Law & the Courts

Russiagate: Law in the Service of Partisan Politics

(Jonathan Ernst/Reuters)
This is an exquisitely planned political campaign.

Russiagate has always been a political narrative masquerading as a federal investigation. Its objective, plain and simple, has been twofold: first, to hamstring Donald Trump’s capacity to press the agenda on which he ran (immigration enforcement, conservative judicial nominees, deregulation, and a military build-up, along with skepticism about military interventions, free trade, and NATO); and ultimately, to render him unelectable come autumn 2020.

That’s it. That’s what FBI agent Peter Strzok so aptly called the “insurance policy.”

Yes, of course, if some grievous misconduct had emerged, something so egregious that Beltway Republicans could chance the wrath of the Trump base by hopping aboard the impeachment train, Democrats might take a shot at removing the president. But that, as they say in the Green New Deal biz, was just “aspirational.”

The real work in the here and now is hardball politics: Hem Trump in. Politicize the intelligence and law-enforcement apparatus. Signal to the public through intelligence leaks and suggestive official public statements that the president was suspected of conspiring with the Kremlin. Convince Trump that using the presidency’s arsenal to fight back would just bolster the obstruction case against him. Sic a special counsel on him if he lashed out anyway. Use the investigation as a rationale for slow-walking Trump nominees and for refusing to deal with him on such critical issues as border enforcement. Drive his numbers down.

It’s working.

It had to have been clear to investigators as of late 2017 that there was no “collusion” case against the president — no proof of a conspiracy with the Kremlin to undermine the 2016 election.

In September 2017, five months after Robert Mueller took over the Russia investigation, the Justice Department stopped seeking surveillance warrants — i.e., it decided to stop peddling the Steele dossier to the Foreign Intelligence Surveillance Court. That means the government no longer stood behind the Clinton-campaign-sponsored opposition-research screed, which alleged — based on anonymous Russian sources — that there was a Trump–Putin conspiracy to undermine the election.

In the months that followed, Mueller returned several indictments. His charges against two sets of Russians indicated that the Kremlin sought no collaboration with Americans; his charges against Trump associates had no connection to Russia.

Notwithstanding the absence of proof, though, the collusion investigation continued for over a year, until late March 2019. Is it any wonder, then, that over 40 percent of Americans continue to believe the Trump campaign was in cahoots with Moscow — even after the announcement that Mueller concluded there was no Trump–Russia conspiracy?

This is an exquisitely planned political campaign.

On CNN this week, Jim Comey, former director of the FBI — i.e., of the nation’s domestic security service — hinted that, the Mueller report notwithstanding, Russia may very well have leverage over the president. Last year, the former director was more expansively suggestive: The lurid dossier allegation about Trump in a Moscow hotel in 2013 with peeing prostitutes — the claim Comey had dismissed as “salacious and unverified” in sworn Senate testimony — might be true after all . . . he just can’t say for sure.

This is of a piece with former CIA director John Brennan’s unhinged tweeting since leaving office — the nod-and-wink exploitation of his public trust; the implication that if only you knew what he knows from having had access to top-secret information, you’d demand that Trump be removed from office.

Access to sensitive law-enforcement information and classified intelligence is a trust. It is extended with the understanding that it won’t be politicized or used to smear people.

Abuse of this privilege mirrors the most objectionable aspect of the Mueller investigation: The abuse of the criminal-justice process — converting it into a political weapon to smear a person the government has not charged with crimes.

Understand: Congress does not need a prosecutable crime to impeach the president. If House Democrats believe the president has abused his powers so outrageously that he should be stripped of them, they have it within their power to file impeachment articles and trigger a trial in the Senate. Impeachment is a political process. It would be perfectly appropriate for all anti-Trump partisans to make the public case that the president should be removed from office.

But the anti-Trump partisans are not going that route. They know they’d lose by a humiliating margin that would strengthen the president.

Instead, they are perverting the criminal-justice process they claim Trump has obstructed. With the transparently eager cooperation of Mueller’s team, they intimate that the president could have been charged and would have been convicted. They suggest that, although not charged, he has not been “exonerated,” effectively imposing on him the burden to establish his innocence.

I don’t want the criminal-justice system to be the prism through which we conduct politics. But if you insist on evaluating the president’s conduct as a criminal-justice issue rather than a political impeachment issue, then he is entitled to the presumption of innocence. He is entitled to have the evidence discounted (indeed, it should have been concealed) unless and until he is formally charged. He is entitled to have the burden of proof imposed entirely on the government. For current and former officials who have been involved in the investigation to refrain from charging him, publicize the evidence, and then suggest he is guilty is a willful undermining of the justice process.

That is, they are doing what they accuse Trump of doing.

They are too smart not to know this. So there is only one conclusion to be drawn: This grandstanding has nothing to do with the law. The point has never been to make a prosecutable legal case against the president. Nor is it to pursue impeachment, though there will be plenty of talk about impeachment. The point is to place the tools of the criminal-justice process in the service of the Democrats’ 2020 political campaign.

The Russia counterintelligence probe, based on the fraudulent projection of a Trump-Putin conspiracy, was always a pretext to conduct a criminal investigation despite the absence of a predicate crime. The criminal investigation, in turn, was always a pretext for congressional impeachment chatter. And the congressional impeachment chatter is a pretext for the real agenda: Making Trump an ineffective president now, and an un-reelectable president 18 months from now.

They try to make it look like law. It has always been politics.

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