Dueling theories: Russian collusion vs. silent coup

Last week’s entry revisited historical investigations of the JFK assassination and related events. We noted that (a) investigators quickly focused on supporting a preconceived conclusion while downplaying evidence pointing to other conclusions, and (b) once findings had been reached, there was strong institutional resistance to revisiting them (the House Select Committee on Assassinations later faulted the Warren Commission for not giving adequate consideration to the possibility of a conspiracy, but no material changes resulted in the initial findings). A cautionary tale about investigations, 5/25/20.

OK, that’s all very interesting, but what bearing does it have on the current political scene? Once again there has been some high level investigating going on. The issue this time is not fixing responsibility for a presidential assassination, but rather of deciding which of two theories to believe: (1) Russian collusion and/or other misconduct by the president and his supporters, or (2) betrayal of the nation by an attempted “silent coup.”

SAFE has repeatedly urged both sides to dial back their accusations and get back to policy issues, but neither side has accepted our well-meaning advice. Perhaps some kind of resolution between the dueling theories will be a prerequisite for upgrading the political conversation. And with the lessons from the JFK investigation in mind, the FBI et al. may need some help to fix the problems that have arisen.

A. Backstory – There were two major investigations during the 2016 presidential race, one of which was seemingly resolved and another that would only became apparent later.

CLINTON E-MAILS – While she headed the State Department in the Obama administration, Hillary Clinton used a private server for her official as well as personal e-mail traffic. As a result, Secretary Clinton’s records – including classified messages – were not kept under government custody and control as required by the applicable laws and regulations. And when questions were raised about this matter, some 33,000 of the e-mails (supposedly private business) were destroyed rather than being made available for review.

The FBI conducted an exceptionally deferential review of the situation and concluded that no chargeable crimes had been committed. This decision was announced by FBI Director James Comey in a televised statement in July 2016, which was unusual as it is normally the province of the Department of Justice (not the FBI) to decide what crimes will be prosecuted. Democrats were delighted; Republicans viewed the decision as improper. At some Trump rallies, including the Republican national convention, GOP speakers led the crowd in raucous chants of “lock her [Clinton] up.”

This subject came up in the second presidential debate, and Donald Trump slammed Clinton for the way in which it had been handled. If he won, said Trump, he would ask his attorney general to appoint a special prosecutor to investigate the matter. Is America becoming a banana republic?

In late October, after some of the e-mails in question had shown up on the computer of the husband (Anthony Weiner) of one of Clinton’s assistants (Huma Abedin), James Comey surprised almost everyone by announcing that investigation of the mishandling of classified e-mails had been reopened. Republicans exulted: Democrats were appalled. The investigation was closed again before the election, but voter confusion about the matter may have contributed to a come from behind win for Trump.

RUSSIAN INTERFERENCE – Several rounds of internal e-mails from Hillary Clinton’s campaign manager (John Podesta) and other Democratic officials were released by Wikileaks founder Julian Assange, who was holed up at the Ecuadorian consulate in London. Democrats speculated that the e-mails had been obtained by hacking the Democratic National Committee server, probably by Russians. Assange denied this, and the FBI wasn’t given access to the server in order to conduct a meaningful investigation.

Despite these and other indications of Russian efforts to interfere in the elections, the Obama administration didn’t appear to be doing anything of substance to discourage such activity before the election. There was a marked change in attitude after Trump won. Look on the bright side,

Before - Secretary of State John Kerry did publicly state that the US might respond in some fashion, but there were no reports of actions taken. Kerry threatens retaliation for Russian meddling in US elections, Joel Gehrke, Washington Examiner, 10/11/16.

After - Recently, with no fresh reports of Russian hacking, the president resurrected this issue and ordered an investigation that will supposedly be completed before he leaves office on January 20. Obama orders “full review” of cyberattacks during election, Gabby Morrongiello, Washington Examiner, 12/9/16.

A preliminary report was issued in late December, together with an announcement of sanctions on Russia including expulsion of 35 Russian diplomats. The report didn’t prove Russians had hacked the DNC server, however, and a final version of the report – which President Obama ordered be completed before he left office – never materialized. The inauguration of America’s 45th president,
1/23/17 (part III).

FLYNN – Having been tapped by Trump as National Security Adviser, retired Lt. General Michael Flynn contacted various foreign officials during the transition period. Critics claimed, among other things, that Flynn had discussed the possibility of the new administration lifting the just imposed election interference sanctions with the Russian ambassador.

The proof offered was phone conversations that had been monitored by the intelligence services, transcripts of which were leaked to the press. Democrats saw Flynn’s contacts as grossly improper, while Republicans complained about the leaking. Flynn denied (both publicly and in a conversation with Vice President Mike Pence) that lifting of the sanctions had been discussed, but he wasn’t believed and wound up being fired. Trump won, get over it,

As would become known in due course, Flynn was visited by two FBI agents only days after the inauguration. He would later be prosecuted by the Department of Justice for alleged lying to said agents. The disposition of this case is still pending. See Section B, infra.

MUELLER PROBE – Loretta Lynch, who had served as attorney general in the closing years of the Obama administration, left office when the new president was inaugurated. Jeff Sessions was nominated to replace her, and his appointment was confirmed by the Senate in early February 2017 after a contentious hearing.

It subsequently came out that there had several contacts between Sessions and the Russian ambassador during the election campaign, which contacts had not been disclosed at the Session confirmation hearings. It was suggested that Sessions should recuse himself from any investigations of claims of Russian interference in the elections, and he announced that he would do so.

James Comey, who had managed to anger both parties by his handling of the Clinton e-mails investigation, remained as the FBI director for the time being despite indications (later amply confirmed) of mistrust between him and the incoming president.

Rod Rosenstein, a long-time DOJ employee, was nominated by the president as Deputy AG and confirmed in April 2017. Given the Sessions recusal, Rosenstein effectively became responsible for overseeing any DOJ investigations of Russian election interference.

One of Rosenstein’s first actions in his new position was to issue a 5/9/17 memo slamming James Comey’s handling of the Clinton e-mails investigation. Entitled “Restoring Public Confidence in the FBI,” this document effectively advocated Comey’s removal. For whatever reason (he issued conflicting explanations), the president fired Comey hours later.

There was a firestorm of criticism to the effect that Trump was attempting to block investigation of Russian election interference and possible collusion by his campaign/ transition team/ administration, never mind that such an investigation had been underway since July 2016 and didn’t appear to be getting anywhere.

About a week later, Rosenstein reacted by appointing former FBI director Robert Mueller as a special counsel to conduct an investigation of Russian election interference including possible collusion by US persons (hereinafter described as a “Russian Collusion” investigation). Unlimited budget - full prosecutorial powers, including a license to charge unrelated crimes that might be uncovered – subject only to Rosenstein’s oversight.

Mueller’s qualifications and track record were generally lauded, but questions were raised about his impartiality given a long-time professional relationship with Jim Comey. Also, the stated reasons for launching this probe struck us as underwhelming. Dueling views: Crucial investigation vs. “witch hunt,”

Most observers are now saying the appointment has been made and Mr. Mueller is a very capable attorney so we should let him do his job and trust things will come out all right. As a practical matter, it’s not clear there is much of a choice. But it seems likely that this investigation – on top of parallel investigations in both the House and the Senate - will blight American politics from now until the mid-term elections next year and quite possibly beyond that.

This prediction would be borne out by subsequent developments – and we weren’t even taking into account that Democrats might win control of one or both houses of Congress in the 2018 mid-term elections and therefore be able to reinforce an effort that appeared to be primarily directed against the president and his supporters.

Although the president repeatedly expressed resentment of the Mueller investigation (or “witch hunt” as he called it), the White House was quite cooperative. Reams of documents were swiftly provided. Key aides were interviewed at great length, e.g., White House Counsel Don McGahn for 30 hours. We can’t recall any claims of executive privilege. The president fended off requests for a personal interview on the advice of counsel, but he responded to written interrogatories.

Withal, the investigation dragged on and on. The Mueller team indicted a number of Russian operatives, who weren’t likely to ever be tried in US courts, and charged various Trump supporters with unrelated offenses. For example, Michael Flynn was prosecuted for lying to FBI investigators and entered a guilty plea. But there was no indication that the probe had unearthed credible evidence of Trump or his supporters colluding in Russian efforts to rig the election.

Meanwhile, several House committees were asking why an investigation of Russian Collusion had been launched in the first place. Although the DOJ and FBI were nominally under the president’s control and Republicans controlled both houses of Congress, this counter-investigation proceeded at a glacial pace. Mueller probe, SAFE newsletter,
Winter 2017.

Congressional document requests were being stonewalled until recently, and key officials (with the exception of James Comey) weren’t being made available to testify. It almost seemed as though DOJ/FBI officials considered their agencies exempt from congressional inquiries. The situation only changed under threat of contempt of Congress charges by the House.

Even when Deputy FBI Director Andrew McCabe was forced to sit for a 7-hour interview (behind closed doors), his comments proved rather uninformative. Thus, after an investigation that had begun in the Summer of 2016, McCabe failed to identify anything in the infamous Steele dossier (opposition research for the Clinton campaign, compiled by Christopher Steele mainly from Russian sources, which was later cited in four successive FISA surveillance warrant requests), aside from “repetition of information already in the press,” that had been “found to be true.” Frustrated lawmakers pressed FBI’s McCabe for answers on Trump dossier, Byron York, Washington Examiner,

Having previously left AG Jeff Sessions in place for reasons of political expediency, the president fired him on November 7, 2018 (the day after the mid-term elections). For the next several months, the DOJ would be run by Matthew Whittaker who had previously served as Sessions’ chief of staff.

The long-term choice for AG was William Barr, who had previously served as attorney general in President George H.W. Bush’s administration and then moved on to private practice. Barr was confirmed by the Senate in February 2019, but Rosenstein remained in the deputy AG job and continued to exercise oversight over the Mueller investigation.

With the Mueller probe nearing the end of its second year, anticipation was building on both sides of aisle as to what it might reveal. Critics anticipated a “nothing burger” report, while true believers hoped for findings that would seriously wound the president and possibly justify his impeachment.

In the event, as shown by the written report and congressional testimony of Special Counsel Mueller, the results vindicated the critics. No solid evidence had been unearthed of Russian collusion by the Trump campaign, and the findings re obstruction of justice were inconclusive. (As noted in a summary of the findings that was quickly prepared and forwarded to Congress, AG Barr and Deputy AG Rosenstein jointly opined that none of the cited examples of potential obstruction of justice represented chargeable offenses.)

Following official completion of the Mueller investigation, Rosenstein resigned from the DOJ in May 2019. However, one step remained – Mueller’s testimony before two House committees (Intelligence and Oversight) – which took place in July 2019.

Mueller’s testimony was curiously vague, as though he hadn’t written the report and wasn’t familiar with some key details. For example, he didn’t explain why there was no direct mention of Fusion GPS (firm that had delivered the Steele dossier) in the 400+ page report and ducked questions about why the Russian interference investigation had been started in the first place. Mueller was unfamiliar with sections of his own report, Daniel Chaitin et al., Washington Examiner,

One couldn’t help wondering whether the former FBI director had served as a figurehead, while some of the other team members actually ran the operation. Confused performance by Mueller raises questions about handling of investigation, Byron York, breitbart.com,

If Mueller was not fully in charge, that would direct attention to the staff he assembled for the investigation — staff that President Trump has often derided as " 17 angry Democrats." Some of Mueller's aides were Democratic donors, and a key aide, Andrew Weissmann, famously attended Hillary Clinton's 2016 election night event that was planned as a victory party. It seems likely that Republicans will direct new attention to them in light of Mueller's appearance.

After Mueller’s weak performance, the Russian Collusion investigation was essentially dead. In order to continue going after the president, House Democrats would need a new point of attack – and it didn’t take them long to find one.

IMPEACHMENT – The new charges against the president stemmed from a so-called “whistleblower complaint” by an unidentified CIA agent with second-hand knowledge of what President Trump had said in a July 2019 telephone conversation with the newly elected president of Ukraine. The whistleblower claimed that Trump’s comments had endangered national security, but was never called to testify about this. Several government employees subsequently came forward who had been privy to the call, been involved with the subject manner in some fashion, and/or disapproved of contemporaneous actions (e.g., putting a temporary hold on the release of military aid funding)..

The president reacted by publicly releasing a lightly redacted transcript of the call, which he asserted was a “perfect” conversation. (In our view, the encouragement of Ukrainian investigation of alleged misconduct by Hunter Biden during the Biden Administration may not have been improper but was certainly ill advised.) Accordingly, there was nothing to investigate and he would advise administration officials not to testify about the matter.

The House Intelligence Committee (chaired by Rep. Adam Schiff) interviewed a number of mainly mid-level witnesses, and then called some of them to testify publicly. The first week of public testimony was muddled and unimpressive, but it seemed that Democrats would proceed with articles of impeachment no matter what. Who’s the biggest liar in the land,

Having launched the impeachment inquiry, Democrats are committed to completing this gambit and seeing how it works out. It would be humiliating for them to conduct a month or so of hearings and then drop the matter on the ground that there was nothing there after all.

The situation developed as expected, and the House passed articles of impeachment (two charges: abuse of power and obstruction of Congress) before Christmas without a single Republican vote. House Speaker Nancy Pelosi subsequently stalled the transmission of these articles to the Senate for several weeks, ostensibly awaiting assurances that the Senate would conduct a fair trial including calling additional witnesses to make up for the manifest deficiencies of the House investigation, with the result that this proceeding was still pending at the end of January. Put paid to impeachment and let the voters decide,

The president was subsequently acquitted of the House charges without calling any additional witnesses or considering additional evidence, one day after delivering the State of the Union address. It would probably be fair to say that Democrats didn’t advance their political principles or interests by the impeachment, which if anything made President Trump look like a victim versus a bully. Political leaders aren’t known for owning up to their mistakes, however, and there would be no public acknowledgement by the Democrats that they might, just might, have overplayed their hand.

COUNTERATTACK – After taking the reins at the Department of Justice, see previous discussion, Attorney General William Barr reviewed the final Mueller report, transmitted a summary to Congress, and later released a lightly redacted version of the entire report. Barr also appointed prosecutor John Durham to conduct a wide-ranging review of how the Russian Collusion investigation had started in the first place and whether any of the players had engaged in improper conduct.

It was subsequently announced that the Durham review had been upgraded to a criminal review, which meant Durham could bring criminal charges. No target date was announced, but this project is believed to be nearing completion.

Critics have attacked Barr as a politicized attorney general who is content to do President Trump’s bidding, but we disagree. As was eloquently expressed in a November 2019 speech to the Federalist Society, the attorney general is focused on preserving the authority of the president to run the executive branch, an area in which both Congress and the courts have been infringing, as opposed to simply defending the actions of the current occupant of the White House. Taking a stand,
12/23/19 (Section III).

Congress has largely abdicated its core function of legislation by either failing to act or punting on the details “by making broad delegations to a modern administrative state that they increasingly seek to insulate from presidential control.” Creation of the Consumer Financial Protection [Bureau], "a single-headed independent agency that functions like a junior varsity president for economic regulation," is just one of many examples.

[Thereby left with] lots of time on its hands, the practice has developed [in Congress] – particularly for the opposition party – to drown the Executive Branch in “oversight” demands for testimony and documents. And this “constant harassment” ignores the need of the Executive Branch for “confidential communications and a private internal deliberative process.” Notice, by the way, that there are no comparable disclosure requirements (e.g., FOIA) for either Congress or the courts.

B. Current status – To make sense of the saga recapped in Section A, judgments must be made as to who may have been wronged and who should be held accountable. Several loose ends remain at this point, including the following:

•Flynn case – Although Michael Flynn pled guilty of lying to FBI investigators in the Mueller team prosecution, he has since gotten a new attorney (Sidney Powell) and sought to reopen the matter. Following a review of the prosecution ordered by AG Barr, the Department of Justice recently moved to drop the case. Judge Emmett Sullivan balked, announcing that he would conduct an independent review of the matter and might even hold Flynn in contempt of court for changing his plea.

Many observers have questioned this approach, and an emergency appeal to the DC Circuit appellate court is pending with a response due from Sullivan today. DOJ decision to drop Flynn case justified, News Journal,

•Durham investigation – Various documents have been declassified and released lately, expanding what is known about how the Russian Collusion investigation originated and fueling claims of improper conduct. The investigation apparently began as a counterintelligence investigation, and the Obama White House was aware of what was going on. If some of the actions that were taken are determined to have been illegal, there could potentially be criminal charges all the way up the chain of command.

Some people, including President Trump, have started referring to the overall situation as “Obamagate.” However, AG Barr has denied (wisely in our opinion) that there is any likelihood of prosecuting either former President Obama or former Vice President Biden. AG Barr’s message on Obama isn’t quite what Trump wanted to hear, Steve Benen, msnbc.com,

•Senate hearings – Having replaced Sen. Chuck Grassley as chairman of the Senate judiciary committee in 2019, Sen. Lindsey Graham is now planning to take testimony from a number of DOJ/FBI officials (past or present) re the origins and conduct of the Russian Collusion investigation. Although such hearings seem to overlap the Durham investigation, the intent is probably to reinforce rather than compete with that effort.

The first witness on tap this week will be former Deputy AG Rod Rosenstein, who played a puzzling role – after opining that James Comey should be fired, he proceeded to appoint Richard Mueller as special counsel to investigate why the president had followed his advice. We can’t wait to hear how Rosenstein will thread that needle.

•Mueller investigation – House Democrats (e.g., Reps. Pelosi, Schiff and Nadler) have by no means given up on the idea of impeaching the president again. To this end, they are pursuing a lawsuit that would compel the DOJ to turn over grand jury testimony and other documents from the Mueller investigation. The US Supreme Court stayed this proceeding on May 20, giving the House Democrats until today to more fully brief their request. Supreme Court blocks House Dems’ efforts to get Mueller grand jury testimony released, Louis Casiano, foxnews.com,

We have no idea how the high court will ultimately rule on the House request, but count us as skeptical that the records being sought are likely to contain compelling evidence against the president et al. that the high-powered Mueller team somehow failed to pursue.

C. Assessment – In sum, there are two conflicting theories of what happened in 2016 et seq, which might be summed up as follows:

•Russian Collusion - Not only did Russia attempt to interfere in the 2016 elections, but the goal was to get Donald Trump elected and the Trump campaign supported this effort. After the election, the pattern of underhanded cooperation with Russia continued, to the detriment of the interests of the United States. The investigation of this situation that begun during the Obama was fully justified.

•Silent Coup - The Trump team may have hyped the e-mails released by Wikileaks for all they were worth, wherever they came from, but they weren’t complicit in this activity. And while the Obama administration wasn’t worried that Russian election interference might change the election results, the Russian Collusion investigation was launched as what Peter Strzok of the FBI (leader of the investigation) described as an “insurance policy.”

If Hillary Clinton had won, little more would have been heard of either theory. OK, the Russians tried to interfere in the elections, but their efforts had no material effect. As for any corners that might have been cut in pre-election investigations, let’s give the agents who are working so hard to keep us safe a little bit of slack.

As things turned out, the monitoring efforts were continued and eventually ripened into a plot against the new administration. Why was Biden spying on the Trump team? Neil Patel, townhall.com,

It seems doubtful that the Obama team purposely decided to intrude on the Trump transition, and on individual Trump staffers' civil liberties, for purely partisan purposes. It's more likely that they were shocked and angry at Trump's win and convinced themselves it could have only been due to Russian interference.

Although we have attempted to refrain from expressing our own conclusions – SAFE is a policy think tank, not an investigative group – we would say that the Russian Collusion theory has been exhaustively investigated at this point without finding any convincing proof of willful misconduct whereas the Silent Coup theory needs to be fleshed out.

Whatever the ultimate conclusions, the counter-investigation that has been started under the aegis of AG William Barr seems entirely in order. Serious irregularities within the DOJ/FBI have already been identified, and if there was willful misconduct then the key players should be held accountable – hopefully before the November elections. Otherwise, the same thing or worse could happen during future elections because rules never work without an effective mechanism to enforce them.
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