For months, Americans have been asking where the indictments are as the malfeasance of federal officials is methodically, relentlessly exposed. The Justice Department Inspector General’s report on James Comey and his leaked memos is just the latest set of formal revelations to prompt this question.
The specific case of Comey’s memos may not be the best example, as his behavior in that regard was worth firing him over, but not necessarily prosecutable. (It would depend to some extent on how classified the memos themselves were, and the answer appears to be, not very. There are other ambiguous factors as well, such as the proper scope of his authority as the FBI director.)
However, the critics are right that if ordinary citizens had been caught in some of the things the IG found Comey did, they would have received punishment, probably at the career-ending level, if not outright criminal sanction. Comey gets to wander free, publishing a book and collecting federal retirement benefits and plying a speakers’ circuit. Just the contrast with Michael Flynn, for whom the consequences of pleading to a single, trumped-up process crime have been life-altering, is enough to cause justifiable indignation.
Will this presidential election be the most important in American history?
There are various theories advanced for why a bulldog like Attorney General William Barr isn’t moving on indictments. In the interest of brevity, I won’t summarize or list them here. Suffice it to say, there are smart people who’ve followed the whole Spygate drama closely, making logical cases for why indictments have not so far been forthcoming.
The project in this article is to make a slightly different case. The case may or may not explain everything we have seen so far. My own view is that it does explain some of it. But I could certainly be wrong about that.
The purpose, however, is to lay out a case for why we shouldn’t want to see indictments coming right and left: why we should instead think it’s better to wait and see the whole truth. This case is about our attitude toward the Barr-Durham probe. It’s about what we should really hope to get out of it.
For Mr. Barr, Mr. Durham, the White House, the Senate, the House: this is what I want from the investigation of Spygate. I’m not sure the DOJ and FBI can even do the whole job. I think it very probably merits a congressional commission, and perhaps one uniquely empowered to address a unique, unprecedented attack on the American Republic. The tools we are using at the moment may not be adequate to the task. And accomplishing the task is a life-or-death issue for our future as a nation.
The case to be made is this. We cannot investigate Spygate effectively if we miscast it at the outset, as merely an attempt from (mostly) inside the United States to spy on Donald Trump. Even if we acknowledge it to be about prejudicing the outcome of the 2016 election – and not protecting it – that’s still not an accurate enough focus.
Moreover, we cannot investigate effectively if we have a flawed theory of motive. And we cannot investigate effectively if we have an inaccurate view of the scope of the operation.
As its stands today, the probe spearheaded by John Durham may or may not suffer from these shortcomings. There’s no way to tell from outside the DOJ or the White House. Frankly, the fewer indictments I see, the more I am encouraged to think that Barr and Durham do have the larger perspective needed to truly peel this onion as far back as it has to be peeled. I’ll get to the reason for that at the end.
But first, the outline of what we should understand needs to be investigated.
The real nature of Spygate
It has become abundantly clear that Spygate – the package of actions taken to spy on and defame Trump and his 2016 campaign – was never an investigation. Not even for one day. It was always an operation. In 2016, it assumed the mantle of an “investigation,” partly through being given a name at the FBI, and partly through being the focus of an interagency task force put together at the National Security Council level at the same time “Crossfire Hurricane” was launched.
“Crossfire Hurricane” seems to have sprung forth by something akin to parthenogenesis: fully formed, without the ordinary paperwork, from the brow of someone (Comey?) at the summit of the FBI hierarchy. Much that we should have questioned has been papered over by the catchy name and the careful series of leaks by which the public knows about Crossfire Hurricane. But its dubious nature from every angle has also been observable from the beginning (2017, when the public first learned about it). The pretext for it has never hung together; i.e., the story that a “drunken disclosure” from George Papadopoulos to Australian Alexander Downer had finally made its way to the FBI, after a two-months delay, and therefore Crossfire Hurricane made its debut on 31 July 2016, one day after Christopher Steele met with Bruce and Nellie Ohr at the Mayflower Hotel for breakfast.
Fatally for this story, the record of numerous actions to probe the Trump campaign, involving assets of the FBI and other government agencies, goes back at least five months before Crossfire Hurricane was reportedly launched. Merely tracking the history of the Steele dossier, which the FBI was aware of at the action/decision level almost immediately once it started producing memos, takes us back to September 2015, when Nellie Ohr connected with Fusion GPS.
There is more than that taking us further back through 2015 – and beyond: to 2014, when Stefan Halper was set onto Michael Flynn at the gathering in the UK; and even to 2012, when a “counterterrorism” policy rammed through by John Brennan made it easier for civilian contractors in certain U.S. agencies (including the FBI) to access government data on Americans.
Meanwhile, the interagency task force at the NSC, urged on Obama by John Brennan, was supposedly formed a few days after Crossfire Hurricane to address a perceived Russian threat to the 2016 election, in which it was claimed the Trump campaign may have been implicated. But the task force never actually did anything about the 2016 election, in spite of recommendations from its working-level members. Instead, the Obama administration emitted conflicting signals about how grave the Russian threat was, with Jeh Johnson at Homeland Security raising alarms about it, and Obama himself speaking mostly in terms of complacency.
Ultimately, the big output from the intelligence arm of the task force was the national intelligence assessment of Russian interference in the 2016 election. That document, in its public version, was almost comically short on apparent references to real-time intelligence about Russia and the 2016 election, per se. Most of it had more the aspect of material copied in from Cliff’s Notes on Russian disinformation. Valid material, to be sure. Useful background for context and analysis – but not a smoking gun as regards anything actionable in the 2016 election.
The formal “investigatory” and “task force” activities set up in 2016 produced so little that it has become clear in hindsight what they actually were: deceptive cover for the Spygate operation.
In 2016, there was, at the hypothetical most, hardly anything to “investigate” about Trump or his campaign. Realistically, in fact, there was nothing. If there had been something, we would have known more than two years ago (in mid-2017) what it was, because the full assets of the United States government had already been deployed against Trump and his campaign for more than a year at that point.
But the infrastructure of the operation against Trump had been assembled over time for years before 2016. Its assembly actually began before Trump even launched his presidential campaign on 16 June 2015.
It didn’t start out being about Trump, per se. That wasn’t the genesis of Spygate. It became about Trump, as it became clearer that he would be the Republican nominee in 2016.
The operation we call Spygate, whose origins in infrastructure (e.g., spying on Americans’ communications) and targeting (e.g., of Flynn and Manafort) began well before 2016, is what we need to learn the whole truth about.
The motive(s) of Spygate
If we see clearly that the Spygate endeavor was about more than Trump in 2016, we then recognize that the goals and motives for it were not really the ones we have tacitly accepted in top-line punditry (e.g., the panelists at Fox News in Bret Baier’s flagship broadcast) for the last two-plus years.
The chief motives discussed by such Spygate analysts boil down to these: protecting Hillary Clinton (a natural deduction given her connections to the dossier material, and her assumed need for protection against exposure and prosecution), and “preserving Obama’s legacy.”
To some extent, both motives overlap with a more generic motive to preserve the sinecures of the “Deep State” – which, whatever you want to call it (permanent bureaucracy, shadow government), unquestionably exists. Hillary could take significant chunks of the Deep State down with her. Some of the achievements of the Obama administration, like the JCPOA “deal” with Iran, obviously serve the ends of the Deep State, given how tenaciously its operating arms in the media, government bureaucracies, think-tanks, and political consulting firms now cling to them.
But neither of the specific concerns about Hillary or Obama explains the urgency, recklessness, and sheer, demented vituperation of the operation against Trump. In this regard, it is instructive – indeed, essential – to extend our view abroad, and observe the similar animosity toward any leaders or national political forces showing signs of being “Trump”-like, whether the Brexiteers in the UK, the Salvini faction in Italy, the persistent gilets jaunes in France, the much-maligned “far right” leaders in Eastern Europe, or Jair Bolsonaro in Brazil.
The U.S. and UK seem to be where Deep State forces are prepared to do their worst to prevent what Trump supporters would call the draining of the swamp. That, at least, is the record up to this week, culminating in the extraordinary actions of a Parliament in chaos to paralyze the Johnson government and hobble UK policy as long as it takes to prevent Brexit. The “burn down the house” nature of the attempt to freeze pre-Trump, pre-Brexit conditions is most pronounced in Washington and London, but we may see it spread in the days ahead, if national governments like Italy’s or France’s tip over into crisis.
The exceptional pervasiveness and scope of Spygate in the United States argue for a motive much bigger than Hillary’s immunity or Obama’s legacy. All the agencies, organizations, and people connected with it cannot have had motives of such limited application in view. Even if the enjoyment of Deep State privileges would be slowed down by unfortunate developments for Hillary or for Obama’s legacy, there are two realities militating against that shallow analysis.
One is that at a certain point, when the cost starts mounting, the obvious course becomes tying off the losses and moving on. The self-destructive tenacity of the anti-Trump fight is counterintuitive for an enterprise that wants to remain survivable and effective in the shadows. It is simply too unending and gratuitously incendiary to be about “Hillary” or “Obama.”
The other is that Spygate started long before the decision point in 2016 that made the proximate stakes “about” Hillary, Obama, and Trump. And even when it was clear at last that those were the proximate stakes, in the period between late July and Election Day of 2016, all signs pointed to Hillary and Obama winning that round.
Very little Spygate material other than some general innuendo about Trump, and about a Russian threat, was urged on the public prior to Election Day. It was after the election that the “Russiagate” frenzy began. Spygate doesn’t make sense if it was a preventive operation; it attempted no prevention. Rather, it poisoned the atmosphere, to a minor extent before the election, and then in a toxic assault after it.
That appears in retrospect to be what it was designed to do. The project of Spygate was not to prevent Trump from being elected in 2016. The project of Spygate was to plant seeds for the aftermath of the 2016 election, whatever its outcome. Perhaps that meant “if the seeds were needed,” as suggested by Peter Strzok’s notorious “insurance policy” text.
But perhaps it means they were going to be needed anyway.
Needed for what? That is the question we need to answer about motives and goals.
The methods of Spygate
The methods of Spygate can help us do that, if we pursue them adequately. We have to be prepared to look into things from which no prosecutions can result, and which may not involve the overtly hostile actions of foreign states; i.e., the formally approved targets of counterintelligence probes.
That’s one reason we should not measure our progress by indictments toted up. The droids we’re looking for aren’t necessarily the ones our DOJ/FBI tools are optimized to process.
For illustration, let’s quickly survey the basic methods used in Spygate, which interlocked and overlapped. The methods included the following:
- Baiting and attempting to suborn members of the Trump campaign (e.g., with Stefan Halper, Joseph Mifsud, the set-up of Donald Trump, Jr. in Trump Tower)
- Generating defamatory “oppo research” material on Trump and his campaign
- Generating doubt and confusion about the security of the U.S. 2016 election, with specific themes about Russian interference (especially after the election, with the national intelligence assessment) and cyber-intrusion on voter data systems
- Generating doubt about the “information” atmosphere in which the 2016 election was conducted, with emphasis on “fake news,” partisan social media posts (by Americans as well as foreign users), “Russian trolls,” the use of social media user data by political campaigns, and alarms about data privacy in general
- Spying on the Trump campaign (and possibly on others) using communications intelligence – including the infamous hundreds of unmaskings by top Obama officials and the gundecked FISA applications on Carter Page – and probably human assets as well
- Spying on the Trump White House after 20 January 2017, using human assets (e.g., FBI employees) assigned to White House jobs, and possibly, for a time, communications monitoring (discussion below)
- Attempting to create the appearance of impropriety for Trump on numerous fronts, from the “Maria Butina” narrative about the Trumps and the NRA, to the Stormy Daniels payoff tale, to lifelong Gore crony and Clinton official Franklin L. Haney making a huge, out-of-the-blue donation to the Trump inaugural fund, and then involving Michael Cohen, of all people, in an extremely weird nuclear power plant deal
- Involving foreign associates of the U.S. leadership at the DOJ, FBI, CIA, and Democratic Party in Spygate activities, with the nations implicated including the UK, Italy, Australia, and Ukraine
- Invoking foreign intelligence to justify “investigation” of Americans in the Trump campaign, with a strange preponderance of it coming from Eastern and Central Europe
- Conditioning the information atmosphere throughout the operation through a nexus with the mainstream media that facilitated synchronized narrative themes and “leaks” (a nexus involving firms like Fusion GPS as well as outfits like David Brock’s Shareblue empire)
What the methods tell us
The variety and scope of methods in Spygate are eye-wateringly broad. Two general observations about this aspect of Spygate tell us a great deal.
The first is that the reverberations from some of the methods could never have been confined to the year 2016, as if they could be deployed and then memory-holed, with no further consequences. Creating doubt for the public about the informational peril to electoral politics from social media – fostering a narrative of bias, deception, “fake news,” outrages to privacy – had to outlast the election itself, and even its immediate aftermath.
That method of throwing shade on Trump clearly wasn’t just “about” Trump or the 2016 election. It had to be about poisoning the well of open, public information sharing, with a systematically negative theme. It was about alarming the public, for a future with a much longer horizon.
The question naturally arises: who is motivated to do that? Why was the 2016 election targeted with it? What connection is there between the rollout of that theme in 2016 and the continued flogging of it in congressional hearings and evolving policy discussions on social media up through today?
The second general observation is that it took a whole heap of infrastructure development to be able to spy on Trump in 2016 (and into 2017), using the methods in our list. We can probably assume it was just coincidence that Michael Flynn, who apparently had been developed as a HUMINT target as early as 2014, joined the Trump campaign in 2016. It looks less coincidental that Paul Manafort, long on the FBI radar (as far back as 2007), joined the Trump campaign in 2016 as well.
It’s clearly not coincidental that there was a commonality of interests between certain U.S. officials and their foreign associates – all of them with government connections and working through “civil society” institutions – in places like the UK and Italy. The people involved didn’t just come together at the last minute to do something about the 2016 election. “Influence” and “intelligence” assets like Christopher Steele and Joseph Mifsud appear to have been selected for that immediate purpose by others, more senior, more connected to governments, who work a common agenda with a much longer horizon and larger scope.
Whatever that agenda is – that’s what the American people need to know about. (And the British and Italian people, for that matter.)
The agenda in question found the U.S. 2016 election to be of such importance that it had to be goosed, spooked, prejudiced, infiltrated, and dangled within an inch of its life from a cliff-edge. The likelihood of getting indictments of anyone involved in those shenanigans is low, but indictments are not where the payoff lies anyway. The payoff is in knowledge of the truth going forward.
The bleeding that hasn’t stopped
Probably the most significant instance of a long lead-time for the Spygate methods is the use of communications intelligence on Americans.
Given the revelations on that head to date, we can be confident that up through April of 2016, when Admiral Rogers at NSA clamped down on certain database queries, the Obama administration was making widespread use of back-door methods that had been systematically enabled by policy decisions going back to at least 2011. (For a comprehensive backgrounder, see here.)
The FISA application melodrama on Carter Page is related to this problem, and is important to get to the bottom of. But we already recognize it as a smoking gun.
What we haven’t yet reckoned with as a smoking gun is the extreme vulnerability Americans still have to back-door communications monitoring. We know some presidential administrations will abuse it, because that’s what Obama’s did. (That can’t come as a surprise, of course, given the evidence of older-technology abuse by the Nixon, Johnson, JFK, and FDR administrations.)
The important point here is that the Obama administration, coming in in 2009, didn’t find the infrastructure ready to support the level of abuse observed from 2013 to 2016. It had to be made ready. And that’s what the Obama administration did, starting long before the 2016 election campaign began.
Moreover, even after Admiral Rogers had already clamped down on the most-abused comms-data query type and formally confessed to the FISA court, the Obama administration left a legacy of quietly altered policy in Executive Order 12333: a legacy expressly designed to facilitate agencies obtaining and retaining the type of information Rogers had tried to cut off. That policy change was signed off under the radar, not by Obama but by James Clapper and Loretta Lynch, barely two weeks before the last day of the Obama administration.
Add to that one more noteworthy preparation, made by the Obama administration and almost universally overlooked in the years since: the comprehensive modernization of IT and communications systems for the Oval Office. That effort began in 2014. Before it was undertaken, the reporting suggests it would have been literally impossible to monitor most Oval Office communications by stealth, except through actual, old-school wiretapping – gaining physical access to the lines in or just outside the Oval Office. When the overhaul was complete, the Oval Office had joined the modern, digital age. The president’s communications thus went through computers like everyone else’s.
That one piece of information, especially in conjunction with evidence that federal departments and agencies may have used their NSC representatives to spy on the Trump White House, suggests that the infrastructure arrangements made by the Obama administration were not solely about convenience for its own operations.
Add to it the years-long process of making extremely sensitive data on Americans more easily accessible to working-level analysts, and what emerges is a package of measures designed to facilitate continued spying by those with access to the infrastructure, no matter who is in the Oval Office.
Certainly, the Oval Office upgrade demands an investigation of why White House Chief Information Security Officer Cory Louie, an Obama appointee overseeing the new infrastructure, was fired without explanation on 2 February 2017 (link above).
But let us say, rather, that what is demanded is exposure of the whole truth to the American people. It isn’t good enough for John Durham to investigate and satisfy himself that there’s no one he can find to indict for something in that particular matter.
Nor is it good enough, on the other hand, to obtain indictments and convictions on the flood of unmaskings, if they involve evidence or outcomes so classified that Americans can never be told what actually happened.
It’s questionable whether there is a basis for such indictments anyway. With the names of formally designated unmasking authorities on the hundreds of unmaskings that we know about, it could well be that the unmaskings were not technically illegal. They were just highly unethical and counter to the respect, decency, and observation of limits Americans have the right to expect from our public officials. They were the hallmarks of corruption: the misuse of office.
The only thing that’s good enough is Americans knowing the whole truth.
Why indictments are not an all-purpose answer
The discussion up to now has probably given readers a preview of the promised argument in summation. The short version is that seeking indictments and convictions in the judicial system ties investigators’ hands in important ways.
There is an overriding constraint to respect constitutional and statutory limits, lest convictions be thrown out for faulty procedure. That can militate directly against gaining information. It can transform the standard of success away from understanding the entirety of what happened, and toward the framing of a usually narrower theory supportable with legally-obtained evidence.
There is the often-present possibility of trial evidence being placed under seal. There is also the unusually relevant problem that gaining more non-prosecutable intelligence on what happened will actively interfere with obtaining convictions in trial courts.
Going into this article, I had in mind the examples of prosecutions for the World Trade Center bombing in 1993 and the Oklahoma City bombing in 1995. For both attacks, there was considerable evidence that foreign actors, including foreign governments, had been involved at some level. Critics who pursued that evidence were frustrated that little or nothing was done with it. But the problem with making use of such evidence was that it might create reasonable doubt about the statutory culpability of the individuals being prosecuted – while at the same time being non-prosecutable and requiring a whole different kind of national response.
Those familiar with the topics will remember the cases laid out by Laurie Mylroie about the WTC bombing, and by Stephen Jones and Jayna Davis about the OKC bombing. My point here isn’t to assert that these authors were right about everything. The point is emphatically not to fault federal prosecutors for focusing on the cases they could make. As a matter of national priorities, it wasn’t their call whether to treat the bombings as law enforcement problems versus national security problems. They were under instructions to get convictions.
But the criticism of the Clinton administration afterward was a sound one, in light of the 9/11 attacks. In hindsight, it would have been preferable to treat the whole problem of transnational terrorism more comprehensively, instead of constraining our national agencies to limit the scope of our inquiries to suit the needs of prosecution, and ultimately to act as if we knew less about it than we did.
In the same way, it is not just preferable but imperative to treat Spygate as a comprehensive disaster imperiling our existence and character as a nation. Limiting ourselves to what we will know if we prioritize indictments and convictions would be fatal. There will be long lists of things we can never indict anyone for, for a variety of reasons – but that we must know about, formally, as a nation, even if that puts indictments or convictions at risk.
No prosecutorial consideration should be allowed to keep any portion of the truth a secret from the American people. The government’s faith with the people has already been broken. That can’t be overstressed. The restoration we need will not come from the ordinary routine of prosecuting some individuals and ignoring (even hiding) other things in order to be successful with the prosecutions.
Nor is that a sound basis for moving forward. The people need to understand that it’s the conditions of government as it exists today that have set us up for this hour. Names aren’t even necessarily the most important things for us to know (although we should know them, minus any figures legitimately engaged in covert espionage. It’s not clear that any of those are even involved).
The people more urgently need a clear view of the policies, tools, and charters of agencies that made Spygate possible (indeed, made it inevitable). We need to understand not just who was talking to whom in our agencies and across national borders, but the agenda for their contacts, and what their purpose was in zeroing in on the 2016 election.
Indicting Andrew McCabe won’t tell us those things. It might well hinder our efforts to find them out. If, after we know all we need to know to repair the foundations of our republic, we can then reasonably hope to indict some especially deserving people, so much the better. But the first priority has to be revealing the whole truth, and acting not through the courts or the executive agencies but through the house of the people, on Capitol Hill, to ponder the solutions to this greatest of quandaries: what to do to make sure this never happens again.
