Tensions Gnaw At the Underlying Premise of the Mueller Investigation
Happy Birthday Mueller Team: Now That You’re *1*, Tell Us Whether You Are a Criminal or Counterintelligence Investigation
Is the Special Counsel investigation a criminal justice probe authorized under the Special Counsel statute, or is it a counterintelligence investigation, awkwardly delegated to Mueller under his existing order, and in need of a separate, specific designation? This answer to this critical question, examined by Aditya Bamzai in a piece published shortly after the Special Counsel was first appointed, supplies not just a premise but also the standards by which we judge the scope and acceptable practices of Mueller’s work.
Yet it is barely discussed.
The failure to recognize and resolve this basic question — or to explain the reasons why Mueller’s work cannot be defined exclusively in terms of one or the other — has recently conferred substantial advantages to Donald Trump.
So far Trump’s good fortune has gone largely unrecognized by the mainstream political media, as has the tension between the often compatible — but sometimes contradictory — methodologies of criminal investigations and counterintelligence efforts. Unfortunately, it is not unusual for much of the establishment to miss issues and themes that register and have real meaning among ordinary Americans, including, in this particular case, the rights of the accused, the importance of motive to a crime, and commonplace notions of fair play and entrapment.
In my judgment, the recent retrospective considerations of the Special Counsel’s work fall well short. Contrary to what you may have read, Mueller’s team has not yet produced very much of great significance to do with 2016 election. (I believe they will, and I hope they do it soon.) Likewise, Rudy Giuliani’s approach to defending Trump has actually yielded significant gains. By my reckoning, the scorecard reads very differently from what would be deduced from most mainstream media.
Mostly that is because these two camps, normally depicted as opponents, do not really wage a direct battle against each other. Where Trump concerns himself with impeachment, an inherently political and necessarily subjective process, the Special Counsel is tasked with prosecuting a legal case in a court of law. Although impeachment bears some legal marks, including specific allegations put forward as “articles” of impeachment, its outcome ultimately rests with the American people, and whether sufficient numbers of them regard the president as guilty of conduct that in some way endangers the democratic republic.
Naturally, in formulating this judgment, Americans will consider competing stories, and not necessarily in a dispassionate or methodical manner. Far from a courtroom governed by specific protocols, the clichéd “court of public opinion” is an unruly place. Even among fair-minded people, what is learned (and explained) first will shape how they assess what is learned later, including what they deem significant enough to take the time to learn about at all. For this reason, the first party to craft a persuasive explanatory narrative that accounts for all known evidence, and can withstand any new revelations, will prevail.
So far, Trump is winning this campaign.
That’s not (necessarily) because the president is innocent; it’s because he fights unopposed. Mueller’s team is like an elite cheerleading squad that arrived at a rival’s stadium ahead of their own football team. Of course their cheer routines may dazzle us; many of us long for the half-time show. But the game that counts is already underway on the field. Not surprisingly, facing no opposition, Trump’s middling second-stringers manage to run up the score, even when they stumble into the end-zone.
Some of this lost ground is inevitable, and not necessarily regrettable. If the Trump campaign conspired with one or more foreign powers, I don’t think Democrats should feel sheepish about wanting to know more before they put forward any allegations, much less a sweeping narrative. Put differently, the Democrats will either be able to avail themselves of substantial evidence, or they will not, and we should want nothing less than a formidable threshold in the case of impeaching a president.
But I also think the president benefits from an investigation that features a striking amount of counterintelligence elements which appear awkward or unfair when judged according to expectations grounded in criminal justice. This mismatch will serve Trump’s purposes regardless of whether and when the Democrats manage to suit up and take the field.
Deep State Own-Goals: The Case of the Missing SARs
Recently an unnamed source leaked information contained in a confidential “Suspicious Activity Report” (SAR), a document generated when a bank official finds a certain customer’s transactions to be suspicious enough to warrant an advisory report to government authorities. In this case, the transactions were filed by First Republic Bank, concerning large and unusual transfers of money made by Trump’s personal lawyer and “fixer,” Michael Cohen.
The leak of such a sensitive document prompted the Department of Treasury’s Inspector General to launch an internal investigation — not surprisingly, since the Department must retain the confidence of banks if they want to continue receiving SARs. At that point, the leaker identified himself to New Yorker writer Ronan Farrow, enabling Farrow to report some context for the alarming decision: this person grew distressed when he or she discovered that earlier SARs filings on Michael Cohen, concerning equally (if not more) problematic transactions, had disappeared from the federal government database storing these reports.
Personally I have no idea why this person’s next move was to ensure the particular SAR s/he had obtained on Cohen made its way to Stormy Daniels’ lawyer Michael Avenatti — a calculation so dubious, I think it casts doubt on whether the leaker was recounting his or her own motivation accurately. But on the other hand, the disappearance of the other SARs reports referenced by the leaker is likely not only accurate, for all we know, it’s standard-operating-procedure in counterintelligence investigations.
Nevertheless, such tampering with the record would never happen in a criminal investigation — at least not one conducted according to the law. The fact that a government database could be so dramatically altered serves to reinforce an impression of a national security state operating well outside of widely held norms regarding fairness and legal discovery. It is an abrupt revelation.
I recognize, and want to stress the importance of, the apparent necessity of a “white, male Republican” subject in order for many Americans to perceive this or similar practices as potential transgressions. Directly curtailing due process — or, more commonly, downward revisions in the threshold of evidence needed to trigger invasive powers of the state — feature prominently the United States’ “war on terror” (as well as its older sibling, the “war on drugs”). If anything, aggressive reformulations of the law, achieved when a person of color and/or a Muslim was the imagined target, continue to be embraced by many of the Trump supporters denouncing the “deep state.”
Likewise, in the minds of government officials doing things like database manipulation, their activities were sanctioned long ago.
But, as the investigation into Donald Trump’s campaign unfolds, the political establishment might be surprised to discover that its national security apparatus never really gained meaningful consent for secret procedures and abbreviated protections; they only ever won approval for a war on “difference.”
“Two Academics Discussing China”: The Deep State Baits a Trap
Just a chat between a couple of erudite scholars of the world is how Victoria Toensing, lawyer for Mueller “subject of interest” and Trump campaign adviser Sam Clovis, chose to describe the northern Virginia meeting between her client and Stefan Halper, a longtime Republican foreign policy adviser and, evidently, a sometimes-informant for both the FBI and the CIA.
By the time these two dazzled their fellow Crystal City coffee drinkers with profundities, Halper had already initiated contact with Carter Page, another Trump campaign official, and he would soon reach out to yet another: George Papadopoulos. In the last instance, Halper offered to pay him $3,000 for a research paper devoted to an obscure gas field, provided he also come to London, expenses paid, to socialize and drink. And talk.
All of these encounters, and perhaps others we don’t know about, represent multiple passes that the FBI took at the Trump campaign to test the degree to which officials working in and around it were susceptible to bribery, or willing to confess collaboration with Russia. Given what we know, this seems reasonable enough. After learning from an Australian diplomat that George Papadopoulos had prior knowledge of Russia’s “hack and leak” operation, the FBI sought to identify and measure Russian infiltration of Trump’s campaign so that its agents could decide whether to proceed with the investigation, and what sort of resources should be invested in it. Compared to a dozen or so terror cell investigations the FBI runs (and the media routinely celebrates), the bait laid down in these traps was not so enticing, nor were the methods employed very manipulative or intimidating.
On the other hand, nothing much seemed to come of these conversations. One can only assume that, had Sam Clovis professed his deepest loyalty to Vladimir Putin between sips of cappuccino, the FBI would have pursued the counterintelligence investigation into the Trump campaign with a bit more vigor. Inspecting what is known right now, many Americans would conclude that, despite some extravagant maneuvers, the FBI found nothing directly or seriously incriminating.
What a surprise, then, that these meetings formed part of the justification for continuing the FBI investigation and, ultimately, the Mueller probe itself. There is nothing inherently wrong with that; in time, most Americans might find themselves grateful for it, as many already appear to be. But it is critical to note the substantial gulf between the evidentiary burden necessary to sustain a criminal versus a counterintelligence investigation. For example, an application for a wiretap before the Foreign Intelligence Surveillance Court need only demonstrate a high likelihood of gaining intelligence regarding a foreign antagonist (this has been corrected for me by Marcy Wheeler; a FISC application must demonstrate that the subject is “aiding or abetting” an agent of a foreign power); so far, Carter Page, who was the target of just such an application, has made inroads in conservative media by claiming his “innocence.” In fact, he may well be innocent of any crime, but his electronic surveillance would, in all events, appear justified under current law.
I find nothing inherently wrong in an FBI counterintelligence investigation morphing into a Special Counsel defined principally as a criminal probe, and the question of whether some separate authorization is needed to retain the counterintelligence portfolio should be left to someone with far more legal expertise. The points I raise here all fall under the category of “political.”
First among these: I can promise you with utter and complete certainty that the opposite investigative trajectory — the discovery of a crime that then spills out into a counterintelligence investigation — retains far more political legitimacy in the eyes of the American public. Especially when considered as grounds for impeachment, first the FBI investigation and now the Mueller probe will face an extraordinarily high bar, as Americans reckon with aggressive state tools wielded against a motley crew of incompetent advisers whose treasonous intent seems to be (at this point) either absent or incidental. Treason discovered when investigating a crime is born scandalous, in part because the bar to investigate a crime is high. In contrast, any crime that comes out of (loosely) suspected treason will have to be of the “real serious” genre in order to elicit grave concern from most Americans.
Second, it will not be difficult for Trump to distance himself from any culpability of his advisers so long his motive remains a mystery, and provided the exposure of his campaign’s record results from mechanisms authorized on the basis of counterintelligence interests and not criminal suspicion. Remember, these tools will have been brandished against an amateur campaign that openly advertised a disdain for a political script that would allow it to master exactly how, and to whom, to sell-out without rousing the FBI’s curiosity. Though I myself happen to think the Trump campaign’s incompetence meets a standard of “gross negligence” relevant to this discussion, many Americans will prefer the “con” they can see coming over coffee in Crystal City, as opposed to the more sophisticated one transpiring over brunch in Georgetown.
Finally, I want to note that, in the United States, the encroachment of a national security ethos and many of its practices into the everyday lives of Americans — whether it be militarized police, electronic surveillance conducted without meaningful consent, or a distressing authoritarian impulse legitimized by the denigration of difference — culminated in the presidency of Donald Trump. What an awful condemnation of those who instrumentalized or assented in silence to this betrayal of the American political tradition to ponder the possibility that these very same tools may be faulted as excessive only in order to (falsely) vindicate the current president himself.
