Crime and Innuendo

There is the fog of war, and apparently there is the fog of partisan politics, too.  A great Russian cloud of suspicion has been hanging over the head of President Trump.  Like a naval smokescreen, this cloud has allowed Democratic opponents to sell the most un-American proposition of guilt by allegation.

Now, finally, the fog is beginning to burn off.  After some two years of FBI investigation and special counsel probe, we see what all the fuss is about.  It's about just a couple of things.  Get ready!  It's the release of DNC official John Podesta's emails by WikiLeaks and a 20-minute meeting in Trump Tower.  Everything else special prosecutor Robert Mueller has surfaced is incidental process crime (viz. lying) or guilty pleas to non-crimes (e.g., hush money).

The specter of Russian intervention in the 2016 U.S. presidential election enabled a perfect storm of investigation and fabrication of a case for Trump-Russia collusion.  It is important to note that collusion – with anybody – is not a crime.  In the words of former federal prosecutor Andrew McCarthy:

As a matter of law, mere collusion is not a crime. … [I]t must rise to a purposeful agreement to carry out a substantive violation of law.  It is not a crime to collude with a foreign government, even a hostile one, if the point is to accept information in the nature of opposition research.

There is no question the Russians sought to interfere, as they have done in the past and as the U.S. did when President Obama authorized political payments to opponents of Israeli P.M. Benjamin Netanyahu.  To what extent and exactly how the Russians acted is not yet clear.  It is reportedly known that agents of the Russian government illegally accessed election servers in a handful of states.  DOJ issued indictments against 13 Russian agents for this action, including two key qualifications: 1) that no American was wittingly involved and 2) that there was no evidence any votes were changed.  No way to hang the president on this set of events.

Enter WikiLeaks.  The release of the DNC emails by Wikileaks in summer 2016 had a plausible impact on the November vote.  The WikiLeaks release also created an opportunity to discredit Trump.  All that was needed was to link Trump with Putin or his agents.  After all, Trump had visited Russia prior to his candidacy and had had prior business relationships there.  Step one in the link was to establish Russians as the DNC hackers.  This was done as the FBI, with support from the CIA and DNI, alleged that the hackers were Russian agents.  But this allegation is mitigated by its basis on the opinion of a private firm, CrowdStrike, and evidence that the theft was a result of poor internal security rather than hacking.

The case also requires a link to Trump.  No such link has been established, beyond the speculation that the claimed Russian hacking and WikiLeaks release arguably benefited candidate Trump at the expense of Hillary Clinton.  This is where the Trump Tower meeting gains traction.  The fact that Donald Jr. and others from the Trump campaign agreed to the meeting on the express expectation that it could yield political dirt on Clinton demonstrates their unseemly, if legal, willingness to deal in so-called "oppo research."  There is also no question the Russian government was implicated, at minimum by the presence of former Russian prosecutor Natalia Veselnitskaya, also connected to the Kremlin by her efforts to lobby against the U.S. Magnitsky Act.  Is this evidence of collusion?  Yes, it is.  Regardless of Veselnitskaya's real intent, given her confession at the meeting that she had no dirt at all, someone from the Trump campaign communicated with someone associated with the Russian government for the purposes of opposition research.  Is this a crime?  The answer is no.

The bottom line is that the Kremlin attempted to interfere with the U.S. election, and the Trump campaign was not above dirty politics, the first American campaign to be so tainted.  But there was no crime involved amid the minimal collusion established, and none was even cited so far as we know in the Mueller charter.  Sounds as if Trump is right when he refers to the Mueller probe as a witch hunt.

A number of legal experts have said a sitting president cannot be indicted.  This is why the Constitution includes provision for impeachment for "high Crimes and Misdemeanors."  Indictment has never been the presumptive objective of the FBI investigation or the special counsel probe.  The objective instead has been to get dirt – oppo research, if you like – on the president.  To do this, the Mueller team has sought to flip witnesses, by a combination of perjury traps and plea deals involving ostensible crimes.

The net of all this is that the concrete findings to date in the probe of President Trump have nothing to do with any collaboration on his part in foreign intervention in U.S. elections, which everybody knows goes on all the time – just as it did under Obama when he authorized intervention in recent Israeli elections.

But the Mueller dragnet has produced victims.  A number of lives have been collaterally ruined, just as they were when Patrick Fitzgerald stuck it to former vice presidential aide Scooter Libby for lying about the "outing" of CIA employee Valerie Plame.  Fitzgerald's knowledge that it was Richard Armitage, not Libby, who revealed Ms. Plame mattered not at all.  Fitzgerald had bigger fish to fry.  So it is with Mueller.

It's worth mentioning that it is really, really easy to be indicted or coerced to cop a plea for lying to a federal official.  All one need do is speak to said officials.  The perjury trap is there, to be sprung or not sprung entirely at the prosecutor's discretion.  The witness doesn't even have to actually lie.  The prosecutor can take unfair advantage of confusion or faulty memory, which itself can be induced under prolonged pressure.  The Mueller pleas include admissions of lying when the evidence suggests that the witness didn't actually lie, as well as guilty pleas to non-crimes.  The witness is most often ill prepared legally and financially to get to the truth under the law.  The keys to such special "persecution" are linkage between the witness and the person of real interest, in this case President Trump, and avoiding trial court, where cross-examination can expose the truth.

In the end, the Trump-Russia affair is pure political gamesmanship.  The Mueller report will paint a picture of salacious and unethical innuendo, complete with compositional testimony from scared-to-death witnesses whose full story will never see the light of trial court.  The report will do as intended: establish a political case for impeachment of the president.

In the end, reasonable people should ask why DNC-Clinton involvement in the get-Trump juggernaut has not been the subject of a parallel special investigation.  In addition to a known link between the Democrats and erstwhile Russian contributors to the Steele dossier, there is evidence that top-level government officials have been stomping on the scale.  The smoke of scandal is pervasive, yet no action on this front.  Could it be that one side of the aisle is controlling the game?

It is reasonable to expect that this sordid tale will eventually be told, hopefully in exhaustive detail.  Given the stated intention of newly empowered House Democrats to investigate and impeach the president, this is unlikely to happen anytime soon.  If the story is told, it will likely dwarf the Watergate singularity.