Monday, December 3, 2018

Crossfire Hurricane: The Theory Of The Case

For those of us who try to follow developments in the Russia Hoax it's easy to get bogged down in the details and lose sight of the big picture: what I call the "theory of the case." Every investigation needs a guiding theory, even a hoax investigation, and a solid grasp of that overall case theory is a big help in coming to grips with the big picture.

To arrive at the overall theory driving the Russia Hoax it's useful to look at two aspects together: first, the Carter Page FISA, and second, Rod Rosenstein's letter authorizing the Special Counsel.

We've all heard the criticism of Rosenstein's authorization letter: it fails, the critics say, to cite a criminal violation, and so the appointment of Mueller as Special Counsel is illegitimate because the regulations governing the appointment of a Special Counsel require that a criminal violation be stated. But like so many things we think we know, this turns out not to be true at all.

For starters, the regulations only state that the Attorney General (or, in our case, the Acting AG) has to "determine[] that criminal investigation of a person or matter is warranted"--it doesn't state that the actual criminal violation has to be named. I agree that the presumption must be that no investigation should be initiated without some specific criminal statute in view. Moreover, it's natural and fair that the subject of an investigation should know what he's being investigated for, and just as natural that the investigator should like to keep the subject in the dark about as much as possible. What would be a reasonable sounding explanation for refusing to cite a criminal statute? The reason is right there in Rosenstein's letter:
The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017 ...
If we check out Comey's testimony we discover that the investigation that he confirmed, what we know as Crossfire Hurricane, was a counterintelligence (CI) investigation. That means it's all classified, so nothing can be revealed publicly.

But wait, you say, a CI investigation isn't a criminal investigation, so where's the criminal violation, even if it's not named? This, it turns out, is another one of those things everyone thinks they know.

What's the classic CI type of investigation? Espionage. Is espionage a criminal violation? You betcha. Therefore, contrary to popular belief, a CI investigation can simultaneously be a criminal investigation. It doesn't have to be, but it can be. All that's required, really, is a nexus with an intelligence service of a hostile foreign power. Russia, for example.

Well then, do we have any reason to believe that this particular CI investigation also involves a criminal violation--a reason, that is, beyond the inherent implausibility that Rosenstein would edge out onto a legal limb and then carefully cut it off behind himself by failing to follow the regulatory requirements? In fact we do have a reason, a good reason. The very existence of the Carter Page FISA is a warning siren that tells us that there is a criminal violation being alleged. We know this because the section of the FISA law that deals with obtaining FISA coverage on a US Person states that the FBI must provide probable cause to the FISA court (FISC) that the US Person
knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States. [There are some possible refinements, but this characterization suffices for our purposes.]
That's it. And, in point of fact, the FBI, acting in connection with a Full Investigation, Crossfire Hurricane, obtained a FISA warrant against a US Person. Based on the clear statutory language that means that, beyond any doubt, they must have alleged that whatever the US Person was up to had to have involved 1) clandestine intelligence activities and 2) possible violations of one or more criminal statutes.

But, you ask, what possible evidence did the FBI have that Carter Page was engaging in "clandestine intelligence activity", much less in violations of some criminal statute? After all, wasn't he an FBI asset in New York working against the Russians? That was before. According to the FBI, Page--acting as Paul Manafort's intermediary--flew to Moscow in July, 2016, and conducted "secret" meetings (whatever "secret" means) with movers and shakers in Russia, people like Igor Sechin, known to be well connected to Putin. The FBI already knew, so they said, that the Trump campaign had agreed to lift sanctions on Russia in exchange for Russia's release of DNC emails through Wikileaks--a clear quid pro quo! And now it turns out that Page has flown to Moscow to discuss further sanctions concessions in return for "bi-lateral energy cooperation." It was all part of a "well developed conspiracy of cooperation" between Trump and the Russian leadership. That sure sounds like clandestine activity, right?

And how did the FBI know all this? I'm glad you asked. They knew it through the good offices of one Christopher Steele, "formerly" of Britain's MI6, who consulted his sources and wrote it all up in report form so that it could later be conveniently compiled into a "dossier". But isn't all this unverified--isn't that what Comey, Director of the FBI, told the House? Under oath?Well, what's a joke among friends, right? And, anyway, how were the FISC judges to know any better?

The point is, if we accept this narrative, then not only is Trump complicit in the clandestine intelligence activity of his agents but there's even a clear violation of a criminal statute: bribery. I'm not going to hold myself out as an expert on public corruption laws, but let's just take as one possible example 18 US Code 201 - Bribery of public officials and witnesses, 201(b)(2). There we read:
(b) Whoever—
(2) being a public official or person selected to be a public official, directly or indirectly, corruptly demands, seeks, receives, accepts, or agrees to receive or accept anything of value personally or for any other person or entity, in return for:(A) being influenced in the performance of any official act;(B) being influenced to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States;
It sure looks like the Trump team was conspiring to violate the Bribery law once they were elected. True, they weren't yet public officials, but that's just all the more reason to keep renewing the FISA every three months, to cover the transition and early months of the Trump administration.

How's that for a theory of the case? Of course, as George Smiley would say, "it's just a theory," but it certainly seems to explain a lot. And there's more.

I've always maintained that the famous Trump Tower meeting on June 9, 2016, was an early attempt to ensnare the Trump campaign in a quid pro quo deal with Russians in which the Russians would supposedly provide "dirt" in exchange for sanction relief--i.e., a clear exchange of a thing "of value" for action on official policy. A bribe. Recall, this meeting took place before Carter Page's ill timed trip to Moscow. It involved the Russian lawyer Natasha Veselnitskaya (who was allowed into the US only on the direct intervention, ultimately, of AG Loretta Lynch) and top Trump aides Jared Kushner, Don Jr., and Paul Manafort--who was supposed to be directing the outreach to the Russian leadership. Veselnitskaya had claimed she could provide "dirt" on Hillary, but then inexplicably--or maybe not--began yammering about something called the Magnitsky Act.

Well, it so happens that the Magnitsky Act is actually all about sanctions on Russia. My take is that she raised the topic of the Magnistsky Act hoping to elicit some inquiry from the Trump aides that would show their willingness to discuss a quid pro quo--a willingness to engage in bribery, a criminal violation. This would unquestionably be sufficient to start up a Full Investigation on the Trump campaign and even on Trump personally. Fortunately for Trump, Don Jr. cut the whole thing short.

End of story? Actually, no. One thing we keep hearing about with regard to people who are interrogated by Team Mueller is that they are repeatedly asked whether Trump himself knew about the meeting with Veselnitskaya. Did he know, do they think he knew. There are two ways for Mueller to use this, neither of which add up to a criminal violation but either of which, if included in Mueller's final report (if it ever gets written) could be framed to cause serious damage to the Trump presidency.

The first would be that, if Trump can be claimed to have known about the meeting, then the Steele dossier narrative about Carter Page's trip to Moscow and his "secret" meetings suddenly looks like a mission to sound out the Russians on what Veselnitskaya was talking about--sanctions, and is there a deal that we, the Trump team, could make on that?

The second, leaving Page and the dossier out of it, would be if Mueller can somehow persuade someone, anyone, (think: Manafort sitting in solitary confinement, durance vile in Virginia) to say they even think that Trump was told about the meeting. In combination with Trump's earlier public denial (as opposed to the lawyerly written response "to the best of my recollection") that could be used to create the impression that Trump denied it because of guilty knowledge--he denied it because he really did seriously consider the bribery scheme, even though he may have rejected it. Of course that's why Trump can't just simply say, Yeah, Don Jr. told me, but so what? He'd soon find out so what, because toying with a bribery scheme is a lot different than toying with a Moscow real estate deal.

And so that brings us to the whole declassification controversy. Like everyone else, I want full declassification sooner rather than later. On the other hand, as Mark Penn has so trenchantly argued, Mueller's strategy seems to be to play this out in the court of public opinion. Viewed from that standpoint, I'd say that Trump deserves the best possible defense--including in the court of public opinion. Therefore, I'm willing to trust his judgment on the proper timing for declassification, knowing that it's his life on the line and knowing that this could well be the key to an effective counter to the planned smear.

It's all just a theory.


  1. On the subject of plausible theories, Dan Bongino has posited another theory that may explain the facts currently known with respect to the conduct of specific individuals within DOJ/FBI. The essence of it is that senior Obama Administration officials (including SOS Clinton, AG Holder, SP Rosenstein, & Director Mueller, SA McCabe) engaged in an illegal quid pro quo conspiracy with Russia in the Uranium One scandal. In this caper, the Clinton Foundation received donations from Russian foreign entities in exchange for Rosenstein/Mueller/McCabe quashing the investigation and Clinton/Holder (acting as directors) approving the sale to Rostom. Even Bill gets in on the grift with a $500K speaking fee from a Russian bank involved in the scam. As such, Spygate and the current Mueller SP investigation is (and always has been) about covering up that criminality and ensuring that the real culprits are never prosecuted for those crimes. The coup against Trump is simply a tangential means to that end result.

    Which of these potential theories represents the greater threat to our democracy and security?

  2. Thanks, Unknown. In fact, I spent time this morning listening to Bongino and then reading John Solomon's article from last October: FBI uncovered Russian bribery plot before Obama administration approved controversial nuclear deal with Moscow. Like you, I found it to be a compelling theory and the presentation (based largely off Solomon, to whom Bongino gives well deserved credit) ably ties the threads together. It has great explanatory power. Under Obama the DoJ basically seems to have become a sort of mafia staffed with attorneys--the worst mafia imaginable! Imagine how the FBI agents who did all that excellent work must feel? And I guess this explains Joe DiGenova's (who, with his wife Victoria Toensing, represents a key witness) absolute contempt for Rosenstein. I hope Horowitz has a bunch of people watching his back.

  3. My own theory of the case is that when Donald Trump declared his candidacy in August 2015, an assumption was made reflexively among US counter-intelligence specialists that Trump must be vulnerable to blackmail by Russian Intelligence.

    There was no evidence at all for this assumption. Rather, the assumption was based only on Trump being a sleazy businessman doing business with sleazy Russians. In such circumstances, Trump was ipso facto vulnerable to blackmail by Russian Intelligence.

    There was a further assumption that US Intelligence, using all its resources, eventually would gather compelling evidence that Trump was being blackmailed.

    As time passed into the spring of 2016 and as Trump approached victory in the Republicans' primary race, US Intelligence failed to collect compelling evidence. Therefore, US Intelligence began to concoct the evidence necessary to prove that the blackmail assumption still must be true.

    A process of US Intelligence "cooking the books" against Trump developed. It was a group-think process -- zealotry that was not ever challenged by any skepticism within extraordinarly secretive counter-intelligence specialists in the USA, the UK and Australia.

    Then, as the e-mail controversies developed in mid-2016, the blackmail assumption developed into the rather new idea that Trump was blackmailed into colluding with Russian Intelligence in the political exploitation of stolen e-mails.

    Still, the actual evidence remained ZERO, so the zealots' concoction of evidence continued through and after the Presidential election.

    Now all this stupidity, unprofessionalism, political partisanship and violation of procedures within the highest levels of DOJ/FBI and CIA must be covered up. That is what is being done under the leadership of Robert Mueller.

  4. Mike, in line with what you're saying, several years ago a person I regard as generally knowledgeable about these matters told me that, fairly early on, Dem internal polling revealed that, contrary to the expressed popular opinion of the liberal elite, Trump had a real shot at winning. That was the point at which they began the deep diving into 702 material and, as you say, when that actual data proved insufficient turned to "cooking the books."

    I will say this re that theory. While I find it plausible, I would not be surprised to learn that similar illegal mining of NSA data took place during the 2012 campaign.

  5. I assert, still, that the Trump Tower meeting was recorded by the Trump Jr. and that Mueller has had a copy of this recording all along. It is why Simpson and his team never used it in the Dossier.

  6. Veselnitskaya was sent in there with explicit instructions to let Trump's team make the overtures for the "dirt" that was promised in the Goldstone e-mails because she didn't have any Clinton oppo-research to offer in the first place- this ploy only works if you can get Trump Jr., Manafort, or Kushner to offer something in return for talking about the oppo-research. It is likely that Veselnitskaya or her companions also recorded this meeting, but it just didn't turn out the way they had hoped.

  7. Yancey, re Don Jr. recording the TT meeting, it makes sense and would have been legal in New York, which is a "one party consent" state. By the same token, there is also the possibility that the meeting was monitored by the FBI. To be honest, I'm no longer sure of the technical possibilities, but I'm guessing that it would have been technically possible and probably legally ("consensual monitoring") as well.

    Re Veselnitskaya having been instructed to have the Trump campaign make the overtures for a quid pro quo, I would assume that she had at least some BS story to offer, something from a public source, just to establish if possible some sort of credibility if challenged to produce--like, there's more where that came from. The reason for maneuvering the Trump team to initiate quid pro quo discussions would probably have been to avoid any entrapment defense. That's interesting to me because, if true, it indicates some very serious intent to jam up Trump on a real criminal charge.

  8. Most corporations have meeting rooms equipped with covert monitoring capability, and this has been typical for about a quarter century now. It's mostly used for internal surveillance of employees in order to root out disloyalty, corruption, or incompetence. Many employees have been dismissed unaware that a monitored conversation triggered the dismissal. The FBI also likely recorded the meeting because it was an entrapment sting from the start, and the same MO was used with all the other targets (Papadopolos, Page, etc). The FBI version is likely to be of lower quality because of the limitations of portable technology and disadvantageous microphone placement.

    This is another instance in which Nunes could easily have exposed Spygate by subpoenaing the sting participants. That he has not done so suggests that reverse entrapment has been going on for a long time now. I suspect Mueller's best hope now is to initiate a political tsunami with mostly smoke and mirrors, and hope that the media can manufacture enough outrage to force GOPe politicians into supporting an impeachment and Senate conviction. That's a tough hill to climb, but worst case scenario is that any reverse indictments can be cast as political retribution. Ultimately, it all comes down the evidence. Let's hope it gets revealed.

  9. Unknown, I'll admit to being a bit disillusioned due to what the GOPers failed to do in the two years that they had. This is far from an ordinary scandal.

  10. Mark,

    I don't think the meeting was run by the FBI- I think this was all Glenn Simpson with probably the Christopher Steele's input and aid. I do think the various Papadopoulos and Page meetings were FBI/CIA run, but I think there were two tracks being run independently until Steele started meeting with the FBI and delivering portions of his dossier to them- at that point, the operations became unified. Early June of 2016, though, was before that joining of forces occurred.

  11. Yancey, I still have fond hopes that we'll find these things out for sure. One reason why I believe the cooperation between the FBI and Simpson's operations began earlier has to do with the abuse of NSA's 702 data--recall that private contractors hired by the FBI were mining that data, and that it's widely believed that Fusion GPS was one of those contractors. If that was the case, I think it's fair to posit close cooperation going back to April or so. But I freely grant that your POV is a possibility, too. I've gone back and forth on it. Declass now!

  12. It's been reported that Trump will nominate William Barr as the AG. I can't help but think this is a mistake. Barr had been the AG from 1991-1993, when Mueller was head of the DOJ criminal division (and Rosenstein was in the Public Integrity Section of that division). Previously, Barr had been Bush 41's aide at the CIA. It is probably a good practice not to hire people who have previously worked closely with Mueller. Same goes for Comey, who as Assistant AG worked with Christopher Wray, head of the DOJ criminal division from 2003-2005. Who is advising Trump on these questionable picks?

  13. Steve, full disclosure first: my youngest brother was a speech writer for Barr when Barr was AG. It only means that I've heard that he's an honorable man.

    Mueller became head of the Criminal Division in 1990 and was appointed by Dick Thornburgh. Barr didn't become AG until late 1991. Prior to that Barr entered DoJ in 1989 directly from private practice to head the Office of Legal Counsel, so there's no reason to suppose that he would have had any input at all into Mueller's hiring. His appointment to head OGC does suggest, however, that he's considered to have a strong legal mind. He was known throughout his career as a strong defender of the Executive. Rosenstein would have been working under, and was presumably hired by, Mueller--as head of OGC at the time, Barr would have had nothing to do with that. He has unquestionably had a very broad experience in the Executive branch.

    Beyond that he has voiced criticism of Mueller's use of DoJ attorneys who have donated to political campaigns. He says that as someone who was himself a member of Ken Starr's team (with Brett Kavanaugh and Rod Rosenstein, as it happens).

    I'm not making any predictions. My hope is that with this kind of background he may be the guy who will be able to take control of DoJ and defend the Executive. I can't begin to express what a tragedy Sessions was. The stupidest or most dishonorable man in WDC. Take your pick.

  14. Steve, re your question, "Who is advising Trump on these questionable picks?" I suspect that the two lawyers currently closest to Trump probably had significant input: Rudy Giuliani and Emmet Flood. Flood, in particular, is almost certain to have experience with Barr, since they've both practiced at the highest levels in WDC for umpteen years. Neither of those two are likely to have recommended a shrinking violet to Trump. Paul Mirengoff, too, based on personal experience working under Barr, has characterized Barr as "aggressive." BTW, as Trump's personal attorney Flood has an interesting background:

    Flood was a law clerk for Judge Ralph K. Winter of the United States Court of Appeals for the Second Circuit and for Associate Justice of the Supreme Court of the United States Antonin Scalia.

    Flood advised President Bill Clinton during his impeachment process. Flood's law firm also represented Hillary Clinton on matters relating to the Clinton email controversy.

    Flood represented Dick Cheney in response to Wilson v. Cheney, a civil lawsuit filed by Valerie Plame for his alleged role in the Plame affair.

    Flood advised Bob McDonnell on his response to the corruption investigation into his activities. Flood was retained by Cameron International to defend them after the Deepwater Horizon oil spill.

    Back to Barr, quoting Wikipedia:

    "Barr believed that then Republican candidate Donald J. Trump's calls for investigating Hillary Clinton, the Democratic candidate for President, were not inappropriate. He told The New York Times that "there is nothing inherently wrong about a president calling for an investigation. Although an investigation shouldn’t be launched just because a president wants it, the ultimate question is whether the matter warrants investigation." In the same Times piece, Barr added that an investigation into the Uranium One controversy was more important than looking into whether Trump conspired with Russia: “To the extent it is not pursuing these matters, the department is abdicating its responsibility.” Elsewhere, Barr has commented that “I don’t think all this stuff about throwing [Hillary Clinton] in jail or jumping to the conclusion that she should be prosecuted is appropriate. But I do think that there are things that should be investigated that haven’t been investigated.”

  15. Steve, I misspoke re Barr and Ken Starr.

  16. Mark,

    I still think Sessions' biggest flaw was his age. I have known umpteen men 65 and older in my life, and the vast majority of them do not have the energy or the stamina to run an organization like the DoJ, and, even worse, they don't really have the ambition any longer that might refuel such characteristics. I could never imagine Sessions working the 12-14 days staying on top of an organization that was basically being run by the Republican's political enemies. Sessions could have refused to recuse himself, and done so on solid intellectual grounds, but he just didn't have the fire in the blood to do so- he didn't want to expend the effort of the fight, nor, do I think, had he the intellectual prowess any longer to foresee the consequences.

    My fear is that Barr, only 3 years younger, lacks those same qualities. We will see.

  17. Thanks, Yancey. I happen to be 4 mos. older than Barr. :-( But I agree--it takes an extraordinary guy to take on that kind of a job at that age. It helps to have lots of experience to fall back on, to shorten the learning curve, and that's where Barr may have an advantage. My own view is that Sessions viewed the AG gig as something of a retirement job, a cap to his career. He'd be able to select a younger, more energetic guy as the Deputy AG to run the department for him and spend his own time as an advocate for his and the president's common goals on immigration and other issues of law and justice. That was hopelessly unrealistic. I do think Barr will come in with the intention of taking control of DoJ.