Im-Politic: Flynn-Flamm

Tags

Barack Obama, collusion, election 2016, FBI, Federal Bureau of Investigation, Im-Politic, James Comey, Justice Department, Logan Act, Michael T. Flynn, Mueller investigation, Russia, Sally B. Yates, Sergey Kislyak, Susan E. Rice, Trump, William P. Barr

So let’s wade right into the (latest) Michael T. Flynn uproar.

Unless you’ve been living under the proverbial rock for the past few weeks, you know that Flynn is the former Army Lieutenant General and head of the Pentagon’s intelligence chief (during the Obama administration) who served briefly as President Trump’s national security adviser. He resigned in February, 2017 after stating that he misled Vice President Mike Pence about the content of conversations he held during the transition period with Russia’s ambassador to the United States. That December, he was indicted by the Special Counsel Robert Mueller’s Trump Russia collusion investigators for lying to the FBI during interviews in January with Bureau agents in the course of their investigation into his activities, and also pled guilty to the charges.

More recently, after Flynn sought to withdraw this plea, Attorney General William P. Barr appointed a career federal prosecutor to review the case, and in light of newly released FBI documents indicating serious irregularities in the Bureau’s handling of the case, Barr agreed to the prosecutor’s recommendation that the case be dismissed altogether. A federal judge will make the final decision.

This summary, though, scarcely begins to do justice to all the ins and outs and other complexities of the Flynn case. Dealing with them would require a  post even longer than this one will be! But one dimension of the case with unusual importance concerns former President Obama’s actions, specifically because of the recent declassification of an email written by his own former national security adviser, Susan E. Rice, about a meeting held among Obama, former Vice President and presumptive Democratic Party presidential nominee Joe Biden, and the former heads of the FBI and Justice Department.

The Obama angle has of course generated claims that his administration’s handling of Flynn and other aspects of its investigation of the Trump campaign’s interactions with Russia amount to a major scandal – which Mr. Trump himself calls “Obamagate” and which others portray as nothing less than an effort to overthrow his presidency. To me, these charges should be looked into, but remain to be proved. (In fact, the Justice Department is probing the entire investigation into Russian election interference and the Trump campaign that took place during the Obama years, and the long-awaited report seems likely to be released before Election Day.)

In the absence of this report, what interests me right now is the question of why Obama didn’t quash the FBI investigation of Flynn during that January 5 meeting – which took place just over two weeks before his presidency officially ended. And the Rice email makes clear just how fishy his decision was.

According to this communication, which Rice sent to herself on Inauguration Day, the January 5 White House meeting was “a brief follow-on conversation” that took place right after Obama, Biden, Acting Attorney General Sally B. Yates, FBI Director James Comey, and Rice were briefed by the leaders of the intelligence community “on Russian hacking during the 2016 Presidential election.” And Flynn was a major subject of the conversation.

Flynn was highlighted due to the former President’s professed determination to (in Rice’s words) “be sure that as we engage with the incoming [Trump] team [during the transition], we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.”

Comey responded (in Rice’s words again), “that he does have some concerns that incoming NSA [national security adviser] Flynn is speaking frequently with Russian Ambassador [Sergey] Kislyak. Comey said that could be an issue as it relates to sharing sensitive information.”

Now comes something really important. Rice continued:

“President Obama asked if Comey was saying that the NSC [National Security Council] should not pass sensitive information related to Russia to Flynn. Comey replied ‘potentially.’ He added that he has no indication thus far that Flynn has passed classified information to Kislyak, but he noted that ‘the level of communication is unusual.’

“The President asked Comey to inform him if anything changes in the next few weeks that should affect how we share classified information with the incoming team. Comey said he would.”

This Obama response is what raises so many questions. First, back in late January, 2017, the Washington Post reported that the FBI “in late December reviewed intercepts of communications between the Russian ambassador to the United States and retired Lt. Gen. Michael T. Flynn — national security adviser to then-President-elect Trump….”

This report was confirmed in the exhibits accompanying the Justice Department’s May 7, 2020 motion to dismiss the charges against Flynn. So apparently, Comey was privy to the Flynn-Kislyak conversations more than two weeks before the January 5 meeting with Obama. During that time, the Rice email states, he reported finding no evidence, or even any “indication,” that Flynn had passed sensitive information to Russia. All he said he uncovered information that he interpreted “potentially” meant that Flynn was untrustworthy.

At least as important, there’s compelling evidence that Obama himself knew the content of the Flynn-Kislyak conversations.  It comes in the form of testimony given by Yates to the Mueller investigators in September, 2017 and described in a September 7 FBI description contained in Exhibit 4 (page 2) of the Justice Department’s motion to dismiss.  She stated that during the January 5 meeting, Obama revealed he had “learned of the information about Flynn,” including not only about the fact that the conversations took place, but about their key subject.

Yates added that Obama at that point specified that he didn’t want “any additional information on the matter” (the FBI’s phrasing) but wanted enough provided (presumably to his aides) to guide the outgoing administration as to whether Flynn could be trusted. In other words, not only does Yates’ testimony add a crucial detail. It also supports the essentials of Rice’s account.

Of course, if the former President was aware of what Flynn and Kislyak discussed, he also must have known that no classified information had been passed to the Russian. Nor according to Rice did he express any other concerns. 

And this episode doesn’t mark the first time that Obama was surely made aware that an FBI investigation of Flynn had turned up nothing legitimately troubling.  For on August 16, 2016, as documented in Exhibit 2 of the motion to disniss, the Bureau began probing whether Flynn, who it identified as a foreign policy adviser to the Trump campaign,

“is being directed and controlled by and/or coordinating activities with the Russian Federation in a manner which may be a threat to the national security and/or possibly a violation of the Foreign Agents Registration Act [which requires any Americans working for foreign government, political parties, individuals, or other principals – though not U.S. affiliates of foreign-owned companies – to register with the Justice Department and report the nature of the relationship].”

Sounds pretty serious, right? Except in a January 4, 2017 memo – presented as Exhibit 1 of the motion to dismiss – the Bureau’s Washington field office reported its decision to close this investigation because the probe could identify “no derogatory information.”  Is it remotely conceivable that no one told the former President?

The story of this particular investigation, however, doesn’t stop there.  The memo not only wasn’t approved.  As the motion to dismiss recounts (page 4), ostensibly because the FBI’s top leaders (including Comey) had learned of the Flynn-Kislyak conversations, they kept the Flynn probe alive – even though, presumably, they knew they contained no incriminating or otherwise disturbing material, or certainly never reported such to Obama, including up to and including the January 5 meeting.    

The transcripts, though, suggested another possibility for nailing Flynn – a possible violation of the the Logan Act.  But this course of action was pretty problematic, too.  This law, dating from 1798 aimed at preventing private American citizens or other legal residents from interfering with the conduct of U.S. diplomacy.

That’s an entirely legitimate purpose. But throughout the entirety of American history, only two individals have even been indicted for violating the act (most recently, in 1853) and neither was convicted.

The FBI’s interest in such possible Flynn transgressions seems to have originated in purported Obama administration worries that before Inauguration Day, Flynn was engaged in such interference on two different fronts – an upcoming United Nations vote to condemn Israel, and a December 29 Obama decision to sanction Russia on the grounds of election interference.

Yet Flynn ultimately wasn’t indicted (and convicted) for anything having to do with the Logan Act, or anything having to do with his Russia conversations or with the UN business. His only alleged crime (to which he pled guilty) was making materially false statements and omissions” to the FBI about these subjects.

At this point, an obvious choice must have confronted Obama – who must have known that the transcripts absolved Flynn of the most serious offense he was suspected of committing – handing major official secrets to the Russians. He could have told Comey that further investigation of Flynn was pointless and to drop the matter – either because more than two recent weeks of surveillance had turned up nothing alarming; or because Flynn would begin serving in the new Trump administration only two weeks down the road, and would then have been entitled to view all the U.S government’s classified information; or because Obama realized that the Logan Act concerns were excuses for further surveillance of Flynn. Or he could have told Comey to continue (because he didn’t care why Flynn was pursued as long as the effort succeeded), along with directing Rice and all other U.S. officials to suspend sharing intelligence concerning Russia (or any other subject) with the Trump team (more out of some motive other than because of any genuine security concerns).

Instead, he told Comey to “inform him if anything changes in the next few weeks” – but also permitted Rice to continue intelligence sharing as normal. We know this because a May 19 statement by Rice’s lawyer on her behalf said that the former Obama aide “did not alter the way she briefed Michael Flynn on Russia as a result of Director Comey’s response.” This outcome, it must be noted, also supports the claim that Obama had no important security concerns about Flynn. All the same, Comey’s pursuit of Flynn remained ongoing.  

Unless Rice defied the President’s instructions despite her lawyer’s claim?  If not, and they were followed, then why didn’t Obama at any point between January 5 and the end of his administration halt the Comey investigation? Unless he did and Comey continued anyway? Possibly because the FBI chief wished to follow the former President’s instructions even after Obama had left office?  Whatever Comey’s motives, his pursuit of Flynn didn’t stop, and led to the January 24 FBI interview with the new national security adviser.      

Interestingly, that session also undercuts the idea that the Obama administration’s beef against Flynn had anything to do with national security.  For a partly declassified version of the FBI’s report on the January 24 meeting shows that neither of the agents who spoke with Flynn even brought up the matter of illegally passing classified or any sensitive information to Kislyak. Their exclusive concerns were Logan Act-related issues.

A final (for now) weird item: In its indictment, the Justice Department contended that “FLYNN’s false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals associated with the Campaign and Russia’s efforts to interfere with the 2016 presidential election.”

But of course, Flynn’s conversations with Kislyak took place after the election, not during the campaign. The only way they could have been related to the Trump campaign collusion allegations would be if they were the result of some secret deals concerning Russia policy made by Flynn or anyone else in the campaign with Moscow. Yet the exhaustive Mueller investigation of these matters found insufficient evidence to charge anyone in the Trump campaign with the crime of conspiring “with representatives of the Russian government to interfere in the 20q6 election.” And Flynn’s activities were included.

As mentioned above, the above analysis by no means exhausts all the questions raised by the Flynn uproar – including about Flynn’s dealings with foreign clients; about whether the FBI agents who interviewed Flynn concluded he was lying, or simply believed that his memory was faulty at time (and whether Comey himself was certain of Flynn’s dishonesty, as per the motion to dismiss, Exhibit 13, pages 3 and 4, and Exhibit 5, page 10, respectively); and about why, if the Obama administration viewed Flynn as a major threat to national security, no one ever told President-elect Trump promptly of their concerns, and instead chose a prosecution route that permitted Flynn to occupy an extremely crucial position for three weeks – and that risked his continuing in that post had he performed more skillfully during his session with the FBI.

Former Obama Acting Attorney General Yates has testified to Congress that she did tell then Trump White House Counsel Donald McGahn that Flynn’s false statements were known by the Russians, and therefore made him vulnerable to blackmail. But this warning wasn’t given until January 26 – six days after Mr. Trump assumed office, and Flynn became national security adviser. 

And then there’s perhaps the biggest Flynn-related mystery of all: whether the next few weeks will see more questions, or more answers.

Im-Politic: Mueller’s Sin of Omission on Obstruction

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Attorney General, collusion, Don McGahn, election 2016, FBI, Im-Politic, impeachment, indictment, James Comey, Jeff Sessions, Justice Department, Michael Flynn, Mueller Report, obstruction of justice, Robert S. Mueller III, Rod Rosenstein, Russia, Special Counsel, Trump, Trump-Russia, William P. Barr

There’s no longer any legitimate doubt: Nearly six weeks after its release, almost no one with any influence on American public policy or public opinion has actually read the publicly available version of the Mueller report on Russian election interference and possible presidential obstruction of justice. And most of those who have read it either didn’t understand it, or are trafficking in misleading descriptions. P.S. Based on his brief farewell remarks yesterday, that list includes Special Counsel Robert S. Mueller III himself.

Those are the only logical conclusions that can be drawn from the continuing insistence that, to quote Mueller, President Trump would have been charged in the report with the crime of obstructing justice but for “long-standing Department policy, [that] a President cannot be charged with a federal crime while he is in office. That is unconstitutional….The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.”

Was Department policy a major determinant of Mueller’s non-indictment decision? Of course. And Mueller made that clear both in his reports and in his brief public statement. But was it the only determinant? And, by implication, given Mueller’s declaration that his report’s findings did not “exonerate” the President on this score, did Attorney General William P. Barr behave improperly by issuing his own determination that, even leaving aside Justice’s presidential indictment policy, Mueller’s investigation did not produce evidence “sufficient to establish” presidential obstruction?

The answer to both questions is clearly “No.” And it’s not even necessary to rely on Barr’s denial, in his March 24 letter announcing the decision reached by he and then Deputy Attorney General Rod Rosenstein, that the determination “was made without regard to, and was not based on, the constitutional considerations that surround the indictment and criminal prosecution of a sitting president.”

It’s not even necessary to believe Barr’s May 1 testimony to the Senate Judiciary Committee that, at a March 5 meeting with Mueller, “in response to our questioning, [Mueller stated] that he emphatically was not saying that but for the [Justice Department policy] he would have found obstruction. He said that in the future the facts of the case against the president might be such that a special counsel would recommend abandoning the OLC opinion, but this is not such a case.”

These Barr statements can be ignored because Mueller’s April 18 report itself not only gathered abundant evidence bearing on the obstruction charge. It declared that it was inconclusive. To quote from the report (Volume II, p. 8. All subsequent page references are to this Volume unless otherwise noted.) “The evidence we obtained about the President’s actions and intent presents difficult issues that would need to be resolved if we were making a traditional prosecutorial judgment.” And the report’s detailed discussions of ten Trump-era potential obstruction of justice episodes makes clear that the difficulties arose precisely because his team found significant evidence on both sides of the issue.

As a result, the most obstruction-friendly conclusion that Mueller and his aides reached was

that “there was a sufficient factual and legal basis to further investigate potential obstruction-of -justice issues involving the President.” (p. 12). In other words, an indictment decision was anything but a slam dunk. And after a protracted probe involving the questioning of literally hundreds of witnesses, all that the Special Counsel could state with high confidence was that a case can be made.

Moreover, the report spent so much time weighing the kind of evidence that would be used in a normal obstruction case that an entire section was devoted to summarizing “the law interpreting the elements of potentially relevant obstruction statutes in an ordinary case. This discussion does not address the unique constitutional issues that arise in an inquiry into official acts by the President.” (p. 9)

The obstacles to indicting Mr. Trump for obstructing justice came through loud and clear in the Mueller report’s analysis of what’s often portrayed as the leading candidate for such a charge – the President’s alleged order to his then White House Counsel Don McGahn to fire Mueller. According to the Mueller Report (on p. 87):

“A threshold question is whether the President in fact directed McGahn to have the Special Counsel removed. After news organizations reported that in June 2017 the President had ordered McGahn to have the Special Counsel removed, the President publicly disputed these accounts, and privately told McGahn that he had simply wanted McGahn to bring conflicts of interest to the Department of Justice’s attention….Some of the President’s specific language that McGahn recalled from the calls is consistent with that explanation. Substantial evidence, however, supports the conclusion that the President went further and in fact directed McGahn to call Rosenstein to have the Special Counsel removed.”

It’s perfectly valid to note that the “substantial evidence” cited here surely outweighed in Mueller’s mind the evidence about presidential language recalled by McGahn – evidence that wasn’t even given an adjective. Yet readers are told that even the substantial evidence simply “supports a conclusion.” And there may be less to that conclusion than meets the eye. For couldn’t the presidential order to McGahn to call Rosenstein have reflected the same concerns about Special Counsel team conflicts of interest?

On the question of intent, which matters greatly in obstruction cases, Mueller wrote (p. 89) that “Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

I’m not a lawyer, but could someone please explain to me why that “substantial evidence” is so all-fired incriminating? And as for this claim (p. 90) – “There also is evidence that the President knew that he should not have made those calls to McGahn” – that doesn’t exactly strike me as “Lock him up” material.

Muddying the waters even further are the aspects of possible obstruction-related episodes for which the Mueller Report presents no judgment on the evidence in terms of adjectives or other descriptions.

For example, regarding the President’s conduct with respect to the investigation of his (quickly fired) national security adviser Michael Flynn during the transition period, the report simply states (pp. 46-47):

“As part of our investigation, we examined whether the President had a personal stake in the outcome of an investigation into Flynn-for example, whether the President was aware of Flynn’s communications with [Russian Ambassador to the United States Sergey] Kislyak close in time to when they occurred, such that the President knew that Flynn had lied to senior White House officials and that those lies had been passed on to the public. Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge….

“Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017. The evidence also does not establish that Flynn otherwise possessed information damaging to the President that would give the President a personal incentive to end the FBI’s inquiry into Flynn’s conduct.

“Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.”

No bottom line is presented.

Similarly (p. 154), the report’s discussion of the “nexus” issues raised by presidential conduct toward his former lawyer and all-around fixer Michael Cohen (focusing on the obstruction-relevant possibility that an individual being investigated knew that certain actions could bear on certain official proceedings ranging from judicial or grand jury actions to Congressional probes) simply observed:

“The President’s relevant conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.”

One powerful overall conclusion, though, can easily be reached after reading the entire Mueller Report, and it bears on the crucial obstruction-related consideration of whether an individual acted with corrupt intent. As Barr observed in a May 17 interview with Fox News, Mr. Trump’s actions sprang from the genuine – legally non-corrupt – conviction that Mueller’s investigation of his record, along with the Obama administration’s surveillance of his campaign and the presidential transition, was a “witch hunt and a hoax.”

Continued Barr:

“[A]t the time, he was saying he was innocent and that he was being falsely accused. And if you’re falsely accused, you would think [it] was a witch hunt. … He has been hammered for allegedly conspiring with the Russians. And we now know that was simply false…. I think if I had been falsely accused, I’d be comfortable saying it was a witch hunt.”

At least as important, the Mueller Report itself supports this interpretation in many instances. For example:

“[U]nlike cases in which a subject engages in obstruction of justice to cover up a crime, the evidence we obtained did not establish that the President was involved in an underlying crime related to Russian election interference. Although the obstruction statutes do not require proof of such a crime, the absence of that evidence affects the analysis of the President’s intent and requires consideration of other possible motives for his conduct.” (p. 7)

“Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election.” (p. 47)

“[Then Attorney General Jeff] Sessions said he had the impression that the President feared that the investigation could spin out of control and disrupt his ability to govern, which Sessions could have helped avert if he were still overseeing it. (p. 51)

“On Saturday, March 25, 2017…the President called [Director of Intelligence Daniel] Coats and again complained about the Russia investigations, saying words to the effect of, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” (p. 56)

“In addition to the specific comments made to Coats, [the CIA Director Mike] Pompeo, and [then National Security Agency Director Admiral Michael] Rogers, the President spoke on other occasions in the presence of intelligence community officials about the Russia investigation and stated that it interfered with his ability to conduct foreign relations.” (p. 57)

“The evidence shows that the President was focused on the Russia investigation’s implications for his presidency- and, specifically, on dispelling any suggestion that he was under investigation or had links to Russia.” (p. 61)

“Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on [then FBI Director James] Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.” (p. 61)

President Trump “told Comey that ‘he was trying to run the country and the cloud of this Russia business was making that difficult.'” (p. 61)

“The President…told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.” (p. 62)

“According to [then White House adviser Stephen K.] Bannon, the President said the same thing each time: ‘He [Comey] told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.'”

“We also considered why it was important to the President that Corney announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia.” (p. 76)

“The President wanted Sessions to disregard his recusal from the investigation, which had followed from a formal DOJ ethics review, and have Sessions declare that he knew ‘for a fact’ that “there were no Russians involved with the campaign” because he ‘was there.’ The President further directed that Sessions should explain that the President should not be subject to an investigation ‘because he hasn’t done anything wrong.'” (p. 97)

“[T]he President knew that the Russia investigation was focused in part on his campaign, and he perceived allegations of Russian interference to cast doubt on the legitimacy of his election.” (p. 97)

“[T]he evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election….” (p. 157)

As I wrote in an April 21 post, I believe that, because he had no reason to believe that a nearly complete version of his report (whose only required audience was the Attorney General) would be made public, Mueller acted perfectly appropriately in including a judgment that his investigation did not exonerate Mr. Trump on the obstruction question. For he was trying to impart information to Barr.

But Mueller has done the country a grave disservice by stressing the Constitutional barriers to indicting the President on this score. His report plainly demonstrates that he and his staff spent enormous amounts of time probing the traditional legal bases for an obstruction charge, and found considerable evidence to support decisions both to indict and not indict had Justice Department policy permitted such a step to be considered. And his farewell remarks yesterday were an inexcusable missed opportunity to clarify these matters.

As for Barr’s decision to file no obstruction charges, he and Rosenstein just as plainly saw the amount of evidence supporting such a conclusion, and quite reasonably judged that the obstruction allegations could not be proved “beyond a reasonable doubt” had Justice’s reading of the Constitution permitted a case to be brought. Moreover, as Barr’s May 17 press interview demonstrates, he believed that the President’s relevant words and deeds stemmed from his conviction that he was being framed – a conviction borne out by Mueller’s findings not only that the evidence was “not sufficient to support criminal charges” on any grounds against any Trump campaign officials who had contacts with the Russian government, but that no members of the campaign had “coordinated with the Russian government in its election interference activities.” (Vol I, pp. 9,2)

Now that Mueller’s investigation is finally, officially, totally over, Congress, of course, has every Constitutional right to launch impeachment proceedings. For impeachment charges can properly include deeds that are not strictly speaking crimes. But it’s crucial to note that, from a legal standpoint, Mr. Trump is now in the clear. And although technical objections like Mueller’s can be raised to the President’s “no collusion, no obstruction claims,” his own report shows that they’re more than accurate enough.

Following Up: Hate Crimes, Trump, and New FBI Data

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African Americans, anti-semitism, FBI, Federal Bureau of Investigation, Following Up, hate crimes, Hispanics, illegal aliens, Islamic terrorism, Jews, Latinos, Muslims, neo-Nazis, Pittsburgh synagogue shooting, racism, Trump, white nationalists, xenophobia

Right after last month’s Pittsburgh synagogue murders, I wrote a post that used FBI hate crimes data to cast doubt on President Trump’s direct or indirect culpability – but closed by noting that the Bureau would soon be issuing numbers that bring the story up to 2017.

“Soon” arrived this week, and the new statistics do provide evidence for a “Trump effect” on hate crimes overall, and on the incidence of anti-semitic hate crimes in particular. At the same time (and I know Never Trump-ers won’t want to see this), much of the evidence is considerably mixed, especially when it comes to the charge that, as presidential candidate and chief executive, Mr. Trump has “activated” violent anti-Semites and other bigots – i.e., he’s emboldened all of them to turn their hatred into attacks on their target groups.

To base my analysis on more data than used in that previous post, I’ve gone back to each of the 2000-2005 years, and continued examining the numbers for each year through 2017. I’ve also looked at two different categories of data that logically shed the most light on these issues – the number of total known incidents for each of these years, and the number of total known offenders. (I also counted up the numbers of victims, but believe that, even though they track well with the other two data sets, they tell us a good deal less about the activation charge. So for brevity’s sake, I’ve left them out.)

The annual figures on total hate crimes incidents typify most of the patterns. The strongest evidence for the Trump effect consists of the changes in the number of incidents and offenders for 2015-2016, and 2016-2017. Recall the Mr. Trump declared his candidacy for president in June, 2015.

Between 2015 and 2016, the incidents figure rose by 4.63 percent, and then jumped by 17.22 percent the following year. The 2016-17 increase was the biggest in percentage terms since that between 2000 and 2001 (a 20.67 percent surge that partly consisted of reactions to the September 11 terror attacks in 2001).

Here, however, is where the activation narrative starts to lose some force. Principally, the 2015-2016 increase was much smaller than that recorded between 2005 and 2006 (7.80 percent). Was then-President George W. Bush unwittingly or not encouraging extremists? Were they becoming activated in opposition to some of his policies, like the Iraq War? The overall hate crimes numbers don’t yield any obvious answers, but clearly among some groups, national tempers were flaring back then.

Another complication: The absolute 2017 number of hate crimes – like the 2016 number – was the biggest in several years. Indeed, 2017’s 7,175 total hate crimes was the highest figure since 2008’s 7,783. But think about that for a moment. It means that the 2008 number was (significantly) higher. So were its counterparts for each year since 2000. Were those years of greater Presidential activation?

It’s tempting to blame a “September 11” effect during those years. Yet the figure for 2000 – the year before the terror strikes – was much higher (8,063) than 2017’s as well.

The offender numbers are even more puzzling from the activation standpoint – since presumably they’re the individuals being activated. They did rise by 14.46 percent between 2014 and 2015 – which covers the first six months of the Trump presidential campaign. But between 2015 and 2016 – when he was running all year and clearly was much more prominent in the national consciousness – the number of offenders actually declined by 2.91 percent.

The following year, Mr. Trump’s first in the Oval Office, offender numbers shot up again – by 10.40 percent. That increase, however, wasn’t that much larger in percentage terms than the rise during the Barack Obama year 2012-2013 (9.06 percent).

Further, looking at the makeup of these numbers (in terms of the target groups) produces even bigger mysteries. Specifically, that big 17.22 percent increase in the total number of hate crimes between 2016 and 2017 was keyed largely by a 37.13 percent jump in incidents targeting Jews. Consequently, the 2017 total reached 938 – the highest figure since, again, 2008 (another George W. Bush year). But as with overall incidents, this means that the 2008 figure (1,013) topped that for 2017 by an impressive margin. In addition, the 2017 total was exceeded no less than six times in all between 2000 and 2008.

More puzzles emerge from the offenders figures. The number targeting Jews increased 8.79 percent between 2015 and 2016, and by 24.23 percent between 2016 and 2017. The absolute numbers for those years (421 and 523, respectively) are also the two highest during the 2000-2017 period. So these figures also seem to bear out the accusation that President Trump has coddled neo-Nazi/”white nationalist” types in various ways and bears some responsibility for their crimes.

But leave aside the objections that Mr. Trump has welcomed Jews into his family, has worked with them in numerous ways during his business career, and has been a staunch supporter of Israel (all of which has enraged some of those neo-Nazis). Why did the numbers of anti-semitic perps skyrocket by 69.40 percent between 2012 and 2013?

Something else that doesn’t dovetail with the activation charges: Although candidate and President Trump have been accused of stoking racism and xenophobia along with anti-Semitism, the data indicate that any Trump effect in regard to African-Americans and Muslims has been much more muted.

The number of incidents figures show that reported hate crimes targeting Muslims nearly doubled between 2014 and 2015 (from 154 to 294), and then climbed by another 21.77 percent the following year. Maybe candidate Trump’s calls for a ban on Muslim immigration into the United States and for registering Muslims in a national data base deserve lots of blame? Possibly. But then why would anti-Muslim hate crimes have dropped by 7.54 percent in the President’s first year in office – when the Muslim ban effort was a top priority, and front-page news, for months.

Moreover, despite the belief that Mr. Trump’s support of “birther” claims against former President Obama, and a 7.65 percent increase in hate crimes against blacks between 2014 and 2015, these numbers have stayed virtually flat over the course of the President’s main campaigning year and his first year in office.

Evidence for Trump-ian activation that’s more compelling comes from the data on anti-Hispanic hate crimes. The numbers of incidents and offenders both rose strongly – by a record 42.73 percent for the former and by 29.21 percent for the latter between 2016 and 2017, when the President kept immigration issues front and center. As with so many of the other statistics, however, the latest absolute Trump Era numbers for both categories remains way below many pre-Trump annual levels.

That’s why it seems reasonably clear to me that the main driver of the hate crimes data isn’t presidential activation, and that it may not be a major influence at all. What are some possible alternative causes? In many cases, real world events. Two examples: First, the numbers of anti-Muslim hate crimes and violent haters arguably rose so robustly from 2014 on because that period has been marked by a shocking number of fatal terrorism strikes launched by Islamic extremists in both the United States and in Europe.

Second, the anti-Hispanic counterparts of these figures were so much higher during the previous decade than they are today because those years featured mounting efforts by the Open Borders lobby – including an unprecedented wage of protest and other forms of activism by illegal immigrants themselves – to demand more rights and government benefits for this illicit population.

This explanation doesn’t seem to apply to the levels and growth rates of anti-semitic hate crimes. But then again, this form of bigotry isn’t often called “the oldest hatred” for nothing. (Racism of course has been an historical constant as well in America and elsewhere.) 

It should go without saying (but maybe not in these highly charged and polarized times) that none of the events and developments cited immediately above can ever justify hate crimes or similar bigoted actions and beliefs. Nor does it signal a belief that the President has handled these incidents on his watch acceptably. As I’ve written repeatedly, he hasn’t. But what should be clear is that anyone seeking to understand anti-semitic and other hate crimes needs to look far beyond the White House.

Im-Politic: Before You Blame Trump for Pittsburgh….

Tags

alt-right, anti-semitism, bigotry, FBI, Gab, Hebrew Immigrant Aid Society, HIAS, Im-Politic, Immigration, Jews, letter bombs, Open Borders, Pittsburgh synagogue shooting, political violence, refugees, Robert Bowers, Trump, xenophobia

Yesterday morning’s Pittsburgh synagogue shooting hit home especially hard for me – and not just because many of the victims, and the clear targets, were fellow Jews. I also attended college with numerous students from the Squirrel Hill neighborhood where the atrocity took place, and recently learned that a professional friend hales from there as well. I’m no longer in touch with the folks from college, but for all I know some of the victims were their friends or loved ones. And although I’ve never visited the neighborhood itself, the descriptions I’ve heard suggest that other than being a little more urbanized, it’s not so different from the one I’m from on the north shore of Long Island.

Then there are the political and public policy angles: Apparent murderer Robert Bowers was an active participant on the alt-right and highly xenophobic social media platform Gab, and was especially infuriated by the activities of HIAS, (the Hebrew Immigrant Aid Society) a Jewish group that seeks to assist immigrants, refugees, and other newcomers to the United States. I’m a strong supporter of President Trump’s efforts to reduce illegal immigration and control more tightly some forms of illegal immigration. But as I’ve written before, his words on immigration and other issues have too often been unnecessarily inflammatory or insensitive or simply clueless.

(I’m much less ambivalent about claims that Mr. Trump has singlehandedly pushed American politics in general into a more violent phase with his often harsh attacks on Democratic party and other political opponents. Yes, the accused sender of his week’s letter bombs sent to some of these figures over the last week is a Trump supporter. But it’s time for the Trump critics to start recognizing how their own over-the-top and often even harsher language has played a role in generating acts like the attempted mass shooting of Republican members of Congress in the Washington, D.C. area in June, 2017.)

But before anyone starts viewing the Pittsburgh shooting as a reason for fully embracing an Open Borders agenda for the Western Hemisphere, and for refugees from the Middle East, and making even louder calls demonize Mr. Trump as a Hitler-in-waiting, or white supremacist apologist, or dog-whistler to racists and fascists, and/or to impeach him for this supposed record, they should consider this newspaper paragraph:

“Stunned congregants rallied in prayer to a bullet-pocked, swastika-smeared synagogue today as police pursued a hate-crime motive in the [Pittsburgh-area] shooting rampage that left five people dead.”

No, this isn’t an early report of yesterday’s murders. It’s the lead from a newspaper account of a spree of anti-semitic (and racist and xenophobic) killings and vandalism in the Pittsburgh suburbs in April, 2000. That’s a decade-and-a-half before President Trump’s inauguration, and almost as long before he announced his White House run. To refresh your memory, the chief executive then was Bill Clinton. And the list of presidential primary candidates for Democrats and Republicans alike wasn’t exactly dominated by extremists, and those considered outside the mainstream of either party (like Patrick J. Buchanan) didn’t get very far. Yet according to FBI data, that year was actually tied for the highest number of annual anti-semitic hate crimes for the 1996-2016 period. (The Bureau’s 2017 data will probably be coming out a bit later this year.)

In other words, anti-semitism in the United States is nothing new, violent anti-semitism in the United States is nothing new (remember the attack at the Overland Park, Kansas Jewish Community Center of 2014 – also well before the Age of Trump – although none of the white supremacist’s victims was Jewish), and even violent anti-semitism in the Pittsburgh area is nothing new.

It’s completely appropriate to voice outrage at the killer and the mail-bomb sender, about anti-semitism, and about bigotry and unreasoning hatred, about politically motivated violence of all kinds (nothing new in American history, either – as presidential assassinations alone should make all too clear), and about incendiary speech from all manner of U.S. leaders. But those insisting that the nation would be free of such problems if only Mr. Trump had never run for president may have some unreasoning hatred issues of their own.

Im-Politic: Why Senate Dems Should be Ashamed…& Kavanaugh Should Go

Tags

Brett Kavanaugh, Christine Blasey Ford, Deborah Ramirez, Democrats, FBI, Im-Politic, Jeff Flake, Julie Swetnick, Mark Judge, Republicans, Senate Judiciary Committee, sexual assault, Supreme Court, Trump

Thanks to Jeff Flake, I get to write about the Kavanaugh firestorm again well before I wanted to. On Friday, for readers leading hermitic lives, the retiring Arizona Senator and Republican member of the Judiciary Committee announced his conditional decision to support the nomination of Brett Kavanaugh to the Supreme Court. The result was Committee approval, but only pending the findings of a week-long FBI probe of one and possibly two of the sexual misconduct charges leveled against the federal judge.

This compromise leaves me more convinced than ever that, as I first posted on September 19, the only solution to the Kavanaugh uproar consistent with American democratic values and procedures is a political solution. In other words, because it will not be possible to determine Kavanaugh’s guilt or innocence with a degree of confidence that would satisfy any (remaining!) open-minded observers, a decision needs to be made by Senators with the information they already have at hand – and thereby forcing them to face whatever political consequences result.

At the same time, the weight of the evidence now tells me that, for the good of the country, the least worst of a series of remaining alternatives that are absolutely terrible is that someone other than Kavanaugh fill the Court seat that’s currently open.

Regarding the FBI probe, I have no objection to the kind of short investigation by the Bureau of the Kavanaugh allegations successfully demanded by Senate Democrats. But the the chances of conclusively establishing the decisive facts seem slim at best. For example, it’s not possible to demonstrate Kavanaugh’s innocence versus Christine Blasey Ford’s charges without hard evidence (e.g., a photograph, some contemporaneous restaurant or store receipt) showing Kavanaugh’s location the night of the assault because Ford does not remember which night it was. That’s not a criticism of her; it’s simply a fact that unavoidably complicates such matters.

In principle, Mark Judge, the Kavanaugh friend that Ford claims was the third person in the room during the assault, could change his story and attest to her claims about the judge’s behavior. But simply since such an about-face would expose Judge to legal jeopardy, how plausible is that scenario? Similar problems could face the other party attendees identified by Ford if they changed their varying claims of ignorance of the alleged incident. And even in the absence of prosecution, how credible would such actions leave them in the court of public opinion?

There are two other big potential problems with an FBI investigation – long or short. First, it wouldn’t take place in a vacuum. Interviewees of both Kavanaugh and Ford would have plenty of context – and therefore plenty of incentive to offer claims of all kinds expressly intended to support or discredit either one. And although lying to the FBI is often a criminal act, it doesn’t take an especially active imagination – especially in the current, politically charged atmosphere – to think of many statements that would be impossible to prove or disprove. Nor is it remotely difficult to believe that all manner of Kavanaugh accusers would suddenly emerge, especially since the Bureau accepts anonymous information.

Second, how out of character would it be for Kavanaugh opponents to complain, despite agreeing with the time frame, that it was inadequate after all? That all possible and even likely leads hadn’t been run down? That new witnesses need to appear in public before the full Committee after all? (P.S. – even though Judge has given a sworn statement, since he is the only eyewitness identified by Ford other than Kavanaugh, and as a result is in a class by himself when it comes to her accusations, I believe he should have been subpoenaed last week).

Many Kavanaugh opponents contend that the charges leveled by Deborah Ramirez and Julie Swetnick merit an investigation, too. The former’s lawyer has confirmed that the FBI has contacted his client about her allegation that  Kavanaugh shoved his genitals into her face at an alcohol-drenched gathering both attended as Yale University freshmen. I explained on Wednesday why I regard Ramirez’ case as significantly weaker than Ford’s. 

As for Swetnick, even disregarding new evidence of serious challenges her own credibility would face (see, notably, here and here), the more I think about her story, the less plausible it seems – even though her statement is sworn as well, and exposes her to prosecution if challenged. Principally, it appears profoundly improbable that the kind of regular mass rape activity she depicts could have been kept so secret for so long, especially among the families of affluent DC-area private school students who, as I know from first-hand observation, genuinely do comprise a series of very close-knit communities. Therefore, it’s at least as improbable that Kavanaugh’s involvement would have escaped the FBI’s notice during the background checks it’s conducted in connection with his several government appointments. (By contrast, it is entirely plausible that the type of incident Ford has described could be kept secret. After all, she’s not claiming any repeats, and the number of attendees at that single gathering was much smaller.) 

In fact, partly for that reason, Ford’s case is looking stronger to me all the time. It’s clear to me, anyway, that the Democrats (including her lawyers) are shamefully exploiting her situation. It’s equally clear that they’re playing for time, in hopes that they’ll win back control of the Senate and thus gain the ability to block any Trump judicial nominees of any kind. In particular, it’s clear that the Democrats only decided to leak Ford’s name to the press – and thereby enhance the credibility of her story – only after they became convinced that Kavanaugh was headed for Committee and then Senate approval.

But, as I explained last Saturday, none of those considerations invalidate her claims. Nor, in this vein, can I identify any realistic motive for her to be lying. Even if she’s a fanatic Democrat or progressive, her actions have unmistakably subjected her and her family to the ugliest and most fearful kinds of hounding and harassment – harassment that nowadays could easily turn violent. It’s admittedly possible that she was happy to help an anti-Kavanaugh conspiracy, and “take one for the cause,” by fabricating her tale. ” But I’m glad I don’t have to make that argument.

Moreover, unlike Ramirez, Ford can point to a sworn statement from her husband maintaining that she mentioned Kavanaugh as her assailant back in 2012. One other statement, from a friend, says that this past June, nine days before the announcement of Kavanaugh’s nomination, in response to the friend’s question, she specified Kavanaugh as the federal judge she had initially told him in 2016 had assaulted her in high school. A third friend has stated (also under oath) that Ford told her in 2013 of a high school assault on her by a federal judge, though the judge was not named. (See here for a summary of these statements.) 

If strong evidence refuting or strongly challenging any of this comes out in the next week, or whenever, then clearly I’ll need to rethink my conclusion.

Nonetheless, the actions of many Democrats in this Kavanaugh stink hardly persuade me that justice will have been done if his nomination is defeated – much less that the good of the nation will have been served. Quite the contrary. Their readiness to label him a sexual criminal based simply on Ford’s then-anonymous accusation shows that the bar for such charges has now sunk appallingly low, and that the chances of their success have now become appallingly high. (That’s why I completely sympathize with South Carolina Republican Senator and Judiciary Committee member Lindsey Graham’s diatribe against his Democratic colleagues.)

Consequently, there is reason for concern that the kinds of individuals that everyone should want in public service will refuse to take the risk of being Kavanaugh-ed. In other words the party has paved the way for successfully weaponizing slander in connection with sexual misconduct. At least as bad, in the process, for the reasons stated above, participating in FBI background checks might be successfully weaponized, too. The ease of libeling the subject has become too great, and the odds of paying the price too meager.

Yesterday, in an effort to balance some of the various competing considerations, I suggested on Twitter that, following the FBI probe (and assuming its failure to shed much more light on the allegations), that the Judiciary Committee and full Senate proceed promptly to votes. Then, and assuming that Kavanaugh won, that he withdraw his name from consideration. This outcome, I hope, might prevent the Supreme Court’s legitimacy from becoming fatally weakened – both because a critical mass of the public will never trust him no matter what; because he’s sadly tarnished his own credibility with too many sworn statements that raise too many consistency questions and might even be perjurious; and because his latest testimony has exposed too much evidence of excessive partisanship.

Yet a Kavanaugh withdrawal will still enable President Trump to exercise his entirely valid Constitutional right to nominate another conservative who shares his judicial philosophy. Indeed, this act of selflessness might bolster a follow-on nominee’s chances of success by shielding him or her in the public eye from especially scurrilous tactics, and possibly curbing some of the Democrats’ mud-slinging instincts. It might also go far toward repairing Kavanaugh’s image.      

But whether this idea is picked up or not, the American political system designates Senators the ultimate arbiters of nominations like Kavanaugh’s. At this point, I see no acceptable way forward other than permitting them to do their jobs – and then trying to figure out how to replace a Supreme Court nomination process that has become irreparably broken.   

Im-Politic: Deconstructing Obstruction of Justice

Tags

Constitution, Dianne Feinstein, FBI, high crimes and misdemeanors, Hillary Clinton, Im-Politic, impeachment, James Comey, James Lankford, James Risch, Marco Rubio, Michael J. Flynn, obstruction of justice, removal, Russiagate, Senate Select Committee on Intelligence, Trump

There have been so many important economic and foreign policy stories to write about these days, and certainly RealityChek will be covering lots of them. But this of course is #ComeyDay, as they’ve said on Twitter, and I thought the most useful item I could post today would focus on one of the central questions raised by the Russiagate controversy: Has President Trump committed an impeachable offense?

Before beginning, though, it’s vital to recognize that although the Constitution provides for impeachment (and removal – they’re two separate matters) of government officials, including the president, on the grounds of “high crimes and misdemeanors,” the Framers never defined this term. Not surprisingly, legal specialists have made any number of convincing arguments for infusing these words with some specific content. But at least based on this Congressional Research Service survey, the consensus seems to be that “high crimes etc” mean anything that a majority of the House of Representatives (which impeaches) and two-thirds of the Senate (which conducts the trial, and whose guilty verdict on any specific charges, or “articles” results in removal from office) believe it means.

So legally and Constitutionally speaking, the debate on whether the president is guilty of the specific crime of obstruction of justice is beside the point. Politically speaking, though, finding this kind of actual violation of criminal law would make impeachment and removal votes much easier to justify for lawmakers when they face the electorate.

The main evidence so far in favor of an obstruction charge consists of two claims made by Comey under oath in his opening statement today to the Senate Select Committee on Intelligence. First, according to the former FBI Director, in a one-on-one February 14 Oval Office meeting, Mr. Trump made the following comments about the bureau’s probe of former White House national security adviser Michael J. Flynn:

“‘He is a good guy and has been through a lot.’” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, ‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.’”

Second, in phone calls with the president on March 30 and April 11, Comey said Mr. Trump referred to a “cloud” that was undermining presidency’s agenda that he wanted Comey’s help in lifting. In the first phone call, according to Comey,

“the President called me at the FBI. He described the Russia investigation as ‘a cloud’ that was impairing his ability to act on behalf of the country. He said he had nothing to do with Russia, had not been involved with hookers in Russia, and had always assumed he was being recorded when in Russia. He asked what we could do to ‘lift the cloud.’ I responded that we were investigating the matter as quickly as we could, and that there would be great benefit, if we didn’t find anything, to our having done the work well. He agreed, but then re-emphasized the problems this was causing him.”

Comey added that President Trump “finished by stressing “the cloud” that was interfering with his ability to make deals for the country and said he hoped I could find a way to get out that he wasn’t being investigated.”

In the April 11 call, Comey stated that Mr. Trump

“asked what I had done about his request that I ‘get out’ that he is not personally under investigation. I replied that I had passed his request to the Acting Deputy Attorney General, but I had not heard back. He replied that ‘the cloud’ was getting in the way of his ability to do his job. He said that perhaps he would have his people reach out to the Acting Deputy Attorney General. I said that was the way his request should be handled. I said the White House Counsel should contact the leadership of DOJ to make the request, which was the traditional channel.”

It seems clear, therefore, that the “cloud” references concerned the president’s belief that Comey should have informed the public that he personally was not being investigated by the FBI for anything. That is, it had nothing to do with the Russiagate investigation or the separate Flynn investigation. And responding to separate questions from California Democrat Dianne Feinstein and Florida Republican Marco Rubio, Comey explicitly agreed.

The question still remains, however, of whether Mr. Trump’s Flynn comments constitute obstruction. At this point, definitive answers aren’t possible. For one, the president’s personal attorney has denied Comey’s claim that any such Flynn-related statements were made at all. For another, as all the legal community seems to agree, obstruction of justice is a complicated act consisting of numerous criteria that need to be met. But what’s certainly noteworthy for the time being is what Comey himself has said about the matter – and what he hasn’t said.

It’s important to observe that Comey at one point did indeed tell the Senate panel, that although he found the Flynn remarks “very disturbing, very concerning,” he also said

“I don’t think it’s for me to say whether the conversation I had with the president was an effort to obstruct….that’s a conclusion I’m sure the special counsel will work towards to try and understand what the intention was there, and whether that’s an offense. “

Considering Comey’s willingness to expound at great length last July on Democratic presidential candidate Hillary Clinton’s innocence of the charge of criminally mishandling classified information on her personal server, that sounds coy at very best.

In addition, Comey was given repeated chances to characterize the Flynn statements as obstruction. For instance, Idaho Republican James Risch asked him whether the president “directed” or “ordered” him to “let it go.” Comey responded, respectively, “Not in his words, no” and “those words were not an order.”

Comey then added that “I took it as a direction” because “this is a president of the United States with me alone saying I hope this. I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”

Also pertinent: In response to a question from Rubio, Comey said that President Trump never asked him to “let go” the Flynn investigation after the February 14 meeting. Moreover, Comey told Republican James Lankford of Oklahoma that neither any White House nor Justice Department staffers, nor the heads of any of the intelligence agencies ever mentioned to him dropping the Flynn probe.

As Lankford concluded: “The key aspect here is if this seems to be something the president is trying to get you to drop it, it seems like a light touch to drop it, to bring it up at that point, the day after he had just fired Flynn, to come back here and say, I hope we can let this go, then it never reappears again.”

Keeping in mind that other shoes could always drop, that’s an observation I hope will remain front and center as the Russiagate probes – and press coverage – drag on.

Im-Politic: Why Russiagate Could be a Never-Ending Story

Tags

2016 election, Daniel Coats, Democrats, FBI, Im-Politic, intelligence, intelligence community, James Comey, Mark Warner, Michael S. Rogers, National Security Agency, Russiagate, Senate Select Committee on Intelligence, Trump

This morning’s Senate Select Committee on Intelligence hearings on some of the Russiagate scandal charges preoccupying Washington remind Americans once again how determined most Democrats are to continue what looks like a politically inspired, open-ended fishing expedition.

Don’t get me wrong: Russia’s interference with the 2016 presidential election (and apparently others before it) is a national security threat of the first order. Stronger official U.S. responses than we’ve gotten so far are essential. Moreover, since any Russian cooperation offered on common problems such as fighting terrorism isn’t an act of charity, and serves Russian interests, such sanctions need not upend such joint efforts.

At the same time, the intelligence community issued the public version of what it’s discovered months ago. It’s fine for Congress to conduct its own probes, but it’s unclear what Capitol Hill will find out about Moscow’s meddling that the CIA etc don’t already know.

In addition, of course it’s essential to know if President Trump or anyone connected with him or his campaign “colluded” with the Russians in this election interference, or if the chief executive and/or associates has tried to impede the executive branch probe of this subject that are underway. It’s also clear that not all the facts are in – or at least publicly divulged.

But I’m more convinced than ever that Democrats generally, for the foreseeable future, aren’t likely to take any official “No’s” for answers having just seen Virginia Senator Mark Warner query National Security Agency chief Admiral Michael S. Rogers and Director of National Intelligence Daniel Coats on reports that Mr. Trump tried to persuade them, respectively, to deny the existence of any collusion, and to intervene with Trump-fired FBI chief James Comey to “back off” an aspect of the agency’s Russiagate work.

After all, as I’ve written, though the Russiagate uproar has now lasted for months. But although President Trump’s opponents in the intelligence community clearly have absolutely no compunction about leaking the most sensitive national security material to cripple his administration, they’ve produced absolutely nothing in the way of a collusion smoking gun.

Today, Warner directly asked Rogers and Coats to confirm or deny those Trump interference charges – which of course raises the question of whether from now on, taxpayer funds are going to be spent running down every anonymously sourced allegation produced by every organ of the Mainstream Media. But whether you think this is a good use of lawmakers’ time or not, bear in mind how Rogers and Coats answered: Although both refused to disclose the details of any specific conversations they’ve had with the president, both also denied ever in their careers (including this year) having been asked or pressured to do anything improper regarding an investigation in progress.

Warner’s response? (And he’s far from one of the Democratic Party’s Maxine Waters-like yahoos.) “[H]e was ‘disappointed’ with the officials’ answers. He told Rogers the committee had ‘facts’ that other individuals were aware of his conversation with Trump and that a memo had been written about it.” But did Warner then go on to reveal those “facts”? No.

On Thursday of course Comey himself will appear before the Senate Intelligence Committee. In fact, the panel has just released his opening statement. My first read – and the reaction of the Twitterverse, for what it’s worth? No smoking gun confirming obstruction of justice charges – though Comey did describe his view of a key conversation with the president as “very concerning.” No matter. Based on his performance today, I expect Mark Warner and most of the rest of his party to make sure that Russiagate remains the (manufactured) political gift that keeps on giving.

Im-Politic: Initial Thoughts on the Trump Wars

Tags

2016 election, Andrew McCabe, Director of National Intelligence, FBI, hacking, Hillary Clinton, Im-Politic, impeachment, intelligence community, James Clapper, James Comey, John McCain, Justice Department, Lindsey Graham, Loretta Lynch, Michael T. Flynn, Richard M. Nixon, Russia, Russiagate, Sally Yates, The New York Times, The Washington Post, Trump, Wategate

Since I’m not a Trump or intelligence community insider, I’ve refrained from posting any items on the last crisis that began surrounding the administration starting with the president’s firing of James Comey as FBI Director. (I have commented on some aspects briefly on Twitter.) But since I’m a strong supporter of many positions championed by Mr. Trump both during the campaign and – to a lesser extent – in the White House, I thought that RealityChek readers would be interested in some observations about aspects of the uproar that deserve more consideration.

First and most important: Both current and former officials in the federal bureaucracy and even the intelligence community clearly hope to end the Trump presidency, and have decided to leak to the equally anti-Trump Mainstream Media even the most highly classified material if it’s judged to be potentially harmful to the president. Yet no leaks have revealed any evidence supporting the central allegation against the president: the charge that he or close aides colluded in any way with Russian efforts to fix the presidential election in his favor.

Given that the president’s foes long viewed the prospect of his victory with alarm, and given that they have sought to de-legitimize this victory since it unfolded the evening of last November 8, the absence of such a smoking gun after so many months is absolutely startling. If this evidence exists, what are President Trump’s adversaries waiting for?

P.S. – this argument pertains to retired General Michael T. Flynn, who advised candidate Trump and briefly became his White House national security adviser. Flynn has certainly acted in several instances like he’s had something (or things) to hide. But he’s been tracked for months by intelligence officials who – again – have been anything but reluctant to make troubling findings public. And nothing has emerged pointing to working with Russia to undermine the campaign of Democratic nominee Hillary Clinton.

One possible explanation? Many anti-Trump-ers are waiting for the 2018 mid-term elections to get closer and closer, in order to boost the chances of a Democratic landslide before the administration had a chance to rebut the charges conclusively – and before Congressional Republicans have a chance to dissociate themselves from Mr. Trump. And maybe they’re being joined by some establishment Republicans, who hope to recapture their party from the Trump-ist forces. And maybe both factions are motivated mainly by the belief that Mr. Trump is such an unprecedented danger to the republic that any means are warranted to remove him from the Oval Office.

If so, however, some big legal issues pop up.  For instance:  Are individuals privy to information about crimes – and in fact major crimes – withholding them from law enforcement authorities? 

Second: Not only has no evidence of collusion been leaked. The former head of the entire intelligence community has just made clear that, during his own prolonged probe of Russia’s efforts to interfere with the election (a related but clearly separate issue, for which strong evidence exists), he saw none.

In March, James Clapper, who resigned as Director of National Intelligence soon after the election, had tantalizingly hinted at the existence of such material by telling a reporter that the intelligence community “did not include any evidence” in its January report on the Russian campaign “that had anything, that had any reflection of collusion between members of the Trump campaign and the Russians. There was no evidence of that included in our report.”

But when pressed by “Meet the Press” anchor Chuck Todd to confirm whether such evidence existed, Clapper responded, “Not to my knowledge.” And when asked under oath in Senate testimony on three months later whether that statement was still accurate, Clapper stated, “It is.” In other words, Clapper’s probe, which reflected the work of 16 intelligence agencies including his own Director’s office uncovered no collusion evidence.

The issue was briefly muddied during that same hearing by former Deputy Attorney General Sally Yates. Like Clapper, an Obama administration appointee to her latest position, Yates initially answered the question about collusion by demurring. She explained that her “answer to that question would require me to reveal classified information. And so, I — I can’t answer that.”

As noted by questioner Senator Lindsey Graham – no admirer of President Trump – the FBI that Yates helped supervise as the second-in-command at the Justice Department was part of Clapper’s Russia investigation. After Yates indicated that the FBI was conducting its own separate counter-intelligence inquiry into Russia’s activities, Graham asked Clapper if the evidence found by the Bureau at that time “was not mature enough” to justify including in the broader intelligence community report.

Responded Clapper: “[T]he evidence, if there was any, didn’t reach the evidentiary bar in terms of the level of confidence that we were striving for in that intelligence community assessment.”

So again, a protracted look into Russia’s Election 2016 hacking produced no evidence of collusion that the intelligence community as a whole believed was solid enough to justify even hinting at in its publicly stated conclusions.

Third: One highly damaging allegation that’s been made over the last week was the Washington Post‘s claim that Comey requested more resources from the Justice Department for his investigation just before he was fired. The clear implication: The president became convinced that Comey was ramping up his investigation – which began in July – and decided to fire him in order to deny him the funds needed to do the job adequately. Such an action, of course, would at least strongly resemble obstruction of justice.

This article, however, too, looks fishy. Post reporter Ashley Parker did include an on-the-record flat Justice Department denial, but needless to say, government spokespersons lie or dissemble all the time. Much more difficult to dismiss: Acting FBI Director Andrew McCabe – who had been Comey’s former top deputy – stated in his own sworn testimony to Congress that he was unaware of any such request.

Yes, it’s true that Comey might have made the request without telling McCabe. But how much sense does that make? Nor can anyone accuse McCabe of being a Trump toady. His wife, Jill, had run for office in 2015 as a Democrat and had accepted $500,000 in campaign contributions from the political organization of a long-time Clinton family ally, Virginia Governor Terry McAuliffe.

Finally (for now!), comes the subject, as reported in The New York Times, of Comey’s alleged memo claiming that President Trump asked him to drop his Russia investigation in a February meeting. The former FBI Director will surely have the chance to confirm, deny, or otherwise elaborate on this story and the conversation in his own testimony under oath to Congress.

As suggested by prominent Trump critic Republican Senator John McCain of Arizona, if this request was made, we’re talking about a genuinely Nixonian case of obstruction of justice. (The “smoking gun” tape that played such a decisive role in Richard Nixon’s impeachment and removal in 1974 centered precisely on a decision by the former President to order the FBI to stop its Watergate investigation.)

As Mr. Trump’s critics like to say, however, the Times article “raises questions” – indeed, big ones. First, it’s crucial to note that, as Nixon himself admitted, his actions were intended to cover up criminal activity. As noted above, there’s no evidence yet of a Russia-related crime committed by the Trump administration.

More immediately, Comey has not exactly been shy about loudly expressing, acting on, and widely sharing his concerns about obstacles to official inquests and other behavior he considered improper. In 2004, he threatened to resign as Deputy Attorney General over post-September 11 domestic surveillance programs he viewed as illegal. Last July, he famously held a press conference in which he took the extraordinary step of moving beyond his position’s investigative role to explain extensively his decision to recommend against indicting Hillary Clinton for using a personal email system as Secretary of State. And earlier this month, Comey said – again, under oath – that he took this step because he unilaterally decided that his superior, Attorney General Loretta Lynch had lost credibility as a Clinton investigator because of her meeting with the candidate’s husband, former President Bill Clinton, in June.

It’s certainly possible that Comey has decided to keep firsthand evidence of clear Trump criminality under wraps for going on three months now. But it sure looks out of character.

All of the above notwithstanding, there’s no question that the President’s undisciplined and often contradictory statements understandably have created major suspicions – which are by no means confined to his enemies’ ranks. The consequently confused efforts by his surrogates to clean up these messes have only compounded the problem. And even if the administration had its communications act together, one indisputable lesson of Washington and other scandals is that shoes keep dropping. Moreover, numerous continuing global business ties and burgeoning official responsibilities of the President’s children, his son-in-law Jared Kushner, and his family keep failing valid smell tests.

At the same time, the clearly organized Dump Trump effort by numerous persons with detailed knowledge of seemingly the full range of the federal government’s most sensitive activities suggests that “RussiaGate,” at least, could be different. Not in the sense that damaging claims won’t continue to be made, but in the sense that the anti-Trump-ers might have already leaked their worst.

The only certainty at this point appears to be that the various Trump Wars will rage on for months at a minimum – which means that the valid policy grievances of the president’s supporters and so many other Americans will continue to be neglected by their government.

Im-Politic: Comey’s Real Motivation?

Tags

2016 election, Charles Krauthammer, classified material, Eric Holder, FBI, Financial Crisis, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, rule of law, Wall Street

Possibly the only certainty surrounding the FBI’s decision not to indict Hillary Clinton for mishandling sensitive government documents is that we’ll be buried in analysis and commentary for the foreseeable future. That’s why it’s so remarkable that the most important point we’ll hear about the controversy may have already been made – by nationally syndicated conservative columnist Charles Krauthammer.

Addressing FBI Director James Comey’s unwillingness to recommend criminal charges against the presumptive Democratic presidential candidate, Krauthammer provided an explanation that’s far more convincing than the claims that Comey’s conclusion was legally justified (unless the “gross negligence” set as a bar for criminality is indeed substantially different than the “extreme carelessness” the FBI did find).

The Krauthammer take is also more convincing than the charges filling the air that the Republican Comey was responding to political pressure from a Democratic administration, or that he absolved Clinton in exchange for an implicit or explicit promise of an official job if she won the White House. Not that this kind of sleaze is unknown in American politics. But these accusations and insinuations apparently clash with everything said over the years by Democrats and Republicans, including hyper-partisans, about Comey’s integrity.

Krauthammer’s alternative hypothesis was more comforting – but only somewhat so. In his view, Comey wound up opposing criminal prosecution for fear of decisively influencing the presidential election – the nation’s most important political contest – with a legal decision. In Krauthammer’s words, Comey:

“knows if he had indicted her, that’s the end of her campaign. That will be the event of the 2016 campaign history. He will be the — it will be the decision that sways everything the most. I think he didn’t want to be that. And I think it’s because she is running. Not so much she is a Clinton, not so much because of her reputation and all that and her power, but I think Comey did not want to be the person that history remembers as changing the course of this presidential election.”

From a purely human and political standpoint, such reluctance to shape political outcomes through even entirely legitimate exercises of legal authority would be entirely understandable. In many ways, the nation still hasn’t recovered from the Supreme Court’s involvement in the 2000 presidential election’s Florida recount. Another legal decision that further poisons the atmosphere and further polarizes the electorate is the last thing America needs.

Nonetheless, if this was indeed Comey’s rationale, then he greatly overstepped his job description. However defensible this judgment on the merits, precisely because law enforcement and politics should be kept as separate as possible, Comey would have had no business deciding a criminal case based on his (or anyone’s) sense of how even the most important election would be affected. The scope for abuse is so vast that this simply can’t be the justice system’s call.

In fact, such reasoning would be disturbingly reminiscent of former Attorney General Eric Holder’s refusal to prosecute Wall Street kingpins for their role in fostering the financial crisis because he was

“concerned that the size of some of these institutions becomes so large that it does become difficult for us to prosecute them when we are hit with indications that if you do prosecute, if you do bring a criminal charge, it will have a negative impact on the national economy, perhaps even the world economy.”

Prosecutors are supposed to prosecute – nothing more, nothing less. If they don’t feel free to pursue lawbreakers with a “chips fall where they may” attitude, they inevitably undermine the foundational American belief that no person or institution is above the law. Comey may have had the best of intentions, but even if a sincere and reasonable belief that the public interest required legal restraint motivated him, he would stand guilty of betraying the public trust.

Im-Politic: Clinton, Comey, and the Common Sense Test

Tags

2016 election, classified material, emails, FBI, Federal Bureau of Investigation, Hillary Clinton, Im-Politic, indictment, James Comey, prosecutors, State Department

Yours truly is not a lawyer; never was a lawyer; has no legal education aside from one undergraduate class, harbors no current ambitions to be a lawyer; hasn’t wanted to become one for decades (since the thrill of visiting my late father’s office as a kid wore off); and doesn’t even find lawyer TV shows, movies, or novels all that interesting. Truth in advertising: I did take the law school admission test – because in economically stagnant mid-1970s America, what else was a humanities major supposed to do?

So I’m not qualified to comment from a legal standpoint on the legal aspects of the FBI’s decision not to indict Hillary Clinton. But here are some thoughts from the standpoint of common sense – with a special focus on the Bureau’s judgment that “no reasonable prosecutor” would recommend filing criminal charges against the presumptive Democratic presidential nominee and former Secretary of State.

First, Bureau Director James Comey undercut the “reasonable” part of this contention with his declaration that “we did not find clear evidence that Secretary Clinton or her colleagues intended to violate laws governing the handling of classified information.” You don’t have to be nitpicker to recognize that this phrasing indicates that the FBI found some evidence of these intentions. I understand that the American system of justice grants prosecutors considerable discretion on such matters. But this discretion surely is not limitless. Is it really standard practice to absolve the subject of an investigation because some (unspecified) standard of clarity wasn’t met? Above all, was there no “reasonable” argument for allowing a trial to settle the question?

Second, Comey seemed to set an awfully high bar for indictment. Explaining that “Responsible decisions…consider the context of a person’s actions, and how similar situations have been handled in the past,” Comey presented a list of conditions that presumably would have to be satisfied:

“[C]learly intentional and willful mishandling of classified information; or vast quantities of materials exposed in such a way as to support an inference of intentional misconduct; or indications of disloyalty to the United States; or efforts to obstruct justice. We do not see those things here.”

Was Comey saying that all four conditions needed to be met? If so, he already ruled out the first. But the second looks fishy. Why do “vast quantities of materials” need to be exposed? Why not, say, a single document saying, e.g., “We’re attacking ISIS on June 1, at 4 PM EST”? Does quality, in other words, have no relevance in the FBI’s calculus?

Moreover, the contention that nothing qualifying as obstruction of justice could be found seems to clash with the finding that Clinton’s lawyers “cleaned their devices in such a way as to preclude complete forensic recovery. ” Since when do honest lawyers assisting an official criminal investigation not err on the side of caution? Indeed, Comey’s conclusion about the lawyers’ conduct was anything but conclusive:

“Although we do not have complete visibility because we are not able to fully reconstruct the electronic record of that sorting, we believe our investigation has been sufficient to give us reasonable confidence there was no intentional misconduct in connection with that sorting effort.”

That is, there’s important evidence that’s still missing. And the Bureau qualified its determination with the phrases “we believe” and “reasonable (that legal mainstay again!) confidence.”

Third, Comey’s overall description of Clinton’s conduct looks like a classic instance of hair-splitting. As he sees it, her behavior was not “grossly negligent” – the apparent standard for criminality. Instead, it was “extremely careless.” What on earth is the difference outside the universe of apologists and public relations flacks?

Moreover, Comey’s definition of “gross negligence” evidently doesn’t encompass his findings that (his own words):

>“There is evidence to support a conclusion that any reasonable person in Secretary Clinton’s position, or in the position of those government employees with whom she was corresponding about these matters, should have known that an unclassified system was no place for that conversation”: and

>“we also developed evidence that the security culture of the State Department in general, and with respect to use of unclassified e-mail systems in particular, was generally lacking in the kind of care for classified information found elsewhere in the government. ”

None of these points is meant to suggest that Comey’s judgments were incontrovertibly wrong or even unreasonable. They are meant to suggest that the call not to indict Clinton was incredibly close – so close, in fact, and raising so many further questions, that as suggested above, the proper place to resolve them is not inside a prosecutor’s office. It’s at an open criminal trial.

After he delivered the statement, Comey briskly walked off the stage without dealing with the crowd of slavering journalists assembled in front of him. That’s the recent decision of his I understand best.