by Frank Snepp Peabody Award-winning investigative reporter, ex-CIA officer
Posted: April 3, 2019
Reading through Attorney General Barr’s March 24 letter about the Mueller investigation made me feel like a guy who’s just witnessed a brutal murder – only to be told by the cops it never happened.
I am not talking about the obstruction of justice issue which, as Barr contends, Mueller sidestepped without rendering verdict, but which Barr himself presumed to resolve in Trump’s favor. My focus here is on the other live grenade left over from Barr’s letter, his contention that Mueller cleared Trump and his aides of any criminal liability for allegedly conspiring in Russian efforts to influence the 2016 elections.
Over the past three years media reporting and finally Mueller’s own court filings have given us countless reasons to doubt this easy brushoff. Just think of what we’ve learned about the repeated contacts between the Trump campaign and Russian actors; the attempted cover up of these actions by both sides, including the campaign’s failure to alert the FBI to what it knew; Trump’s invitation to Moscow to hack Hillary’s emails, and his softening of anti-Russia sanctions and rhetoric in an apparent effort to reward Putin for anything and everything.
As Mueller’s probe picked up steam, Trump attempted to distract us from all this by reducing the key allegation against him to a single legally meaningless word, “collusion” – and then by endlessly reciting the equally meaningless mantra, “No Collusion!” The tactic worked and continues to cast its spell. Though “collusion” appears nowhere in Barr’s letter, many reporters and learned experts have interpreted what is recorded there as confirmation that “collusion,” whatever it is, never happened.
To further muddy the picture, Barr has played word games of his own. In paraphrasing Mueller’s principal verdict, he declared in his letter that the “investigation did not find that the Trump campaign or anyone associated with it conspired with Russia in its efforts to influence the 2019 Presidential election.”
“Find” is a layman’s term which suggests Mueller searched high and low and could not come up with anything to prove improper partnering with Russians.
As a self-protective hedge, Barr included a snippet of Mueller’s actual language. According to Barr, Mueller asserted the following: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”
“Establish” is considerably different from “find.” It’s less sweeping, more focused and legalistic. Here it can be read to mean that Mueller, after searching high and low, couldn’t assemble enough evidence to establish beyond a reasonable doubt that conspiracy or coordination had occurred.
Part of the problem here is that Barr gives us only part of Mueller’s quote. As is clear from the bracket surrounding the capitalized “T,” in the first word of the excerpt, something came before in the original sentence, something that Barr has chopped off. Do the omitted words or larger context qualify the notion that Mueller’s was unable to “establish” criminal conspiracy?
We won’t know until we have the full report.
The Federal conspiracy statute sets a high evidentiary bar. In order to “establish” a “conspiracy” or “coordination” you must prove – again, beyond a reasonable doubt — that there was a real or implicit “agreement” among various parties to further a crime. Barr does not say whether Mueller looked for an “agreement” in weighing Trump’s liability on the conspiracy charge, but he is clear that this standard was applied to the “coordination” question.
In a footnote he assures us: “In assessing potential conspiracy charges the Special Counsel also considered whether members of the Trump campaign ‘coordinated’ with Russian election interference activities. The Special Counsel defined ‘coordination’ as an agreement – tacit or express – between the Trump campaign and the Russian government on election interference.”
It seems from all this that Mueller’s clean bill of health for Trump and his clan in the Russia matter hinges on the lack of requisite proof that they struck a covenant of some sort with representatives of the Putin regime.
In mob cases it’s the blood oath or wiretapped daisy chain that indicts. In anti-trust cases it’s evidence of a coordinated effort by corporate giants to corner the market. Mueller appears to have been unable to find adequate proof of a political equivalent in the Trump-Russia miasma.
But that’s a far cry from saying there is no evidence of collusive behavior – no proof of mutually understood synchronized efforts to accomplish a shared objective. Nor, at this moment, is there any way to guess how close Mueller came to closing the loop. Was it Paul Manafort’s clamming up that stymied him? Was it the difficulty of proving that a Russian contact was an actual agent of the Russian government?
Or was this a legal dogleg from the start, too gnarled and twisted to carry any weight?
When you get right down to it, the interplay between Trump World and the Russians didn’t need an “agreement” to go forward. The Russians began hacking into DNC terminals before Trump became the GOP nominee. When his confederates, e.g. Campaign Manager Manafort, George Papadopoulos, Jared Kushner and Don Jr. heard about hacked emails and/or stolen “dirt” on Hillary they chose not to alert to the FBI, and thus effectively signaled to the Russian actors they faced no pushback from the Trump camp.
Trump’s own invitation to them to zero in on Hillary’s emails surely bolstered that understanding. And further encouragement came quickly. Manafort reportedly provided helpful election polling data to a Russian intermediary, Roger Stone flirted with the hackers’ outlet, Wikileaks, and Trump’s putative national security advisor Michael Flynn let on to the Russians that they could expect sanctions relief regardless of what they were accused of.
The continuation of business dealings between Trump interests and Russian ones – as in the Moscow Tower Project – provided additional assurance to Putin and his operatives that they could count on Trump’s sympathies. It also gave them leverage to use against him if he waivered. They needed no handshake, blood oath or wink-and-nod, to keep him marching in lockstep. They knew as well as he did that any publicity about these dealings would cost his candidacy dearly.
To make sense of all this, simply imagine you’re a rich guy ogling the mansion next door, a glittering monstrosity you’ve always coveted. Suddenly you spot a cat burglar climbing through a second story window. But rather than call the cops you shout out to him that he’s in the clear, with nothing to worry about from you. In effect you are making common cause with him, an alliance of shared interest. You’re leaving him free to strip the mansion bare, and perhaps the entire neighborhood. You are maximizing your chances of seizing the mansion from the newly impoverished owner.
A far-fetched analogy? You won’t hear that from someone who’s been convicted as an accessory to a crime.
Early in Mueller’s investigation, some legal experts speculated that he would use a conspiracy-related law to nail Trump campaigners for their Russia dealings. It’s the part of a statute covering incitement or solicitation of a crime. Based on what little we get from Barr’s letter it’s impossible to determine whether “solicitation” figured in Mueller’s deliberations. But if it did, it would be helpful — before jumping to any conclusions about anything — to know why it failed to pass prosecutorial muster, since Trump’s coaxing of Hillary’s emails from the Russians would seem to be a textbook example of solicitation of illegal activities.
And lest you wonder whether Trump and his aides had criminal intent, it’s worth remembering that in the midst of the campaign season, June 14, 2016, the Washington Post revealed that suspected Russian hackers had busted into DNC servers. Almost immediately the FBI briefed Trump and inner circle about this. So, they had every reason to know that anybody covering up for Russian hackers, dirt peddlers and their middlemen was lending aid and comfort to a criminal enterprise – and worse, abetting an manifestly hostile attack on our institutions. Trump’s own public efforts to denigrate the threat and the intelligence community defending against it only deepened his complicity as Russia’s enabler.
Another aspect of the Mueller probe, which Barr left unmentioned, relates to its counter-intelligence mission, which was first reported by the New York Times. A basic objective of any such CI effort would be to determine if Trump or any of his associates became prey to Russian manipulation or remain vulnerable to it.
A related concern would be the damage caused to the nation’s security by the Trump-Russia fandango. In this area I have a unique personal perspective. In the late 1970s the U.S. government prosecuted me for publishing a memoir about my CIA career in Vietnam without getting official clearance beforehand. Prosecutors stipulated there were no secrets in the book. But they insisted that my failure to clear it had irreparably harmed the nation’s security by raising doubts among our allies about whether their own secrets were safe with us.
I scoffed at both the charges and the damage assessment, which was put forward without any proof. But in 1980 the U.S. Supreme Court upheld the government’s case on all counts, thus endorsing a new calculus for measuring a national security threat.
I submit to you that if my relatively meager offense – the publishing of a secrets-free book without official approval — could so unsettle our allies as to irreparably harm the nation, then how much more damaging is Trump’s unalloyed embrace of Putin and his hackers? The answer: lots.
Indeed, it appears from press reports that what initially prompted the FBI to look into the Trump campaign’s ties to Russia was concern among our allies about what this might mean for their joint security dealings with us. Trump’s erratic behavior and continued intimacy with the Russians since taking office can scarcely have mitigated these worries.
How many intelligence partners have stop confiding in us for fear of Trump’s Russia connections? A Wall Street Journal story, published in February 2017, painted a bleak picture. Any thorough counter-intelligence probe would delve deep into this question. Whether Mueller even scratched the surface remains a mystery.
Until this is cleared up – and countless other questions — it would be absurdly premature to assume Trump is in the clear on the Russia front or that the implicit threat to us all is lifted.
As an investigative journalist and one-time CIA officer, I am deeply concerned that Barr’s once-over-lightly version of Mueller’s conspiracy findings will tempt reporters and legislators into over-interpreting the exculpatory implications of the attorney general’s first take.
Trump and his GOP allies are working hard to accomplish this, and if they succeed in delaying release of the full report itself, public acquiescence in their self-serving gloss on the Mueller findings could become baked in. This would likely discourage further press and Congressional inquiry into Russian meddling and leave the hackers free to commit mischief again.
Already too many reporters and editors are eating their own words or savaging each other, based simply on the Barr letter. One headline writer proclaimed recently: “It’s Time To Let Go of Collusion.” Columnists and editorialists have embraced the Trump refrain “No collusion,” as if it has suddenly achieved credibility.
The redoubtable Chris Mathews has told his MSNBC audience “collusion” is off the table as an election year issue, a distraction that must be resisted if Trump is to be defeated.
David Corn and Michael Isikoff, who drew liberally on the so-called “Steele Dossier” for their first groundbreaking stories on the Russia scandal, are now treating the document as a fraud, even though they were right the first time, insofar as they cast it as simply the first draft by an experienced British spy of raw intelligence leads to be pursued and verified.
The most overwrought of the conflicted scriveners who have found a new religion in Barr’s brief is Matt Taibbi of Rolling Stone. This normally perceptive reporter has now decided that “Russia-gate” was a media mashup. By comparison, he says, it makes press misreporting on the fake WMD threat in Iraq look like a “pimple.”
He’s taken special aim at MSNBC’s Rachel Maddow who has been unsurpassed in her ability to pierce the lies Trump has inflicted on us and the Mueller investigation. Taibbi accuses her of overstuffing her nightly newscast with “shady Russians,” “wild graphics,” and “dramatic monologues” designed to connect obscure and disparate dots.
“This is a particularly bad kind of reporting,” he declares unctuously as if he and Barr have some monopoly on the most complex national security scandal in U.S. history. “If the dots have to be connected in the heads of your audience then you haven’t connected them factually in your piece. And so, we are using a trick to dance around normal journalist procedures.”
Taibbi’s own experience with investigative reporting should have taught him it’s all about taking scattered bits of information and trying to fit them into comprehensible mosaics. His complaints about Maddow might be better directed at Trump himself whose fixation with unconnected dots and moveable truths has brought the nation to a very dark place.
But reporters aren’t the only backtrackers. Two days after the Barr letter surfaced, former CIA Director John Brennan, who has been a wise critic of Trump’s Russia dealings, said on MSNBC’s Morning Joe, “I don’t know if I received bad information, but I think I suspected there was more than there actually was.”
Whoa, now. The stampede is getting out of hand.
Congressman Adam Schiff, chairman of the House intelligence committee, struck just the right cautionary note with his epic “It’s Not Okay” oration to his colleagues about what Trump has done with Russian connivance. Former CIA chief of staff Jeremy Bash has been equally adept at putting the Barr letter into perspective.
“We shouldn’t draw the conclusion,” he recently told Morning Joe, “that if you ask for the assistance of an adversary, you receive it, you benefit from it, and you reward it, you’re okay. Because, you know what? It’s going to be a greenlight for people to do it again.”