Resistance (At All Costs)

by Kimberley Strassel

  Grassley in the Senate was struggling with the same problem. By May 2018, he’d not been allowed to question a single current or former DOJ or FBI official involved in the affair. More than a year into his demand for the transcript of former National Security Advisor Michael Flynn’s call with the Russian ambassador, he’d still not received it—nor any of the reports from the FBI agents who’d interviewed Flynn. Grassley excoriated the DOJ for redacting key information from the documents they had provided and for refusing to provide a “privilege log”—which details the legal basis for withholding information. He was especially incensed after he found out that one of the items the DOJ had scrubbed from the Strzok-Page texts was a message about the duo’s concern over the cost of former Deputy FBI Director Andrew McCabe’s conference table. It had cost $70,000. That the FBI blew more money on one piece of furniture than many Americans earn in a year is a scandal—not a matter of national security.

  But the low in the DOJ’s behavior came in the spring, when House Republicans sniffed out evidence that the FBI had done far more than just use electronic surveillance against the Trump campaign—it had also run an informant. The truly stunning part of this tale was the lengths to which the DOJ went to hide this information from Congress. The subpoenas Nunes had issued way back in August clearly encompassed this information—yet the FBI concealed the facts. The only way it could have done so was to scrub other documents, in a deliberate effort to make sure the House didn’t get wind of its informant. Speaker Paul Ryan emphasized this point in May 2018, when he stated that Nunes’s demand for this information was “wholly appropriate” and “completely within the scope” of the committee’s investigation” and “something that probably should have been answered a while ago.”

  Yet Rosenstein’s response to the demand for more information was to double down and to publicly accuse the committee of “extortion”—an inflammatory comment. The DOJ used every conceivable excuse to try to get around giving House leaders the details. It delayed. It claimed that answering Nunes’s request could result in the “loss of human life.” It pleaded with the White House to intervene on its behalf.

  In May, we at the WSJ, via our own reporting, realized there had been an informant. I’m proud to say we were the first to report that the FBI had used an asset—a “top secret intelligence source”—to spy on members of the Trump campaign. I’m also proud to say that we independently figured out the name of the informant—Stefan Halper. No member of Congress ever gave it to us or confirmed it. We chose not to run it out of concerns for national security. We were also worried by reports to us that the DOJ was raring to open criminal leak investigations into Republican members—not because those members had actually leaked anything, but in retribution for their efforts to find information. We didn’t want to provide a pretext.

  We needn’t have bothered with our caution. My column about the informant appeared on May 11, 2018. Within weeks, anonymous “current and former government officials” had leaked everything about the “informant” and his work to the New York Times and the Washington Post. The leaks were clearly designed to present the FBI’s actions in the most favorable light. The NYT headline actually read (no joke): “FBI Used Informant to Investigate Russia Ties to Campaign, Not to Spy, as Trump Claims.” The stories didn’t specifically use Halper’s name but spilled everything else: his profession, where he lived, whom he’d talked to on the Trump campaign, the dates of those interactions. It was a roadmap to Halper, and soon his name was all over the press.

  In short, someone blew a source, just to ensure the FBI and the DOJ had a better storyline. People connected to the Justice Department and the FBI were happy to release information to their media Boswells, even as they threatened elected members of Congress. Nunes would later make an astute observation. Asked why he’d gone to all the effort he had, he responded: “A lot of the bad and problematic countries…this is what they do there. There is a political party that controls the intelligence agencies, controls the media, all to ensure that party stays in power. If we get to that here, we no longer have a functioning republic. We can’t let that happen.”

  Indeed. In college, I was a student of Russian affairs. And the twin sides of this episode—threats against those who might speak out alongside spoon-fed media narratives—reminded me of something: Pravda.

  Ironic, right?

  The DOJ and the FBI continued their obstruction right through the 2018 election. Their slow rolling looked deliberately designed to wait out Republicans, hoping Democrats would take over the House and drop the probe. Nunes, upon finishing his Intelligence Committee investigation, passed along a list of some forty names of witnesses to Judiciary Chairman Goodlatte and Oversight Chairman Gowdy—who were continuing their own work. The DOJ hemmed and hawed about making people available. By the time Democrats took over in 2019, Goodlatte and Gowdy had made it through only a portion of their list. And Democrats instantly announced an end to any more investigation.

  * * *

  One further change in Washington has proven corrosive to our body politic: Our former intelligence chiefs will not go away. In January 2017, the newly elected leader of the Senate Democrats, Chuck Schumer, made a statement that even some in his own party found chilling. Schumer chided Trump for rapping law enforcement and spies. “Let me tell you,” he said on MSNBC’s Rachel Maddow Show. “You take on the intelligence community—they have six ways from Sunday at getting back at you.”

  It is generally unheard of for former FBI or CIA or national intelligence directors to continue to insert themselves in the political realm. But Comey, Clapper, and Brennan have become national partisan commentators, playing a key role in spinning up the collusion narrative. After the leak of his memos, the Senate Judiciary Committee sent Comey a letter asking him a series of questions: Did he have other memos? Whom had he shared them with? Did he retain copies? Comey responded that he didn’t have to answer any of these questions because he was now a “private citizen.” The private citizen nonetheless agreed to serve as star public performer at a Senate Intelligence Committee hearing in June 2017.

  In advance, the committee released his long and detailed testimony about his interactions with Trump, in which he painted the president in the worst possible light. He used the hearing to have it both ways: to leave the impression that Trump had committed a crime, even as he refused to answer questions about any details or his own failure as a senior law enforcement official to report or deter the supposed misconduct. He also, of course, wrote and published his book in 2018 and went on an extended tour in which he twisted the facts to his favor at every opportunity. Brennan took a job as an “analyst” at NBC News; Clapper took one at CNN. Both freely smacked Trump on every occasion, offering their theories as to why he was clearly guilty of collusion. Because of their former roles, these opinions were given outsized weight.

  In late 2018, the quarterly International Journal of Intelligence and Counterintelligence ran a lengthy piece from twelve-year CIA analyst John Gentry, who criticized Brennan and former CIA Director Michael Morell for breaking a long-standing prohibition against airing political views. He noted that “for senior former intelligence officials to make such blatantly partisan statements is unprecedented.” He took aim at Morell’s 2016 NYT op-ed that advocated for Clinton as president. “Morell’s claim that his CIA career qualifies him to make political judgments about domestic issues is incorrect,” wrote Gentry. “He was trained and authorized to ‘make the call’ about foreign intelligence issues within the classified, internal world of the U.S. government.” Comey’s self-aggrandizing claims that he possessed some special claim on loyalty or dignity are equally without foundation. Nothing in the FBI director’s work or history gave him some special claim on virtue. Quite the opposite; he proved himself as ruthless a Washington player as they come. It is unclear why the press continues to turn to him—or Brennan or Clapper—as a source of unbiased “analysis.”

  In the end, all the obstruction, the grand
standing, and the smear campaigns were largely for naught. The important information about the dossier, its funders, and the FBI’s use of the document came out. We’ll get even more details now that Attorney General Bill Barr has tasked U.S. Attorney John Durham with investigating the investigators. But the antics will have enduring consequences. The obstruction exposed Congress’s inability to enforce subpoenas, and Pelosi Democrats are already finding it harder to obtain information. Congressional committees that we have long depended on to keep us safe (the House Intelligence Committee) or to keep members in line (the House Ethics Committee) are now riven with distrust. And the Comey-Brennan-Clapper Show has made Americans even more skeptical of the neutrality and professionalism of our law enforcement and intelligence organizations. The Resistance campaign to hide the truth—to keep the collusion narrative rolling and take out Trump—further broke critical pieces of the executive and the legislative branches.

  And yet they kept it up to the bitter end—even beyond. Well past the time it was clear that even Mueller would not be able to establish collusion, the haters kept pushing the collusion narrative. Even at the end of 2018, Democrats were still demanding Republicans pass legislation to “protect” Mueller’s probe. They kept holding out hope that Mueller would finally deliver a report that would allow them to nullify the 2016 election. But all the hope in the world could not change the facts: that this had never been anything more than the co-option of our democratic institutions to smear a political opponent.

  Chapter 6

  A Mueller Special

  Special counsels are among the most corrosive institutions in U.S. democracy. It’s a headline-driven and glory-filled job, which attracts the worst legal prima donnas. It’s an astonishingly powerful job, which encourages prosecutors to stretch the boundaries of the law. It’s also a job nearly bereft of political accountability. Once you appoint a special counsel, there is no disciplining or stopping them.

  Bob Mueller exemplified all these problems. By the end of his two-year investigation into Trump-Russia collusion, he’d left a tornado trail of hardball tactics, ugly prosecutions, empty bank accounts, and demolished reputations. What he never brought was a single indictment related to the subject he’d been asked to investigate: collusion. His handpicked team of Clinton partisans sowed further distrust in Justice Department operations. And far from closing the book on the Trump-Russia controversy, Mueller’s final, highly political report further divided Washington and the country.

  Mueller spent 675 days and more than $25 million to fail. The important prosecutions he brought—against the Russians who interfered in the 2016 elections—could just as easily have been brought by regular law enforcement. And many of the Americans he jailed were prosecuted for their interactions with the special prosecutor himself; they’d have never happened if not for the Mueller probe. If there’s any upside to this spectacle, it’s the hope that Washington never appoints another special counsel again.

  * * *

  Republicans were right to spend so much of early 2017 opposing Democratic calls for a special counsel. Nothing good has ever come of those posts. Exhibit A: Comey’s appointment in 2003 of his good buddy U.S. Attorney Patrick Fitzgerald to investigate who leaked CIA agent Valerie Plame’s name to the press. Fitzgerald discovered early on that the leak had come from then–Deputy Secretary of State Richard Armitage. Rather than close up shop, he pursued flimsy obstruction charges against Vice President Dick Cheney’s chief of staff, Scooter Libby. Fitzgerald let the country incorrectly believe for two years that a crime may have been committed by people close to the president and the vice president.

  Republicans also understood the Democrats’ ultimate goal: to prosecute their way to the presidency. Americans elected Trump in 2016, but the haters refused to accept the results. Democrats, too, knew the history of special counsels and reckoned another one was their best shot at erecting a legal case against Trump, either paving the way for impeachment or easing their path to the White House in 2020.

  But the GOP’s capitulation on a special counsel in the spring of 2017 held consequences far beyond the Trump presidency—it opened the door to more abuse of core institutions as well as the erosion of constitutional powers.

  Mueller’s appointment stretched the boundaries of the DOJ’s special-counsel regulations, making that position even more threatening in the future. Rosenstein made a serious error with his appointment letter: He didn’t task Mueller with investigating a specific crime. His order instead charged Mueller with investigating “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump,” as well as “any matters that arose or may arise directly from the investigation.” It was the first time a special counsel had been handed a broad counterintelligence investigation, and it allowed Mueller to probe anyone or anything even vaguely associated with the Trump campaign, for any reason. Special counsels are already supremely powerful. This unclear assignment guaranteed the Mueller probe would be longer and more intrusive than most, and would create an unnerving precedent for the future.

  The ambiguity meanwhile allowed Mueller to brazenly pick up and run with the Comey-McCabe obstruction claim. At the time of the appointment, Comey had already leaked his memos and launched his obstruction narrative. If Rosenstein had wanted Mueller to look into obstruction, he’d have spelled that out. He deliberately did not include it in his appointment letter. Mueller used his fuzzy marching orders as his excuse to proceed anyway.

  And the Comey-Mueller obstruction claim carried debilitating consequences for the office of the presidency. Presidents who exercise their legitimate powers of office cannot be accused of obstructing justice. Among those core powers are the right to direct law enforcement and to fire appointees. Trump might have erred in firing Comey at the precise time he did, but there is no question he had the right to make the error. If Congress believes a president has abused his powers, the Constitution provides it with a remedy: the power to impeach. But neither Comey nor Mueller had any business criminalizing the president’s exercise of his office.

  Their decision to do so undermined the separation of powers and put Trump in an untenable position throughout the Mueller probe. The haters whipped out the argument to oppose other legitimate presidential actions. Trump foes claimed that any use of his presidential pardon power would amount to obstruction. They claimed that his personal naming of a Comey successor would amount to obstruction. When Trump ordered his Justice Department to comply with congressional document demands, his critics claimed he was…obstructing (the special counsel probe). When Trump pointed out his power to fire Mueller for conflicts of interest, we were told that, too, would amount to obstruction—even though Trump absolutely has the power to terminate a special counsel, and even though the investigation would have continued under a Mueller replacement. Future presidents are now at risk of similar arguments against their constitutional powers.

  The other major consequence of the Mueller appointment: It forestalled for two years public accountability for those who had engaged in FBI and DOJ conduct. It froze other oversight. The Justice Department used the Mueller probe as its excuse to deny Congress documents and witnesses, claiming that to do so would interfere with the special counsel’s work. The Mueller probe similarly put the White House in a straitjacket; it could not declassify information or order an internal DOJ investigation, for fear of being accused of “obstructing” the special counsel. The American public was denied for two years vital information about government’s actions in 2016, but instead was fed an endless stream of media accusation and speculation. It was corrosive to the country and undermined faith in government. As a Wall Street Journal editorial warned in March 2017: A special counsel probe would serve as a black hole, allowing Democrats to “claim for months or years that the 2016 election was stolen even if no indictments were ever handed up.” Which is exactly what happened.

  * * *

  Appointing a special counse
l was Rosenstein’s first mistake; appointing Bob Mueller specifically was his second. While the press and Democrats lauded the former FBI director to no end, Mueller was always the wrong man for the job.

  Why? The medical profession lives by a lot of rules, but a big one is that it is generally a bad idea for doctors to treat their friends or relatives. No matter how skilled or how ethical the doctor, he risks losing his objectivity when he treats loved ones. Even by the time of Mueller’s appointment, it was clear the FBI had played a starring role in the Trump-Russia collusion story. Mueller never had the objectivity to evaluate the institution he used to run.

  Mueller was a Princeton grad and a decorated Marine—as his supporters never stopped reminding people. Yet most of his life had been spent as a federal prosecutor, in senior positions at the Justice Department, and as the twelve-year director of the FBI. Federal prosecutors are a band of brothers—a legal elite. They aren’t much for outside criticism, and they don’t generally take shots at each other. The FBI is even more insular, its senior leaders blindly committed to protecting its reputation and its secrets. The only person who ever ran the FBI longer than Mueller was Hoover himself.

  Mueller was also close to Comey. A Mueller biographer would write in Politico that Comey “treated Mueller as a close friend and almost mentor.” The two had worked together, and had even—back in that famous 2004 episode—threatened to resign together from the Bush administration over a surveillance program. Mueller was the last person to sit in judgment of Trump, the man who’d fired his friend and fellow former FBI head.