Exonerated

by Dan Bongino

  Of course, until the entire unredacted scope memo is released, we won’t know whom, exactly, it targeted.

  PHANTOM PROSECUTIONS

  By the end of the summer of 2017, it was obvious that the leads provided by Christopher Steele were never going to lead to a collusion case. The whole thing was a hoax and the investigators knew it. And Andrew Weissmann knew it because he had been briefed by Ohr on the dossier’s provenance in August 2016. But was Steele scammed? Was he doing Simpson’s dirty work? Were they both abused by Russian countermoves? The answer may be all of the above.

  At this point, Rosenstein and Mueller both knew they’d been left holding an empty bag—they’d done all the reading. They’d talked to their team. Mueller’s favorite, Weissmann, who led the Manafort portfolio of criminal charges, had examined the source materials. Mueller and Rosenstein had seen the supporting materials. Neither of these guys is stupid. They must have realized that, in terms of actionable evidence, their dream team and the FBI had amassed a donkey cart full of grade-A manure.

  Actually, manure is more useful than what these guys found.

  So what did they do? What crimes—other than lying to FBI agents, failing to file administrative FARA paperwork, and other process crimes—could they arrest anyone on the Trump team for?

  Let’s compare a bank robbery investigation to the Russiagate probe. If a bank is robbed and money is taken, there is no question that a crime has been committed. Someone robbed the bank and stole money that did not belong to them. It is law enforcement’s job to identify who robbed the bank, to catch the perpetrator, and to recover the money. With Russiagate, investigators thought there might be a crime. But nobody actually dialed 911 and said, “Hey, America is getting ripped off!” No, our own government agencies raised the possibility, apparently after foreign intel agencies and Glenn Simpson, a paid Hillary Clinton operative, sounded the alarm. So our leading law enforcement agency, the FBI, began to investigate. But it couldn’t find any hard evidence of a crime beyond Russian cyberoperations and social media interference. The other stuff—allegations of collusion between the Trump campaign and Russia—well, the evidence agents gathered could be filed away wherever they put reports on unicorn sightings.

  But for Mueller and Rosenstein, they needed something tangible: the equivalent of a bank robbery. And they didn’t have it.

  So they stalled.

  And they stalled some more.

  They were trying to figure out not whether a crime had been committed, but whether they could prove that a crime had been committed. Truth and justice weren’t the end game—saving the reputation of the FBI was.

  Then, they began to focus on building the only case they could around the only documents that might pass for hard evidence: Comey’s memos documenting his meetings with Trump and the transcripts of Trump talking about firing Comey.

  The special counsel added a new twist to Plan C: launch a case to bring obstruction-of-justice charges against the sitting president of the United States—for “obstructing” an investigation into a crime that never happened.

  Of course, the irony of making this move should have been profound and obvious to Mueller and Rosenstein. The investigation into collusion was dead. How could Mueller try to nail the president for interfering with a probe that, from a prosecutorial standpoint, would never result in collusion charges?

  It’s absurd. A philosophical conundrum! A kind of legal “If a tree falls in the forest and nobody heard it, did it make a sound?” question.

  Can you obstruct an investigation that shouldn’t, when all is said and done, have been an investigation? An inquiry that arose from a manufactured plug-and-play operation to destabilize and discredit a presidential candidate? I’m sure there are plenty of amateur lawyers out there ready to say that once an investigation is in process, you have to keep quiet about it. But that’s nonsense. What about an investigation that was essentially a fraudulent political operation or a disinformation campaign designed to destabilize the United States from within?

  In the case of Russiagate, Trump and his campaign were victims, then. Shouldn’t the victim have rights?

  I believe the answer to that question, from Robert Mueller’s perspective, was no. It seems he was so eager to damage President Trump, so horrified by Trump’s attack on the swamp, so upset by the defeat of Hillary Clinton, and so protective of the FBI that surrender was never an option.

  Mueller set his sights on interviewing the president. This was another Hail Mary pass. The investigation had gone nowhere, and Mueller no doubt dreamed of tripping up Trump and building a case against him via a perjury trap. An interminable, predictable jousting match began, with the president’s lawyers refusing to let their client be interviewed and Mueller pressing for access to Trump. The specter of a subpoena to appear before a grand jury loomed in the background, with pundits, legal experts, and Constitution scholars debating the political unknown: could a sitting president even be subpoenaed, let alone indicted? The answer depended on whom was asked.

  Meanwhile, on October 3, 2017, the special counsel got a guilty plea deal out of Papadopoulos on charges that he lied to the FBI. The former Trump advisor says he felt forced to do so because the DOJ threatened to file further charges against him for working as an undeclared agent for Israel. It is likely the DOJ was posturing, but Papadopoulos wanted some sort of closure after being harassed for so long.

  Then on December 1, 2017, Michael Flynn pled guilty to a similar charge.

  As for Paul Manafort, a Virginia jury convicted him on August 21, 2018, of five counts of tax fraud, two counts of bank fraud, and one count of failure to disclose a foreign bank account. Three weeks later, he pled guilty to one count of conspiracy against the U.S. and one count of conspiracy to obstruct justice due to attempts to tamper with witnesses related to illegal Ukrainian lobbying and money laundering.

  Also on August 21, Michael Cohen, Trump’s morally compromised former lawyer, pled guilty in federal court to violating campaign finance laws and other charges.

  Conspicuously absent in all of these pleas and convictions is any mention of the Trump campaign’s colluding with Russia to steal the election.

  What a surprise.

  THE SESSIONS ENDGAME

  The entire Russiagate fiasco continued, aimlessly lingering as those behind it refused to state the obvious: that there was no evidence of collusion. Keeping the special counsel investigation open served two needs: it functioned as a huge, potentially lethal open wound in the Trump administration, which gave Trump haters a wild card to wave at every turn, and it allowed Mueller to continue looking for elusive—nonexistent—proof of the crime he initially had been tasked with investigating.

  By November 2018, the investigation had gone on for well over two years. It was absurd. Mueller didn’t have the nerve or the conviction (or, perhaps, the blessing of Rod Rosenstein) to subpoena Trump, so that legal imbroglio had dissipated. Trump decided the charade had gone on long enough. Rosenstein was overseeing the investigation because Jeff Sessions had foolishly recused himself. If a new attorney general replaced Sessions, the entire power structure behind the investigation—with Rosenstein’s protecting his hero Mueller—would come to a crashing halt. On November 7, 2018, after the midterm election with its losses for the Republican Party, Jeff Sessions offered his resignation at Trump’s request.27

  Now Mueller knew his time would soon be up. Whether it would be acting Attorney General Matthew Whitaker or the inevitable full-time attorney general, William Barr, he would have a new boss who could resort to any number of options—from shutting the out-of-control investigation down (which would ignite another political firestorm) to limiting the scope, to demanding that the investigation be wound down. Either way, his time would soon be up.

  Mueller and his team focused on Roger Stone, Trump’s longtime advisor, whom the anti-Trump cabal had tried to tie to the dumping of hacked D
NC emails by WikiLeaks. On January 25, 2019, an unsealed indictment revealed that Stone had been hit with one count of obstruction of an official proceeding, five counts of making false statements, and one count of witness tampering.28 Stone was the last man taken down by the special counsel in terms of legal action, and as this book was going to press, the outcome of his case was still in limbo.

  But Plan C—the mission to save the FBI’s reputation and take down Trump—was far from over. Mueller had to issue his findings. And in keeping with everything about Russiagate so far, another round of collusion, coercion, politicization, and bad optics was about to be unleashed.

  1Comey, “James Comey’s Prepared Remarks for Testimony,” The New York Times, June 7, 2017, https://www.nytimes.com/interactive/2017/06/07/us/politics/document-Comey-Prepared-Remarks-Testimony.html.

  2Apuzzo, Haberman, and Rosenberg, “Trump Told Russians That Firing ‘Nut Job’ Comey Eased Pressure from Investigation,” The New York Times, May 19, 2017, https://www.nytimes.com/2017/05/19/us/politics/trump-russia-comey.html.

  3Ibid.

  4Schmidt, “In a Private Dinner, Trump Demanded Loyalty. Comey Demurred,” The New York Times, May 11, 2017, https://www.nytimes.com/2017/05/11/us/politics/trump-comey-firing.html.

  5Schmidt, “Comey Memo Says Trump Asked Him to End Flynn Investigation,” The New York Times, May 16, 2017, https://www.nytimes.com/2017/05/16/us/politics/james-comey-trump-flynn-russia-investigation.html.

  6Terry Gross, “Andrew McCabe: FBI Investigations into Trump ‘Were Extraordinary Steps,’” NPR, February 19, 2019, https://www.npr.org/2019/02/19/695646320/andrew-mccabe-fbi-investigations-into-trump-were-extraordinary-steps.

  7Chris Smith, “Rod Rosenstein’s Revenge—And What Comes Next,” Vanity Fair, May 18, 2017, https://www.vanityfair.com/news/2017/05/rod-rosensteins-revenge.

  8Ibid.

  9“General Powers of Special Counsel: § 600.1 - Grounds for Appointing a Special Counsel,” Department of Justice, https://www.customsmobile.com/regulations/expand/title28_chapterVI_part600_section600..1.

  10“Who Monitors or Oversees the FBI?” FBI.gov, https://www.fbi.gov/about/faqs/who-monitors-or-oversees-the-fbi.

  11Ann Parks, “A Conversation with Rod J. Rosenstein U.S. Attorney for the District of Maryland,” The Daily Record, July 14, 2005, https://thedailyrecord.com/2005/07/14/a-conversation-with-rod-j-rosenstein-us-attorney-for-the-district-of-maryland/.

  12Rosenstein, “Order No. 3915-2017.”

  13Office of the Inspector General. “Report of Investigation: Recovery of Text Messages from Certain FBI Mobile Devices,” Politico, https://www.politico.com/f/?id=00000167-a934-df8f-adff-a97d48360000.

  14Ibid.

  15Jeff Mordock and Alex Swoyer, “Three of the Five FBI Employees Dinged for Anti-Trump Bias in IG Report Ended Up on Mueller Probe,” The Washington Times, June 20, 2018, https://www.washingtontimes.com/news/2018/jun/20/peter-strzok-lisa-page-and-kevin-clinesmith-anti-t/.

  16Mueller, “Report on the Investigation into Russian Interference,” vol. 1, 183.

  17“A Top FBI Lawyer Is Allegedly Under Investigation of Leaking Classified Information to the Media” Circa, July 27, 2017.

  18Papadopoulos, Deep State Target, 158–163.

  19Carol D. Leonnig, Tom Hamburger, and Rosalind S. Helderman, “FBI Conducted Raid of Former Trump Campaign Chairman Manafort’s Home,” The Washington Post, August 9, 2017, https://www.washingtonpost.com/politics/fbi-conducted-predawn-raid-of-former-trump-campaign-chairman-manaforts-home/2017/08/09/5879fa9c-7c45-11e7-9d08-b79f191668ed_story.html?utm_term=.da3e5d6d5f0e.

  20Ibid.

  21Financial Crimes Enforcement Network, “Report of International Transportation of Currency or Monetary Instruments,” Department of the Treasury, https://fincen.gov/sites/default/files/shared/fin105_cmir.pdf.

  22Papadopoulos, Deep State Target, 170.

  23Ibid., 133.

  24Ibid.

  25Rosenstein, “Scope of Investigation.”

  26Mueller, “Report on the Investigation into Russian Interference,” vol. 1, 11.

  27Jefferson B. Sessions III, “Letter of Resignation,” Office of the Attorney General, http://apps.washingtonpost.com/g/documents/world/read-jeff-sessions-letter-of-resignation/3298/.

  28Quinta Jurecic, “Document: Indictment of Roger Stone,” Lawfare, January 25, 2019, https://www.lawfareblog.com/document-indictment-roger-stone.

  CHAPTER 7

  The Mueller Distortion

  When Robert Mueller and his team set about writing up the results and conclusions of the special counsel investigation, he had to face reality.

  He and his scheme team had found no hard evidence to confirm nor to prove allegations of collusion between anyone in the Trump campaign and anyone in the Russian government to interfere or influence the 2016 election. This was, for him, an uncomfortable fact.

  His investigators had found evidence of process crimes—crimes that were uncovered as a result of the investigation. None of the uncovered violations had anything to do with election interference, and it’s likely that most of them would never have surfaced if not for the all-out, take-no-prisoners efforts to discover a crime that didn’t exist. Michael Cohen and Paul Manafort are cases in point. They broke the law in a number of ways over a number of years, committing crimes that had nothing to do with election collusion. But they were caught because they were tied to Trump and investigators dug into their past.

  Still, unless the charges could make Manafort, Cohen, and others turn state’s evidence against the president, they were useless to the Russiagate investigators.

  But, again, none of the findings touched Trump. Yes, the president had appointed Flynn his national security advisor and presumably had approved Manafort as his campaign chairman. But he didn’t order them to do anything wrong. Still, the unspoken goal of Russiagate, starting with Glenn Simpson’s “opposition research,” was to expose and hurt Trump’s candidacy and, as it turned out, his presidency. And so Robert Mueller began to mull the one charge for which the investigation had amassed evidence. He started building the case against Donald Trump for obstruction of justice.

  But there were a number of sticky questions around the obstruction charges. Perhaps the most problematic for Mueller was that Comey, who wrote the memos detailing what he claims were disturbing interactions with Trump, admitted before the Senate that Trump had not actually ordered him to stop the investigation into Michael Flynn when he told Comey: “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”1

  Republican Idaho senator James Risch clearly established in this exchange with the former FBI director that Trump had not been instructing Comey to drop the charges:

  Risch: Thank you for that. He did direct you to let it go?

  Comey: Not in his words, no.

  Risch: He did not order you to let it go?

  Comey: Again, those words are not an order.2

  Of course, Comey later made it clear that he did believe the president had been making his wishes known. Comey said, “I mean, this is a president of the United States with me alone saying I hope this. I took it as, this is what he wants me to do. I didn’t obey that, but that’s the way I took it.”3

  Mueller was in a tough spot. His key witness, James Comey, seemed to have talked out of both sides of his mouth at the same time. Comey is skilled at that. Comey admitted that Trump had not ordered him to stop the investigation, and yet he said he felt the president had been telling him what to do. As a potential court witness, Comey was going to be pretty easy to twist up thanks to his nuanced double-talk. He was on record as trying to have it both wa
ys.

  Mueller had other potential obstruction “evidence” that could be used against Trump, most notably his TV interview with Lester Holt, his remarks to the Russian foreign minister the day after he axed Comey, and his barrage of tweets criticizing the investigation. The Mueller report references the Holt exchange,4 in which the president downplays the importance of Rosenstein’s memo recommending Comey’s firing:

  But regardless of recommendation, I was going to fire Comey knowing there was no good time to do it. And in fact, when I decided to just do it, I said to myself—I said, you know, this Russia thing with Trump and Russia is a made-up story. It’s an excuse by the Democrats for having lost an election that they should’ve won.5

  Do any of these “events” prove that Trump had intentionally been trying to interfere with either the FBI probe or, in the case of his tweets, the special counsel’s investigation? Good luck with that. The Holt remarks were fundamentally ambiguous, just like his remarks to Comey. The tweets, meanwhile, were just one man’s opinion.

  It was no secret that Trump was furious with the investigation, and justifiably so. And it is no secret that his working relationship with Comey had been fraught. After all, Comey had lied to the president at Trump Tower in their first meeting by mentioning only the Steele dossier’s salacious accusations. The idea that Mueller could use the tweets as obstruction evidence is ludicrous. Regardless of anyone’s feelings about Trump, I think we can all agree he is a highly visible, non-focus-group-approved Twitter user. The idea that he would try to obstruct an investigation in full view of the world seems unlikely. But let’s give President Trump some credit: I believe he was trying shape public opinion and talk to his base, just as the unethical media leakers investigating a false claim against the president were trying to do. Still, he may have wanted to stop the bleeding from the corrupt investigation, but by doing so in full view, he established plausible deniability.