publicly state that he was not under investigation. What are you expecting to hear from Comey and what do you make of what we know about what he’s going to say so far? MARCY WHEELER: Well, people should tune in because Comey is very good at drama and this will be dramatic testimony. Although, I’m sure Republicans are going to try and beat him up some. One of the things in his statement that he makes clear is first of all, he was hearing directly from Trump, far more in the however 3-4 months, 5 months I guess that he worked for Trump, than he did over the entire span of working for Obama. He worked for Obama starting in 2013, and he only had direct communications with Obama twice. It’s clear that Trump was leaning on him regularly, and he was making inappropriate communications to FBI and we should assume and Comey suggests this as well, that we should assume he’s making inappropriate communications to his other agency heads and to DOJ and so on. That’s going to be clear. The other thing that Comey makes clear is that … I mean, somebody teased me today for writing more stuff down than Jim Comey. Jim Comey has a history, he did this in 2005 with some torture conversations that he was part of, so Comey has a history of writing down troubling conversations. But what Comey made clear is that in his conversations, for example, with Obama, he didn’t take notes. But he describes this meeting he had with Trump and them immediately getting into the car, this is the original briefing on the Russian investigation, he immediately got in the car, opened up a laptop, and started taking notes, because he wanted to write down accurately what had happened. He sensed immediately with Trump that he needed to CYA. He needed to write down what was happening as it was happening. AARON MATÉ: Marcy, on this point, I’m wondering if you can help clear something up for me. It’s an issue that’s come up in a previous segment of The Real News, which is that Comey’s details, when it comes to Trump asking him to lay off Michael Flynn, that came out in an unclassified memo, but other memos containing what Comey wrote down about his conversations with the President were classified. What I’m wondering is, does the fact that Comey didn’t classify that one suggest that he intended to have the option to leak it? MARCY WHEELER: Well, remember there’s classification and there executive privilege. Underlying this all is normally when you have a conversation with the President, then it is privileged, or it should be privileged unless it’s something inappropriate as these conversations are. That came up today in a senate intelligence hearing as well. The question is, were those privileged … In 2007 when Comey testified about Stellar Wind, he didn’t reveal a lot of these details because they were conversations directly with the President, but in this case when Trump fired Comey, he alluded to these conversations. He said, “Thank you for three times telling me I wasn’t under investigation” and so by doing that, he effectively waived any privilege he would have had over those conversations with Comey. AARON MATÉ: Okay. The big question hanging over Comey’s testimony is does he provide any evidence for obstruction of justice, which could be an impeachable offense. I know it’s speculation, but do you think he will? MARCY WHEELER: Well, I think you’ve seen what he’s going to provide, that he clearly wanted Comey, Trump wanted Comey to stop the investigation into Flynn, and I’m not a lawyer, I’m not the FBI Director, I’m not the one who’s going to get to charge this, but it’s certainly evidence to support a case that the reason Trump … And Trump has said this, that the reason Trump fired Comey was to stop this investigation. That seems like pretty far towards obstruction of justice, and Comey’s testimony is going to be just one part of that. I mean again, as with all things, Trump runs his mouth and damns himself, and he has said publicly that he fired Comey because of this investigation, not because of the Hillary email investigation. You put Comey’s testimony together with what Trump himself has said, then you’re closer to obstruction. AARON MATÉ: Marcy Wheeler, journalist focused on national security and civil liberties. Her website is Marcy, thanks. MARCY WHEELER: Thanks so much. AARON MATÉ: And thank you for joining us on The Real News.

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Marcy Wheeler is a national security reporter and author. Her website is Empty Wheel.