My last two articles summarized why I think that Barr’s letter to Congress is actually terrible for Trump and the campaign, and why I further think that Mueller’s practice was to refer, for indictment, to ordinary federal prosecuting offices, US persons whom he found had committed crimes. As I reported in an update to my article on Mueller’s methods, my theory received a significant boost with the announcement that the Grand Jury in the ‘mystery witness’ case, Mueller’s Grand Jury, was ‘continuing robustly.’
In this piece, we look at the toughest part of the Barr letter for opponents of Trump – the third page, which discusses obstruction of justice. I believe that even this portion of the letter should be read by MAGA fans with a great deal of caution, and by Trump opponents with a cheerful eye.
‘Not Involved in An Underlying Crime’
A key sentence in the Barr summary letter is being misreported. Barr quotes a partial Mueller sentence as follows:
….the evidence does not establish that the President was involved in an underlying crime related to Russian election interference
This has been widely misquoted and misreported as if Mueller had said this of the Trump campaign. Even James Comey misquoted Barr’s letter on this: he said to Lester Holt, after saying Mueller ‘found that the Russians had attempted to intervene in the election’….
… and in another piece of good news, that the evidence didn’t establish that any Americans conspired as part of that effort …
In fact, of course, Barr’s summary letter doesn’t say this. It says that the Special Counsel did not find, or did not establish. For all my longstanding admiration of Director Comey, I am going to disagree with him here. The text of the letter does not say what Comey asserts.
I was inspired to write this further piece when a friend on social media whom I greatly respect said to me:
You’re speculating and here is why it makes no sense…at least to me. Barr in his memo as part of his rationale said there was no underlying evidence that Orange team was guilty of aiding Russia. If there were evidence that was sent to other districts this would be false
But that is not what the letter says. Here is Page 3:
What my acquaintance, and so many others, characterized this portion of the letter as saying – that Mueller found there was insufficient evidence to establish that the Trump Campaign colluded with Russia – is, again, a wrong reading of the text. The line, another partial Mueller sentence, actually says:
the evidence does not establish that the President was involved in an underlying crime related to Russian election interference
Yet again, I am transforming myself into my own English teacher Miss Watkins in order to parse this sentence, and, yet again, I see the twinkly glint of diamonds in a rock face where the news media has portrayed only coal.
First, the sentence does not say, as my friend suggested ‘there was no underlying evidence that Orange team was involved in collusion with Russia’. To take the most obvious point first, the line applies only to Donald Trump and not to the rest of the Trump campaign. The latter are not cleared here of underlying crimes related to Russian election interference – just Trump.
Second, the partial sentence comes with a qualifier “underlying” “related to Russian election interference”. Now, this is in the context of ‘obstruction of justice’ presumably over Trump’s actions in firing Jim Comey. But it does not say “the evidence does not establish the President was involved in any crime”. It is specific.
‘But surely,’ the reader cries, ‘even that is bad news. How could it be that Donald Trump did not commit such a crime!’
Actually, pretty easily, and it isn’t really bad news. Firstly, consider that most conspiracies of this sort will give the guy at the top some level of deniability. All my own reporting so far would fit such a finding, that Trump wasn’t directly guilty of colluding because they used cutouts.
Firstly, on my FISA warrant piece of November 7th, 2016, the night before the election, in which I broke the story of the FBI’s campaign into Russia, I made it clear that the warrant on the servers would cover communications between the Trump server and Alfa Bank / Spectrum Health. I reported that James Comey had failed to get a FISA warrant in the summer on Donald Trump and three persons who were either ‘part of his campaign or acted as his media surrogates’. Those men, I later clarified, were Paul Manafort, Carter Page and Boris Epshteyn. Paul Wood at the BBC subsequently reported that Comey had failed a second time in the summer to get a FISA warrant targeted on Trump directly, and had been told to redraw his case more narrowly around financial crimes. The FISA warrant on the bank servers, I reported, covered ‘any US person’ related to the packet data between the three servers, if it was found to be suspicious, and on emails and other communications between US persons related to that data and the crimes for which the FISA warrant was looking.
So, essentially, I and the BBC had reported between us that Comey had applied twice for a FISA warrant targeted on Trump and been turned down.
In a story reporting ‘Carter Page Went to Moscow With a Tape of Donald Trump Offering Treason For Hacking’ I stated that it was not known whether or not Trump knew he had been recorded, or whether there was one tape, or two tapes: a tape of Sergei Kislyak, Page, Manafort and Epshteyn talking about this plan – maybe with Trump; or a tape of just Kislyak, Manafort, Epshteyn, and Page discussing Page taking a separate tape of Trump saying that he’d be prepared to change US foreign policy on sanctions if Russia helped him win:
Sources close to the intelligence community now report that this application was made because a recording exists of all three men discussing the possibility of Page taking the tape of Trump to Moscow as an earnest of good faith. (Update: Mr. Epshteyn has denied he is on any such recording, but I am not sure if he is denying the conversation took place and have asked his lawyers to clarify). There is a minor dispute over whether Trump himself is also on that tape, as well as the tape that was delivered to Moscow by Carter Page of Trump making this promise.
But, I added in that story, the FISC judge had not felt this was enough and had turned down the requested FISA.
The FISC judge, as I reported, rejected that application, made in June. Director Comey likely proved to the satisfaction of the court that Page, Manafort and Epshteyn were acting as Russian agents. But he may have felt that Trump, by now the nominee, was just a very stupid patsy. And the planned trip had not taken place.
Later on, I speculated that the reason the FISA application failed was that perhaps Trump did not know he was being recorded. If Trump had said ‘Hey Carter, let’s make a tape. Is this thing on? OK. Hi, Pootie, it’s your good friend The Donald, of course I will happily drop sanctions if you help hack the DNC’ – that’s a crime, and Comey would have presumably got his FISA. If Carter Page pressed his Brookstone ‘spy pen recorder’ and said ‘Hey Mr. Trump, if Russia could help elect you would you lighten up on these sanctions’ and Trump, not knowing he was being recorded, said ‘Oh, definitely, why not, I want good relations with Russia, whatever they can do I’ll be very grateful, I would definitely get rid of sanctions if they helped me win’ readers can likely see why a FISC judge would turn it down. As the nominee, getting a FISA warrant would have required cast-iron proof, and a spitballing ‘Oh I’d for sure do that’ when you didn’t know you were being recorded would not give enough proof. Page, under that scenario, would have taken the tape to Moscow and played it for Diveykin and Arkady Dvorkovich, who, one presumes, would have been encouraged and excited; but it wouldn’t constitute a firm promise to FISC standards by Trump himself.
Secondly, my reporting on Trump being under a sealed indictment – coauthored with Claude Taylor – was a story that did not specify what the indictment was for. My follow-up story, which was written alone without Mr. Taylor, does specify what the indictment was for – it was for RICO, with the Trump Organization as the corrupt organization; it was over the Trump Org deal with Felix Sater and Bayrock, and it began with Eric Schneiderman as an Enterprise Corruption case at state before being sent by him into the federal system, and winding up as a sealed indictment at EDVA, referred by FISC there because it is not an Article 3 court and does not indict suspects. According to my reporting, this indictment of Donald Trump for corruption was returned before Mueller was appointed. It also does not involve collusion with Russia – the events took place before the 2016 election.
Lastly, there may very well be direct evidence of Donald Trump colluding with Russia, but it could be in the form of a classified intercept, or an intercept obtained by a foreign intelligence service, that is not admissible in a US court. As it is my reporting that Trump is already indicted for a crime under RICO, I am more sanguine about this than many would expect. RICO is a little more than ‘tax evasion for Al Capone’. The name says it all – Racketeering, Corruption. There is more than enough there for impeachment. Does Congress want a President who has been indicted for being a corrupt racketeer?
Therefore, since this partial Mueller sentence does not contradict any of my reporting, and particularly comports with my reporting that Comey’s FISA application on Trump directly was turned down, it does not put me into a particularly bad mood. It also does not say that there is no underlying evidence on ‘Team Orange’; it refers solely to Trump himself.
‘No Evidence’ of the word ‘Evidence’
It is important that Mueller uses the formulation he does in referring to Trump and obstruction. I’ve argued elsewhere that Mueller referred cases on the substance out to other federal offices, where they concerned US persons. This considered offense is not, in fact ‘on the substance’, aka collusion with Russia; it’s obstruction of justice. Mueller considered this one himself. Therefore, he is the one making the decision on how to proceed.
In page two of the letter, the word “evidence” does not come up. Barr writes “The Special Counsel’s investigation did not find’ and partial quotes (again) Mueller as saying “The investigation did not establish”. I have suggested that this is because Mueller cannot “find or establish” that a US person committed a crime; only a court can do so. He would, I have suggested, referred these cases to regular federal courts.
When he reserved to himself to determine what came next, whether to prosecute the President or not, then and only then did Mueller write about evidence.
All the below takes, and there are thousands more just like them, are wrong:
In fact, page two of the letter hews tightly to “the investigation did not find” “did not establish” because it has, I believe, referred these cases over to other prosecutors to find/establish this or not.
The Mercury News reported:
The continued activity may indicate that the U.S. Attorney’s office in Washington, which has been increasingly involved in several aspects of the Mueller investigation, is using the panel to consider evidence because of its “existing knowledge and experience,” former federal prosecutor Ryan Fayhee said in an interview after the hearing. Fayhee added he “would not be surprised if more indictments are to come, but to be handled by the USAO” in Washington.
So, to my friend, and to Director Comey, and to all who apparently think Mueller said there was “no evidence Americans conspired” – have another look at page 2 of the letter. Because there is no evidence of the word “evidence” anywhere on the page. The only place Mueller says there is not “underlying evidence” is on page 3 where it refers to Trump, alone, and on one specific crime.
Team Treason is not in the clear on collusion – and Donald Trump is not in the clear on crimes.