Ball of Collusion

by Andrew C. McCarthy

  Instead, for this critical analysis, we are expected to rely on Crowd-Strike, a private DNC contractor that had deep ties to the Clinton campaign and the Obama administration.

  Think about that: We’re to expect a jury in a criminal trial would simply accept non-law-enforcement conclusions paid for by the DNC, under circumstances in which (a) the DNC is invested in the storyline that Russia is the culprit in its effort to steal the election from Mrs. Clinton; (b) the DNC declined requests by the government to make its server system available for FBI examination; and (c) the incumbent Democratic administration’s Justice Department unaccountably refrained from demanding—by grand jury subpoena or search warrant—that the DNC’s server system be turned over to the FBI.

  Not likely.

  This, of course, does not mean it was wrong for the intelligence agencies to accept a private contractor’s analysis. CrowdStrike has a good reputation. But this state of play would not fly in a criminal prosecution—a point that is so obvious that no experienced prosecutors or investigators would be confident that they could make the case without seizing the physical evidence and conducting the government’s own investigation. And you’ll notice that Special Counsel Mueller, a highly experienced prosecutor who had a highly experienced, aggressive staff of prosecutors, never brought such a case.

  “Attribution, as the skill of identifying a cyberattacker is known, is more art than science.” This explanation—which is quite accurate—was offered by The New York Times in a thoroughgoing examination of the hacks on Democratic email accounts that began in late summer 2015.5 “It is often impossible to name an attacker with absolute certainty.” It is necessary to accumulate over time a reference library of hacking techniques. It becomes possible to spot repeat attackers. But once malware is used in cyberspace, it is available to any industrious hacker with the skills to copy it and re-use or refine it. These tend not to be signature attacks; there are numerous attackers and copycats. Attribution is a deductive process, not an exact science. It is a remorseless fact that forensic judgments in this area, including those rendered by intelligence agencies, are probability assessments, not definitive conclusions. And indeed, CrowdStrike is widely believed to have been wrong in a controversial 2016 judgment, when it claimed Russian operatives hacked a Ukrainian artillery app, resulting in heavy losses of howitzers in combat against separatists backed by Moscow.6

  Moreover, there are ongoing private investigations that cast doubt on CrowdStrike’s assessment of the DNC hack.

  The best known of these, to date, has been produced by the left-leaning Veteran Intelligence Professionals for Sanity (VIPS), given notoriety by the left-leaning publication The Nation.7 The VIPS naysayers, who are primarily former NSA officials, contend that the operation against the DNC was a not an overseas hack but an insider theft—“a download executed locally with a memory key or a similar portable data-storage device.” This probability assessment is largely based on the transfer speeds of megabytes of DNC data (the speeds have been deduced from metadata in files published by the persona Guccifer 2.0).

  The VIPS report is not without controversy, even within VIPS itself. Former intelligence agents associated with the group have published a spirited dissent from their colleagues’ report.8 We should note, nevertheless, that the salient objection of the dissenters is that the VIPS report goes too far by offering with excessive confidence the alternative theory of an insider theft (or “local leak”). That is, the dissenters agree with their VIPS colleagues on the matter of our concern: the government intelligence agencies’ judgment, they say, is extremely suspect. And there are other examples, such as Sam Biddle at The Intercept, another left-leaning site, who filed an exhaustive report on the insufficiency of publicly known evidence that Russia was responsible for the hacking.9

  To be clear, my point is not to broker the competing claims, or to contend that the U.S. intelligence agencies’ judgment is wrong and those of its detractors are correct. Cyber analysis is not my area of competence, but I’m inclined to believe our agencies. The point is that our agencies are not offering courtroom-quality proof, as they forthrightly acknowledge. If the Justice Department ever brought a case of espionage conspiracy, it would have to prove the Russians guilty beyond a reasonable doubt to the unanimous satisfaction of twelve jurors. That jury would be bombarded by defense lawyers with the government’s failure to inspect the server system, the inherent uncertainty of intelligence judgments, the government’s inability to produce intelligence sources as witnesses, and alternative theories of what happened posited by competent intelligence professionals (e.g., “It was an insider job, not a hack,” or “It was another hacker, not the Russians”).

  Couple this with the fact that everyone else in the equation has denied Russia’s culpability: Putin claims the Russians did not hack; Guccifer 2.0 claims no connection to the Russians; and Julian Assange of WikiLeaks, which disseminated most of the emails for publication, claims his source was not Russia.

  If upon hearing that, your response to this is to scream at me that none of these sources is credible, congratulations: you have a case of good mental health. Yes, totally correct, they are all liars. But that’s not the point. There is a blackletter principle of criminal law: a positive fact cannot be proved solely by a negative inference. You may believe, as I do, that Putin, Guccifer, and Assange are inveterate liars. Still, the thing they are denying is not proved by their having denied it. There has to be some solid proof that Russia did the deed. You don’t get there by establishing merely that a bunch of notorious liars say Russia didn’t do it.

  Publicity Stunt: Mueller’s Russia Indictments

  “Wait a second,” you’re thinking. “If Russia’s hacking of the Democratic emails cannot be proved in court, then why did Mueller indict a dozen Russian intelligence officers for hacking crimes?”

  Well, because there’s no chance they will ever be tried. The indictment was a freebie—a publicity stunt.

  Or are you prepared to take this exercise seriously? If so, I have a question: are Russia and its intelligence operatives now presumed innocent of hacking the 2016 election? That, after all, is the rule in criminal proceedings. The indictment is proof of nothing—it’s just a device to put the accused on notice of what the allegations are. The defendants are presumed innocent.

  To the contrary, Russia is as guilty as the day is long. If that were not the position of the United States government, sanctions would not have been imposed. So, what is the point of indicting? It’s a politicized publicity stunt, in the service of the Trump–Russia collusion narrative.

  There is absolutely no chance any of the Russian officials charged will ever see the inside of an American courtroom. The indictment is an artifice by which the special counsel hoped to accomplish two objectives. First, Mueller wanted to put to rest the question of Russia’s guilt, because if that is in question, many Americans will rightly demand to know why the country was put through a two-year investigation of the president on suspicion of abetting the Russians. Unfortunately, as we’ve just detailed, the best that can be said about the Kremlin’s culpability has already been said—and not completely convincingly—in the intelligence agencies’ assessment report. Mueller hoped, however, that by having a prosecutor reaffirm the intelligence assessment in a court proceeding, its conclusions would assume the gravitas of judicial findings—i.e., he hopes you won’t notice that he hasn’t actually proved anything, that no one has been or will be convicted. Second, the special counsel wanted to justify his superfluous investigation. It is “superfluous” in the sense that there never was evidence of a Trump–Russia conspiracy and, again, we already had a report about Russia’s clandestine activities, so what did we need a prosecutor’s investigation for? Answer: prosecutors are there to indict, so now we have an indictment—woo-hoo!

  Often, no harm comes from publicity stunts. That can’t be said here. Look at how farcical Russia-gate became: in announcing the indictment of Russia’s intelligence officers, Dep
uty Attorney General Rod Rosenstein asserted: “In our justice system, everyone who is charged with a crime is presumed innocent unless proven guilty.”10

  So we have to think of the Russians as innocent?

  After the president of the United States has been a suspect for two years for purportedly conspiring with them?

  We are through the looking glass. Certainly, as Mueller’s final report demonstrates, Russia made out better here than President Trump did: They got the benefits of our Constitution. When the Russians were charged, the prosecutor told us to presume them innocent. Charges were not recommended against the president, yet the prosecutor told us he gets no such presumption—he can’t be “exonerated” until he proves his innocence.

  See how politicized law enforcement works?

  And still more farce. When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. But in both of Mueller’s Russia cases, the hacking scheme against the intelligence officers and the so-called troll-farm scheme against other Russian operatives, the indictments were filed publicly even though the defendants are not in custody. That is because the Justice Department and the special counsel are not serious about “bringing them to justice.” Everybody knows they will stay safely in Russia.

  But that does not mean there are no consequences. The special counsel and the Justice Department have encouraged a new international order in which nation-states are encouraged to file criminal charges against each other’s officials for actions deemed to be provocative (or, more accurately, actions that can be exploited for domestic political purposes). Understand: our country has the most to lose in this new arrangement. Of all government officials in the world, American officials are the most active on the global stage—and, as we’ve seen, that includes meddling in other countries’ elections. I doubt our diplomats, intelligence operatives, elected officials, and citizens will much like living in the world Robert Mueller and Rod Rosenstein have given us. If the idea was to give Vladimir Putin and his thug regime a new way to sabotage the United States, nice going.

  Assange: Collusion with Impunity

  Prior to the publication of the stolen DNC emails and internal documents, Julian Assange and WikiLeaks exhorted Russian government hackers to send them “new material.” That is what is alleged in Mueller’s indictment of the Russian intelligence officers. Assange wanted the Russians to rest assured that giving “new material” to WikiLeaks would “have a much higher impact than what you are doing”—i.e., hacking and then putting the information out through other channels.

  But time was of the essence. It was early 2016. If Hillary Clinton was not stopped right there and then, WikiLeaks warned, proceedings at the imminent Democratic national convention would “solidify bernie supporters behind her.” Of course, “bernie” is Bernie Sanders, the competitor who could still get the nomination. But if Assange and the Russians couldn’t raise Bernie’s prospects, WikiLeaks explained, Mrs. Clinton would be a White House shoo-in: “We think trump has only a 25% chance of winning against hillary … so conflict between bernie and hillary is interesting.”

  In a nutshell: Knowing that Russia had the capacity to hack the DNC and perhaps Clinton herself, WikiLeaks urged it to come up with new material and vowed to help bring it maximum public attention. By necessity, this desire to hurt Clinton would inure to Sanders’s benefit. And sure enough, WikiLeaks eventually published tens of thousands of the Democratic emails hacked by Russian intelligence.

  A few questions. First, why was there no Sanders–Russia collusion probe? Why, when President Obama directed John Brennan, his hyper-political CIA director, to rush out a report assessing Russia’s influence operations, did we not hear about the WikiLeaks–Russia objective of helping Sanders win the Democratic nomination? Brennan & Co. couldn’t tell us enough about our intelligence-agency mind readers’ confidence that Putin was rootin’ for Trump. Why nothing about the conspirators’ Feelin’ the Bern?

  Don’t get me wrong: I don’t think there is any basis for a criminal investigation of Senator Sanders. The point is: the fact that a candidate theoretically stood to benefit from a Russia-WikiLeaks cyberespionage conspiracy was no more a criminal predicate for a “collusion” investigation of Trump than it was for such an investigation of Sanders. But there appears to have been no criminal predicate for a “collusion” investigation of Donald Trump.

  A more serious question: why wasn’t Assange indicted for criminal collusion with the Kremlin—i.e., for the same hacking conspiracy for which Mueller indicted the Russian operatives with whom Mueller says Assange collaborated? The same conspiracy for which the president of the United States, though not guilty, was under the FBI’s microscope for nearly three years?

  Pulling Punches on Assange to Protect Mueller’s Russian Hacking Indictment

  The most striking thing about the Assange indictment that the Justice Department did file is how thin it is, and how tenuous.11 Leaping years backwards, ignoring “collusion with Russia,” prosecutors allege a conspiracy between Assange and then-Bradley (now Chelsea) Manning to steal U.S. defense secrets. Initially, prosecutors charged a lone conspiracy count, punishable by as little as no jail time and a maximum sentence of just five years’ imprisonment (considerably less than the seven years Assange spent holed up in Ecuador’s London embassy to avoid prosecution).12

  This was very peculiar. Manning, Assange’s co-conspirator, has already been convicted of multiple felony violations of the espionage act—serious crimes that the Assange indictment says WikiLeaks helped Manning commit. This is why Manning was slammed with a thirty-five-year sentence.13 Yet, the original indictment against Assange alleged no espionage act charges. After commentators (including yours truly) noted this discrepancy, the Justice Department filed a superseding indictment in May 2019, adding seventeen new espionage act counts. But it will prove to be a futile gesture: the reason prosecutors did not bring these charges in the first place is that they are time-barred. The statute of limitations lapsed long ago; indeed, I believe the conspiracy charge in the original Assange indictment is time-barred, too. That is, it is unlikely Assange will ever see the inside of an American courtroom.14

  Why charge Assange with such uncertain crimes when, staring the Justice Department right in the face, is the espionage conspiracy with Russia that has been used to hound Trump? After all, unlike the president, there is no doubt Assange was complicit in encouraging the hacking scheme and agreeing to facilitate publication of the stolen emails. Mueller brought a dozen felony charges against the Russian operatives with whom, we’ve been told for over two years, Assange conspired. So why isn’t Assange charged with at least some of these felonies?

  The only sensible explanation is fear that Assange’s defense would put prosecutors to their burden of proving Russia’s guilt. Assange would challenge Mueller’s allegation that Russian intelligence officers orchestrated the hacking and then used Assange to publicize the stolen emails. Again, the special counsel indicted the Russians on the understanding that this allegation would not be challenged, and that prosecutors would never have to try to explain to a jury why, for example, they never took possession of the DNC servers so the FBI could perform its own forensic examination rather than relying on a DNC contractor (one powerfully motivated to toe the DNC line) to determine that Russia is the culprit. Assange would exploit this vulnerability. And he would make whatever hay there is to be made from alternative analyses that cast doubt on CrowdStrike’s work.

  Assange has always maintained that Russia was not WikiLeaks’s source. I don’t believe him. I see him as a witting, anti-American tool of Moscow. But, to my chagrin, some in Trump’s base—not all, but some—have made Assange their strange bedfellow, just as many libertaria
ns and leftists embraced him when he was exposing U.S. national-security programs, intelligence methods, defense strategies, and foreign-relations information. These Trump supporters have convinced themselves that raising doubt about Russia’s culpability exonerates the president—even though the special counsel has already cleared Trump of “collusion” suspicions, regardless of what Russia and Assange were up to.

  In summary: If the Justice Department had indicted Assange for collusion, Mueller’s Russian-hacking indictment would no longer stand unchallenged. Assange would deny that Russia is behind the hacking, and prosecutors would have to try to prove it, using hard, admissible courtroom proof—not top-secret sources who cannot be called as witnesses without blowing their cover, and not other information that might be reliable enough to support an intelligence finding but would be inadmissible under courtroom due-process standards. If the prosecutors were unable to establish Russia’s guilt to a jury’s satisfaction, it would be a tremendous propaganda victory for the Kremlin, even if—as I believe—Russia is actually guilty.

  Meanwhile, let us remember: despite a dearth of evidence that he was complicit in Moscow’s hacking, President Trump was forced by the Justice Department and the FBI, urged on by congressional Democrats, to endure a two-year investigation and to govern under a cloud of suspicion that he was an agent of the Kremlin. Now we have Assange, as to whom there is indisputable evidence of complicity in the hacking conspiracy, but the Justice Department declines to charge him with it—instead, contenting itself with the dubious Manning conspiracy that may very well be time-barred.15

  CHAPTER ELEVEN