Not treason, not a crime — but definitely a gross abuse of power
President Trump did himself no favors with Wednesday’s ALL-CAPS tweet about how the latest disclosures from Director of National Intelligence (DNI) John Ratcliffe implicate President Obama, Vice President Biden and Hillary Clinton in a “TREASONOUS PLOT.”
Ratcliffe has declassified and released handwritten notes by former CIA director John Brennan (undated, but probably from late July 2016) and a memo from the CIA to the FBI (dated Sept. 7, 2016). These documents corroborate Ratcliffe’s revelation, in a Sept. 29 letter to Senate Judiciary Chairman Lindsey Graham, to wit: In late July 2016, Russian intelligence assessed that Mrs. Clinton approved her campaign advisers’ proposal to blame Moscow’s hacking of Democratic National Committee (DNC) emails on a conspiracy between Donald Trump and Vladimir Putin.
Put aside Ratcliffe’s acknowledgement that, although U.S. intelligence agencies believe the Russian intelligence assessment is authentic, they cannot say with confidence that it is true. There is, after all, abundant evidence that the Clinton campaign blamed Trump for the Russian hacking of DNC emails that were published on the eve of the 2016 Democratic national convention. The Clinton campaign would not have done that unless the candidate authorized it.
That said, what is the crime?
Don’t get me wrong. I have argued for years that the real “collusion” in the 2016 presidential campaign was not between Trump and Russia — it was between the Clinton campaign and the Obama administration, which put its intelligence and law-enforcement apparatus in the service, first, of Mrs. Clinton’s candidacy and, ultimately, of the Democratic Party’s resistance to Trump’s presidency. This arrangement centered on a false political narrative that Trump and his campaign were complicit in Russia’s suspected hacking of Democrats’ emails.
Moreover, it is highly likely — as Russian intelligence is said to have concluded — that part of Clinton’s objective in blaming Trump for the hacking was to divert attention from her own email scandal, involving her systematic use of non-government, non-secure servers to conduct State Department business, her mishandling of classified information that inevitably ended up on those servers, and her destruction of tens of thousands of emails recording official government business. (Destroying government records is a felony.)
As I pointed out in “Ball of Collusion,” it has always been a puzzlement that Clinton and the media-Democrat complex got away with concocting not only a political narrative but a counterintelligence and criminal investigation out of the dubious notion that Russia hacked DNC emails to damage Clinton’s campaign, with Trump’s knowledge and complicity.
Let’s ignore for a moment that there never has been a shred of evidence that Trump knew of Russia’s cyberespionage activities or had the competence to participate in a cyberespionage conspiracy. The stubborn fact is that Clinton was not an active participant in the DNC emails; they did not embarrass her, did not negatively affect her campaign. What hurt Clinton’s campaign — other than her being a poor candidate — was her own email scandal. She would have been delighted to have the public focus instead on the DNC emails. That didn’t happen because they were a dud.
No sensible person — certainly no one as shrewd as Putin — would have believed the DNC emails would swing the election to Trump. Instead, they were an asset for Clinton because they became the building blocks of a Trump-Russia collusion narrative; they were not a liability to her campaign.
Thus, Clinton sought to exploit the suspected Russian hacking of the DNC emails. By July 22, 2016, when those emails started being revealed, her campaign already had retained former British spy Christopher Steele to concoct his Trump-Russia opposition research. The hacked emails were promptly folded into the Trump-Russia “collusion” narrative that Clinton’s campaign had been formulating for weeks.
The Obama administration swiftly ginned up an investigation based on this narrative. With no supporting evidence, they relied on the flimsiest of bases — a London barroom conversation months earlier between George Papadopoulos, a nondescript young Trump campaign adviser, and Alexander Downer, an Australian diplomat. The word “emails” never came up in that conversation, and there was no basis to believe Papadopoulos knew anything about Russia’s hacking. Papadopoulos merely said he had heard that Russia might have dirt on Clinton. (He’d allegedly heard it from a Maltese academic, Josef Mifsud, who denied telling him that when later interviewed by the FBI.)
Two months later, when the hacked DNC emails were published, Downer leapt to the implausible conclusion that they might be what Papadopoulos was talking about. So thin was this “proof” that special counsel Robert Mueller’s report largely downplayed it.
This Papadopoulos angle was such arrant nonsense that, when the FBI and Obama Justice Department decided to seek a FISA warrant for former Trump campaign adviser Carter Page, they were reduced to relying on the preposterous Steele dossier — Clinton campaign opposition research that was utterly uncorroborated and proved to be baseless.
It was a stunning abuse of power for the incumbent administration to investigate its political opposition on such negligible evidence. But that does not make it a crime to have done so.
Under the law, the executive branch must have extremely broad discretion to commence an investigation — particularly a foreign-intelligence investigation, which generally is an information-gathering exercise about a foreign power that is not expected to yield criminal charges. Furthermore, if there were an actual conspiracy between a political candidate and a hostile foreign power, a presidential administration would have not only the legitimate authority but the duty to investigate.
Consequently, the quantum of suspicion needed to trigger such an investigation is a judgment call. If executive officials abuse their power making that call, the checks on that are mainly political, not legal. They can involve sanctions up to and including impeachment. But the prospect of bringing criminal charges in such circumstances is remote: The Justice Department would need to find a statutory crime that fit; and the burden of proving corrupt intent beyond a reasonable doubt, when the official can claim to have been legitimately concerned about the threat posed by a hostile power such as Russia, would be daunting, to put it mildly.
President Trump is understandably livid over being mistreated in this way. But it is senseless to speak of this escapade in terms of “treason” — at least legally, and I doubt it works politically. What happened to Trump was a political dirty trick. Nevertheless, treason — the only federal crime defined by the Constitution — occurs only when an American (i.e., a U.S. person with a duty of fealty to our country) levies war against the United States, or lends aid and comfort to an enemy. Trump is wont to conflate the presidency and the country, but they are different. The president is a public servant, not a master to whom Americans owe allegiance. And, in any event, Russiagate did not involve the waging of war against the country or adherence to an enemy state.
It makes no sense to discuss what happened here in terms of treason. By doing so, the president highlights the stubborn fact that there is no obvious crime to be charged.
Moreover, DNI Ratcliffe made a tactical error (inadvertently, I assume) in his disclosures to the Judiciary Committee. He described the CIA’s Sept. 7, 2016, memo to the FBI as an “investigative referral.” Naturally, this misled people (including some committee senators) to believe our intelligence agencies had referred Mrs. Clinton to the FBI for investigation and potential prosecution.
But that is not what the memo is. It is an “investigative referral” only in the literal sense that the CIA was referring to the FBI — at the FBI’s request — information that had been gathered during an investigation (the Trump-Russia probe that the FBI codenamed “Crossfire Hurricane”) in which both agencies had an interest. Indeed, far from seeking an investigation of Clinton, Brennan’s CIA was encouraging the FBI to investigate Trump based on Clinton’s bogus theory of a Trump-Russia conspiracy.
Brennan should be the object of scorn over this. Alas, Ratcliffe’s description of the memo as an “investigative referral” gave Brennan an opening to accuse the Trump administration of creating a false impression that Brennan’s CIA accused candidate Clinton of criminal misconduct. And Brennan was quick to take advantage.
The Obama administration investigation of Trump was not treason. There was no obvious criminal offense. There were, instead, gross abuses of power — and such abuses often are more serious than criminal offenses. For President Trump, it would be more useful to urge that voters deny a return to power to members of a Democratic administration that abused it, than to demand prosecution for “crimes” that cannot be proved.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.
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