Fenster writes:

I wrote here of Andrew McCarthy’s analysis of the current political situation that

while McCarthy sticks to the facts and builds hypotheses carefully on the basis of what is actually known, he is left hanging, unable to come up with a good answer, on a central question.

That nagging question:

Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case?

I found this style of analysis admirable and all-too-rare in our hyper-partisan era: don’t let your desired conclusion drive your reasoning.  Just build from facts to hypothesis and then test your hypothesis, allowing doubt and new information to guide you.  Indeed, while McCarthy’s legal analysis is strong in this fashion he is comfortable concluding that he does not know in the least where it takes him.  What is going on?

That style of analysis is once again on display in his most recent column on Julian Assange.

McCarthy wonders why there was no Russia-Sanders probe when the case made against Russia was premised helping Sanders deny the nomination to Clinton.

He wonders about the “weak and potentially time-barred” indictment of Assange.  He could have been charged with the Russian collusion that has people so hot and bothered but the indictment only concerns the allegation of assistance in the theft of secrets by Chelsea (then Bradley) Manning, an event all but certainly beyond the statute of limitations and pretty weak tea from a prosecutorial, punishment and extradition point of view.

He wonders about the connection in all this to the charges brought by Mueller against Russian operatives.

I can’t do justice to the step-by-step legal reasoning McCarthy employs.  But I will note his conclusion.  Once again:

What is going on here?

In other words, the most reasonable conclusion to be reached given as thorough an analysis that can be made is that we don’t know what is going on.  But something is course going on, so the next reasonable inference is that this all makes sense somehow but that we do not yet have the facts or tools to understand.

I am OK with that.  Indeed it would be the height of folly to assume we know much of anything given that we are dealing with the collision and collusion of forces dealing with intelligence.  The hall or mirrors often described in spy fiction is on ample display here.  I naturally assume there are riptides present with respect to truth, allegations of truth, lies, allegations of lies, sunlight and shadow play.

My guess is that it has something to do with the secrets Assange is still keeping.  But I am agnostic for the most part on the particulars as they are developing.

All that said I am skeptical about one of McCarthy’s central assertions–that he “accept(s) the intelligence agencies’ conclusion, echoed by Mueller, that Russia was behind the hacking of Democratic email accounts.”

McCarthy’s view is that while Trump is essentially clear of Russian collusion the same cannot be said of Assange, whom he views as “a witting, anti-American tool of Moscow.”  Therefore, there should be no reason for Trump supporters to argue for Assange’s good name–Assange could well have conspired with Russia to get DNC secrets even though there was no Trump collusion.

But what is the basis for McCarthy’s conclusion that Assange and Russia collaborated on stealing DNC secrets?  His reasoning on that is outlined in this column.

I just don’t find his argument that persuasive.

Reflecting on the difference between an intelligence matter and a criminal one, McCarthy notes that

if you think about what intelligence agencies are for, their humility about the uncertainty of their judgments makes sense. They are protecting national security. When American lives are at stake, we do not wait to take action until the threats against us can be proved beyond a reasonable doubt. We make judgments, as the agencies’ Russia report admits, based on sources of information and analytic reasoning.

The information on which these judgments are based is often fragmentary and so highly sensitive — e.g., covert agents who would be killed if revealed — that it cannot be exposed publicly without compromising top-secret intelligence operations, which would endanger the nation. The analytic reasoning gives us not courtroom proof of fact but the intelligence agencies’ perceptions of probability. Intel analysts are highly trained and expert in their field; nevertheless, their conclusions are often highly debatable or wrong — which is to be expected: The information inputs are of varying quality, so the best output they can give you is often mere probability.

In other words; give the benefit of the doubt to the intelligence agencies, and if they jointly come to a conclusion don’t worry overly that their argument cannot be proven in a court of law or even made transparent to the public.  This is what they do.

Counterarguments?  For one there is the politicization that McCarthy himself acknowledges:

All four agencies were run by Obama appointees. The Obama administration had a history of politicizing intelligence to serve administration narratives, and the intelligence judgment in question cannot be divorced from politics because it was announced just as Obama’s party was fashioning a narrative that Russian espionage had stolen the election from Democratic candidate Hillary Clinton.

Consider also that if–as seems increasingly likely to me–the Deep State shenanigans extended pretty far back before the election the “politicization” is not just an abstract argument unmoored to actual conditions.  There could well have been specific reasons for the agencies to have thrown the analysis.

McCarthy also acknowledges this:

Inexplicably (given how central the server system is to the controversy that has roiled the nation for a year), the Justice Department never compelled the surrender of this server system to the government so the FBI could conduct a forensic examination. Instead, for this essential analysis, we are expected to rely on CrowdStrike, a private DNC contractor.

He backs away from the implications of this a bit in going on to say that CrowdStrike has a “good reputation”.  But in his most recent article he is more pithy and direct:

The Justice Department and FBI did not perform elementary investigative steps, such as taking possession of, and performing their own forensic analysis on, the servers that were hacked. Instead, they relied on CrowdStrike, a contractor of the DNC, which has a strong motive to blame Russia.

That seems pretty significant.

McCarthy goes on to make yet another acknowledgment: that with respect to the conclusion of Russian-Assange perfidy there have been

ongoing private investigations that cast doubt on the judgment’s probability.

The best known of these, to date, has been produced by the left-leaning Veteran Intelligence Professionals for Sanity (VIPS), given notoriety by the left-leaning publication The Nation. The VIPS naysayers, who are primarily former NSA officials, contend that the operation against the DNC was a not an overseas hack but an insider theft — “a download executed locally with a memory key or a similar portable data-storage device.” This probability assessment is largely based on the transfer speeds of megabytes of DNC data.

He goes on to point out that there have been critiques of the methods of the VIPS analysis.  But it remains a fairly significant point, IMHO, and McCarthy can only wave it away:

Cyber-analysis is not my area of competence,

followed by a reiteration of his default view–

but I’m predisposed to believe our agencies.

Add to this that as far as I know Assange has a good track record with the truth–far better than spy agencies I will wager–and that he has said over and over that Russia was not the source of the emails, and he has broadly hinted that it was an inside job.

All of this suggests to me the following:

1. McCarthy is right we don’t know what is going on.

2. His argument that we should believe the agencies is a very weak one.

2.  What is going on probably has less to do with the Chelsea Manning affair and more to do with still undisclosed secret information.