Any post on this topic must start with the observation – one that remains valid after nearly a year and a half of U.S. law enforcement and intelligence agencies trying to find dirt on Trump – that nothing prosecutable has turned up. Nothing, that is, that relates to Trump, his campaign, or his presidency.
I pointed that out in September, in relation to the history of “unmasking” and even actual wiretapping of Trump associates in 2016.
Now there have been three excellent posts in the last 24 hours that really bring into focus how the effort to nail Trump has changed its spots over time. Apparently, the purpose of this has been to “get” him on something – anything – and to call the pursuit of Trump whatever is necessary to justify using the tools available to the executive branch of the federal government.
Referring to the general effort as a “Trump-Russia probe” papers over the shifting of the rationale in law, as opposed to the rationale for bumper-sticker political chatter. That’s presumably why the mainstream media give little coverage to the justifications being enunciated by public officials.
But the officials have been enunciating those justifications. Each one has been paper-thin, but they’ve been there.
The three justifications are (1) counterintelligence (the one you’ve heard the most about, although you probably don’t think of it in those terms); (2) violation of the Logan Act of 1799; and (3) obstruction of justice.
To find something to hang on Trump as a crime – or even as a national security hazard – there has to be some activity the federal government deems criminal or dangerous, and there has to be at least one agency chartered by law to do something about it. These three categories of hazard are the ones that have been used to justify the actions taken to spy on Trump and his associates, and hold them at risk for exposure or even prosecution (e.g., Manafort, Papadopoulos, and Flynn).
The three posts I refer to address each of these justifications. And in effect, they expose the justifications for their thinness, by revealing their misuse.
What I’m stringing together here is a top-level perspective on how the ineffectiveness of pursuing Trump based on these justifications has prompted the shift among them over time. When one fails to achieve the desired effect, the thematic coverage by the media, and the political statements by Democrats, shift to another one.
Turning first to counterintelligence: this has been the anchor justification, if you will. You’ve heard the most relating to it because it’s connected – however vaguely – to what Russia may have done to try to influence the 2016 election.
We can take as a given that Russia tried to do that, because Russia always tries to do that. The question propounded by the Obama administration in the summer of 2016, and in theory being pursued by the Mueller investigation, is whether the Trump campaign is implicated in any of what Russia did.
James Comey told Congress in March 2017 that the FBI’s investigation of possible Trump connections to Russia’s “interference” was a counterintelligence probe. I’ve written about that at length, and most of the links can be found in or through my September post (above).
One of the most important points about the counterintelligence justification is that it evades the much tighter limits put on criminal law enforcement probes. FrontPage’s Daniel Greenfield had a particularly useful formulation on that point in a post of his own in September – one that I referred to in my article. Here, again, is how he put it:
Desperate Obama cronies had figured out that they could bypass many of the limitations on the conventional investigations of their political opponents by ‘laundering’ them through national security.
The whole “Trump-Russia” theme – which, again, has yet to yield any indictable information about Trump, or about any of his associates as it relates to Russian activity – functioned in 2016 as a convenient pretext for spying on the Trump campaign.
Then, in 2017, it became a convenient pretext for probing Trump and his associates – on information that was all from 2016 or before (which I pointed out in September), and thus was virtually all known in 2016 or before.
Now William Jacobson has asked the most pertinent question there is, in the first of the three articles from the last 24 hours. In reaction to the Michael Flynn plea, which was about phone conversations held in December 2016, he asks why the FBI was even looking at the transition period.
The election was over.
Any election interference by Russia had concluded more than a month earlier at that point. Jacobson cites chapter and verse from Mueller’s charter, and Comey’s testimony to Congress on the scope of the original FBI investigation, and wants to know why Mueller is looking at the transition period. The special counsel charter doesn’t apply to it.
As with each of the three articles I will cite here, be sure to read Jacobson’s in full. He makes a strong case, and his case throws into powerful relief how the fig-leaf of a counterintelligence investigation has all along functioned as that convenient pretext, rather than a rigorously – honestly – defined purpose for a focused investigation.
I know how many readers out there (I’ve been hearing from you) want to ensure that we don’t forget all the unmasking that was done based on the convenient pretext of counterintelligence – so consider it mentioned.
The Logan Act
We’ve heard far less, in the media coverage, about the Logan Act. But in the second of the recent articles, Byron York at The Washington Examiner put together a most informative timeline and series of data points on that.
Through documenting their deployment of “Logan Act” talking points and even legislative measures, York highlights how much the Democrats in Congress have used it as justification for throwing suspicion on Trump, and creating the sense that talking to Russians must be inherently nefarious.
The utility of the Logan Act is that it shifts the central issue from colluding against the 2016 election to any sort of dealings with the Russians, as if such dealings are reprehensible and subversive.
Byron York does a signal service simply by highlighting the primacy the Democrats have given it. But his more important contribution is documenting that they were already flogging the Logan Act in August of 2016, long before they knew the outcome of the November general election.
And he cites Obama officials stating that the Logan Act was an important basis for their probe of Trump and his campaign, starting in the same timeframe. The determination to use it for an intensified effort increased in the transition period – even as the counterintelligence pretext was being touted to the media (i.e., in the reporting on the intelligence community assessment about Russia), and depicted as being the basis for suspicions against Trump.
Here is York:
Starting in the summer of 2016 and intensifying in the transition period, the Logan Act, while mostly unknown to the general public, became a hot topic of conversation among some Democrats. A number of lawmakers, former officials, and commentators called on the Obama administration to investigate the Trump team for possible Logan Act violations — and to do it while Democrats still controlled the executive branch.
At the same time, inside the Obama Justice Department, it appears the Logan Act became a paramount concern among some key officials in the critical weeks of December 2016 and January 2017. Former Deputy Attorney General Sally Yates has told Congress that the Logan Act was the first reason she intervened in the Flynn case — the reason FBI agents were sent to the White House to interview Flynn in the Trump administration’s early days. It was that interview, held on Jan. 24, 2017, that ultimately led to Flynn’s guilty plea.
In short, there’s no doubt the Logan Act, a law dismissed as a joke or an archaic irrelevancy or simply unconstitutional by many legal experts, played a central role in the Obama administration’s aggressive and enormously consequential investigation of its successor.
York also points out that David Ignatius referred to the Logan Act in his 12 January Washington Post article describing the leak of Michael Flynn’s identity from the phone calls with Ambassador Kislyak.
Ultimately, York, writing separately from William Jacobson (and without referencing the Jacobson post), gets exactly to the substance of Jacobson’s question about why Michael Flynn was interrogated about the transition period.
But why did the Justice Department, run by Obama holdover Sally Yates, decide to interrogate Flynn in the first place? The answer is the Logan Act.
“Yates, then the deputy attorney general, considered Flynn’s comments in the intercepted call to be ‘highly significant’ and ‘potentially illegal,’ according to an official familiar with her thinking,” the Washington Post reported on Feb. 13. “Yates and other intelligence officials suspected that Flynn could be in violation of an obscure U.S. statute known as the Logan Act, which bars U.S. citizens from interfering in diplomatic disputes with another country.”
As York observes, the Logan Act is widely considered archaic and probably unconstitutional, and there has never been a successful (or even meaningful) prosecution under it. But he concludes with the following:
[W]hen it finally came time to charge Flynn with a crime, did prosecutors, armed with the transcripts of those Flynn-Kislyak conversations, choose to charge him with violating the Logan Act? Of course not. But for the Obama team, the law had already served its purpose, months earlier, to entangle the new administration in a criminal investigation as soon as it walked in the door of the White House.
Obstruction of justice
So far, the pursuit of Trump comes off as a political targeting squad in search of a reason to pull the trigger.
Counterintelligence and the “Russia” theme justified spying – which yielded no reason to pull the trigger.
The Logan Act justified probing other aspects of the Trump team’s activities, including the transition period after the election.
But the Logan Act has also come up empty. The most we’ve got is a couple of guys making false statements about Russian contacts that weren’t illegal and couldn’t have been prosecuted per se.
The third of the articles from the last 24 hours is Andrew McCarthy’s at NRO, which makes the case that, in terms of what he was supposed to investigate, there is nothing there for Mueller to proceed on at all. He’s been pumping a dry well.
So the progression we can expect is for the Mueller probe to turn into a case – a case in search of evidence – for obstruction of justice.
The important points are numbers 2 and 3 of the ones McCarthy makes at the outset (emphasis added):
2.) For all practical purposes, the collusion probe is over. While the “counterintelligence” cover will continue to be exploited so that no jurisdictional limits are placed on Special Counsel Robert Mueller, this is now an obstruction investigation.
3.) That means it is, as it has always been, an impeachment investigation.
McCarthy gets to impeachment by the logical path. Since everything Trump has done up to now is within his discretion as the chief of the executive branch – including firing James Comey – it cannot be considered “obstruction” for him to do it.
Whatever Mueller’s theory for pursuing an obstruction case, McCarthy points out this (emphasis original):
…its [the theory’s] fatal flaw as a vehicle for prosecution is the same as it has always been: As president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director. …
For argument’s sake, let’s assume the worst: Trump knew Flynn had lied to the FBI (i.e., that Flynn had committed at least one felony), and he leaned on Comey to close the FBI’s probe. Even with those assumptions, there is still no obstruction case.
It is within the president’s discretion to do this. McCarthy again:
The president may not be prosecuted in a criminal judicial proceeding for exercising his discretion, however objectionably, in executive matters over which the courts have no power of review. If Mueller tried to indict him, Trump would have unfettered discretion to fire Mueller and to direct the Justice Department to drop the case.
That doesn’t necessarily make it right, of course – and that’s where the impeachment option comes in.
I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.
But, as McCarthy said at the beginning, that’s where this has been headed all along; in other words, before any outcome was known, or any findings assembled.
Which makes it a grand prosecutorial bait-and-switch. The basis for spying on Trump, and fomenting suspicion about his or his team’s contacts with Russians, has been sold to the people on a different pretext. Russia, counterintelligence, and the Logan Act have appeared and reappeared through the revolving door, not only serving to “justify” the use of the tools of government against Trump, but seeming to amplify the potential “case” against him.
Nothing relevant to Russia and the election, or counterintelligence, or the Logan Act has been uncovered. But with a handful of process-crime indictments, and a record of Trump firing the FBI director, Mueller might present a paper-thin finding that Trump behaved improperly by firing Comey.
No authority exists for anyone to prosecute Trump for doing that.
And it’s worth noting that a number of commentators across the political spectrum said at the time that Trump did the right thing in firing Comey, because of Comey’s dysfunctionally political behavior in the job over the previous year. See here, here, here, here, here, and here for more examples. It is by no means a given that it was unjustified or improper for Trump to take the action he did.
Impeachment is no slam-dunk; there were enough other reasons to fire Comey for an impeachment case on that pretext to be hard to make.
But impeachment is where it has to go, if Mueller’s probe is to amount to anything. Note that Dianne Feinstein took up the “obstruction” cry on Monday, as if on cue.
But note, again, that impeachment is not what the people were told was being pursued with the Mueller probe. The fact that it was foreseeable (as McCarthy implies) is a political reality, not a legal mandate.
We can hope that Congress deals correctly with any referral from Mueller that carries as little substance as what he’s got today. We can hope Congress will ignore it, and indeed that our representatives will scrutinize critically the practice of unleashing special prosecutors to go on what are essentially expensive, time-consuming witch-hunts.
But whatever Congress does, Byron York had it right. Trump’s political opponents have sought since before the election to entangle his administration in a criminal investigation as soon as it walked in the door.
The bad faith of the process that started with the Obama administration last summer, and has continued with Mueller, is something the people are not under any obligation to sit still for. We are perilously close to being in the same condition as Honduras, or, a few years earlier, Venezuela or Nicaragua, with actors in a semi-permanent power structure trying to undo the results of an election. In Venezuela and Nicaragua, they have already succeeded. Inverted pretense about the “rule of law” should not enable them to do so in the United States.