Missing piece to the Ukraine puzzle: State Department's overture to Rudy Giuliani
Trump's declassification order helps Barr to uncover the truth
The rolling "coup" against President Trump took on the characteristics of an irresistible force. Media, political leaders, pundits and former intelligence officers spent two years convincing each other and the public that Donald Trump conspired with Russia to win election. Now that special counsel Robert Mueller has proven this allegation false, Attorney General William Barr looks like the immovable object the country needs to ensure such an attempt never happens again.
Those few trusted men and women who hold the awesome power of government secret surveillance are supposed to be immune from politics. Often portrayed as serious, sober servants of truth, they swear an oath to seek justice without fear or favor. For the entirety of the Trump presidency, and for some months before, the United States has been roiled with charges that the president's loyalty lay with Russia. Using the flimsiest rumors compiled by a foreign national, FBI agents and national security specialist prosecutors appeared before the Foreign Intelligence Surveillance Act (FISA) court to obtain authority to spy on an American citizen. They assured the court four times that these rumors were trustworthy and that former Trump campaign adviser Carter Page was an agent of Russia engaged in clandestine, criminal activity on behalf of Russia.
It was all a lie. Not only was Page not a Russian asset, neither was any American - most especially not Trump.
The president now has authorized AG Barr to declassify documents related to the origins of this Russia debacle. We will likely discover the fingerprints of at least two supposed U.S. allies on some of this disinformation. After all, former spy Christopher Steele, author of the disproven Trump-Russia dossier, is a citizen of the United Kingdom and many key events in the early part of this "investigation" took place on British soil. A diplomat from Australia also played a role.
Did the FBI use assets on foreign soil to attempt to entrap members of the Trump campaign, to avoid oversight that comes with operating in the U.S.? The release of the Carter Page FISA warrants and applications will give us answers to key questions. Former FBI Director James Comey and others have said the Steele dossier was not the only basis for these FISA warrants. Some in the FBI and in Congress have said that releasing these documents will damage national security by disclosing sources and methods. This claim has been used for more than two years to prevent the public from seeing all the claims made by the FBI and Department of Justice (DOJ) against Carter Page. Trump's order means we will all soon know if those claims, like those that the president was a Russian asset, were completely baseless.
Barr has tasked U.S. Attorney John Durham with getting answers on the extent of the involvement of the broader intelligence community at the beginning of the probe. Employing a sitting U.S. attorney brings many tools to the inquiry. One such tool is a grand jury, which can be convened to investigate. Federal prosecutors use grand juries to investigate crimes because grand juries have broad compulsory subpoena power.
It was highly unusual that a grand jury was never empaneled in the Hillary Clinton email investigation; it meant those subpoena powers were not available. Federal agents and prosecutors can ask a target or witness to cooperate, or for evidence, but only a subpoena compels appearance or the production of evidence. Additionally, any former government employee - for example, Comey, former CIA Director John Brennan, former FBI agent Peter Strzok - who might have relevant information is nonetheless outside the jurisdiction of any agency inspector general to compel cooperation, but never outside the authority of a grand jury.
Trump's order mandating that various intelligence agencies cooperate with Barr's probe is also highly significant. The president used the word "shall" in his order - language that signifies there is no room for refusal and shows these agencies that he is determined to get answers. A grand jury is also the vehicle to bring charges against anyone found to have violated the law, unlike an inspector general, who can only recommend further action but who has no enforcement power.
One of the most disturbing aspects of the Trump-Russia investigation is the apparent failure of career agents and prosecutors to use the skepticism that justice generally demands. How did highly-trained agents and lawyers come to believe what now appears to have been clear Russian disinformation? Christopher Steele shopped his disinformation to multiple government agencies - State, Justice, the FBI - and of all of them, it appears only one State Department employee had the sense to suspect he was selling a pack of political lies. She warned the FBI, but her warnings went unheeded. That means either everyone in this shameful scenario was beyond naïve, or they threw aside their solemn vows to justice for rank partisanship and political corruption. No matter which it was, the power of the surveillance state was wrongfully used to spy on Americans and someone must be held to account.
Never before in our history have we accused a U.S. president and his campaign of knowingly conspiring with a foreign government to win the White House. This allegation is shocking - all the more so since it is utterly untrue. It was untrue in the summer of 2016, but it has consumed our political discourse for nearly three years. Millions of dollars and countless hours were spent probing this allegation. What actual crimes might we have investigated and prosecuted with the dozens of agents and prosecutors tasked to search for a crime that didn't exist? We owe it to ourselves - and future generations - to ensure such an abuse of power never happens again.
The attorney general has demanded answers but has not gotten them yet. With this new authority from the president, Barr becomes the immovable object with which the anti-Trump conspirators will have to reckon. History is never kind to oath-breakers.
Francey Hakes was a prosecutor for 16 years and now consults on national security and the protection of children. As a former assistant U.S. attorney, she appeared before the Foreign Intelligence Surveillance Court, presenting applications for counterterrorism and counterespionage warrants on a special detail to the Department of Justice Office of Intelligence Policy and Review. Follow her on Twitter @FranceyHakes.