Citizenship increasingly resembles a night at the movies. Better yet, an obscure foreign art film without subtitles. Better yet, a foreign miniseries with multiple plot lines and seasons, each uncertain climax leading us not to clarity but to another season of confusion. We poor schlubs are alternately entertained, horrified and mystified in search of the plot line and in the hope of a satisfactory conclusion. “What the hell is going on?” is a better default attitude than reflexively rooting for a good guy.
What shall we make of the current tension between Russiagate and FISAgate?
My guess below, with implications for how the season may end.
As former prosecutor Andrew McCarthy has long noted the very concept of a special counsel was suspect from the start. I will refer you to many articles he has written available online but I will quote here from a recent piece that looks back to his arguments about the special prosecutor concept and looks forward in connection with this specific issue.
As a matter of principle, the law-enforcement arm of government must operate on a presumption of innocence. Therefore, in this country, a prosecutor should be assigned only if there is strong evidence that a crime has been committed; in the absence of such evidence, a prosecutor should never be assigned to investigate whether an American may have committed some unknown crime. This, as we’ve repeatedly observed, is reflected in the regulations that control when the Justice Department may appoint a special counsel. The question should never come up unless there is some “criminal investigation or prosecution” that creates a conflict of interest for Justice Department leadership. A special counsel may be appointed only for purposes of this “criminal investigation or prosecution.” In the absence of strong evidence of a crime, there is no basis for a criminal investigation or prosecution.
Now, there is a counterintelligence aspect to the issues that precipitated the appointment of a special counsel. But
(a)s we have pointed out many times, a counterintelligence investigation is not a criminal investigation, and therefore cannot legitimately predicate the appointment of a special counsel. The objective of a counterintelligence investigation is to collect intelligence about the actions and intentions of a foreign power to the extent they may affect American interests. The aim is not prosecution.
(e)ven if one believes that the Putin regime had a strong preference for Donald Trump (personally, I believe the Kremlin hoped to sow discord and create havoc regardless of who won), such support is not a concern of prosecutors unless criminal laws are broken. And even that would not implicate “individuals associated with the Trump campaign” in the absence of strong evidence that they aided, abetted, or conspired in the law-breaking. Bottom line: What Comey described, and Rosenstein later adopted in defining Mueller’s jurisdiction, was not a criminal investigation or prosecution, nor did it provide a factual basis for a criminal investigation or prosecution.
For whatever reason–good or bad, corrupt or pure (more on which below but I don’t want to spoil the ending)–a special counsel was appointed and we have been mostly sitting in the dark of the theater awaiting news. But what news? An indictment over collusion or something else?
Perhaps a counterintelligence effort would have been preferable to a criminal one but special counsels do things related to the latter and not the former. Not for nothing that the news of Russian troll farms–a big surprise!–was met with criminal indictments that will go precisely nowhere, and precisely because what Mueller uncovered here is more properly in the domain of intelligence than criminal law.
James Clapper says this may just be the first shoe dropping. Don’t abandon hope fans of collusion! We have another reel or two to go!
Maybe but the way Mueller has framed this suggests that the next shoe dropping will probably not be about collusion. It will be about something else.
But what would that be? Could be obstruction of justice, though McCarthy has done a good job in the past of decimating that argument. Even if some strained argument can be made that a President can obstruct justice as head of his own executive department it hardly seems likely that a flawed and weak case for obstruction would be enough to bring the President down. Recall that Obama went on TV at the height of the email crisis to explain to the American people that he saw no reason to find Clinton’s motivation suspect.
So if not obstruction of justice what might the next shoe consist of? It could well have to do with Trump’s financial dealings in Russia (or elsewhere–what the hell!) before he was a candidate for president. All great fortunes begin with a crime. Business–especially business conducted in faraway places with different rules for business behavior–is always occasion for dubious behavior, possibly illegal by U.S. standards.
But if the collusion angle has run dry and if obstruction of justice is weak tea for impeachment what would be the point of another year or more of inquiries into business practices? Moreover, how could that be justified under any reasonable interpretation of what the original charge was to the special counsel?
To answer that I think we need to look to Russiagate’s doppelgänger: FISAgate.
What we have here is an emerging body of evidence, fleshed out in good prosecutorial fashion through inference and legal reasoning, suggesting actions on the part of the Obama administration to undermine Trump as candidate, president-elect and president. I won’t go though the arguments here connecting evidence to inference–you can watch former prosecutor Joe DeGenova ably make a case here.
DeGenova is trying out an argument that, if accepted as credible, is incredibly damaging to the Obama Administration: that there was a conscious effort to undermine the new president, and it may well have had to do with covering up a larger set of political and legal problems that can be connected to Obama and Clinton.
The basic argument seems to me compelling. What is not yet certain is the motivation of those in the Obama Administration. Perhaps it was to undermine a legitimately elected new president for political reasons. That would be bad, very, very bad–criminal even. Lots of heads rolling, lots of jail time, lots of revisionist history about the glory days of the Obama Administration.
But what if their motivations were nobler? What if at the time of the FISAgate shenanigans the Obama Administration was truly concerned about Trump and Russia? Better yet, what if that is how their behavior–clear from the emerging facts–is explained to the public? Bad behavior should not be excused but far better if there were a noble purpose and not a corrupt one.
This possibility was recently sketched out by Andrew McCarthy.
In a column on Thursday, I argued that the Obama administration saw the Russia probe as an opportunity to paralyze President Trump. As I noted in the column, the motivation for this could have been sinister or public-spirited (emphasis mine)— how you see it probably depends on what you think of Obama and Trump. President Trump’s political opponents would have seen the Russia probe as a chance to strangle his capacity to govern and pursue his agenda; some investigators who suspected that the disturbing allegations in the Steele dossier were true, even if they had not and probably could not be proved, may have harbored good-faith concern that Trump could be blackmailed by Russia.
Is this an olive branch I see before me?
Hold aside any presumption of the truth, what “really happened” or what the motivations are on both sides of this fight. It is, at base, a fight, and a desperate fight to the finish at that. We know about these things from the movies.
The never Trumpers thought they held the whip hand and could enfeeble the president even if impeachment was not to happen. Then the other side found its own cache of guns and ammunition. A mad scramble results.
(cut to warehouse)
The two opponents circle one another in an abandoned munitions warehouse in the last show of the season, each looking for the other while at the same time hunting down better and more powerful weapons for the inevitable altercation. If I wait too long looking for even better weapons the other guy may get the jump on me. If I attack too quickly it may be that I will find myself outgunned. Both sides know a confrontation is coming and suddenly they find they are face to face, like in the John Woo film pictured above.
(both actors, in unison)
Do you feel lucky? Well, do ya punk?
Somewhere along the line a grown up may reason that a shoot out does no one any good and that cooler heads will have to prevail. Hal Holbrook comes to mind.
A reasonable choice for the old fashioned WASP CIA type who has been out of the action for a long time but remembers the days in which Wise Men were truly wise. OK, but how to get these crazed young ‘uns back from the brink?
The deal is pretty simple: in return for not sending people to prison and blowing up the legacies of Obama and Clinton the previous actions of the Obama Administration are swept under a rug and mostly forgotten. And in return for agreeing to portray bad behavior a matter of innocent mistakes and noble intentions the financial misdeeds of a future president–damaging but irrelevant to the collusion issue–are put to bed.
That is how I would write the last episode anyway. As a . . . . business deal . . . a negotiation. But I watch too much TV.