The Russiagate ‘collusion’ context seems conveniently absent.
The Russiagate ‘collusion’ context seems conveniently absent.
T he New York Times had a big article Thursday on the release of a memoir by Geoffrey Berman about his tenure leading the U.S. attorney’s office for the Southern District of New York. The book, called Holding the Line, was released this week. (I was an SDNY prosecutor for many years and overlapped with Berman when he was a prosecutor in the early Nineties. I don’t know him well.)
The memoir is the latest salvo against the Trump Justice Department, an odd crusade in light of that department’s (a) controversial appointment of a special counsel to investigate the then president, and (b) key role in dispelling Trump’s “stolen election” balderdash.
Berman was never a Senate-confirmed U.S. attorney. He was nominated after volunteering to work on the 2016 Trump campaign, and appointed on an acting basis by Trump’s then attorney general, Jeff Sessions. In 2018, when the position had gone for many months without a confirmed U.S. attorney, the SDNY judges appointed Berman under a statute that enables the court to fill a vacancy pending Senate confirmation of a presidential nominee. Berman was in the news in June 2020 because Trump fired him, at the behest of then attorney general Bill Barr, when Berman rebuffed Barr’s request that he resign and take a different high-level Justice Department post so the administration could try to install a different nominee. (Barr instead ended up installing Audrey Strauss, Berman’s deputy at the time, as the acting U.S. attorney.)
The most explosive allegation in Berman’s book appears to be that Trump wanted former Obama secretary of state John Kerry to be prosecuted over his discussions with Iranian officials. These talks were seen, with abundant reason, as undermining Trump’s foreign policy of abandoning President Obama’s Iran nuclear deal and implementing sanctions pressure.
Berman relates that he was pressured by the Trump Justice Department in 2018 to pursue that investigation. The impetus was the theory that Kerry had violated the Logan Act. Berman appears to have believed, rightly, that such a prosecution would have been absurd. He also says he does not know what prompted Trump’s Justice Department to pursue a Kerry investigation — it appears to him simply to have been a matter of “the conduct that had annoyed the president was now a priority of the Department of Justice.”
Absent from this account is some salient context. One needn’t delve too deep to become skeptical about Berman’s reported mystification.
A little over a year earlier, Trump had been induced to fire his first national-security adviser, retired Army general Michael Flynn. In late 2016, while Flynn was a Trump transition official, and after it was clear that he was to be Trump’s top White House adviser on national-security matters, he famously engaged in discussions with Russia’s ambassador to the United States, Sergey Kislyak. Though that made Flynn just one of countless political figures to rub elbows with the Kremlin’s envoy, a glib man-about-town, this was the era of Democrat-fabricated Trump–Russia “collusion” hysteria. In the spirit of the times, the Obama administration, its Justice Department, and the FBI conducted an investigation of Flynn. The essential basis for suspecting Flynn of criminal wrongdoing was . . . yes . . . the Logan Act.
As I recounted in Ball of Collusion (in an excerpt we published here):
On January 12, 2017, The Washington Post’s David Ignatius published a leak from an unidentified “senior U.S. government official,” describing Flynn’s communications with Kislyak after Obama announced the anti-Russia sanctions. Naturally, the classified leak was not the crime that interested the journalist. Ignatius instead focused on an imaginary crime — one that just happens to have been under consideration at that very time in the top tier of the Obama Justice Department: Flynn’s flouting of the Logan Act.
Deputy Attorney General [Sally] Yates was theorizing that it might be possible to prosecute Flynn under this vestige of the John Adams administration (1797–1801), a dark time for free-speech rights. The statute purports to criminalize “any correspondence or intercourse” with agents of a foreign sovereign conducted “without authority of the United States” — an impossibly vague phrase that probably means permission from the executive branch. No court has had an opportunity to rule that the Logan Act is unconstitutional because, realizing its infirmity, the Justice Department never invokes it. In its 219-year history, the Logan Act has not resulted in a single conviction; indeed, there have been only two indictments, the last one in 1852.
Yet, the Logan Act appears to have been what the Justice Department had in mind. In later Senate testimony, Yates recounted that, in the first days of the new administration, she and Mary McCord (then-chief of Justice’s National Security Division) brought their ongoing concerns about Flynn to the attention of Don McGahn, then the White House counsel. According to Yates, “the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn engaged in was problematic in and of itself.” The “underlying conduct,” of course, was Flynn’s communication with Kislyak — his temerity to engage in talks with foreign officials without approval from the Obama administration.
The Wall Street Journal later scathingly recounted Yates’s bout of amnesia when she was asked, in Senate testimony, whether then vice president Joe Biden had raised the Logan Act during a January 5, 2017, Oval Office discussion about Flynn between Obama and some top administration security officials. Though Yates said she could not remember, the Journal’s editorial board provided a refresher:
The Logan Act was the main premise that Justice Department officials and the FBI cited for going after Gen. Flynn for his conversations with Russia’s ambassador to the U.S. Notes taken by the FBI head of counterintelligence, Bill Priestap, ask if the goal of the bureau’s interview with Mr. Flynn was to “get him to admit to breaking the Logan Act.” Notes about the Jan. 5, 2017, Oval Office meeting taken by FBI agent Peter Strzok have Mr. Biden bringing up the Logan Act. And the leak to the Washington Post that ginned up all the hysteria against Gen. Flynn tied his calls to Russia’s ambassador to the Logan Act.
Ms. Yates is rewriting history. While she testified that the Flynn investigation was all about counterintelligence, her argument that Gen. Flynn had “neutered” the sanctions President Obama had imposed on Russia is also an implicit Logan Act argument.
We’re delighted everyone now agrees that prosecuting Mr. Flynn under this statute would have been ridiculous. In many ways the Logan Act has become the new Steele dossier, something that was taken very seriously by the FBI and Justice and the press—but is now so discredited that everyone wants to run away from it. Including Sally Yates and Joe Biden.
I could not agree more with what I take to be Berman’s contention that the Justice Department should never use the Logan Act as a pretext for weaponizing law enforcement against an administration’s political opponents. But the suggestions that Trump invented this ploy, or that it’s hard to imagine how Trump could possibly have come up with the idea of applying the Logan Act to Kerry, is a bit rich, no?
Berman also recounts what he took to be Trump Justice Department pressure to prosecute Greg Craig, the former Obama White House counsel, on crimes related to the Foreign Agent Registration Act. FARA prosecutions are only slightly less rare than the Logan Act prosecutions: just seven (and only three successful) in the half century prior to the Trump administration. But then — what a surprise! — everything changed, as FARA became the backbone of the Mueller investigation’s unsuccessful attempt to establish a Trump–Russia conspiracy.
After being convicted in a separate trial, former Trump campaign chairman Paul Manafort agreed to Special Counsel Mueller’s offer to settle the rest of the case by pleading guilty to, among other things, a conspiracy to violate FARA — in connection with Ukraine, not Russia. Meanwhile, Elliott Broidy, a Trump and GOP fundraiser, pled guilty to conspiring to violate FARA on behalf of Malaysia and China (but was eventually pardoned by Trump).
In light of Berman’s suggestion that the FARA prosecution of Craig seems to have been a political hit job from out of the blue, we should recall that Mueller induced a false-statements guilty plea from Alex van der Zwaan, formerly a junior lawyer at Craig’s firm, Skadden Arps. The plea arose out of work for Ukraine that van der Zwaan did in collaboration with the firm, Manafort, Manafort’s partner Rick Gates, and . . . yes . . . Greg Craig.
In a nutshell, Craig and a Skadden team prepared a report for the purpose of defending former Ukrainian president (and Manafort political-consultancy client) Viktor Yanukovych from allegations that he persecuted a political rival. In 2019, Skadden entered an agreement with the Justice Department that required it to disgorge the $4.6 million in fees it earned on the Ukraine project. The firm admitted that (a) it should have registered as an agent of Ukraine under FARA, and (b) Craig, a firm partner, had “made false and misleading oral and written statements” six years earlier (in 2013) that caused the Justice Department’s FARA unit to conclude the firm need not register. Meantime, Craig was indicted, not for failing to register under FARA but for providing false statements to the Justice Department’s FARA unit. While the statements were sufficiently lawyerly that jurors probably would have had a tough time convicting Craig in any event, his quick acquittal may be explained by the technical nicety that the prosecution faced significant statute-of-limitations hurdles (for most federal crimes, the statute of limitations is five years; Craig was indicted in 2018 for conduct that occurred from 2012 to 2013).
Berman may be right that the Craig prosecution was a mistake, but it was a closer call than he suggests. More to the point, the lesson of the episode is that the Mueller team’s zeal to nail Trump on something — anything — took the Justice Department to the extreme of pouring immense prosecutorial resources and invoking rarely used laws to scrutinize a transaction that had utterly nothing to do with Russia . . . or Trump.
The Times report features a provocative story drawn from Berman’s book, one that close reading finds inconclusive — and one that is odd if one happens to know the players involved. Berman writes that in September 2018, his deputy Rob Khuzami reported that he’d gotten a call from Ed O’Callaghan, then a top official at Main Justice. (Khuzami is my longtime friend and former trial partner; I’ve always thought highly of O’Callaghan, with whom I overlapped in the SDNY in the late Nineties.) According to the Times’ account, Berman’s book says O’Callaghan asked that the SDNY “‘even things out’ by charging Mr. Craig before Election Day” — translation: indict a prominent Democrat to settle the score for all the Trump-related prosecutions.
O’Callaghan is a very smart guy, so I have a hard time imagining him saying something so stupid and so at odds with what I take to be his conception of proper law enforcement. Reached for comment, he told the Times it was “categorically false” that he’d made such statements. Perusing the report, I note that the Times does not claim that Khuzami quoted O’Callaghan as making such a statement — just that “the book” portrays O’Callaghan as having done so. There is, however, no suggestion that Berman heard O’Callaghan say such a thing.
I have no idea what happened, but it is easy to surmise that someone who held Trump and his Justice Department in low esteem, and who was thus inspired to put the worst spin on things, deduced that Trump officials politicized the investigation of Craig — eager to show that a notable Democrat was somehow spared from being put through the Mueller wringer, despite being implicated in the same Ukraine misadventure over which Mueller nailed Manafort, Gates, and van der Zwaan.
To sum up, no, Craig and Kerry should not have been hounded. Let’s not forget, though, that when it came to rationalizing bogus claims of Trump collusion with Russia, the nation’s top prosecutors didn’t seem too terribly upset about abusive Justice Department resort to FARA and the Logan Act.