May 17th will be the first anniversary of Robert Mueller’s appointment as Special Prosecutor, charged with investigating possible collusion between the Trump campaign and Russia. The date is a useful marker to review the probe and see where we stand today.
At the time of Mueller’s appointment, the situation did not look favorable for President Trump.
There was the Steele dossier, made public in January, which not only painted a detailed picture of high level cooperation between the Trump campaign and Russia, but which also contained particularly embarrassing personal allegations about the President. National Security Advisor Michael Flynn had been forced out, through a combination of “inappropriately” reaching out to the Russians prior to the Trump administration taking power, and then lying about those contacts. In March, FBI Director Comey provided electrifying congressional testimony, confirming the agency was conducting a counter-intelligence investigation into possible Trump campaign collusion with the Russians.
Seemingly incriminating stories followed. A detailed accounting of all contacts between Trump campaign and Transition officials and the Russians. Jared Kushner requesting a secure communications channel to the Kremlin for the President-elect. The President’s soft approach to Russian sanctions, and continuing praise for Vladimir Putin.
Then, on May 9th, Comey’s graceless and contradictory firing, and the revelations that Trump had lobbied Comey to go easy on Flynn. When that did not appear to work out, Trump allegedly asked the Director of National Intelligence and the Director of the CIA to intervene with Comey for the same purpose. As if to add insult to injury, the President hosted a senior delegation of Russians in the Oval Office, the day after Comey was fired, led by Foreign Minister Sergei Lavrov, and told the group that firing Comey had “relieved great pressure” on him.
On the day of Mueller’s appointment, based on breathless media reporting, it appeared as if there was substantial evidence not only of collusion, but an active campaign by the President of the United States to cover it up.
But as the last year has unfolded, another, a less comfortable question has become more urgent. What if the media and law enforcement got this wrong?
Consider first what we did not know on May 17th last year:
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- That the Steele dossier was funded by the DNC and the Clinton campaign, indeed Clinton campaign staffers fed information directly to Steele.
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- That a FISA warrant for a principal target in the investigation relied on information contained in the unverified Steele dossier, and the FISA Court was provided at best vague information as to the quality of the evidence.
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- That the counter-intelligence investigation into Russian collusion was catalyzed by a tip from an Australian diplomat, embroiled in a $25 million misappropriation of cash to the Clinton Foundation.
- That the most senior levels in the FBI involved in the Russia probe were openly hostile to Trump, with at least two now ranking officials under potential sanction for having made unauthorized leaks to the press about allegedly classified material regarding the investigation.
Not to put too fine a point on it, but the basis for investigation appears flimsy and unsupported. Indeed, if this is the threshold the Justice Department uses to investigate Americans and monitor their communications, we all should be concerned.
Since Team Mueller has taken over, they have racked up an impressive number of indictments. The sheer number of indictments is often invoked to symbolize the seriousness and gravity of the probe. But look carefully at what the people have been charged with.
George Papadopoulos, a junior Trump campaign official, told Australia’s top diplomat to Britain that Moscow had incriminating emails on Hillary Clinton. Downer passed the information to US officials after WikiLeaks started publishing hacked DNC emails. The tip catalyzed the counter-terror investigation.
But what did Papadopoulos ultimately plead guilty to? Not collusion with the Russians, as you might expect, but rather making a single false statement to the FBI about the time and place of meetings he had in London. Coincidentally, it was Ambassador Downer who is embroiled in misappropriation of $25 million that was ultimately donated to the Clinton Climate Initiative.
Michael Flynn, with his pro-Russian, bias, speaking engagements paid for by Russian companies, and outreach to the Russian ambassador before during the Transition was a prime suspect for collusion. Yet in a deal with the FBI, he plead guilty only to making two false statements to the FBI regarding the content of conversations he had with the Russian Ambassador during the Transition – the substance of which is by itself, not a crime. He was not charged with collusion.
In fact, information since revealed indicates that the FBI agents present for the interview with Flynn did not believe that Flynn had lied. Indeed, in a hearing in advance of Flynn’s potential sentencing, the presiding Judge ordered the Special Counsel to reveal all exculpatory evidence to the defense, a highly unusual sanctioning of the conduct of the Special Counsel, which has delayed Flynn’s sentencing.
Paul Manafort was supposed to be the power behind the throne. In the Steele dossier, Manafort was named as the principal interlocutor with the Russians to manage the colllusion as Trump’s campaign chair. Thus far, however, the Special Counsel has only brought charges against Manafort that relate to his business dealings in the Ukraine, years before he served Trump. There is nothing about collusion.
Indeed,in a highly public rebuke, Judge T.S. Ellis accused the Special Counsel of using decade old charges against Manafort as leverage to force the former Trump campaign chair to “flip” on the President, and raised new questions regarding the scope of Mueller’s work, and whether it allows the Special Counsel to revive charges in an unrelated Justice Department case in the Special Counsel’s collusion investigation
Rick Gates, as Manafort’s deputy, was also supposed to be in on the collusion, but like Manafort, the Special Counsel indicted Gates, not for collusion, but for financial crimes similar to Manafort’s.
The Special Counsel has indicted 13 people for cyber-interference in the 2016 election, but they are all Russian, no Americans or Trump officials, and of particular note, none of them are listed in the Steele dossier.
What about Carter Page? Page was said to have met senior Russians where a quid pro quo was suggested for favorable treatment by a future Trump administration. Page was the subject of the faulty FISA warrant, based on those contacts, and though the FISA court renewed the surveillance request three times, Page has never been arrested much less indicted.
Lots of indictments. No collusion.
How can something that seemed so glaringly obvious a year ago have turned into something so difficult to prove? Indeed, .Far from having built a strong foundation for charging the President, it appears that the Special Counsel’s case is porous and searching.
Of course, there is the matter of Comey’s firing and the presidential interventions on behalf of Flynn, which speak to the serious charge of obstruction of justice. Trump’s conduct in these matters range from borderline unethical to the glaringly counter-productive, but ultimately fail to rise to the standard of obstruction, unless there is an underlying crime. So far, the Mueller investigation has failed to uncover such a crime, or if so, to inform the public that he has such evidence. In late April, Deputy AG Rod Rosenstein told the President that he was not a target of Mueller probe. That was 11 months after the investigation began, and confirmed what then Director Comey told the President in private in February 2017.
While firing Comey was a debatable political strategy, it is not illegal. The FBI Director is nominated by the President and serves at his pleasure. If the Special Counsel believes that firing Comey was aimed at obstructing the Russia probe, they need to contend with Trump’s comments to Lester Holt on the topic in an interview on May 11th.
“I’ll tell you this – if Russia or anybody else is trying to interfere with our elections I think it’s a horrible thing, and I want to get to the bottom of it and make sure it will never happen again.”
The Michael Cohen-Stormy Daniels story certainly adds a new angle to the investigation. It is significant because it is both an investigation of opportunity and a “gateway” inquiry. By pursuing Cohen (and potentially Trump) over the nature of a $130,000 payment to Stormy Daniels, the Justice Department has seized records that potentially detail Trump business and personal dealings – completely unrelated to Daniels – from 2006 forward.
According to the public record, there is a rich history here regarding Trump’s business model, where he sought international capital to invest in the properties while the Trump Organization handled branding. All profit, low risk. However, a great deal of capital allegedly came from the former USSR, and mega-rich oligarchs. There have been press reports of money laundering, etc, but to date none of this has tainted Trump.
Any effort by the Special Counsel to use records reflecting these events for misdeeds should require the highest possible legal bar, lest excessive prosecutorial aggressiveness become the standard by which all future presidents will be subject.
A year in, it is time for a reassessment on the charge of collusion. At this point, it may be useful to all parties to apply Occam’s Razor – that the simplest explanation is usually the correct one.
Donald Trump was an unorthodox candidate and ran an unorthodox campaign. Whole forests have been sacrificed to detail, in minute detail, the failings of Trump and his organization – the lack of structure, discipline, message, and above all else, the lack of experienced and capable professionals.
But when law enforcement and particularly the media consider the case of collusion, they judge Trump by the higher threshold of a standard professional campaign. Jeb Bush, Jr., would never take a meeting with a Russian national to get dirt on Clinton’s campaign. George Papadopoulos and Carter Page would never have made it to Marco Rubio’s foreign policy team. Manafort would be nobody’s first choice for campaign manager, given his checked past.
It’s a type of cognitive dissonance; to recognize the failings of one campaign, but to judge it by the standards of another. In this case, official Washington, and especially the media, need to acknowledge the contradiction of their intellectual framework in assessing the case for collusion. Specifically, you cannot keep pointing out that the Trump campaign was a B Team filled with mediocrity – loose, disorganized and sloppy – and also hold it to the standard of a normal, disciplined campaign.
The simplest explanation is also the most plausible; that a chaotic organization, which attracted its fair share of ambitious but novice and suspect political climbers, egos and personalities, who were largely unvetted, would be guilty of free lancing and self dealing, in a manner that would not reflect well on the campaign.
As an organization bereft of people with solid campaign or government experience, who could have created the guard rails, those staffing Team Trump defaulted to the overriding goal of the candidate- winning, by whatever means necessary. That does not absolve officials from potential penalties for any law breaking in pursuit of the presidency, but collectively it does not add up to collusion.
In this light, what is publicly known about the Mueller investigation constitutes thousands of pages of evidence, pointing to nothing more than a poorly run campaign.
No matter how insufferable or incompetent Trump’s critics believe him to be, Trump is the legitimate president of the United States, voted in by the American people according to the precise rules agreed to at our founding. In contrast, there is nothing in our laws that sanctions a perpetual investigation until a crime of any sort is found, all because a plurality of Americans and elected Democrats do not believe that the president is competent to serve. The mere belief that Trump is guilty of something is not a substitute for proof of a crime. Indeed, it makes it harder to focus on what is most important regarding Mueller’s investigation – actual foreign efforts to interfere with our elections.
The sooner we close the book, the faster the true and necessary reckoning can begin.