Source: The American Conservative
The danger is, you often don’t realize how close you are to falling into the Abyss until too late. Watching the endless January 6 hearings and the Mar-a-Lago search, it is easy to forget just how close we came to the impeachment or prosecution of a president based on false information. And then? So much for the rule of law.
Remember what was at stake. The president of the United States was accused of being a Russian agent. Then there was a backup plan, to indict Trump for obstruction of justice in a case that could only have exonerated him, based as it was on false information. It is all worth revisiting now, as the January 6 committee and the FBI contemplate empty but politically juicy criminal referrals.
As we look at gaps in the January 6 story, older questions remain: Why didn’t the Mueller Report say the obvious, that the Steele Dossier and all that flowed from it via Crossfire Hurricane, was based on bogus information created by a politicized FBI? And why didn’t Trump say the same thing and call the Democrats’ bluff, exposing Russiagate in real time for what it was—a Hillary Clinton-paid-for smear campaign that was allowed to get out of control? Imagine the constitutional issues raised by an impeachment based on false information, especially one upheld by the Senate or that otherwise resulted in Trump’s being driven from office.
Special counsel Robert Mueller, portrayed as the dogged Javert, presented his report on Trump-Russia ties to the public in April 2019. The report tackled two broad questions: Did Trump work with Russia to get elected in 2016? And did Trump obstruct justice as the FBI, the special counsel, and Congress sought to investigate the first question? Mueller presented his report to Congress, and then disappeared from public eye. No late night, no memoirs, no high-brow interviews.
As to the first question, Mueller was very clear: “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 U.S. Presidential Election… the report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public.”
But the second question, obstruction, was left open for many of the hopeful. As Mueller wrote in Footnote 1091,
A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment… Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment.
Mueller added “the conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Heard that again recently?
Just about everyone sitting left of political center read that clearly as saying even if Congress could not or would not impeach and convict Trump (the Senate was then in Republican control), DOJ could open a case against him that would pend during Trump’s term and, whack! come down on Citizen Trump the day he left office.
A cardinal rule for prosecutors is to not publicize negative information that does not lead them to indict someone—”the decision does the talking.” Yet most of the Report’s Volume II is just that, descriptions of actions by Trump that allegedly contain elements of obstruction. Some say Mueller wanted to draw a “road map” for a prosecution that would have to take place years after the publication of his report.
A lot of smoke and noise regarding obstruction followed the release of Mueller’s report, but ultimately Trump was not impeached. Nor did anyone (SDNY, DOJ) seek to prosecute him as a private citizen for connections to Russia or obstruction after he left office. It all faded away as impeachment proceedings were ginned up over something-something Ukraine, a non-issue quickly forgotten when the Senate righteously failed to convict Trump. We will never know how close the U.S. got to impeaching Trump for obstruction or subjecting him to prosecution for the same. We do know the temptation was there.
What we know now is that there was no Russiagate at all. Everything from the Steele dossier, the urine tape, the Moscow meetings, to Michael Cohen in Prague, was simply made up. Everything investigated by Steele, Mueller, and the FBI was based on a false pretext. The dossier was paid for by Clinton operatives for the purpose of smearing Trump during the campaign; after he won, it continued to be used in an attempt to destroy his administration and possibly drive him to resign or be ousted by the 25th Amendment.
We know that Christopher Steele, paid by the Clinton campaign (after Clinton’s denial, it took congressional investigators a year to uncover that the dossier was commissioned by the opposition-research firm Fusion GPS, working for the Democratic Party and Hillary Clinton’s campaign, paid through the Perkins Coie law firm), seems to have done no investigative work.
Instead, he used his reputation as a former British intelligence officer to validate a dossier of lies and traffic them to the FBI and journalists. One of Steele’s key “sources” was the now-indicted Igor Danchenko, a Russian emigre living in the United States whose trial for perjury is scheduled for this autumn (Steele was introduced to the Russian by Fiona Hill, then of the Brookings Institution; Hill would go on to play a key role in the Ukraine impeachment scam). Danchenko completely made up most of what he told Steele about Trump-Russian collusion.
When he did not make up stuff himself, Danchenko was spoon-fed lies by Charles Dolan, a Clinton-campaign regular (Fiona Hill introduced Dolan to Danchenko). Ironically, Dolan had close ties not only to the Clintons but the Russians as well; he and the public-relations firm where he worked represented the Russian government and were registered as foreign agents for Russia. Dolan is credited with, among other things, making up the urine tape.
Mueller mentioned the Steele dossier in his own report numerous times and was well aware the dossier played a major role in the FBI investigation of Trump. Did Mueller also come to know it was a fraud, campaign fodder paid for by Clinton? If so, Mueller remained silent. And so much for the rule of law. Why? The FBI, we now know, internally doubted much of the dossier and other claims handed to it by undercover Clintonites, but stood by its justification for launching a full investigation.
“The fact pattern that John Durham is methodically establishing shows what James Comey and Andrew McCabe likely knew from day one, that the Steele dossier was politically-driven nonsense created at the behest of the Clinton campaign,” said Kevin Brock, the FBI’s former intelligence chief. “And yet they knowingly ran with its false information to obtain legal process against an American citizen. They defrauded not just a federal court, they defrauded the FBI and the American people.” The 2019 Horowitz report, a look into the FBI’s conduct, was led by the Justice Department Inspector General; it made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court.
What would have happened had some entity brought charges against Trump for obstructing an investigation that was based entirely on false information and false pretenses? At the very least all hell would have broken loose in Washington. Would an FBI whistleblower have emerged, concerned his beloved Bureau was about to throw away its reputation for a political assassination while its members remained mum co-conspirators?
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Would Trump have revealed the mountain of information he, for some reason, still holds close today? For example, Trump knew exactly what he did and did not do vis-a-vis Russia, and he knew the dossier to be bogus from the start. Yet he stuck simply with short-form denials. At what point in a Trump trial would it have come out that nearly 100 percent of the information against him came from the Clinton camp as campaign smear material?
A prosecutor needs also to ensure that he can prove intent, that an act—perjury, for example—was committed with the intent to mislead and was not simply a mistake. That’s the difference between a mistake, a misstatement and a lie: what it was intended to accomplish. The act is easy to prove, but the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Imagine those issues being debated in a divided America during, say, a presidential-election campaign? Was the Deep State ready to go that far?
That’s the Abyss. Perhaps future historians of January 6 and Mar-a-Lago will tell us how close we really got to it this time.