Ball of Collusion

by Andrew C. McCarthy

  On July 19, Steele completed the now-infamous report about Carter Page’s purported Moscow meetings with Sechin and Divyekin. Even though this report was just three days before WikiLeaks went public with the hacked DNC emails—a time during which there must have been feverish preparatory activity that might have come to Steele’s attention if his sources were actually well-placed—there is nothing in the report about Russia hacking emails and transmitting them to WikiLeaks. Even though Steele yet again took pains to allege that the Russian government possessed a “dossier of ‘kompromat’” on Clinton that it might be willing to share with the Trump campaign, the report contains no suggestion that this kompromat included emails.

  Steele uncovered neither Russia’s hacking of DNC emails, nor its use of WikiLeaks to publish them. Steele had no foreknowledge even though, right up until the moment the emails were published, he was leaning heavily on what he and Simpson portrayed as Steele’s well-connected Russian sources. By the time Steele discussed the hacked emails in one of his faux “intelligence reports,” days had already passed since the Clinton campaign and the DNC began publicly blaming the Kremlin. On July 24, for example, Clinton campaign manager Robby Mook related that “experts are telling us that Russian state actors broke into the DNC, stole these emails, [and are] releasing these emails for the purpose of helping Donald Trump.”45 Steele did not discover anything. He simply echoed the narrative that the Clinton campaign was already spouting, folding it into a document that he stamped “intelligence report.” The subsequent investigation by U.S. intelligence agencies, which concluded that Russia was behind the hacking, does not corroborate Steele. He was just repeating what lots of people were saying.

  This is the dossier’s pattern. Where Steele and Simpson made original allegations, those claims either cannot be verified or have been convincingly denied: e.g., the pee tape, Page’s meetings in Russia with Putin operatives, the purported Michael Cohen trip to Prague, the non-existent Russian consulate in Miami. But where Steele made assertions that are apparently true, they do not involve original discoveries unearthed by his network of sources. Rather, they are either (a) occurrences that were unhidden and easily knowable by anyone (e.g., Page’s trip to Russia), or (b) claims that many other people were already making (e.g., that Russia hacked the DNC emails and passed them to WikiLeaks for dissemination).

  Steele’s project was not intelligence-gathering. It was the crafting of a campaign narrative about a traitorous Trump–Russia espionage conspiracy, into which new developments were melded as they occurred. That’s why Steele and Simpson peddled the information to the media at the same time Steele was feeding it to the FBI and the Justice Department. Even Steele does not claim his reports were factual; in the British libel proceedings against him, he described them as “unverified” “raw intelligence” that “warranted further investigation.”46

  The Clinton campaign’s Steele dossier was the sheer political spinning of rank rumor.

  CHAPTER TEN

  There’s No Collusion Case … Just Ask Julian Assange

  Russiagate is a complicated, sprawling story: multi-agency and transcontinental; spanning law-enforcement and intelligence operations; featuring top-secret redactions, classified leaks, intricate narrative threads, and a list of dramatis personae that would dizzy a Russian novelist. It is easy to lose track of basic facts.

  Here’s the most basic one: There was never a shred of evidence that the Trump campaign conspired with the Kremlin. Not to commit espionage. Not to violate any law. Zip, zero, nada.

  The only thing resembling evidence—i.e., made to look like authentic intelligence reporting—was the Steele dossier. A pulpy wannabe le Carré thriller, framed by Glenn Simpson’s creative theories of dark doings at the lucrative intersection between American political operatives and a cabal of veteran Soviet spies, organized crime chiefs, and overnight oligarchs. The blanks were filled in by unverified tales from the unidentified sources of Christopher Steele, a British spy who perfectly reflected the transnational-progressive pieties of his Fusion GPS collaborators, his Obama administration admirers, and his global network of current and former spooks. For them, Donald Trump was anathema: a know-nothing narcissist—as uncouth as Queens—riding a populist-nationalist wave of fellow yahoos that threatened their tidy, multilateral, post-World War II Order.1

  Trump had to be stopped. The rest was details.

  In the summer of 2016, the details closest to hand involved the hacking of Democratic email accounts. So that became central to the narrative. As we’ve seen, once the hacked emails were published, Simpson and Steele incorporated them into the dossier’s ongoing story, after which they became the centerpiece of the purported Trump–Russia conspiracy—with Paul Manafort managing the enterprise, his emissary Carter Page doing the leg-work of messaging between the Trump campaign and the Kremlin, and Michael Cohen handling the payment arrangements (as if Guccifer 2.0 were Stormy Daniels).

  As you read the story, though, you have to keep reminding yourself that it is complete fiction, and was never anything but. The only “proof” for it is Steele. Wait a second, you’re thinking: What about George Papadopoulos—he of the “real” Origin Story? Well, as we’ve observed, there are significant reasons to doubt Papadopoulos’s story. But okay, for argument’s sake, let’s assume that Papadopoulos is completely honest and accurate: the Maltese Professor Joseph Mifsud really did tell him that the Russians had thousands of Hillary Clinton emails. For the moment, let’s ignore (a) that the British-intelligence-tied Mifsud denies telling Papadopoulos about emails, that Special Counsel Mueller has never alleged that his denial was false, and that there is no evidence Mifsud had any basis to know what Russian intelligence agencies were up to; (b) that Mifsud never mentioned emails to Australian diplomat Alexander Downer (as we’ve seen, like Simpson and Steele, after the hacked DNC emails were published, Downer just folded them into his story of suspicions about the Trump campaign); and (c) that Papadopoulos insists that the emails he claims Mifsud said the Russians had were Hillary Clinton’s own emails from her homebrew server, not the DNC emails (which neither Mifsud nor Papadopoulos had any basis to know about when they spoke on April 26, 2016, weeks before hacked DNC emails became public).

  Even if we ignore all those things, even if we assume Papadopoulos is completely truthful, he never came close to implicating the Trump campaign in Russia’s criminality.

  In fact, Papadopoulos actually exculpates the Trump campaign. Clearly, that is why Special Counsel Robert Mueller never charged him, or anyone else, with espionage. If his story is true, then this means the Trump campaign found out about Russia’s hacking of Democrats from sources other than Russian officials—clearly, because the Trump campaign had nothing to do with Russia’s intelligence operations. The only “evidence” that ever said the campaign was complicit in Russia’s hacking—that even said Donald Trump had his own sophisticated hacking operation that was reciprocally feeding the Kremlin, unbeknownst to our $50 billion per annum intelligence community (stop chuckling!)—is the Clinton campaign–sponsored, Simpson/Steele dreamed-up, utterly uncorroborated Steele dossier.

  Critically, the absence of proof was just as patent in the summer of 2016 as it is today. They had nothing. There was no evidence of a “conspiracy of cooperation” between Trump and Putin to hack Democratic emails in order to influence the election. There was only Steele’s say-so that this conspiracy existed. And any competent investigator exercising professional detachment would have kept that say-so at arm’s length: Steele did not come up with the hacked DNC emails angle until it was already public; there was no corroboration for his claims; his dossier reports were slipshod; a State Department official was able to spot a fundamental error instantly (the imaginary Russian consulate in Miami) and, after just moments of checking, confirm her suspicion that Steele was wrong; his sources (at least those which were identified to the FBI) were unreliable (Sergey Millian) or suggestive of disinformation-peddling (Vladislav Surkov and Vyachesl
av Trubnikov); and Steele was a paid private-eye working for the Clinton campaign (which should have more than outweighed any air of reliability stemming from his very different work as an officer of an intelligence agency of an allied country).

  The FBI and the intelligence agencies had no indicia of conspiracy. They had indicia of contacts—of associations. That is night and day different. Everyone had Russia contacts. The Clinton campaign had not just Russia contacts; it had Bill Clinton meeting with Putin and taking a huge payment while Russia had important business before the State Department run by his wife; it had Hillary Clinton, for all her tough-on-the-Kremlin bravado, running the State Department in a manner that aligned with Russia’s interests; it had Russian money pouring into the Clinton Foundation; its chairman, John Podesta, sat on the board of Joule Energy, a Massachusetts company into which Putin’s venture capital firm, Rusnano, invested $35 million.2

  The Obama administration, notoriously political in its intelligence assessments and law-enforcement actions, used Trump contacts with Russia as a rationalization for a counterintelligence investigation because it saw Trump as a Neanderthal degenerate. The Obama administration simultaneously ignored Clinton contacts with Russia, or assumed they simply must have been good faith contacts, because it saw the Clintons as bien pensant transnational-progressives. The Obama administration bent over backwards not to make a criminal case on Hillary Clinton—the candidate Obama heartily endorsed—despite a mountain of incriminating evidence. The Obama administration exploited every tool in its arsenal (surveillance, informants, foreign intelligence agencies, moribund and constitutionally untenable criminal statutes) to try to make a criminal case on Trump—the candidate Obama deeply opposed—despite the absence of incriminating evidence.

  What happened here is not mysterious. It is political.

  Could Russia’s Cyberespionage Be Proved?

  The Russia-gate narrative floats the notion that the Trump campaign was complicit in Russia’s hacking of Democratic emails, then quickly pivots to Trump–Russia contacts, hoping you don’t notice the absence of proof that the contacts had anything to do with the hacking. But the legerdemain goes deeper than that.

  The United States government’s claim that Russia is responsible for the hacking, while credible and probable, cannot be proved beyond a reasonable doubt. In the absence of sufficient evidence to establish Russia’s guilt in court, there was no way Special Counsel Robert Mueller could ever have proved Donald Trump, his campaign, or anyone else conspired with Russia.

  Again, don’t take my word for it. Instead, judge by what the government does. Or better, by what it does not do. Specifically, what it did not do to Julian Assange. The Justice Department did not indict Assange for engaging in a cyberespionage conspiracy with Russia to undermine the 2016 election. Mind you, while there is no evidence that Trump conspired with Russia, we were told for two years that Assange and his WikiLeaks organization were Putin partners, confederates in the Kremlin’s hack-and-publicize scheme. Indeed, possible Trump campaign contacts with WikiLeaks were put under the microscope, on the theory that to collaborate with Assange was to collaborate with Russia—collusion!

  Yet, shortly after Mueller’s final report was filed, we learned that the Justice Department had already indicted Assange under seal. On April 11, 2019, he was expelled from the Ecuadorian embassy in London and apprehended by British police, in large part based on American charges for which extradition was sought. But those charges do not include conspiracy with Russia. Why not?

  Because the Justice Department has never been in a position to prove such a conspiracy in court.

  Now, it is easy (maybe inevitable) to be taken the wrong way on this. So, to be clear, I accept, and have always accepted, the intelligence agencies’ conclusion, echoed by Mueller, that Russia was behind the hacking of Democratic email accounts. There are skeptics who do not accept this conclusion, and they are not all crackpots as the media-Democrat complex would have you believe. But I do accept it. Just as I accept as true a lot of things that can’t be proved in court. In twenty years as a prosecutor, I had many cases in which people I was quite confident were guilty could not be charged—not because they didn’t do it, but because we couldn’t prove it. And here’s the thing: In a normal prosecutor’s office, when it is clear a crime can’t be proved, investigators move on to the next case; they don’t keep a hopeless case open as a pretext for dogging people in the hope that some crime will turn up.

  There is a big difference between (a) accepting an intelligence conclusion based on probabilities, and (b) proving a key fact beyond a reasonable doubt in a criminal case.

  The key fact that Russia was behind the hacking of Democratic email accounts has never been proved in court. It is based, instead, on an intelligence judgment by three agencies, the FBI, CIA and NSA, announced under the auspices of a fourth, the Office of the Director of National Intelligence. My point here is not to stress that these agencies were led by Obama appointees; it is to grapple with the nature of intelligence judgments, which are executive branch agency conclusions as opposed to judicial findings made after an adversarial contest. This dichotomy does not depend on which party is running the executive branch.

  The objective of a criminal investigation is a prosecution, not a national-security judgment. In a prosecution, each essential element of the offense charged must be proved beyond a reasonable doubt. It is virtually certain that Russia’s guilt could not be established under this exacting standard. Not unless the Justice Department found and corroborated an accomplice witness who was involved in the hacking, and who could be exposed in court without revealing essential intelligence operations. That apparently has not happened despite many months of investigative effort.

  The intelligence agencies may have high confidence in their judgment about Russian espionage. But that does not mean this judgment could ever be proved in a criminal prosecution. In fact, the intelligence agencies’ own January 6 report on “Russia’s Influence Campaign Targeting the 2016 Presidential Election” flatly states: “Judgments are not intended to imply that we have proof that shows something to be a fact.”3

  Let that sink in.

  A comparison is in order: If a prosecutor in a criminal trial were to say, “This allegation is not intended to imply that we have proof that shows the allegation to be a fact,” the jury would say, “Not guilty.” Indeed, the judge would dismiss the case before it ever got to jury deliberations.

  Still, if you think about what intelligence agencies are for, their humility about the uncertainty of their judgments makes sense. They are protecting national security. When American lives are at stake, we do not wait to take action until the threats against us can be proved beyond a reasonable doubt. We make judgments, as the agencies’ Russia report admits, based on sources of information and analytic reasoning.

  The information on which these judgments are based is often fragmentary and so highly sensitive—e.g., covert agents who would be killed if revealed—that it cannot be exposed publicly without compromising top-secret intelligence operations, which would endanger the nation. The analytic reasoning gives us not courtroom proof of fact but the intelligence agencies’ perceptions of probability. Intel analysts are highly trained and experts in their field. Nevertheless, their conclusions are often highly debatable or wrong—which is to be expected: the information inputs are of varying quality, so the best output they can give you is often mere probability.

  Prosecutors are not in the probability biz. They are not directly responsible for national security, even if their cases promote it. The prosecutor’s remit is to prove facts to a near certainty because the result of a prosecution is the removal of fundamental freedoms: liberty, property, and, in a capital case, even life. This is why evidentiary rules suppress evidence that fails the tests of authenticity and reliability (while intelligence analysts are permitted to factor in such evidence, so long as they account for its suspect nature). It is also why the “beyond a reasonable doubt
” standard is imposed in criminal cases—more demanding than the “preponderance of the evidence” standard in civil cases and the “probable cause” standard that applies to arrests or search warrants, both of which are themselves more demanding than the supposition that sometimes supports intelligence judgments.

  The agencies’ Russia report informs us from the get-go that the full extent of their knowledge and the bases for their assessments cannot be demonstrated publicly because “the release of such information would reveal sensitive sources or methods and imperil the ability to collect critical foreign intelligence in the future.” The Justice Department, therefore, is not in a position to prove what the agencies claim to know. But this limitation is not the half of it.

  The most critical physical evidence of Russian cyberespionage was the DNC server system alleged to have been hacked. Yet inexplicably, in light of how Russia-gate has roiled the nation, the Justice Department never compelled the DNC to surrender this server system to the FBI so that forensic examination could be conducted. Obtaining possession of, examining, and preserving critical physical evidence is an elementary part of any investigation geared toward eventual courtroom prosecution. As one would expect, the Bureau made multiple requests, including at very high levels. But it was rebuffed. The Bureau’s then-director, James Comey, affirmed the obvious: The FBI would “always prefer to have hands-on access ourselves if that’s possible.”4 But why pretend that this was a voluntary cooperation situation? There was a readily available legal process—grand jury subpoenas, or even a search warrant—that would have required the DNC, on pain of prosecution for contempt, to permit physical examination of the servers by the FBI. Yet, just as in the Clinton emails investigation, the Justice Department of the incumbent Democratic administration refrained from forcing top Democrats to comply with basic evidence demands in an important investigation. And the FBI meekly went along. Can you imagine what Jim Comey would say if the Republican National Committee refused to comply with routine requests for essential information in a vital investigation and the Trump Justice Department declined to issue a subpoena to compel compliance?