Will Robert Mueller investigate intelligence agencies for playing in domestic politics?
By Holman W. Jenkins, Jr.
Ex-FBI chief James Comey played well to the audience he cares about in Thursday’s hearing, the media and bicoastal elites. Donald Trump may well have scored a win among the audience he cares about, Trump’s America.
Much was made of Mr. Comey saying he didn’t trust Mr. Trump not to “lie” about what transpired in their private meetings. Yet despite our president’s dubious relation with veracity, Mr. Trump was shown to be the source of important truths.
Mr. Comey had indeed told him he was not under personal investigation in the Russia “collusion” matter. As Sen. Marco Rubio, not a big Trump fan, noted, this fact was remarkable for also being widely known among Senate colleagues and yet the one fact that never leaked to the media.
Mr. Comey made much of conflicting statements about why he was fired. But it was Mr. Trump who, belying his own White House flackery, stated candidly it was because of the “Russia thing.” Even a non-Trump fan listening to the hearing could readily gather that Mr. Trump had reason to be frustrated that his administration was being hobbled by insinuations of treason for which there is zero evidence.
As a rule, when there is no evidence of a particular act, the FBI does not investigate. The FBI is investigating now only because Democrats and Trump opponents so filled the airwaves with unsubstantiated speculation.
Now here’s a secret: Most Democrats understand the hunt will come a cropper. If a Trump associate brushed shoulders with a Russian-looking individual on the way to the men’s room, it has leaked. The U.S. government sucks up and archives vast gobs of communication data.
Yet the earnestly desired evidence of collusion has not materialized, so Democrats have turned instead to charging “obstruction of justice,” with many already baying for impeachment.
Here’s another secret: Such “process” crimes don’t impress voters when there is no underlying crime. If Mr. Trump leaned on his intelligence officials to remove the Russian cloud, this was ill-advised on the part of a president whose specialty is the ill-advised. But his behavior will also increasingly appear in a new light if it turns out Washington’s tail-chasing has been partly driven by Russian fabrications.
The Washington Post and CNN reported late last month that the single most shattering series of events for the Hillary Clinton campaign—the events that began with FBI chief Comey’s intervention in the race—were partly influenced by planted Russian fake intelligence.
Likewise the dossier of repulsive Trump allegations, assembled by a retired British spy supposedly tapping his Russian intelligence sources, also appears to have been a Russian plant and yet may have played a role in justifying the Obama administration’s decision to launch an intelligence investigation of the Trump campaign.
Think about it: To the extent the fruitless hunt for collusion has been promoted by planted Russian intelligence, Russian fiddling is playing a bigger role in shaping our politics today than it did during the campaign.
By the way, we’re not alleging supercompetence on Russia’s part. Planting fake information is routine intelligence work. The World War II battle of Midway was won partly with fake information about water filtration on Midway Island.
Mr. Comey ducked questions on these subjects, saying he would address them only in classified briefings. President Obama’s former national intelligence director, James Clapper, in Australia this week gave a speech that again put the question of Trump collusion, for which he admitted he had no evidence, at the center of investigation despite the multifarious ways Russia meddled for which there’s actually evidence.
No surprise here: The FBI, CIA and NSA are eager to pose as scrupulous, disinterested arbiters of Russian meddling. They are not eager to be seen as victims and patsies of Russian meddling. To use Mr. Comey’s phrase, the performance of our national intelligence directorate is the one rock that hasn’t been turned over.
So here’s a question for Special Counsel Robert Mueller, a former FBI chief himself. Will he accept the current framing that his Russia investigation is about everything except whether his former agency was semi-wittingly duped into some of its interventions by Kremlin danglings—there’s nothing to see here, move along.
Or will he have the courage to ask the requisite questions the FBI, CIA and NSA don’t want asked about their own, perhaps, gullibility and overeagerness to play in domestic politics because of their dislike of Mr. Trump?
Washington’s desire to get to the bottom of Russian meddling is probably less than you imagine. If not, the places to start are the Trump dossier and the role of Russian disinformation in promoting Mr. Comey’s intervention in the Hillary Clinton email matter.
“James Comey is a ‘leaker’ — but that doesn’t make him a criminal.” That’s the headline of a Washington Post story by Matt Zapotosky.
The Post’s story tries to create the impression that, in fact, Comey is not a criminal. But Zapatosky undertakes no analysis of the law. Instead, he cites “legal analysts.”
However, none of the analysts in question addresses the question of whether Comey committed a crime. The closest to such a statement is from our friend Shannen Coffin. He says:
I’m not suggesting it’s a good thing to leak. I think it’s abhorrent conduct. But in terms of criminal prosecution, I find that hard to imagine in this context.
I agree. But just because Comey almost surely will not be prosecuted doesn’t mean he didn’t violate the law.
Jonathan Turley, the well-known law professor, writes:
Comey falls under federal laws governing the disclosure of classified and nonclassified information. Assuming that the memos were not classified. . .there is 18 U.S.C. § 641 which makes it a crime to steal, sell, or convey “any record, voucher, money, or thing of value of the United States or of any department or agency thereof.”
Comey conveyed records to his pal the Columbia professor who conveyed them to the New York Times. Though neither Comey nor the prof will be prosecuted, it’s arguable that they both broke the law.
Turley also points out that Comey was subject to non-disclosure agreements he signed, as well as FBI rules limiting disclosure. Comey may have violated some of these obligations, though I agree with Shannen Coffin that prosecution is extremely unlikely.
It’s important to keep in mind that Comey’s partner in leaking (and possibly in crime) was Columbia law professor Dan Richman. Prof. Richman isn’t just a friend of Comey’s. According to his Columbia web page, he is an adviser to Comey. Undoubtedly, the two made a very careful calculation of the pros and con, including potential prosecution, of their leaking.
Here is what they must have decided:
First, although Comey has overseen more leak investigations and prosecutions than any administration in history (according to attorney Edward MacMahon) and has denounced leaking (he did so again at the hearing on Thursday), he would leak the memos.
Second, to reduce the chance that the leak would be traced back to Comey, the law professor would serve as a “cutout.” Richman would do the dirty work.
Third, the fact that the leak would almost certainly be seen as coming from inside the FBI, thus hurting the FBI’s standing in the public mind, didn’t matter. Comey’s standing in the public mind was more important than the FBI’s.
Fourth, because the risk of prosecution for the leaks would be practically nil even if the leaks were traced back to Comey, the leaks should proceed in order to advance Comey’s agenda regardless of whether the leaking violated the letter of the law, and/or FBI rules, and/or non-disclosure agreements Comey signed.
This is the man who constantly claims the moral high ground. This is the man who asks us to believe his account of President Trump’s conduct.
Before Thursday’s hearing began, I was inclined to. Having read Comey’s prepared remarks, I expected that Comey and Trump would disagree regarding important factual questions. Given Comey’s reputation for integrity, whatever his faults, and given my view that Trump has been less than honest at times, I thought that — other things being equal — Comey should have the edge when it comes to weighing credibility.
I no longer see it that way. My view of Trump hasn’t changed, but my view of Comey has. Clearly, he is far from the straight shooter he holds himself out as. His primary interest isn’t the truth; it’s having his way. Kind of like Trump, but without the electoral mandate.
I’m no more inclined to believe Comey than to believe Trump.
What a mess.