Law & the Courts

Senate Collusion Theater

Senate Judiciary Committee Chairman Lindsey Graham attends a Senate Judiciary Committee meeting to consider authorization for subpoenas relating to the Crossfire Hurricane investigation on Capitol Hill, June 11, 2020. (Erin Schaff/Pool via Reuters)
Someone wake me up when we hear something from John Durham.

‘Anybody who knew about the problems with the dossier and continued to use it are good candidates to go to jail.”

So said Senate Judiciary Committee chairman Lindsey Graham (R., S.C.) earlier this week, referring to the infamous “dossier” of faux intelligence reporting generated by former British spy Christopher Steele on behalf of the Hillary Clinton campaign. Senator Graham was laying the groundwork for a push he has recently invigorated — to say “reinvigorated” would be misleading — to examine . . . well . . . it’s not exactly clear what he’s planning to examine.

Sometimes, it seems Graham is after FISA abuse by the FBI in the Trump–Russia investigation. Sometimes, it’s the decision by then-deputy attorney general Rod Rosenstein to appoint Robert Mueller as special counsel to investigate the sitting president under circumstances where there was no basis for such an investigation. Sometimes, the focus is described as the Mueller investigation itself: why it went on so long despite the lack of a solid evidentiary predicate, why Rosenstein, in August 2017, defined its scope based on allegations long known to be either groundless or far afield from purportedly suspected Trump–Russia collusion.

Given that Graham has no power to send any good candidates to jail, and the real investigative work either has already been done by the Justice Department’s inspector general, or is in the process of being done by prosecutor John Durham, one can’t help but ask: What is the objective of this scattershot production?

This is a pressing question now that Graham, on a party-line vote of his committee, has been authorized to carpet-bomb Obama-world with subpoenas. Dozens of them: the Trump–Russia Who’s Who, to be hauled in for what we’re supposed to believe will be hours of grueling testimony. Sure, it may take Senate Republicans a year or four to get around to historic Democratic abuses of the government’s awesome law-enforcement and foreign-intelligence apparatus for political purposes, but man oh man, do they mean business now . . . even though, um, there are only 50 business days left in the Senate’s calendar before Election Day, the Senate has lots of other pending business, and the pendency of Durham’s probe renders the notion of significant congressional testimony a pipe dream.

Welcome to Senate Collusion Theater — Season II: “The Investigation of the Investigators.”

See, if this weren’t theater, Season II would have been integral to Season I, which was “All About the Mueller Investigation.” It has been obvious since before Mueller’s May 2017 appointment that the Trump–Russia probe was highly irregular. In fact, two months before Mueller was named special counsel, Graham and his senior Judiciary Committee colleague, Senator Chuck Grassley, complained to then-FBI director James Comey that, despite the lack of meaningful corroboration, the Steele dossier had been central to the FBI’s submissions to the FISA court for warrants to surveil Carter Page.

But what did the Senate do with that information? Nothing of consequence, nothing public.

Democrats, in stark contrast, were not standing pat. Day after day, they fed the media collusion beast, projecting a corrupt Trump–Russia conspiracy. The GOP senators raised their concerns privately with the FBI director; but Comey, for his part, went public: sensationally announcing in March 2017 House testimony that the FBI was conducting a counterintelligence investigation of Trump campaign complicity in Russia’s election interference — even intimating that there could be indictments. And while the Republican-controlled Senate snoozed, the FBI and its Justice Department allies went back to the FISA court, relying yet again on Steele’s rumor-mongering — not once but twice after Graham and Grassley raised alarms about the lack of corroboration.

When Mueller was appointed, even though they (unlike the public) knew how baseless the “collusion” allegation was, Senate Republicans joined their Democratic colleagues in celebrating that the probe was now in the hands of a Washington eminence. House Republicans, particularly under then-chairman Devin Nunes leadership in the Intelligence Committee, were being stonewalled by the FBI and the Justice Department as they demanded information about the investigation. With President Trump’s hands tied — if he had forced mass disclosure, he’d have been accused of corruptly obstructing Mueller’s investigation — the House desperately needed Senate Republicans to step up to the plate, to hold hearings, demand answers, and raise the public pressure for disclosure.

That’s what Senate Democrats would have done, remorselessly, were the shoe on the other foot.

But no, Republican senators weren’t interested in rocking the boat. Just wait until Mueller’s done, Senator Graham & Co. vowed, then we’ll really get to the bottom of this thing. Well, Mueller was done over a year ago . . . and now they’re going to start issuing subpoenas?

It’s a sideshow. There is a serious Justice Department investigation underway, one that may be nearing resolution. When a committee of Congress bestirs itself to start holding hearings under those circumstances, two things happen. First, if the witnesses the Senate suddenly decides it must interview are material to the case prosecutors are trying to build, the Justice Department objects . . . and the Senate must stand down, lest it be accused of interfering with law enforcement. Second, if other witnesses the Senate suddenly decides it must interview are subjects of the Justice Department’s investigation, then they have a very live Fifth Amendment privilege against self-incrimination. Therefore — with all due respect, of course — they tell the Senate to stick its subpoenas where the sun don’t shine.

By the way, nobody knows this better than a very accomplished trial lawyer named Lindsey Graham, who served as a prosecutor, a defense lawyer, and a judge in the military-justice system.

When the salient witnesses are unavailable, what do you get? You get witnesses who appear both to have known nothing and to have avoided learning anything. That is, you get Rod Rosenstein, the star . . . ahem . . . witness in the big hearing the Judiciary Committee held before this week’s spat over the subpoenas.

The event was about what you’d expect. Republicans used Rosenstein’s Mr. Magoo routine as an opportunity to make speeches about FBI corruption (drawn from the Justice Department’s inspector-general investigations . . . there being no independent Senate investigation to draw on). Democrats used Rosenstein’s appearance, amid uprisings over George Floyd’s killing, as an opportunity to frame the Trump Justice Department as indifferent to police brutality — at least when they were not railing about what a waste of time the proceedings were. Meantime, our understanding of why the Trump campaign and administration were investigated on the pretext of Russian collusion did not advance a bit.

So, good luck with those Senate subpoenas . . . and someone wake me up when we hear something from John Durham.

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