Exposing the hoax by Andrew C. McCarthy
https://www.washingtonexaminer.com/opinion/exposing-the-hoax
No need to build to a crescendo — let’s just say it: The Trump-Russia investigation was a politically driven fraud from beginning to end. It was opened on false pretenses, sustained by investigative abuses, and will undoubtedly end in recriminatory angst, which is what happens when the kind of accountability the victims demand does not, indeed cannot, come to pass.
Worst of all is the damage wrought, though even that isn’t fully understood. Obama administration officials exploited the awesome national security powers that we trust our government to use for counterintelligence operations that safeguard America from jihadists and other foreign hostiles. Because of the abuse, and the growing awareness that few of the abusers will be held to meaningful account, those powers have lost the solid constituency they had maintained in Congress for nearly two decades. Thus, this episode will prove to be a catastrophe for American national security.
Last August, I released Ball of Collusion. As a former longtime federal law enforcement official who is proud of that service, I had come reluctantly to the realization that the Trump-Russia escapade was less an investigation than a political narrative — hence the book’s subtitle, The Plot to Rig an Election and Destroy a Presidency. In fact, it would be more accurate to say I had been dragged to it, kicking and screaming. In the early days, friends of mine, both pro-Trump and Trump-skeptic, asked me if it was possible that the Federal Bureau of Investigation and the Department of Justice had brought an uncorroborated screed of innuendo (under the guise of campaign opposition research) to the secret federal tribunal that issues foreign-intelligence surveillance warrants, in order to monitor the Trump campaign. Confidently, I assured them that that was inconceivable.
Turns out, by trusting that such a thing could never happen, I was the guy wearing the tinfoil hat.
Still, until recently, it was perilous to draw anything but tentative conclusions. There was no doubting that irregularities riddled the Trump-Russia inquiry through the tumultuous months of the 2016 election campaign. Yet, law enforcement and intelligence agencies stonewall because it works. Despite the fact that the executive branch had been under President Trump’s control, at least nominally, since 2017, the Justice Department, the FBI, and the rest of the 17-agency sprawl known as the U.S. “intelligence community” are notoriously adept at closing ranks and closing the information spigot good and tight, but for the occasional, strategic leak. They are hardwired to claim that disclosures of information involving misfeasance and worse would do irreparable harm to national security.
The Trump-Russia inquiry was ingeniously designed. If the president demanded that his subordinates unveil the intelligence files that would reveal the prior administration’s political spying, he stood to be accused of obstructing investigators and seeking to distract the country from his own alleged criminality.
On that score, an underappreciated aspect of the saga is that Trump came to office as a novice. His unhinged Twitter outbursts obscure an abiding uncertainty about the extent of the president’s power to direct the intelligence bureaucracy. A more seasoned Beltway hand would have known what he could safely order reluctant bureaucrats and Obama holdovers to produce for him or disclose to the public. Trump, however, was at sea. That is why it was so vital for his antagonists to sideline Michael Flynn and Jeff Sessions, Trump loyalists with deep experience in intelligence and law enforcement, who could have put a stop to the farce if they’d remained, respectively, national security adviser and attorney general.
Due to the stonewalling, only recently has the paper trail finally begun to catch up to — and, inevitably, verify, and then some — the worst suspicions of “Trump collusion with Russia” naysayers.
We have known for over a year of the special counsel’s finding that there was no evidence of espionage conspiracy, no criminal pact of any kind, between Trump’s campaign and the Kremlin. In fact, long before its final report, the Mueller inquiry’s bottom line was already inescapable from the indictments filed by its team of activist Democratic prosecutors. None of them charged Trump associates with any kind of Russian “collusion” (a weasel word invoked to obfuscate the lack of conspiracy).
Since then, the floodgates have begun to open. Justice Department inspector general reports have illuminated shocking FBI misconduct in submissions to the FISA court. There were serial misrepresentations about the strength of evidence; flat-out lies about the veracity of the seminal informant, former British intelligence officer Christopher Steele; and overarching claims that, consistent with Justice Department policy and FISA court rules, each factual assertion in the four warrant submissions against former Trump campaign adviser Carter Page was “verified,” when, in fact, virtually nothing of consequence had been corroborated.
This inspector general report readily complemented the one completed two years earlier, in connection with the Hillary Clinton emails escapade, which documented rampant anti-Trump bias among key investigators assigned to the Clinton and Trump inquiries — as well as the unusually deep involvement in both cases of the bureau’s highest echelon, then-Director James Comey and then-Deputy Director Andrew McCabe. Also falling into place was another inspector general report, centering on McCabe. He had first orchestrated a leak of investigative information involving a dispute between the FBI and the Obama Justice Department over scrutiny of the Clinton Foundation; then, he made repeated misrepresentations to investigators, including under oath.
Irate, the FISA court forced the Justice Department to conduct a more sweeping internal inquiry. The results have been stunning. While the Trump-Russia investigation stands out for its politicization of surveillance authority, it turns out not to be an outlier in terms of the FBI’s derelictions of investigative duty. In a high percentage of cases, the bureau’s “verified” submissions are never verified, in spite of curative procedures adopted in the 9/11 era, as well as required sign-offs by top FBI and DOJ officials. In short, the FBI and Justice Department have been exploiting the convenience that, contrary to what happens in criminal cases, classified counterintelligence inquiries have no discovery, no defense lawyers, and no one checking the investigators’ work. Rather, there are sloppy representations, made to a judicial monitor that is neither institutionally competent nor practically equipped to investigate the submissions.
Meanwhile, there was the collapse of Robert Mueller’s ill-conceived prosecution of Russian shell companies said to have been instrumental in the “troll-farm” conspiracy. That, we’d been assured, was the social media campaign that, along with hacking, was the one-two punch by which the Putin regime attacked our election.
Mueller’s two Russia indictments, of the troll-farmers and hackers, were always better understood as press releases than criminal prosecutions because everyone knew no Russian would ever be extradited to face the music. But Mueller botched the narrative exercise by charging businesses, evidently not foreseeing that they bore no risks of imprisonment or (as Moscow-based shells) ruinous fines. They retained experienced counsel, who showed up in court, demanded to be given all the discovery, and vowed to take the matter to trial. Ultimately, after first grudgingly conceding that they could not connect the social media ads to the Russian government (though an oligarch said to be close to Vladimir Putin was complicit), prosecutors dismissed the case rather than chance an embarrassing rout at trial. In the run-up, their theory of prosecution was shown to be untenable, and the social media ads themselves were ludicrous — childish, mostly legal under campaign rules, and costing just pennies (the defense claimed the few arguably actionable ones amounted to about $5,000 in expenditures). The suggestion that the troll-farm operation had any effect on the multibillion-dollar ocean of U.S. campaign spending was laughable.
Hacking has taken a hit, too. That is largely because Trump finally dispatched a pit bull to take on the intelligence community. The president eased out acting National Intelligence Director Joseph Maguire, installing in the post Richard Grenell, his hard-charging ambassador to Germany.
Grenell staged a showdown to force Trump nemesis Adam Schiff, the House Intelligence Committee chairman, to disclose hearing testimony from dozens of witnesses that had been kept under wraps for over a year. Among the most startling revelations was the testimony of Shawn Henry, president of CrowdStrike. That is the private cybersecurity firm retained by Democrats to conduct forensic analysis on the party’s servers, whose hacking by Moscow is the collusion narrative’s ne plus ultra. The Obama Justice Department and the FBI could have compelled production of the servers to conduct their own examination. Instead, they delegated to the private firm with deep Democratic ties, notwithstanding the latter’s motive to blame Russia and, derivatively, Trump’s campaign. No wonder Schiff did not want the testimony to see the light of day: Henry admitted — under oath, more than two years ago — that CrowdStrike has no solid evidence that Russian government-directed hackers stole the emails.
More brazen still were the admissions by official after official that they had no proof of any Trump campaign conspiracy with Russia. Publicly, former CIA Director John Brennan intimated that Trump was guilty of treason; former Director of National Intelligence James Clapper suggested he was a Putin asset; McCabe bragged of opening a criminal investigation against the president (for obstruction) after Comey’s firing. But in quiet hearing rooms, under oath, they had nothing. No evidence of conspiracy. The pundits knew that. Schiff and the Democrats who choreographed their testimony knew it. They went on for years, though, encouraging the public and foreign governments to believe the president of the United States could possibly be a Kremlin mole. So did Comey, in bracing public testimony in March 2017, by which time it was already patent that there was no case against Trump and his campaign.
Finally, there is the Flynn prosecution.
Since entering office in 2019, Attorney General William Barr has become increasingly troubled by the Trump-Russia investigation, which he describes, without exaggeration, as “one of the greatest travesties of American history.” Besides assigning Connecticut U.S. Attorney John Durham to conduct what is a criminal investigation of the inquiry, Barr has also taken to assigning other experienced federal prosecutors from outside Washington to examine the resulting prosecutions. Thus was Jeffrey Jensen, the U.S. attorney for St. Louis, given the ticket to scrutinize the Flynn case. His findings, accompanied by the rollout of previously redacted documents, resulted in the DOJ’s decision to dismiss the case, regardless of Flynn’s guilty plea to a false-statements charge (apparently elicited under the threat that Mueller’s team might otherwise indict his son on a dubious charge of failing to register as a foreign agent, due to work Flynn’s private intelligence firm did for Turkey).
In a nutshell, in July 2016, the FBI opened a counterintelligence investigation of Flynn on the baseless theory that he might be a clandestine agent of Russia. Not surprisingly, they were poised to close the case in late December, when Flynn engaged in perfectly appropriate, if ill-fated, communications with Russian Ambassador Sergey Kislyak. Though Flynn had done nothing wrong, the bureau used the contacts as a pretext to continue the investigation.
Though it had a predicate for neither a counterintelligence nor a criminal investigation, the FBI conducted an ambush interview of Flynn at the White House — Comey has bragged about violating protocol, which would have called for approvals from the attorney general and the White House counsel. The session was an obvious perjury trap. In blatant violation of FBI procedures, the bureau edited the interview notes (the “302 report”) for weeks — a complication necessitated by the facts that, while the agents did not believe Flynn had lied to them, the point of the exercise was to lay the groundwork to get him removed as national security adviser. That plan worked when Trump fired Flynn (for allegedly misleading Vice President Mike Pence about whether he had spoken to Kislyak about Obama-imposed sanctions against Russia). The bureau seemed to drop the matter, but it was revived months later by Mueller’s prosecutors, who were obviously hoping to build an obstruction case against Trump, and to squeeze Flynn into cooperating. The newly disclosed documents demonstrate that the prosecutors withheld exculpatory evidence, made misrepresentations to the defense about the genesis of the 302 report, and withheld from the court their agreement not to indict Flynn’s son if he agreed to plead guilty.
Concurrently, Grenell forced the disclosure of documents showing that Flynn’s identity had been “unmasked” an astounding 53 times by 39 different Obama officials in just the few weeks between Trump’s election and his inauguration. (“Unmasking” is the revealing in intelligence reporting of the identities of Americans incidentally intercepted in foreign intelligence monitoring; they are supposed to be concealed, and their revelation facilitates classified leaks.) Ironically, the one time Flynn was not unmasked appears to have been in connection with his Kislyak call in late December. There, the FBI, then consulting directly with the Obama White House, opted not to “mask” him at all, despite FISA procedures calling for doing so. The call was leaked to the Washington Post.
That’s an appropriate note on which to bring us back to the crescendo. Given the brass knuckles Barack Obama’s investigators used on Trump and company, the president’s supporters are unsurprisingly baying for blood. In law enforcement, and especially in foreign counterintelligence, investigative judgments are based on broad discretion, not bright-line rules. It is a far easier thing to spot the abuse of that discretion, especially when all judgments cut in the same politicized direction, than to fit it into an offense of the penal code. Durham is conducting a serious criminal investigation, and we could see some prosecutions, particularly of officials who can be shown to have actionably lied or obstructed justice. But those dreaming of the big indictment of Obama and his top minions will be sorely disappointed.
There are two lessons to be drawn from all this.
First, Barr could not be more right that the malfeasance in our government today is the politicization of law enforcement and intelligence. The only way to fix that is to stop doing it. That cannot be accomplished by bringing what many would see as the most politicized prosecution of all time. The imperative to get the Justice Department and the FBI out of our politics discourages the filing of charges that would be portrayed as banana-republic stuff. Yet, even if Barr succeeds in this noble quest, there is no assurance that a future administration would not turn the clock back.
Second, when wayward officials are not called to account, the powers they have abused become the target of public and congressional ire. The problem is that the powers are essential. Without properly directed foreign counterintelligence, supplemented by legitimate law enforcement, the United States cannot be protected from those who would do her harm.
The Trump-Russia farce has destroyed the bipartisan consensus on counterterrorism, and on the need for aggressive policing against cyberintrusions and other provocations by America’s enemies. There is an implicit understanding: The public endows its national security officials with sweeping secret authorities, and those officials solemnly commit that these authorities will only be used to thwart our enemies, not to spy on Americans or undermine the political process.
That understanding has been fractured. In counterintelligence, government operatives have to be able to look us in the eye and say, “You can trust us.” Americans no longer do. The sentiment is justified. That will not make our consequent vulnerability any less perilous.
Andrew C. McCarthy, a former chief assistant U.S. attorney in New York, is a senior fellow at the National Review Institute, a contributing editor at National Review , and a Fox News
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