So, is Russia now presumed innocent of hacking the 2016 election?
If not, it is difficult to understand any proper purpose served by Special Counsel Robert Mueller’s indictment of twelve military officers in the Kremlin’s intelligence services for doing what everybody in America already knew that they did, and has known since before Donald Trump took office — indeed, since before the 2016 election.
Make no mistake: This is nakedly politicized law enforcement. There is absolutely no chance any of the Russian officials charged will ever see the inside of an American courtroom. The indictment is a strictly political document by which the special counsel seeks to justify the existence of his superfluous investigation.
Oh, and by the way, the answer to the question posed above is, “Yes, it is now the official position of the United States that Russia gets our Constitution’s benefit of the doubt.” Here is Deputy Attorney General Rod Rosenstein announcing the Friday the 13th indictment: “In our justice system, everyone who is charged with a crime is presumed innocent unless proven guilty.”
Of course, the indicted Russians are never going to be proven guilty — not in the courtroom sense Rosenstein was invoking.
As is so often the case in today’s politicized Justice Department, Rosenstein was trying to make a different political point. As he went on to note, if people whom we have formally charged are presumed innocent, then, a fortiori, people who have not been accused — implicitly, Rosenstein was talking about President Trump — must also be presumed innocent. But, see, you can’t make that point without stepping on the political purpose of Friday’s charade: We have taken the not only pointless but reckless step of indicting operatives of a hostile foreign power who cannot be prosecuted and whose schemes could easily have been exposed — and, in fact, have been exposed, multiple times — in public government reports; so now, due-process rules oblige us to caution you that we must presume the Russians did not do what we have formally accused them of doing. They are entitled to that presumption unless and until we convict them in court . . . which is never going to happen.
Rosenstein made another telling remark at his big press conference. The Justice Department, he explained, will now “transition responsibility for this case to our Department’s National Security Division while we await the apprehension of the defendants.”
Now, stop giggling over that last part — the bit where we hold our breath until Russian dictator Vladimir Putin extradites his spies into the FBI’s waiting arms. I’m talking about the first part: Mueller’s case, the definitive case about what Russia did to interfere in the 2016 election, is no longer Mueller’s case. It is being “transitioned” — i.e., buried — in the Justice Department unit that deals with counterintelligence matters that do not result in public trials.
This underscores what we have been arguing here since before Mueller was appointed: There was no need and no basis in federal regulations for a special counsel.
A special counsel is supposed to be appointed only when there are (a) a concrete factual basis to believe federally prosecutable crimes have been committed, calling for a criminal investigation, and (b) a conflict of interest that prevents the Justice Department from conducting the criminal investigation.
Among the worst aspects of Mueller’s new indictment is its continuation of the Justice Department’s politicized perversion of its critical counterintelligence mission.
As we’ve observed countless times, there was no basis for a criminal investigation of President Trump or the Trump campaign. The fact that Russia interfered in an American election — as it routinely does — never meant that the perceived beneficiary of the interference was criminally complicit in it. There is no known evidence that Trump-campaign officials had any involvement in hacking by the Russian intelligence services. Mueller’s new indictment powerfully suggests that this could not have happened — the Russians were expert in their cyberespionage tactics, they did not need anyone’s help, and they took pains to conceal their identity from everyone with whom they dealt.
Moreover, even though Trump-campaign officials have been charged with other crimes (having nothing to do with the 2016 election), and some of those Trump officials had “contacts” with Russians, Mueller has never charged one of them with a crime related to Russia’s espionage attack on the election, nor has he ever elicited from any defendant who pled guilty an admission of any such crime. The only known allegations of such a crime are contained in the unverified, Clinton-campaign-sponsored Steele dossier, and the Trump-campaign figures implicated in it have either not been charged at all (e.g., Carter Page, Michael Cohen), or not been charged with a “collusion” crime (Paul Manafort).
Thus, among the worst aspects of Mueller’s new indictment is its continuation of the Justice Department’s politicized perversion of its critical counterintelligence mission.
Lacking the requisite basis to conduct a criminal investigation, the Justice Department used its counterintelligence mission as a pretext for appointing a special counsel. This was grossly improper: (1) Counterintelligence work, which is geared at thwarting the operations of hostile foreign powers, is not the prosecutor work of building criminal cases; (2) not surprisingly, then, there is no authority in the regulations to assign a special counsel to a counterintelligence investigation; and (3) because counterintelligence authorities do not afford Americans the due-process protections required in criminal investigations, the Justice Department is not permitted to use counterintelligence as a pretext for conducting what is actually an effort to build a criminal prosecution.
Now Mueller has taken the next logical wayward step: He has woven an indictment that can never be tried out of counterintelligence work against foreign governments that is not supposed to be the subject of criminal prosecution — i.e., the subject of public courtroom testing under due-process rules.
This is not the way counterintelligence is supposed to work. And the Justice Department knows it. That is why Mueller’s indictment will now be the property of DOJ’s National Security Division, the home of other non-prosecutable foreign counterintelligence work that is never intended to see the light of day in a public courtroom.
And why such an easy transition? Because there is no conflict of interest.
There never was. Russia’s interference in the 2016 election was never something that the Justice Department was unable to investigate in the normal course. In fact, for months, the Trump Justice Department was investigating it in the normal course, just as the Obama Justice Department had done. Then, President Trump fired FBI director James Comey. It was this event that prompted Rosenstein to appoint Mueller. We got a special counsel not because of Russia’s espionage or any evidence indicating actual Trump-campaign complicity in it; we got a special counsel because Rosenstein was deeply involved in Comey’s ouster and wanted to fend off Democratic attacks on him over it.
The only point of the new indictment is to justify Rosenstein’s decision and Mueller’s existence. Proponents of the unnecessary special counsel want to say, “See, we really needed this investigation.” But that can be said with a straight face only if the goalposts are moved.
To be clear, we did need an FBI counterintelligence investigation of Russia’s espionage operation against the 2016 election, and we already had a quite aggressive one before Mueller came on the scene. But we would have needed a special-counsel investigation only if there had been a concrete factual basis to believe the Trump campaign conspired in Russia’s espionage operation against the 2016 election.
There never was. So now, the purported need for Mueller is being rationalized on two fictitious premises.
I doubt our diplomats, intelligence operatives, elected officials, and citizens will much like living in the world Robert Mueller and Rod Rosenstein have given us.
The first is that the new indictment shows we needed Mueller to get to the bottom of Russia’s perfidy. This is false: There is nothing new in Mueller’s indictment, his participation was unnecessary to discover what our counterintelligence investigators have learned, and the intelligence they have gathered should not have been put in an indictment — aggression by hostile foreign powers is not a law-enforcement issue, and it is a mockery of the justice system to charge foreign aggressors and pretend we presume them innocent of their attacks against our country.
The second is that the number of indictments Mueller has generated proves that there were solid grounds to suspect Trump-campaign “collusion” in Russia’s election-meddling. The blatant, partisan dishonesty of this claim is best encapsulated in this passage from the Washington Post’s report on Mueller’s new indictment:
Mueller and a team of prosecutors have been working since May 2017 to determine whether any Trump associates conspired with Russia to interfere in the election. With the new indictment, his office has filed charges against 32 people on crimes including hacking, money laundering and lying to the FBI.
The Post goes on grudgingly to point out that 26 of the 32 charged are Russians “who are unlikely to ever be put on trial in the United States.” (Unlikely?) But the paper conveniently omits mention of the fact that none of the 32 have been charged with a Trump–Russia conspiracy to interfere in the election. That’s the only thing Mueller was needed for.
As I pointed out on Twitter over the weekend, besides the two-dozen-odd Kremlin operatives already charged, there are 144 million other people in Russia who will never see the inside of an American courtroom. If Mueller indicts every one of them, his stats will look really impressive . . . and there will still be no Trump conspiracy against the election.
What there will be, though, is a new international order in which nation-states are encouraged to file criminal charges against each other’s officials for actions deemed to be provocative (or, more accurately, actions that can be exploited for domestic political purposes). Of all government officials in the world, American officials are the most active on the global stage — and that includes meddling in other countries’ elections. I doubt our diplomats, intelligence operatives, elected officials, and citizens will much like living in the world Robert Mueller and Rod Rosenstein have given us. If the idea was to give Vladimir Putin and his thug regime a new way to sabotage the United States, nice work.