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Collusion Is in the Eye of the Beholder

Russiagate looks less like a righteous crusade for truth and justice and more like the typical shenanigans for which the FBI and US security state have long been known: prosecutorial overreach, entrapment, and the criminalization of foreign policy dissent.

Former White House National Security Advisor Michael Flynn leaves the Prettyman Federal Courthouse following a sentencing hearing in U.S. District Court December 18, 2018 in Washington, DC. Chip Somodevilla/Getty Images.

The crux of Russiagate is that it’s a political scandal masquerading as a criminal one.

The interminable scandal has been back in the news this past week thanks to the Trump Department of Justice’s decision to drop charges against Michael Flynn. Flynn was once briefly Trump’s national security advisor before being fired and then charged with lying to the FBI over a phone conversation with Russian Ambassador Sergey Kislyak during the presidential transition. Last Thursday, the House Intelligence Committee finally released fifty-seven transcripts of closed-door interviews it conducted with various key players in the saga over 2017 and 2018, covering Flynn’s call with Kislyak and other matters.

Since the news dropped, every effort has been made to turn Flynn’s absolution into the latest Trump outrage. Barack Obama himself weighed in, charging in a leaked phone call with supporters that “there is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free,” and that the “rule of law is at risk.”

Four years into this chaotic and reactionary presidency, there are more than enough legitimate Trump scandals to go around. But as with many things Russiagate, both the Flynn case and the release of the transcripts reflect far more poorly on the Obama administration, American’s hallowed national security institutions, and the anti-Trump “Resistance.”

Understanding why requires going all the way back to 2016 and the beginnings of the Flynn case. Flynn was a former intelligence official pushed out of the Obama administration over, among other things, his management style. Years later, he became a characteristically weird Trump guy: a heterodox foreign policy thinker who combined occasional opposition to endless war with conspiratorial Islamophobia, and became nationally known for flirting with the “alt-right” and chanting “Lock her up!” at the 2016 RNC.

Flynn’s loyalty to Trump was rewarded that year when he was announced as the president-elect’s national security advisor. At the same time, Flynn had, like many in Trump’s orbit, been investigated by the FBI over whether he was a Kremlin agent, and only further raised hackles after it was leaked that he had spoken to Kislyak the same day that Obama ordered sanctions and expelled thirty-five Russian embassy officials as retaliation for Russia’s interference in that year’s election.

Flynn was, at first, pushed out by Trump when it turned out he had caused Vice President Mike Pence to unwittingly lie about the contact. He was then later charged by Robert Mueller and his team in the course of the “collusion” probe with lying to the FBI (not, as Obama claimed, perjury), which at the time was cause for much speculation: it was the umpteenth “beginning of the end” of Trump’s presidency but ultimately produced no new revelations about a Trump-Russia conspiracy. Now, he’s been allowed to skip a maximum of five years in jail and walk away “scot-free,” as Obama put it.

But through it all and since, details have trickled out that have made the entire saga far less clear-cut than those most invested in the “collusion” narrative would have the public believe. For one, despite all the innuendo around Flynn’s Russian contacts and his sitting next to Putin at a dinner, investigators found nothing unseemly when looking into Flynn and had all but closedtheir investigation into him when the news about the Kislyak call broke.

Secondly, the charge Flynn was ultimately slapped with, lying to the FBI, now looks more like a case of entrapment. Recently released notes written by Bill Priestep, former FBI counterintelligence director, prior to interviewing Flynn about the Kislyak call suggest the Bureau was looking at the option to “get him to lie, so we can prosecute him or get him fired.” In the notes, Priestep wrote that “I believe we should rethink this,” that simply showing Flynn evidence so he could admit wrongdoing wasn’t “going easy on him” and was routine FBI practice, and that “if we’re seen as playing games, WH [White House] will be furious,” so they should “protect our institution by not playing games.”

What’s more, contemporaneous notes show that the investigators themselves weren’t sure Flynn had intentionally lied to them, and that Comey himself had said so in a March 2017 briefing, before claiming he had never said anything of the sort after being fired by Trump.

There were further improprieties in the investigation. Flynn has claimed, with some evidence, that the FBI pressured him to sit down for the interview without a lawyer. Additionally, two years ago, Comey himself admitted that he had violated protocol by sending investigators to interview Flynn without going through the White House counsel, calling it “something I probably wouldn’t have done or maybe gotten away with in … a more organized administration.”

Things get worse when one goes through the Mueller team’s interview notes for then-acting Attorney General Sally Yates and Mary McCord, another DoJ official and both Obama appointees. To the surprise of Yates — who insisted the White House needed to be informed Flynn had misled them, given it put him in a potentially compromising position — Comey repeatedly refused to notify the White House, and the FBI’s reasons for not doing so “morphed” over the course of discussion. Yates and her team were then “flabbergasted,” “dumbfounded,” and “hit the roof” when they learned Comey had sent agents to interview Flynn without informing her, believing it should have been coordinated with the DoJ.

After this, Mueller’s prosecutors coerced Flynn into pleading guilty by bankrupting him and threatening to go after his son, not unlike the treatment visited upon government whistleblowers under the Obama administration. Through it all, there was the fact that Flynn had never actually committed any underlying crime by talking to Kislyak — not to mention the fact that Mueller himself debunked the entire Russiagate conspiracy theory — making his false statements to the FBI technically criminal, but irrelevant.

The backdrop to all of this is the FBI’s staggering misconduct in spying on the Trump campaign in 2016. As last year’s report from the DoJ inspector general revealed, the Bureau repeatedly misrepresented or left out evidence, and even used outright false claims to obtain a FISA warrant to spy on former Trump campaign aide Carter Page, a businessman and sometime-CIA asset with ties to Russia who advocated for business-minded co-operation between the two countries.

In light of all of this, Russiagate looks less like a righteous crusade for truth and justice and more like the typical shenanigans for which the FBI and US government have long been known: prosecutorial overreach, entrapment, and the criminalization of foreign policy dissent. Trump’s grotesqueries have has made it impossible for many liberals to acknowledge this fact. But the fact that the FBI’s misconduct was aimed at a right-wing government this time should be no reason for Democrats to dismiss the magnitude of the scandal.

In fact, the Intelligence Committee transcripts reveal the extent to which it was ideological opposition to, or simply political disagreement with, the incoming administration over foreign policy that drove suspicion of a Trump-Russia conspiracy.

“Maybe I’m Biased”

Despite the insistence of anti-Trump media, “collusion” was never crime. Even former Obama officials alarmed by Trump’s apparent closeness to the Kremlin acknowledged as such behind closed doors.

“Collusion is a word that’s been used out in the public to refer to this investigation,” McCord told the intelligence committee. “It’s, of course, not a crime itself.”

But you didn’t need the testimony of Democratic officials to know this. If “colluding” with a foreign power to win an election was a crime, then it was one both Hillary Clinton and Mitt Romney were guilty of in 2016 and 2012, respectively.

To defeat Trump in 2016, the Democratic Party teamed up with the Ukrainian government, which viewed a Clinton presidency — with its controversial preference for sending weapons to Ukraine to fight Russia — as most favorable to its interests. Though widely reported at the time, Ukraine’s 2016 election meddling was retrospectively transformed into a made-up conspiracy theory when it became inconvenient to the Russiagate narrative.

Meanwhile, the open support for Romney from a sitting Israel prime minister, Benjamin Netanyahu, just eight years ago, though controversial at the time, has similarly disappeared down a memory hole. That’s not even to get into George W. Bush’s closeness to a Saudi official heavily complicitin the September 11 terrorist attacks.

When all was said and done, Trump’s run-in with the Kremlin hasn’t come close to the level of intimacy and co-ordination with a foreign government seen in any of these examples.

No, Trump and his team’s real crime was that they crossed the Washington foreign policy consensus and violated government norms, all in the service of attempting to improve relations with the wrong foreign government — in this case, one deemed an official adversary. See this exchange between Rep. Francis Rooney (R-FL) and former Director of National Intelligence James Clapper, one of the former spy chiefs who has repeatedly claimed Trump was in the Kremlin’s thrall on cable news (emphasis mine):

ROONEY: I mean, I guess the point is on the question is, is at what time is collusion collusion, and at what time is it just people that may have an affiliation with the campaign meeting or talking with, whether it be the Russian ambassador on somebody that’s of Russian origin, and when should that be taken as something that rises to the level of an Intelligence Community concern?

CLAPPER: That’s a great question, and I asked — I really can’t answer it other than the sort of visceral reaction to why all these meetings with the Russians. They are what I consider are an existential threat to this country, a country that is not interested in furthering our interests, certainly on cooperating with us. Maybe I’m biased. You know, I’m a Cold War warrior and all that, but — so that was of concern to me.

At another point, Clapper — who had earlier said that election interference is “almost genetic with” Russians, and that the 2016 interference had “viscerally affected me like nothing I’ve even experienced since I got in the intel business in 1963” — recalled briefing the president-elect about the Kremlin’s interference:

I would say it was a professional exchange. He got off on wouldn’t it be great if we could get along with the Russians? I said, yeah, sure, if we found some convergence of our interests. But I’m in the ‘trust but verify’ camp when it comes to Russia. I mean, maybe I’ve just been around too long.

Or as Clapper put it at another point: “I have a very jaundiced view of dealing with the Russians.”

Such thinking pervaded the mindset of other Obama officials. See Obama speechwriter and foreign policy advisor Ben Rhodes’ reaction to the now-infamous Trump Tower meeting (emphasis mine):

l was absolutely shocked. I can tell you I worked on a presidential campaign in 2007-2008. I was one of the principal foreign policy staffers on that campaign. I would have no reason to ever meet with any Russians. The notion of, you know, David Plouffe, David Axelrod, and Valerie Jarrett meeting with the Russian Government would have been literally unthinkable in the context of our campaign. And the leadership of a campaign’s time is their most precious commodity, and the fact that they felt it a worthy investment of time to sit down with representatives of the Russian government was absolutely astonishing to me, and went far beyond, frankly, any degree of interaction that I would have even guessed at.

Of course, much of the outrage over the Trump Tower meeting arose from the fact that the Trump campaign was trying to get dirt on their opponent from a foreign government (the same thing, incidentally, the Democratic Party actually did in 2016 with the Ukrainian government). But quite apart from that, Rhodes here is scandalized specifically by the idea the campaign would simply sit down with representatives of the Russian government.

As Rhodes would later admit, he and other Obama campaign officials did communicate with foreign governments during the 2008 campaign and the transition, only they happened to be “a very small number of friendly governments to the United States.” Rhodes tacitly acknowledges there’s nothing inherently wrong with a campaign meeting with or communicating with a foreign government — the issue for him is which foreign government, a fundamentally political question.

Here’s Yates responding to a question from Rep. Denny Heck (D-WA) about whether “incoming administrations or people on their behalf never have contact with representatives of foreign governments” (emphasis mine):

YATES: No. I don’t think that that was anybody’s sense there, that you would never have any contact. I think what – as they described it to me, what seemed different about this was that he was having conversations with the Russians attempting to influence their conduct now during this administration, and that that would be unusual and troubling.

HECK: And –

YATES: And it also — given that it was the Russians, there’s sort of an extra concern there as well.

Or here’s Obama’s outgoing national security advisor recalling her conversations during the transition period with Flynn, the man set to replace her:

We did talk about Russia as an adversary, as a threat to NATO. … But, frankly, we spent a lot more time talking about China in part because General Flynn’s focus was on China as our principal overarching adversary. He had many questions and concerns about China. And when I elicited — sought to elicit his perspective on Russia, he … downplayed his assessment of Russia as a threat to the United States. He called it overblown. He said they’re a declining power, they’re demographically challenged, they’re not really much of a threat, and then reemphasized the importance of China.

Flynn’s factual points about Russia, by the way, are all objectively true. But as Rice went on to say, she “had seen enough at that point and heard enough to be a little bit sensitive to the question of the nature of General Flynn’s engagements with the Russians,” and so she declined to brief Flynn on Russia policy in the fullest detail, figuring he would be fully briefed once he officially took office.

Like Rhodes, Rice conceded that “it was normal, customary to have contacts with the governments of friendly countries” during a transition, as Obama’s did with the “British, French, Germans, NATO allies, Asian allies.”

“It was not normal,” she said, “to have contacts with adversarial governments during a transition.”

Rather than breaching any kind of legal standard, the common complaint among these officials was that Trump and his team had violated the norm or precept of “one government at a time”: that even though the Trump administration was coming in, Obama and his team were still in the driver’s seat, and it was inappropriate to step on their toes.  Flynn’s decision to do the opposite may have been unwise — but was it really an acceptable basis for everything that followed?

It’s clear that the chaos, dysfunction, and sheer weirdness of Trump’s campaign and budding presidency contributed to deepening suspicion of him and his team. But it’s also clear that this suspicion was more than a little animated by what was essentially a political disagreement over whether Russia is a US adversary, and if it should be treated as such via official policy.

Such a question might sound absurd to some ears. But outside the Beltway there are vast swaths of the US political spectrum where such foreign policy positions are contested: on relations with Iran and China, for instance, or the efficacy of the “war on terror” — issues on which opposing views have often been deemed dangerous, suspect, or even treasonous by one side or another.

Rice herself declared at the end of her testimony, as she complained about Trump’s praise for WikiLeaks, that “the rest of us, everybody in this room, knew that WikiLeaks was our adversary.” Yet in 2010, when the Obama administration was aggressively going after this “adversary,” the public was evenly split on whether Wikileaks had “served” or “harmed” the “public interest” — with 57 percent of young people holding the former view. Just because Rice and the rest of the national security state viewed the organization as an adversary doesn’t make it an objective fact.

And let’s not forget the ongoing, total silence over the US government’s decades-long friendly relationship with “allies” like Saudi Arabia, whose government officials were involved not in releasing embarrassing information about American policymakers, but a terrorist attack that killed thousands.

“A Debating Weapon Against the Opposition”

Whatever one thinks of the wisdom of Trump’s ultimately aborted attempt to re-forge a friendly relationship with Russia, it’s a foreign policy decision that a duly elected government is entitled to make. It therefore lays squarely in the political realm, not the legal one — though national security officials and Democrats have tried their best to make it fit in the latter.

This is perhaps best symbolized by Comey and Obama’s apparent goal of prosecuting Flynn under the Logan Act, a probably unconstitutional 221-year-old law enacted by the same repressive Congress that brought you the Alien and Sedition Acts, and which has never been used to successfully prosecute an American. As liberal legal scholar Detlev F. Vagts put it in in 1966, throughout its history, the Logan Act has been used as “a debating weapon against the opposition and as a threat against those out of power,” a charge that remains just as true today, as attested by its invocation during the Bush and Obama years.

That the administration ultimately resorted to this antiquated law, which prohibits citizens from “correspondence or intercourse with any foreign government” over disagreements with the US, is a sign of how desperate it was to charge Flynn with anything in its waning days. That Flynn was no ordinary citizen but an official for an elected administration-in-waiting whose direct remit was foreign policy makes the threat even more absurd.

Unfortunately, this isn’t the end of it. As others have pointed out, long before the Mueller report made clear a Trump-Russia conspiracy didn’t actually exist, a number of Obama officials testified to the closed-door committee that they saw no actual evidence for this — only hints that made them suspicious.

Yet that didn’t stop those involved from using their public platforms to fan the flames of conspiracy against the Trump administration. Maybe most outrageous was former DNI Clapper, who despite testifying he’d seen no evidence of Trump-Russia collusion has repeatedly gone on CNN and charged that Trump could be a Russian asset. (Amusingly, for all of Obama’s complaints that Flynn was allowed to get away with “perjury,” it’s Clapper who actually committed that particular crime, lyingto Congress about the scope of government surveillance, which Obama’s DoJ refused to lift a finger about despite demands from members of Congress).

Also deserving of special mention is Rep. Adam Schiff, the Democrat who more than any other pushed the “collusion” storyline, riding it to prominence and political donations. Schiff, long a conduit for military contractors, who entered Congress by fundraising record amounts off the Clinton-Lewinsky scandal, has spent years alleging a grand conspiracy between Trump and the Kremlin despite being told under oath by Obama officials hostile to Trump that they had seen no evidence of such a thing. Unsurprisingly, Schiff, the intelligence committee’s chairman, long resisted the release of the transcripts.

Russiagate is therefore looking more and more like a familiar story: one of national security officials, driven by an unflinching belief in the righteousness of their cause and a suspicion of any foreign policy vision outside the narrow and militarist Washington consensus, leading a crusade against those whose views they viewed ran contrary to their own. As always, they turned fundamentally political disagreements into an issue of national security, resulting in the FBI violating norms and laws of its own, while running roughshod over the rights of American citizens.

It is too bad that, because the misconduct this time targeted the justifiably loathed figure of Trump, many observers are incapable of seeing this. The FBI’s misconduct in the Trump-Russia investigation was “troubling, no question,” writes Vox. “But they may not be unique to the Russia investigation, but rather endemic to the agency itself.”

This is not a defense; it’s a description of the very problem.

Why Should the Liberal Left Care?

For many on the liberal left, the Flynn case and the entire Russiagate saga elicits anything ranging from disinterest to outright cheer-leading. After all, why should anyone opposed to Trump, a lifelong criminal and dangerous reactionary, be bothered that the might of the United States’ vast security state was, for once, turned against him?

The answer is that, as with all anti-civil liberties measures, these tactics are first legitimated by being turned on groups and individuals that are wholly unsympathetic, so they can later be used against less objectionable targets. Justifying prosecutorial misconduct and state overreach in one case where an outgoing administration and its allies targeted their political opponents over matters of policy sets a dangerous precedent for future victims, including a potential left-wing or even liberal administration.

Imagine, for instance, if Trump (or any other Republican administration) had spent years alarmingly tamping up tensions with an officially designated foreign adversary — Iran or China, for instance. Imagine one of those governments then leaked unflattering but true information about Republican corruption and malfeasance in order to help their Democratic opponents win, and Trump retaliated with sanctions and other measures.

Imagine, too, that Democrats had publicly pledged to restore friendly relations with these powers during the campaign, and, upon winning the election, an official in the soon-to-be Democratic administration privately urged them not to overreact to Trump’s retaliatory actions. Imagine, then, that the Trump administration unlawfully spied on members of the Democratic campaign, attempted to railroad that official on flimsy grounds, all while his allies continued hobbling the succeeding administration by alleging an unproven foreign conspiracy — all because they thought reorienting relations with countries viewed as dangerous enemies by the Right was something inherently suspect and criminal.

Just as Democrats were right to demand Robert Mueller be allowed to carry out his inquiry, Republicans are absolutely correct to want an investigation of these abuses, even if they’re driven by partisan motives — partisan concerns, after all, have always played some role in the accounting of malfeasance in Washington, from Iran-Contra to the 9/11 Commission. And it’s perfectly possible to be outraged at this entire saga without supporting Trump or treating the GOP as principled defenders of civil liberties — indeed, the party is right now pushing a radical expansion of government surveillance powers that should worry us all.

It is particularly symbolic that in the midst of this imbroglio, the FBI just accidentally revealed the name of another Saudi embassy official complicit in the September 11 attacks, whose identity was long kept hidden by the US government as a “state secret” whose revelation could cause “significant harm to the national security.” Collusion, foreign adversary, national security: in Washington, it’s all in the eye of the beholder.