The 2016 US Presidential Election and After – A Modern Mahabharat
By Prabhat P. Shukla
Sadly, there is no Lord Krishna to guide this Arjun – and this Arjun isn’t a very good listener either
There are three strands to be followed in the story of the 2016 Presidential election. The first is the one that is getting most of the attention, the charge that Russia interfered to help Trump, and that Trump colluded with this effort. Over time, there is less and less talk of collusion, since the evidence does not support this charge, but the Russian interference charge continues. The second is the lower key one regarding the private email server used by Hillary Clinton, and for which she was absolved by then-Director of the FBI Comey, then he re-opened the investigation in late October, and then cleared her again the weekend before the voting. The third is the one that is proving most decisive – the role of the intelligence agencies, the State Department, and the Department of Justice [DOJ] in the election, the transition, and then the Presidency of Donald Trump – all aimed at blocking, then blackmailing the President-elect; and, when that failed, at delegitimizing his Presidency.
On the first charge, it is becoming obvious that there is scant evidence of the accusation of Russian interference in support of Candidate Trump, and none at all of collusion, a fact most recently corroborated by Bob Woodward – no sympathiser of Trump’s. Moreover, it is noteworthy that the later indictments put out by Special Counsel Mueller only speak of Russian meddling in order to “sow discord” – ironic, in that no one has sown more discord than the Establishment, represented by the bureaucracy, the agencies themselves, including the FBI, the media, and the political parties.
On the second charge, in summary form, it may be said that the investigation of Hillary Clinton was done with extreme leniency, and she was exonerated where others, for lesser failings, have faced jail time. In fact, there is evidence that the exoneration statement was drafted even before she was interviewed by the FBI.
The third strand is the most absorbing: the agencies, it is now emerging through documents obtained by various Congressional Committees by threat of impeachment and legal subpoena, initially tried to thwart the election of Trump. When that failed, FBI Director Comey tried to blackmail him, by referring to a spy dossier containing information that he [Trump] had hired prostitutes while in Moscow in 2013 – the New York Times reports that Comey himself felt that this was a J. Edgar Hoover type conversation. In order to clear up any doubts on this score, it is worth remembering that this was the only element of the dossier compiled by former MI6 agent, Christopher Steele, that Comey brought up, though there was much more regarding connections of his aides with Russia. Finally, when that attempt failed, they have been trying to delegitimize his Presidency. The ambition is to lead to his impeachment, but if that fails, to inflict pain of bankruptcy and/or prison on those who worked with him, so that many good people would be unwilling to work with him in 2020. Another result of the mud through which Trump has been dragged will certainly hurt his chances of re-election in 2020. The travails that Trump has had to endure will also be a lesson for future Presidents, should they wish to take on the Establishment.
After a lull in the run-up to the mid-term elections in November 2018, the Mueller team has become active again, with a flurry of indictments and sentence recommendations. It is expected that the final report on Trump’s activities during the campaign 2016 will be ready soon; the timing will work out well, as it will come out when control of the House will have passed to the Democrats from January 2019. The probable incoming heads of some of the key House committees – Maxine Waters, Adam Schiff, Jerry Nadler – have made it clear that they will use their new-found power to go after Trump. And Trump, in turn, has promised to hit back and hinted at declassifying documents that will embarrass the Democrats. Thus, 2019 promises to be a year of more than even the turbulence we have seen since Trump’s election victory in November 2016.
The Current State of Investigations
There are at least ten investigations being conducted at different levels as a result of the 2016 elections. Here is the list:
(i) The Mueller investigation is the most prominent. Under the mandate given to the Special Counsel by Deputy Attorney General Rosenstein [Attorney General Sessions has recused himself after being charged with meeting the Russian Ambassador during 2016, and not revealing the fact], Mueller is to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump”. This mandate was widened by Rosenstein in August 2017, but that document remains classified.
(ii) House Permanent Select Committee on Intelligence [HPSCI] under Chair Devin Nunes looking into the FBI/DoJ investigation of the Trump campaign. Democrat Adam Schiff will take over as Chair from January 2019.
(iii) House Oversight and Government Reform Committee under Chair Trey Gowdy is doing much the same as HSPCI and, in fact, they work together on studying FBI and DoJ documents. Gowdy is an attorney, hence more familiar with the law than Nunes. Chairmanship of this Committee will also pass into Democrat hands in January.
(iv) Senate Judiciary Committee under Chair Chuck Grassley, is doing much the same – investigating the circumstances that led to the FBI investigating the Trump campaign. The Republicans maintain control of the Senate, but it is likely that Sen Grassley will be succeeded by Sen Lindsey Graham.
(v) DoJ Inspector General Michael Horowitz is looking into many aspects of 2016, including the role of the FBI in targetting members of the Trump campaign. His first report, on the activities of former Deputy Director McCabe led to his [McCabe’s] firing two days before he was due to become pensionable. His second report is done and is going through the final processing before release. This will cover the FBI investigation of the Clinton private email server.
(vi) Michael Horowitz is also charged now with investigating former FBI Director Comey’s leaking of his memos of conversations with President Trump.
(vii) There is also an investigation at the DoJ into the handling by McCabe of the Weiner laptop. Weiner was the husband of Huma Abedin, the second senior aide to Hillary Clinton during her time at the State Department and the campaign. Abedin’s official and classified emails should not have been in Weiner’s laptop. This laptop with Abedin’s emails in it lay with McCabe for a month before the FBI went public with the information, and Comey announced the re-opening of the investigation into Hillary Clinton in late October.
(viii) Then-Attorney General Sessions has also appointed a counsel, John Huber, to investigate all aspects of 2016 and the run-up to it. This was in response to House and Senate Republicans demanding a second Special Counsel to examine all the wrongdoing throughout the election season. It has a wide remit and examines both candidates including links with Russia – and could involve Mueller for his role in the sale of Uranium 1 to Russia in 2010, when Mueller was Director FBI.
(ix) DoJ investigation into Spygate – the FBI planting a spy in the Trump campaign before it formally opened the Russia collusion investigation. This was done in response to a publicly stated demand by President Trump.
(x) The FBI is also looking into the Clintons’ activities in Arkansas, their home state, where Bill was Governor before he became President.
There are also processes in train in London, but those are not part of this analysis.
The First Charge: Russian Collusion
The basic charge is that there was foreign [Russian] collusion with the Trump campaign in 2016, aimed at discrediting Hillary Clinton, and helping Trump win. And that is being investigated for the last two years or more, probably since the spring of 2016, though the FBI is not coming out with the full facts. But there is another collusion hiding in plain sight: the role of Christopher Steele, an officer of the British MI6, who prepared the dossier that is at the heart of the charges against the Trump campaign. In turn, Steele used Russian sources to prepare his dossier against Trump. And this effort was indirectly paid for by the Democrats, using a front company called Fusion GPS.
And here is the crowning irony: Trump is using his twitter account to attack the FBI-DOJ and its principals, as well as the media in understandable frustration, aggravated by the fact that few of his cabinet colleagues are backing him publicly. For this, he is accused of undermining the institutions of the state. But he himself seems to be failing to make the more weighty argument that these institutions are the ones undermining the most important institution of the American Constitution, the Presidency itself. He would do well to address these points in a calm, collected manner, and then order the release of all the documents relating to the activities of the FBI and DOJ, especially those that the various Congressional Committees are demanding – and which are being slow-walked or altogether blocked. He appeared to make a decision to this effect, but then backed away because his own colleagues and some of the US allies – presumed to be the UK and Australia – requested him not to do so. This would add to the credibility of his charge of a witch hunt against him by the Establishment.
The collusion charge has got the maximum attention in the media. It began with an FBI investigation, and then, in a series of steps, Trump ended up firing Comey, and was forced to appoint a Special Counsel, Robert Mueller, himself a former FBI Director. He was interviewed for the job again by Trump to replace Comey after the latter’s removal. The Mueller investigation has got by far the most attention of all of these probes. This is understandable, for the Special Counsel has virtually unlimited powers to probe anyone associated with the Trump campaign. But it is instructive to examine how the narrative has changed over the two years that the Russia-collusion charge has been under scrutiny. Especially under Mueller, since May 2017, the probe has meandered pretty much all over the world, and gone back in time before the campaign even started; it has brought charges against some of Trump’s colleagues of tax fraud or lying to the FBI and other process wrongdoing some going back to 2006, but not collusion; and these are charges involving many countries, like Ukraine, Turkey, Israel, some of the Persian Gulf Emirates, but not Russia. And where it has brought in Russia, the trail has led nowhere.
A quick survey
The initial charge was that Russia hacked the DNC server, and then leaked the contents to Wikileaks. This version ran for several months in 2016-17. Then the following facts began to filter through. First, a group of intelligence veterans demonstrated that the speed of the download at 22 mbps, was impossible from a remote hack. Also the time of the download indicated the location was the East Coast of the US. In some quarters, it was also whispered that the leak – for that is what it was – came from a DNC staffer, Seth Rich, who was found murdered on 10 July 2016 in the wee hours of the morning. Wikileaks’ owner, Assange hinted in one of his tweets that Rich was the leaker. Several media outlets went after this story, and then Rich’s parents wrote in the papers asking for all such speculation to end. Pressure was also brought to bear on the media anchors supportive of Trump, and eventually, even the Fox News anchor, Sean Hannity, was forced to buckle, when advertisers started withdrawing financing from his programme.
Donna Brazile, who was briefly the Chair of the DNC before she was exposed for helping the Clinton campaign during the primaries against her rival Bernie Sanders, has dedicated her book to Rich, describing him as a patriot. She adds that she was “haunted” by Rich’s death because she feared shadowy elements associated with the Clinton campaign may have played a role in his death as retribution for leaking the emails. In a rebuttal, more than 100 former Clinton campaign aides signed an open letter accusing Brazile of falling for “Russia-fueled propaganda” in what appears to be a feeble attempt to discredit her. [Tyler Durden Zero Hedge 7 November 2017 - https://www.zerohedge.com/news/2017-11-07/donna-brazile-dedicates-book-patriot-seth-rich].
Another revealing part of this hack story is that the FBI never took custody of the server of the Democratic National Committee [DNC] that was reported to have been hacked. They took, instead, the word of the company that maintained the server, a company called Crowdstrike. This company was founded by a Russian named Dmitri Alperovitch, known for his anti-Putin views. Furthermore, the FBI declined to interview Assange, though he publicly expressed his willingness to be interviewed. It has now been reported that the US Senate wants to interview Assange, but the time and place have to be worked out: he is wanted in the US to face criminal charges, and therefore does not want to come to the US.
As a result of these inexplicable oddities in the hack investigation, this story was unsustainable, and was gradually fading from the news until the most recent Mueller indictment of 12 Russian military intelligence officers [16 July 2018] briefly revived this version.
The second Russian connection is the meeting in Trump Towers with Natalya Veselnitskaya at which Donald Jr, Jared Kushner and Paul Manafort, campaign manager. Veselnitskaya is not “close to the Kremlin” as is being suggested, but she and some other Russians were at this time working to repeal the Magnitsky Act, which restricts trade and economic relations between the US and Russia, though its scope is not geographically restricted. It is true that the Trump team sought information on Hillary Clinton, but it seems to have gone no further. Significantly, Veselnitskaya also met people from Fusion GPS, the company that promoted the Steele dossier, and were hence linked to the Democratic campaign. Mueller has interviewed Donald Jr and Kushner, and has received written replies from President Trump. That is where matters rest for now. As the Mueller investigation seems to be winding down, it is probable that nothing more will come of this. However, this is a process that may yet spring a surprise and be reflected in the final report.
This brings in the Steele dossier. Comey has himself described this as “salacious and unverified”, and is a document prepared by Christopher Steele, a British citizen and former MI6 agent, who dealt with Russia during his professional career. On payment made by Fusion GPS, itself funded indirectly by the DNC and the Clinton campaign, Steele prepared a dossier linking Trump himself to the Russians, as well as some members of his campaign team. Comey briefed Trump on 6 January 2017, during the transition, and referred only to the allegation in the dossier that Trump hired prostitutes while in Moscow in 2013 for the Miss Universe contest and indulged in some unusual activity. Comey himself has drawn a parallel with Hoover’s actions in blackmailing people in America’s power structure – only to demur on this count [please see LA Times 8 June 2017 for example]. However, if not for blackmail, it is hard to see what other motive there could be in singling this out from the dossier. That document itself provides details of contacts between Carter Page, a member of the Trump campaign and high-profile Russian officials, including from the oil company Rosneft, whose CEO, Igor Sechin, is genuinely close to Putin. It also details the activities of Trump’s lawyer Michael Cohen – but these have been proven false. More on this later in this essay.
Nonetheless, the FBI used this dossier on four occasions to obtain warrants from the special courts set up under the Foreign Intelligence Surveillance Act of 1978. The first was in October 2016, and was valid for 90 days, as all such warrants are. This was renewed three more times, as mentioned, meaning that Page was under surveillance well into the Trump Presidency, even though he had left the campaign in September 2016. Nobody has clarified why this was necessary. What has been established by the House Intelligence Committee Chair until 2018, Devin Nunes, is that the FBI and the DoJ did not tell the FISA court that the dossier was paid for by the Democrats, and was based on unverified information – and hence they have been accused of acting in bad faith. They deny the charge. Whatever the facts – and they are still under scrutiny – all these have undermined the credibility of the charges in the Steele dossier.
The next charge has been against Manafort for his work with the Ukrainians during the Presidency of Viktor Yanukovich. However, these charges cover the period 2005 to 2014, before Trump had even declared his candidacy. Two remarkable developments have followed. The first is the “no-knock raid” by FBI agents on the residence of Manafort in the early hours of 26 July 2017. This has been widely criticised as an abuse of power. As it turns out, the original authorisation by DoJ Deputy Attorney General Rosenstein would not have allowed probing of Ukraine-related activity. So, on 2 August 2017, after the raid, Rosenstein issued a second, still secret, memo allowing such activity. And this brings up the second remarkable feature: Manafort challenged in court the probe into these acts of his, and has also pleaded not guilty. The judge hearing the case has questioned Mueller’s behaviour and has accused his team of going after Manafort in order to make him “sing”, or even “compose”, against Trump. He has also said that no one can have unfettered rights in the US, and has asked to see the second Rosenstein memo, in unredacted form, to verify that such acts are indeed duly authorised. After some initial resistance, Mueller’s team handed over the memo in sealed cover, and on that basis, the judge permitted the trial to proceed. On 31 July, the Manafort trial opened, on the understanding that there would be no mention of Trump, Russia, or collusion – the judge’s decision, since there was no connection between the old charges against Manafort and the Trump campaign. He has been found guilty on eight of the eighteen charges brought against him. The guilty verdicts pertain to his tax fraud, and bank fraud. On other charges, linked to the attempt by a bank manager to seek a post in the Trump Administration, if he were to win, resulted in a hung jury. Both Manafort, and the Mueller team are now weighing their options as regards appeals. But this does not materially affect Trump’s fortunes, since all the crimes Manafort has been found guilty of are unrelated to the campaign, and took place before he joined the Trump campaign.
Manafort was granted bail pending completion of trial, but was accused of violating the terms of the bail by trying to influence witnesses. As a result, he was put in solitary confinement. He later agreed to cooperate with the investigation, before his second trial on other financial impropriety charges. But he has been accused by Mueller of lying and non-cooperation, and is now likely to get a long jail term. However, Trump has made clear that he will pardon him, and has been accused in turn of obstruction of justice.
One revealing aspect of the trial is that Manafort was working together with Tony Podesta, the brother of the head of the Hillary Clinton campaign, John Podesta. He has been remitted to separate trial, not prosecuted by the Mueller team. It is not clear why this differential treatment has been adopted.
Next up: Gen Michael Flynn was among the early victims of the probe. He was forced out of office for lying to Vice President Pence regarding his conversation with the-then Russian Ambassador, Kislyak. The noteworthy aspect here is that Comey told the Congress that the FBI agents who interviewed Flynn did not think he was lying. Nonetheless, Flynn did a bargain with Mueller – said to be a common method with the latter – to plead guilty to lying, and spare himself and his son any further legal trouble. He has said that he was in danger of going bankrupt, fighting the charges, and wanted to spare his son. But a later twist has caused this line of inquiry also to run aground. The judge hearing his case – the second judge, after the first recused himself when exposed as a friend of one of the FBI official, Peter Strzok, who also sought a meeting with him - asked Mueller if exculpatory evidence has been shared with the defendant – and the legal implication of this is that Flynn could withdraw his guilty plea. At Mueller’s request, this process was postponed for several months. It was resumed later, and Flynn has been brought for sentencing, with Mueller recommending no jail time for him. This has been done on the grounds that he cooperated genuinely with the investigation. During the hearing on 18 December 2018, the Judge offered Flynn several chances to change his plea, but the latter declined. After a break, and some harsh words from the judge for Flynn, he postponed the sentencing until March 2019.
The implication is clear: cooperation gets you off the hook, a valuable message for all the others being questioned by the Mueller team. However, there is a new twist that has emerged. Then-Director Comey has said on MSNBC that he took advantage of the disarray of the Trump White House – this was 24 January 2017, the first week of the new Administration – to spring the interview on Flynn without a lawyer present. Under normal circumstances, he admitted, this would not have been possible. It has also been revealed that the original report of the FBI agents who interviewed Flynn has not been shared with either the defendant’s team or with the judge hearing the case. The only document – the so-called FD 302 – used dates from 22 August 2017, or seven months after the interview. The judge in question, Emmet Sullivan, appears to be quite seasoned in the ways of prosecutors, and has demanded to see the original document.
In a story of surprising twists and turns, there were many more at the sentencing trial of Gen Flynn. The FD 302 original document that the judge demanded was finally produced, in heavily redacted form. It was dated 18 February 2017; this was odd, because Flynn had been forced out on 13 February, and also because the 302 is supposed to be written within days of the actual interview. At the sentencing, the judge hinted – as best we can judge from the press reports – that Flynn could retract his admission of guilt. Flynn declined to do so. After a bried intermission, the judge returned and criticised Flynn for committing treason, a charge that even Mueller has not levelled. Later, the judge withdrew those remarks, and delayed the sentencing by three months – until mid-March 2019.
The first direct Russian-linked charge came in mid-February 2018, with the indictment of 13 individual Russians and 3 Russian companies. This was at least in part a response to the growing criticism of the Mueller probe that it had shown no Russian involvement, much less collusion from the Trump campaign, despite the FBI probe since July 2016, and his own probe since May 2017. It is worth repeating that, by this time, there was no talk of collusion, or that Russia swayed the election in Trump’s favour; in fact, Rosenstein explicitly denied that Russia changed the outcome. The charge now is that Russia was seeking to “sow discord” in the US through its meddling.
Outsiders could be forgiven for thinking that no one has sown more discord than Steele with his dossier – and the subsequent political storm whipped up by anti-Trump forces in the US. However, there was another development that stymied this line of attack too. Quite unexpectedly, one of the Russian companies accused in the indictment showed up in court in Washington DC to plead not guilty and to demand discovery of evidence against the company, Concord Management and Consulting. If this was not bad enough – the Mueller team was unwilling to provide the details demanded – the lawyers for the Russian companies also confirmed that one of the other companies indicted, Concord Catering, did not even exist in 2016.
Adding to the shakiness of the charges, the representatives of the social media outlets mentioned in the indictment, Facebook and Twitter, also cast doubt on the validity of the charges. Both Facebook and Twitter representatives clarified that the Russian spend was less than 1% in each case of the amount spent by each of the two major campaigns. Further, Facebook VP Rob Goldman has stated that the bulk of the Russian spend came after the elections. One big item was the anti-Trump women’s march on 21 January 2017. For its part, the Google CEO, Sundar Pichai, has also informed the House Intelligence Committee on 11 December 2018 that his company also investigated Russian spending during the campaign, and determined that the total amounted to $4,700 – a laughably small amount, in contrast to the amount donated by Google employees to the Clinton campaign of $ 1.6 million [https://www.zerohedge.com/news/2018-12-13/google-ceo-exposes-shocking-full-extent-russian-meddling-2016]. In short, there was very limited Russian spend on the election meddling, and it showed no consistent pattern of pro-Trump publicity.
Mueller has also issued a second indictment, naming twelve officers of the GRU [the military intelligence – Glavnoe Razvedyvatel’noe Upravlenie] for hacking into the computers of the Democratic Party. It has been pointed out that there were hacks also into the computers of the Republican Party, but this has been left out in the indictment. An amusing side-light is that one of the officers charged is named Potemkin!
The stated objective of the conspiracy was to “hack into the computers of US persons and entities involved in the 2016 US Presidential election, steal documents from those computers and stage releases of the stolen documents to interfere with the 2016 presidential election”. There is no indication here that only the computers of the Democrats were hacked, and indeed, efforts were made to hack the computers of the Republicans as well.
However, this indictment does contain one charge that can be checked out. It alleges that the hackers sent an email “on or about 15 August” 2016 to a person who was in contact with “senior members” of the Trump campaign regarding the hacked documents. But there has been no follow-up on this from the Mueller team.
President Trump raised the charges in the indictment during the Helsinki summit in July 2018 with President Putin. The latter agreed, on a reciprocal basis, to permit the prosecutors to be present at the questioning in Moscow of the officers charged. Putin, in his turn, wanted Russian officials to question Bill Browder, wanted for tax evasion; his lawyer was Sergei Magnitsky, who died in a Russian prison, and after whom the US sanctions act, the Magnitsky Act is named. He also wanted to question the former US Ambassador to Russia, Michael McFaul for interference in Russian internal affairs. Not surprisingly, this idea made no progress.
The most recent development involves Trump’s lawyer, Michael Cohen. Once again, and like in Manafort’s case, he was subjected to pressure tactics, including raids in early April 2018 at his home, office, and the hotel room he used as an alternate office. The door to this office was taken off the hinges in order for the prosecutors to gain entry. This was part of a widened probe by Mueller to investigate all those associated with business dealings for the Trump Organisation. The charges being investigated against Cohen included tax fraud and campaign payments to two women who alleged that they had affairs with Trump about a decade back – hush money to keep them quiet.
Cohen gave in quickly and agreed to cooperate with Mueller. In the process, he admitted that he had made payments to the two women, and added that this was done with Trump’s knowledge, and the aim was to keep this information from being made public, so as not to affect the candidate’s election prospects. This last bit can prove damaging, because the case law on the use of campaign funds [even the candidate’s own money] to buy such silence and affect an election is a grey zone. And in these hyper-partisan times, it is hard to predict how a jury would vote – in the unlikely event of its coming to trial.
Fortunately for the President, a trial seems unlikely, as the current view of the DOJ is that a sitting President cannot be indicted. Of course, some of the extreme anti-Trump Democrat leaders are willing to challenge this, so it is good for Trump that he has removed Sessions as Attorney General. Rosenstein remains in place, and he could play fast and loose with precedent; hence the need to get the new nominee for AG, William Barr, approved in the Senate at the earliest possible.
The second route that the Democrats seek to remove Trump is impeachment. Now that they have a majority in the House, and the impeachment vote needs only a simple majority in the House, voting the articles should not be very difficult, although some in the Demacratic Party are against the idea. However, the real difficulty will be getting 67 Senators to vote to remove Trump from office. The Republicans have 53 seats in the Senate and so it seems almost impossible to vote him out.
Thus, barring anything dramatic in the final Mueller report, Trump seems safe for the present term, though the adverse publicity may damage his chances of re-election. It is said that President Bill Clinton actually gained in popularity from his impeachment, but he was already in his second term in 1998, and one cannot say with certainty that he gained as a result from the impeachment.
In a significant development, there has been one more push-back against Mueller, apart from the Flynn case. This involves former Trump aide Roger Stone, and his contacts with Jerome Corsi, former DC correspondent for the news portal Infowars. The Mueller team has been investigating them for their alleged contacts with Wikileaks, the suggestion being that they were parties to the hack and subsequent leaks to Assange. All have denied the charge. Corsi, however, has sued Mueller and several Government organisations in the DC court for illegal surveillance, and has specifically charged that Mueller is using pressure tactics, including the offer of a plea deal, to level charges against Trump. He claims that Mueller offered him no prison time if he would cooperate. But Corsi has declared publicly that he would not tell lies, and was prepared to spend the rest of his life in jail than succumb to the blandishments offered by Mueller. This matter is now before the DC court.
Another running story is that of Maria Butina, a Russian citizen accused of interfering in the election of 2016 in violation of the Foreign Agents Registration Act and of conspiracy to commit an offence against the US. She had initially pleaded not guilty, but after some prison time, she has agreed to change her plea to guilty. If indeed there are any substantive facts that she can disclose, that will be the first hard evidence of Russian interference in the 2016 Presidential election. But so far, there is nothing in the public domain that one can go by.
Obama Administration Activities during Election 2016
That wraps up the Russian-linked collusion charges as of now. It shows limited evidence of Russian involvement, no particular preference and hence limited effectiveness; and the probes, first by the FBI, then by Mueller have not shown collusion between the Trump campaign and the Russian Government – the original brief given to Mueller. There was the open issue of Mueller seeking to interview Trump, though he and the DoJ have clarified that he is not a target of their investigation. There are also press reports to the effect that Mueller himself believes that a sitting President cannot be indicted, and this is certainly the formal opinion of the DOJ. All the same, Trump’s lawyers and supporters in the media were advising him not to agree to an interview, which they see as a perjury trap. In the event, Trump did not do a sit-down interview, citing the same fear, a perjury trap. Instead, he has given written answers to Mueller. What these are will likely be revealed in Mueller’s final report.
The Republicans had all along feared that the Mueller investigation is being dragged out in the hope that the Democrats could flip the House, and then vote to impeach the President. For this reason, Trump’s new team of lawyers pressed Mueller, publicly and privately, to wrap up his probe by early September. Since he did not oblige, the final report will now go to the DOJ, and possibly to Congress as well. Trump has removed Sessions from the post of AG as mentioned, and it remains to be seen when the new nominee will be confirmed in the Senate, where the Republicans have increased their strength, though Romney, one of the newly-elected Republican senators can be counted on to play the anti-Trump role that McCain played while he lived. Meanwhile, the House having passed into Democratic hands, they can be depended on to use Mueller’s findings to inflict maximum damage on Trump.
One recent revelation that has come to light in the summer of 2018 – two years after the event – is that President Obama ordered his cyber security chief, Michael Daniel, to stand down his arrangements to combat Russian hacking. This was revealed by Michael Isikoff of Yahoo News, no friend of Trump. Daniel gave this information during a Senate Intelligence Committee hearing in June 2018. Even Democratic Senator, Mark Warner commented that “we were caught flat-footed at the outset and our collective response was inadequate to meet Russia’s escalation”. As is usual in all such revelations involving wrongdoing by the Obama or Democratic Party politicians, this news has been ignored by the media. But it does suggest that even Obama felt that either the threat was not a serious one, or that it somehow would not affect the outcome of the election. But for the present, this remains one of the many open questions regarding the actions of some of the main actors of the 2016 elections.
The Hillary Clinton Investigation
This issue got activated shortly after a report of March 2015 in the New York Times. According to the paper, during the hearings on the Benghazi episode, it was discovered that she had been using a private email server instead of the secure server at the State Department, as regulations required. Hillary Clinton aides defended the practice arguing that it was not prohibited under the law to have a private server, and that she had taken permission from the Department for this. They also argued that no classified emails were exchanged on the server, and that she had turned over all the official emails for record-keeping as required under the Federal Records Act.
Subsequent inquiries by the State Department Inspector General and then by the FBI showed all these claims to be false. More, all previous Secretaries of State who were asked to be interviewed by the IG agreed to do so; Hillary Clinton alone refused, as did all her aides. In addition, the US Congress had subpoenaed all Hillary Clinton documents on her private server, but she had them professionally destroyed anyway. The server and hard disks were acid-washed, and the instruments, including mobile phones were smashed by hammer.
The FBI conducted an inquiry under unusually lax rules, instead of taking charge of the hardware, and using a Grand Jury to subpoena witnesses. Moreover, the company that maintained back-ups for Hillary Clinton, Datto Inc, agreed to give the FBI all the stored information they had, but even this was not used by the Bureau. Many other lapses have come to light since then, but the most serious is evidence that the FBI had prepared an exoneration statement even before it had interviewed her. They did finally interview her – not under oath, and with aides present, though they were also subjects of the inquiry – and shortly thereafter, she was cleared.
That was itself unusual in the way it was done. Then-FBI Director, Comey, made the announcement that she had been extremely careless in handling classified material but that no prosecutors would indict. This is not the role of the FBI, and Comey justified it by arguing that the Secretary of the Department of Justice, Loretta Lynch, had been compromised by her meeting with former President Bill Clinton at the airport in Phoenix.
Apart from the irregular procedure, later investigation by the DOJ IG revealed that the FBI had altered the original wording of the charges against Clinton from “gross negligence” – a legally actionable term – to “extremely careless”, which had no legal implications. The FBI also covered up the fact that one of the emails that Clinton sent on her private server was to President Obama, referring only to a “senior official” instead.
There was a remarkable denouement to this story in the closing days of the campaign. In late September, well after the exoneration of Hillary Clinton by Comey, several thousand emails from Hillary Clinton aide Huma Abedin, including classified ones, were found on the laptop of the colourful husband of Abedin, a former Democrat Congressman, Anthony Weiner. He had been sexting with a minor on this laptop, and the New York police took custody of the laptop in order to examine it for evidence of the crime. That was when the emails were also discovered, and the FBI took charge of the laptop – in late September.
We now know that the FBI team of Comey, his deputy, Andrew McCabe, and the lead investigator, Peter Strzok, all did nothing with the laptop for close to a month, prompting the NYPD to ask why nothing had been done about the laptop – they had their investigation to get on with. That was when Comey was compelled to announce that the case against Hillary Clinton was being re-investigated in the light of the new emails found. Clinton maintains that this was responsible for her eventual defeat, though Comey cleared her again at the weekend before the actual vote.
All in all, the lax manner in which even grave lapses were dismissed or covered up by the FBI in the Clinton investigation stands in marked contrast to the way every small detail of the Trump campaign is being magnified and made to look like sinister collusion with Russia.
The DOJ-FBI investigation of Clinton was itself the subject of an in-house investigation by the DOJ Inspector-General, Michael Horowitz. In his conclusions, released in June 2018, he detailed the wrongdoing of Secretary Loretta Lynch, Director Comey and several others for the manner in which they conducted the inquiry, but concluded that there was no political bias in their functioning. Given all the facts, detailed by the IG himself, it is hard to agree with this conclusion. Politics probably got in the way.
Investigating the Law Enforcement Agencies
The most significant aspects of the 2016 elections have come to light more slowly: indications of abuse of power by the FBI, the DOJ and the CIA. It is helpful to reconstruct the events that followed in the wake of the election outcome on the night of 8-9 November 2016. We now know two things that had already happened even before Election Day. First, the FBI had planted a spy [or spies, we do not know] in the Trump campaign even before they launched the official investigation into the campaign, which was on 31 July 2016. Trump calls him a spy; the media call him an informant; the FBI technical term, helpfully provided by Comey, is “confidential human source”.
The second is that the FBI used the Steele dossier [in the main], to obtain a warrant under the Foreign Intelligence Surveillance Act to conduct surveillance on a member of the Trump campaign, Carter Page. This was first done in October 2016, and, as already indicated, was renewed three times, since each warrant is valid for only ninety days. This was done using the Steele dossier even though Comey himself testified that it was “salacious and unverified”. He also knew – but did not tell the special FISA court – that the dossier was paid for by the Clinton campaign team through a law firm.
But all this is to anticipate. The actual sequence of events is an astonishing tale of an intelligence apparatus gone rogue. The full facts are still not available even to the Congressional committees overseeing the functioning of the DOJ and the FBI because both these bodies are stalling and slow-walking requests for information. And they are now headed by Trump appointees!
As mentioned above, the Establishment went after Trump with a rare ferocity. After the interference during the campaign to prevent his victory [more on this below], and the attempted blackmail by Comey, they turned their attention to destroying his Presidency. The first blow was struck when the Intelligence Community Assessment [ICA] was released, followed in short order by the Steele dossier, the latter being described by Comey himself as “salacious and unverified”. The ICA was worded in such a way as to undermine the legitimacy of the President-elect:
We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump.
Another revealing document in this connection is the memo to self, recorded by the outgoing National Security Adviser Susan Rice. This was recorded on 20 January 2017, technically minutes after she had ceased to be NSA, and was a record of a meeting taken by President Obama with Vice President Biden, NSA Rice, FBI Director Comey, and Deputy Attorney general Yates. A redacted text is available to the public and reads as follows:
President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities "by the book". The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.
From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.
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.
It is not clear why she would need to record this after Obama’s Presidency ended, but the message is clear: if Comey felt he should hold back some information from the incoming team on national security grounds, he should, particularly as it related to Russia.
The next attack targeted his National Security Adviser, General Flynn, who was forced to quit, after having been “unmasked” – had his name revealed from an intercepted telephone conversation – and was accused of lying about his conversation with the Russian Ambassador by the same Deputy AG, Sally Yates, who attended Obama’s last meeting on the Russian interference issue. She quoted a law that had fallen into desuetude, the Logan Act of 1799, which forbids private citizens from dealing with foreign countries. Every past NSA had dealt with foreign countries during the transition, and private citizens like Jimmy Carter did the same, as did John Kerry most recently during his meeting with the Iranian Foreign Minister after he ceased being Secretary of State. But finally, it was the fact that Flynn had lied to Vice President Pence that finished him; he resigned on 13 February 2017.
As for the person who got Flynn, Sally Yates, she herself was removed from office by Trump for defying an order restricting immigration from a list of seven Muslim-majority countries. She left office on 30 January 2017.
On 2 March 2017, former AG Sessions recused himself from the Russia probes, present and future, because he had denied having met any Russians during 2016. In fact, he had met the Russian Ambassador on two occasions, once in the Senate [he was a Senator in 2016] and once at the Republican National Convention. He had met the Russian in the company of several colleagues, and had met several other foreigners – but in the prevailing atmosphere, this was enough for him to recuse.
The next target was Devin Nunes, the Chairman of the House Permanent Select Committee on Intelligence [HPSCI] who had opened an inquiry into Russian interference on 25 January 2017. His Committee, however, was looking into the activities of both Presidential campaigns, not only that of Trump. Nunes received evidence in the White House – but not from a staffer – that there was indeed some “incidental” gathering of information on Trump during the transition. The Democrats on the Committee claimed that Nunes had, in fact, been briefed by the President’s staff; and that he was wrong to brief the press before his colleagues on HPSCI. They demanded that Nunes also recuse himself, which he agreed to do on 6 April. Unlike Sessions, however, Nunes asked for an inquiry by the House Ethics Committee so that he could be cleared of any wrongdoing, and resume his role in the inquiry. This happened in December 2017, and Nunes resumed his activities.
Rod Rosenstein was approved as the new Deputy Attorney General, and he became effectively the head of DOJ for Russia-related inquiries, given the recusal of Sessions. He was confirmed in the post on 26 April 2017, and one of his early acts was to prepare a memorandum for Trump to sack Comey as FBI Director. The main charges against Comey in the memo were that he exceeded his brief in exonerating Hillary Clinton in July 2016, and then announcing the re-opening of the investigation in late October. On 9 May, Trump sacked Comey, on the basis of the facts and conclusions offered by Rosenstein.
However, his relief was short-lived, as Rosenstein appointed Robert Mueller III as the Special Counsel to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” – a rather wide latitude because “links” could be of many types. Plus which, the team Mueller assembled to complete his task consisted largely of people overtly in the Hillary Clinton camp, linked either through donations to her campaign or otherwise.
But this is where the story gets deeply troubling. The House Intelligence Committee has had a very difficult time getting facts and documents from the FBI and DOJ. When they do get some documents, they are frequently heavily redacted, to the point of being meaningless. On top of that, many documents are just not provided – sometimes it is hard to escape the conclusion that this is mala fide.
Case in point: the FBI is still not providing any originating document, which would show why the spy was planted into the Trump campaign. The official version, that the investigation was triggered by loose talk by one of Trump campaign aides, George Papadopoulos, does not fit in with the timing of the insertion of the spy – or spies, as has been suggested. However, the formal, admitted investigation is said to have begun on 31 July 2016, a few weeks after Hillary Clinton was cleared for the first time.
The month of August 2016 showed some pretty shoddy activity by the FBI, in particular, by the Deputy Director, Andrew McCabe, Peter Strzok, lead investigator into the Hillary Clinton and Trump cases, and Lisa Page, his paramour and former FBI lawyer – all three have since been fired. But this activity remained hidden for months afterwards, even though Mueller apparently became aware, and removed both Strzok and Page from his team. After much effort, the DOJ Inspector-General, Michael Horowitz, unearthed the following exchange, which took place on 9 August, shortly after Strzok had been to London to follow up on some leads from the sources in that city:
Page: [Trump’s] not ever going to become President, right? Right?!
Strzok: No, he won’t. We’ll stop it.
This last message had been kept back by the FBI, and they claimed that they themselves did not know of its existence, though they had the immediate previous and subsequent messages. Strzok and the anti-Trump elements have tried to make light of this, but there is first the question of why try to remove this exchange from the released messages; but even more telling is the exchange just three days prior to this one.
Strzok – God that’s a great article. Thanks for sharing. And F TRUMP.
Page – And maybe you’re meant to stay where you are because you’re meant to protect the country from that menace
Strzok – Thanks. It’s absolutely true that we’re both very fortunate. And of course I’ll try and approach it that way. I just know it will be tough at times. I can protect our country at many levels, not sure if that helps
This certainly does not sound like idle chatter. They are both talking action.
Another important exchange took place a week later, on 15 August, where apparently McCabe, Strzok, and Page discussed the election, and possible outcomes. This is the text message Strzok sent to Page – the “Andy” in the text has been established to be Andrew McCabe.
Strzok - I want to believe the path you threw out for consideration in Andy’s office — that there’s no way [Trump] gets elected — but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40.
In addition, Strzok had some strongly negative opinions about Russians, and expressed himself in quite colourful language.
The amazing bit is that Strzok maintained at his hearing in the House that he showed no bias in his actions, which strains credulity. But the partisan divisions run deep in today’s Washington, and there are many takers for this implausible claim. In his defence, Strzok said that he felt such disgust at Trump slamming the Gold Star family, whose son, Humayun Khan was a soldier, that he felt he should stop Trump. The righteous anger is laudable, but apparently did not persuade even Mueller, who removed Strzok from his team investigating Trump. But Mueller himself kept quiet about this whole episode and did not inform Congress.
The full picture of the activity of the intelligence agencies is still emerging. As mentioned, the DOJ and the FBI are slow-walking, redacting, and sometimes straight refusing to part with information. Over the years, several bureaucrats have stonewalled in this manner, as has Hillary Clinton – without any consequences. Thus the Deputy AG, Rosenstein, is blocking significant Congressional supervision; the frustrated leaders of the House Committees tried to impeach him, but the Speaker, Paul Ryan, declined to back them. An impeachment looks unlikely at this stage. There is still a trickle of information coming out, but far from enough to establish the extent of the wrongdoing by the Establishment.
Meanwhile, the Mueller probe rolls on. Trump’s former campaign head, Paul Manafort is facing trial on unrelated charges – tax fraud mainly, in relation to work done for the pro-Russian Ukrainian government. Tony Podesta, the brother of Clinton’s campaign head, John, did the same work, but he is being tried separately, and then too after Trump tweeted about the differential treatment of the two cases. Most of the others close to the Trump campaign – Flynn, Carter Page, Trump’s lawyer, Michael Cohen – have all caved in to strong-arm methods by Mueller, and pleaded guilty on lesser charges, in return for cooperating with Mueller’s probe. Manafort has decided to fight it out, and faces a long prison term if found guilty on the remaining charges too. He did strike a deal as well, on the second set of charges, but it seems to have fallen apart. Mueller has accused him of lying to the probe, and of continuing to remain in touch with the Trump team.
A recent development is the discovery of new emails linking Steele with Bruce Ohr, the No. 4 officer in the DOJ; his wife Nellie Ohr worked for Fusion GPS, the company that fronted for the Democratic National Committee in hiring Steele; and the Russian oligarch Oleg Deripaska; and, of course, Glenn Simpson, the head of Fusion GPS. From January 2016, this group was in touch with each other, and the emails make clear that Steele continued to work with Bruce Ohr even after the FBI terminated its links with him, allegedly for leaking to the press. The former Chair of the HPSCI, Nunes, had declared that Bruce Ohr will be probed in greater detail, and is a person of major interest in this case. This now looks unlikely under Democratic rule in the House, though the Senate may well continue its probes.
The Democrats having flipped the House, they have indicated that they will vote the articles of impeachment against Trump. The hope of unseating him remains alive, and is being articulated by the extreme elements in the Democratic Party, like Maxine Waters.
The second likely aim is to make a 2020 run for Trump prohibitive. After the travails of the people who backed the Trump campaign in 2016, there would be strong disincentive among future political activists to get involved with any future Trump campaign.
And so, there is this oddity: allegedly the most powerful man in the world is being jerked around by the Rosenstein-Mueller combine. Sessions could have made it easier by either fighting his recusal [as Nunes did, successfully] or resigning, and letting another AG take charge of the Mueller investigation. But he was clearly determined to gritting it out, despite occasional public humiliation – entirely justified – by President Trump that his recusal has made him useless to the President. Sessions’ failure to act objectively was further exposed when he refused to appoint a second special counsel, as was asked for by some Senators, including Grassley and Graham. They wanted this counsel to probe the activities of the FBI and DOJ during the 2016 elections, in light of all the wrongdoing emerging from the various congressional committee probes. But he declined, and, instead, appointed another internal prosecutor, John Huber, at the end of March 2018. So far, he appears to have done nothing of note with regard to his brief.
So, between three men, the President of the United States was reduced to helplessness. Immediately after the mid-term elections, Trump sacked Sessions, and appointed an acting AG, Matthew Whitaker, who was chief of staff to Sessions until the latter’s sacking; predictably, he appears to have made no difference to the functioning of either DOJ or the investigation, though such fears were expressed at the time of the removal of Sessions. Trump has also nominated William Barr for the substantive post. Barr held the same post under President George HW Bush from 1991 to 1993, and the Senate is due to hold confirmation hearings presumably in the new year. This should put him in charge of the investigation, but it is probably too late: the final report should itself be out soon.
After the Mid-term Elections
So, for now there is an uneasy stalemate between the two sides, that is, the Mueller investigation team and the President’s defence team. Mueller will sooner or later have to submit his findings to Rosenstein [or the new AG], who will pass them on to Congress. With the Democrats in control of the House, it is hard to predict what they will do with the report. But several of the incoming members have spoken publicly that they would vote to impeach. This has been repeated after the admission by Cohen regarding the payments to the two women who alleged affairs with Trump. With their comfortable majority, the Democrats will not have much difficulty in passing the articles of impeachment, for which a simple majority is required. Of course, this has nothing to do with the original charge of Russia collusion, and that remains unproven. But since the idea is to get Trump, any stick is good enough. It will also become easier for the FBI and DOJ to deal with the House investigations, without the demands of the likes of Nunes.
But even if the House were to vote the articles of impeachment, there would need to be a 67-vote majority in the Senate in order to remove the President, something that has never happened before. The closest was in 1868, against Andrew Johnson, who survived by one vote, even though the Republicans had a two-thirds majority in the Senate – Johnson was a Democrat, even though he was Vice President to Lincoln, a Republican. It is extremely unlikely that the Republicans will vote to oust a President of their own Party, especially given that they have already lost one President, Richard Nixon, under threat of impeachment. Bill Clinton was impeached in 1998 on two counts, which came to a vote in the Senate, and survived with safer margins.
Trump, on the other hand, must also move decisively now, after the mid-terms on the DOJ leadership, which has let him down. The Attorney General, Jeff Sessions, has already been removed. But the Deputy, Rod Rosenstein, has also stood by while the Mueller team has conducted a biased and bare-knuckle inquiry, and deserves the sack. But Trump has another dilemma, apart from the political fall-out of a firing – finding the right people. After all, Sessions, Rosenstein and even the FBI Director, Christopher Wray – were, or are, all his choices. Will Barr be more willing to ensure fair play? It may be too late by the time he takes office for the damage will have been done. He may also have to make some compromises on this issue in order to obtain Senate confirmation when the hearings come up.
A recent development has been the apparent willingness of the Russian government to get involved in the process, after having more or less steered clear of the issue. It began when the Press Secretary to President Putin confirmed publicly that Cohen had indeed sent emails to his office in January 2016, asking for help with the proposed Trump Tower in Moscow. But, he added, his reply was to point out that the President’s office did not deal with business projects, and invited him to the St Petersburg Economic Forum where he could promote the project with prospective partners. This would seem to refute Cohen’s later claim that contacts had been maintained until later than January 2016, and that he had lied to Congress when he said that January was the last contact.
At about the same time, the Russians have also put out an offer to declassify the documents they sent back to the Obama Administration on the collusion report, if the Trump Administration were agreeable. This presumably would also give the lie to the claims made in the Intelligence Community Assessment of 6 January 2017, which charged the Russians with having colluded with Trump to discredit the Clinton campaign. The offer was made by the Cyber Threat Response Centre, an arm of the FSB, the internal security agency of Russia.
It is worth speculating as to why the Russians have made these disclosures after the mid-terms. The result of both the initiatives outlined above has been to strengthen Trump’s hands, though he has not yet responded to either. Presumably, the Russian reply on the hacking and other cyber activities charges would be to offer an effective denial/rebuttal. And Putin stated during the Helsinki summit press-conference that he did indeed prefer Trump to Clinton, as the latter was known to be anti-Russian.
But there is a reluctance on the part of Trump to go public with the information that is both hard to understand and uncharacteristic of him. Recently, The Wall Street Journal again editorialised in favour of Trump opening all the relevant files to the public, but he remains cautious. He has threatened to do so if the Democrats go after him, but he needs to understand that there is no room for compromise on these issues. He will either prevail over the Establishment, or they will make an example of him for all future Presidents who would challenge their power.