Mueller Investigation: Politics, Not Law Enforcement or Counterintelligence

By Andrew C. McCarthy

http://www.nationalreview.com/

December 2, 2017

Former U.S. National Security Adviser Michael Flynn arrives for a plea hearing at U.S. District Court, December 1, 2017. (Jonathan Ernst/Reuters)

Here’s what I’d be tempted to do if I were President Trump: I’d direct the Justice Department to appoint a special counsel to investigate Iran’s efforts to acquire nuclear weapons, including any Obama-administration collusion in that enterprise.

I would make sure to call it a “counterintelligence investigation,” putting no limitations on the special counsel — just as with the investigation that Special Counsel Robert Mueller has been unleashed to conduct into Trump “collusion” with Russia. That is, I would not restrict the prosecutor and investigators to digging for specified criminal violations. Or, indeed, any criminal violations. I’d just tell the special counsel, “Have at it” — with unbound authority to scrutinize the negotiations surrounding the eventual Iran nuclear deal (the Joint Comprehensive Plan of Action).

Would I really expect the special counsel to find that Obama officials conspired with the mullahs to obtain nukes for Tehran? No . . . but hey, as the “Trump collusion with Russia” crowd says, “You never know.” Meantime, under the guise of investigating this highly unlikely “collusion,” I’d want the special counsel to scrutinize closely any variances between what Obama-administration officials were telling Congress and the public about the negotiations and what they were telling the Iranians; to probe any side deals the administration agreed to but failed to disclose to Congress; and to consider whether any laws or policies were violated in such matters as President Obama’s payment of a cash ransom in exchange for American hostages held by Iran.

Why would I do this? Well, because I disagree with Obama-administration foreign policy, of course. Under the Mueller “collusion” precedent, it is evidently now American practice to criminalize foreign-policy disputes under the pretext of conducting a counterintelligence investigation.

It is difficult to come to any other conclusion based on the guilty plea that Mueller just pried out of Michael Flynn.

Let’s think about what has happened here.

The Justice Department did not, as the pertinent special-counsel regulations require, identify specific crimes it suspected had been committed by Trump-campaign officials. Deputy Attorney General Rod Rosenstein disclosed no factual predicate calling for a criminal investigation from which Trump’s Justice Department would be ethically required to recuse itself.

Instead, Mueller’s investigation was rationalized by the need to conduct a counterintelligence inquiry into Russia’s “cyber-espionage” meddling in the 2016 presidential election. Though there was no probable cause to believe Trump-campaign officials had participated in Russia’s hacking (and remember: the FBI and Obama Justice Department had been investigating for months before the special counsel was appointed), Mueller was encouraged to focus on whether Trump-campaign officials somehow “coordinated” in Russia’s perfidy.

Mueller’s investigation was not a criminal investigation. It started out as a fishing expedition, under the vaporous heading of “collusion,” into “contacts” between Russian officials and Trump associates — notwithstanding that collusion is not conspiracy and that it was perfectly legal for Trump associates to have contacts with Russia (just like Clinton associates did). It was to be expected that the Trump campaign and transition would have such contacts once it was apparent that Trump could well become — and did in fact become — the next president of the United States.

Only one conceivable crime could have arisen out of the “collusion” that was the pretext for Mueller’s probe: the knowing complicity of Trump associates in Russia’s hacking of Democratic email accounts. Of course, there was never evidence of such a scheme . . . but why should that matter? The point here was to have the theater of an investigation run by a prosecutor — the rest is just details.

See, we’re not following the normal rules, in which a prosecutor is assigned only after evidence of an actual crime has emerged. We’re in the wooly realm of counterintelligence, where anything goes. And in the event our aggressive prosecutor can’t find any crimes — which would be no surprise, since the investigation was not triggered by a crime — no matter: The special counsel is encouraged to manufacture crimes through the investigative process. Misleading assertions by non-suspects made to investigators probing non-crimes can be charged as felony false statements.

The end game of the investigation is the removal of Donald Trump from the presidency, either by impeachment (which does not require proof of a court-prosecutable crime) or by publicly discrediting Trump to such a degree that his reelection becomes politically impossible. The latter can be accomplished by projecting the appearance of a critical investigation (notwithstanding that there is no underlying crime), turning administration officials into suspects, and hopefully generating the false-statement prosecutions that help depict the administration as dishonest and icky.

While all that plays out, though, behold the frightening thing Mueller’s investigation has become: a criminalization of politics. In the new order of things, policy differences are the grist for investigation and prosecution.

There is no evidence that Flynn or any other Trump associate was involved in Russia’s election interference. Instead, after being elected on the promise of significant policy shifts from the Obama administration, President-elect Trump directed Flynn, his incoming national-security adviser, to make contact with foreign counterparts, including but not limited to officials from Russia. This is standard operating procedure when administrations change — that’s why they call it a transition.

Nevertheless, Trump’s victory caused consternation in the Obama administration for two reasons. First, and most obviously, Obama did not want his policies reversed. Second, neither Obama nor his party could abide a judgment of history holding that the election of Trump, the bane of their existence, was a result of the American people’s rejection of the Obama agenda and of Hillary Clinton, the hapless candidate nominated by Democrats to carry that agenda forward.

Consequently, while projecting a public image of cooperation in the transition, the Obama administration used the weeks following the election to do two things: protect Obama’s priorities from Trump, and promote a political narrative that Mrs. Clinton’s defeat was the result of sinister collaboration between Trump’s campaign and the Kremlin.

One major Obama-administration priority was to solidify the policy of blaming Israel for the enduring Israeli–Palestinian conflict — specifically, downplaying the ideological roots of Palestinian terrorism and framing as the real culprit Israeli settlement-building in disputed territories that Obama, like Israel’s enemies, regarded as illegally “occupied.” Thus, in his administration’s coup de grace, Obama orchestrated a U.N. Security Council resolution condemning Israeli settlement activity — a stark departure (as I wrote at the time) from America’s commitment to Israel’s security and policy of shielding Israel from such U.N. intrigues.

Based on a statement of facts filed by Mueller in connection with Flynn’s guilty plea, we now know that, on December 22, right after this resolution was proposed, a “very senior member” of Trump’s transition team — who has been identified as Jared Kushner, Trump’s son-in-law, in a Bloomberg report by Eli Lake — directed Flynn to contact officials from the various foreign governments on the Security Council, including Russia. Pursuant to these directions, Flynn informed his counterparts that Trump opposed the resolution — which opposition, by the way, Trump was quite clear about publicly. Flynn encouraged them to vote against the resolution, or at least delay it until Trump would assume office in January.

The following day, December 23, Flynn again contacted the Russian ambassador, Sergei Kislyak. As we have noted, Kislyak was the subject of monitoring under the Foreign Intelligence Surveillance Act (FISA), so we should assume the FBI was recording all his conversations with Flynn. Kislyak told Flynn that, despite Trump’s opposition, Russia would not vote against the resolution if it came down to a vote. Some collusion!

As discussed in my column yesterday, Obama imposed sanctions the following week — promoting the “Russia hacked the election” storyline. Kislyak contacted Flynn on December 28, the day Obama signed the relevant executive order. Afterwards, Flynn sought guidance about what to tell the Russian ambassador from “a senior official” on Trump’s transition team — headquartered during the holiday season at Trump’s Mar-a-Lago resort in Palm Beach. Flynn and this official (who, as this is written, has not been identified) discussed how the sanctions might affect Trump foreign-policy goals. The official told Flynn that the transition team did not want Russia to escalate the situation — meaning, to respond too aggressively to Obama’s move.

Flynn immediately called Kislyak, asking that Russia not escalate — that it restrict itself to a measured, reciprocal response (which, we note, is what any American should have wanted). On December 30, Putin announced that Russia would not take retaliatory measures at that time, and the next day Kislyak explained to Flynn that this was done in deference to Flynn’s request. Flynn had made no promises to Russia about the sanctions, but Putin rationally concluded his best shot at getting relief was to refrain from taking retaliatory measures that would make it more difficult for Trump to accommodate him.

Because of surveillance coverage on Kislyak, the Obama administration knew the substance of Flynn’s conversations with the Russian ambassador. The FBI knew there was no suggestion, in any of the activities just described, that Flynn or Trump had anything to do with Russian espionage. There was no evidence that Flynn had committed a crime. There was every indication that the incoming national-security adviser was engaging in transition activities to be expected in preparation for an administration that had foreign-policy priorities very different from Obama’s.

So . . . why did the Obama administration decide to investigate Flynn, resulting in the FBI interview?

I believe the explanation is threefold: (1) to punish Flynn, and derivatively the incoming Trump administration, for opposing Obama’s anti-Israel legerdemain in the Security Council; (2) to promote the political narrative that Russia–Trump collusion had cheated Clinton out of her rightful election victory; and (3) to tie this collusion narrative to sanctions relief, thereby making it politically impossible for Trump to roll back Obama’s sanctions once he was sworn in — a boon for the Democrats’ collusion narrative since the sanctions stand as a reminder of Russia’s election meddling.

The ongoing Mueller probe is not a good-faith investigation of suspected espionage or other crime. It is the exploitation of the executive’s intelligence-gathering and law-enforcement powers in order to (a) criminalize Trump political policies with which the Obama administration disagreed and (b) frame Clinton’s electoral defeat as the product of a traitorous scheme rather than a rejection of Democratic-party priorities.

We can stipulate that General Flynn is a very foolish man. He was not required to speak to the FBI when agents came to interview him on January 24. He is, moreover, the former head of the Defense Intelligence Agency: He had every reason to know that the FBI must have been monitoring Kislyak (and perhaps other foreign officials with whom Flynn was in contact). He had every reason to know that the Bureau must have had recordings of the conversations the agents wanted to ask him about. Astonishingly, he chose to submit to the interview anyway, and to lie. It is fair enough to say that he has no one to blame but himself, and that a person of such poor judgment should not be the president’s principal adviser on national-security matters.

We can also stipulate that the Trump administration will be badly bruised by its deceptive performance, in which ignorance was feigned about whether Flynn discussed the sanctions with Kislyak.

Trump could easily have signaled his disagreements with Obama’s actions. It is not illegal for the incoming administration to undermine the incumbent administration — the Logan Act, which purports to criminalize foreign-affairs freelancing by unauthorized citizens, is unconstitutional and absurd. If it weren’t, Mueller would have charged Flynn with violating it.

It is rightly observed that we have only one president at a time. Thus, it remains unseemly for an incoming administration to undermine the incumbent administration in such an active way — negotiating with foreign powers against the policy of a president who is still lawfully governing. Clumsily doing so ratchets up political heat on transition officials to deny their contacts with foreign officials. In matters of foreign affairs and intelligence, U.S. officials often find it expedient to say one thing in private communications with foreign diplomats and something quite different in public appearances. Just ask Susan Rice, Hillary Clinton, or Barack Obama.

All that said, what is going on here is politics, not law. No sensible person thinks the Trump campaign colluded in Russian espionage. If there were such evidence, I’d be first on line demanding the president’s impeachment and removal. Nor did Trump obstruct the investigation of this non-crime by firing the FBI director — what he did was exhibit incompetence and boorishness. Rather, Mueller’s investigation is a semblance of law-enforcement disguising the brute reality that Trump is being punished for winning the election and defying Obama policy.

If that is the way the game is going to be played, if the purpose of a special-counsel “collusion” investigation is to humiliate the opposition party by exposing its wayward foreign-policy objectives and unsavory horse-trading, then let’s investigate Obama and Iran.

READ MORE:
What the Flynn Plea Means
There Is No Evidence of ‘Collusion’ in Flynn’s Offense Statement
The Trump Collusion Case Is Not Getting the Clinton Emails Treatment

— Andrew C. McCarthy is a senior fellow at the National Review Institute and a contributing editor of National Review.