Should We Care Whether There Are Indictments In The Russia Hoax?

Commenter Cassander has brought to my attention a fascinating article written by J. E. Dyer. In her article, For The Spygate Probe, It’s Not Necessarily Indictments We Want – Now Or Later, Dyer argues that we may well be better off trading knowledge for indictments. In other words, she maintains that the most important outcome for the good of our republic is that the American people should be educated regarding the full facts behind the agenda that led to the events that we have come to know as the Russia Hoax. That desired outcome, she argues, could actually be derailed by a single minded pursuit of indictments.

Before I explain why I disagree with that assessment, I'll review the background that Dyer sets forth, and with which I wholeheartedly agree.

Dyer argues that the motives behind the Russia Hoax have been widely misunderstood. She maintains that the Russia Hoax must be viewed as part of a broader and trans-national effort directed against what has broadly been termed "populism":

... it is instructive – indeed, essential – to extend our view abroad, and observe the similar animosity toward any leaders or national political forces showing signs of being “Trump”-like, whether the Brexiteers in the UK, the Salvini faction in Italy, the persistent gilets jaunes in France, the much-maligned “far right” leaders in Eastern Europe, or Jair Bolsonaro in Brazil.

... 

...  The project of Spygate was not to prevent Trump from being elected in 2016. The project of Spygate was to plant seeds for the aftermath of the 2016 election, whatever its outcome.

...  It was about alarming the public, for a future with a much longer horizon.

...

It’s clearly not coincidental that there was a commonality of interests between certain U.S. officials and their foreign associates – all of them with government connections and working through “civil society” institutions – in places like the UK and Italy. The people involved didn’t just come together at the last minute to do something about the 2016 election. 

...

Whatever that agenda is – that’s what the American people need to know about. (And the British and Italian people, for that matter.)

Certainly Dyer is correct in stating that what she calls "the urgency, recklessness, and sheer, demented vituperation of the operation against Trump" demonstrates that the Russia Hoax cannot simply be an operation of partisan politics--that preservation of an agenda far beyond the election of Hillary was at stake. Far beyond even "Obama's legacy." This big picture is a perspective well worth keeping in mind.

However, focusing more narrowly on the Russia Hoax, Dyer maintains that we need to focus closely on the "infrastructure" that made it possible. This "infrastrucure" must, she argues, be the central focus of all investigation--to the exclusion of indictments, if necessary:

It has become abundantly clear that Spygate – the package of actions taken to spy on and defame Trump and his 2016 campaign – was never an investigation. Not even for one day. It was always an operation.  ... 

...

Ultimately, the big output from the intelligence arm of the task force was the national intelligence assessment of Russian interference in the 2016 election. That document, in its public version, was almost comically short on apparent references to real-time intelligence about Russia and the 2016 election, per se. Most of it had more the aspect of material copied in from Cliff’s Notes on Russian disinformation.  ... [The task force was actually] deceptive cover for the Spygate operation. 

In 2016, there was, at the hypothetical most, hardly anything to “investigate” about Trump or his campaign. Realistically, in fact, there was nothing. If there had been something, we would have known more than two years ago (in mid-2017) what it was, because the full assets of the United States government had already been deployed against Trump and his campaign for more than a year at that point. 

But the infrastructure of the operation against Trump had been assembled over time for years before 2016. Its assembly actually began before Trump even launched his presidential campaign on 16 June 2015. 

It didn’t start out being about Trump, per se.  ... 

The operation we call Spygate, whose origins in infrastructure ... began well before 2016, is what we need to learn the whole truth about.

My focus has been on the operation against Trump, which is why I prefer the moniker "Russia Hoax." Dyer prefers to see the Russia Hoax as falling within the context of the vast domestic spying infrastructure that was weaponized for political purposes under the eight years of the Obama administration. Thus, she prefers the tag "Spygate."

What does Dyer have in mind when she speaks of "infrastructure? Essentially two things:

Probably the most significant instance of a long lead-time for the Spygate methods is the use of communications intelligence on Americans. 

..., we can be confident that up through April of 2016, when Admiral Rogers at NSA clamped down on certain database queries, the Obama administration was making widespread use of back-door methods that had been systematically enabled by policy decisions going back to at least 2011.  ...

"Back-door methods" is perhaps a misleading term. I know that Dyer understands what was going on. Most importantly, it has to do with the Memorandum of Understanding that effectively gave the CIA access NSA databases through the FBI. The effect of that was to make it appear that illegal CIA searches on US Persons were legal FBI searches. This was done without informing the FISA court.

The important point here is that the Obama administration, coming in in 2009, didn’t find the infrastructure ready to support the level of abuse observed from 2013 to 2016. It had to be made ready. And that’s what the Obama administration did, starting long before the 2016 election campaign began. 

...

Add to [the NSA based abuse of FISA] one more noteworthy preparation, made by the Obama administration and almost universally overlooked in the years since: the comprehensive modernization of IT and communications systems for the Oval Office. That effort began in 2014.  Before it was undertaken, the reporting suggests it would have been literally impossible to monitor most Oval Office communications by stealth, except through actual, old-school wiretapping – gaining physical access to the lines in or just outside the Oval Office. When the overhaul was complete, the Oval Office had joined the modern, digital age.  The president’s communications thus went through computers like everyone else’s.

That one piece of information, especially in conjunction with evidence that federal departments and agencies may have used their NSC representatives to spy on the Trump White House, suggests that the infrastructure arrangements made by the Obama administration were not solely about convenience for its own operations. 

... what emerges is a package of measures designed to facilitate continued spying by those with access to the infrastructure, no matter who is in the Oval Office.

That's the background, and I find it fairly compelling. In her final section, "Why indictments are not an all-purpose answer," Dyer moves on to her concerns with a focus on indictments. It is this part that I find less than compelling. Overall, I think the problem is that Dyer is overly focused on what could be called "technical" violations as possible charges--false statements, and so forth, rather than a conspiracy to defraud the government, as I and others have described a plausible theory of the case.

Dyer begins this section with a general statement--or, really, an assertion:

The short version is that seeking indictments and convictions in the judicial system ties investigators’ hands in important ways.

There is an overriding constraint to respect constitutional and statutory limits, lest convictions be thrown out for faulty procedure. That can militate directly against gaining information.

Dyer fails to explain exactly what she means by this statement. How are investigators hands tied? Is she really suggesting, as she seems to be, that if Barr and Durham gave up the idea of obtaining indictments they could or would throw constitutional and other legal concerns to the wind and do whatever it took to gain "information"? Renditioning, perhaps? What does this actually mean?

Rather than explaining, Dyer moves on to more generalities:

There is the often-present possibility of trial evidence being placed under seal. There is also the unusually relevant problem that gaining more non-prosecutable intelligence on what happened will actively interfere with obtaining convictions in trial courts.

I think this fear is greatly exaggerated in a case of this sort. There is a growing consensus that the public has a First Amendment interest in access to trial evidence. It's true, of course, that trial evidence is often routinely sealed. Nevertheless, that is usually occurs when there is no great public interest involved. In any case deriving from the Russia Hoax that went to trial, that case would be the focus of national attention, and the full weight of DoJ would be behind the idea that the public needs to know the facts. Moreover, public interest law groups on both the right and the left would be clamoring to overturn such any such seal on the evidence.

Dyer then goes on to argue that a narrow focus on prosecution characterized the WTC bombing and the OKC bombing. She urges that this narrow focus on the bombings as "law enforcement problems versus national security problems" led to a failure to

treat the whole problem of transnational terrorism more comprehensively, instead of constraining our national agencies to limit the scope of our inquiries to suit the needs of prosecution, and ultimately to act as if we knew less about it than we did.

That may or may not have happened. However, if it did happen that our national agencies limted the scope of their inquiries to the needs of prosecution, I see no reason why that was the necessary result. There may have been a desire to deny the problem of transnational terrorism striking within the continental US, but there was no investigative reason for that--the failure to take transnational terrorism more seriously before 9/11 was not a necessary result of the desire to prosecute the WTC and OKC perpetrators. Nor does Dyer explain that it was.

Thus, I reject Dyer's bare assertions that drive to prosecute will somehow hinder the search for the truth, or even prevent its discovery. I don't doubt that the Barr/Durham investigation has required careful preparations for possible sharing of grand jury information with investigator in the national security field--and vice versa. But these things are possible. Between prosecution and declassification, I think we'll get to see the big picture.

At the same time, I fully subscribe to what I take to be Dyer's true bottom line position:

... it is not just preferable but imperative to treat Spygate as a comprehensive disaster imperiling our existence and character as a nation. Limiting ourselves to what we will know if we prioritize indictments and convictions would be fatal. ... 

No prosecutorial consideration should be allowed to keep any portion of the truth a secret from the American people. The government’s faith with the people has already been broken.  That can’t be overstressed. The restoration we need will not come from the ordinary routine of prosecuting some individuals and ignoring (even hiding) other things in order to be successful with the prosecutions. 

Nor is that a sound basis for moving forward. The people need to understand that it’s the conditions of government as it exists today that have set us up for this hour.  ... 

The people more urgently need a clear view of the policies, tools, and charters of agencies that made Spygate possible (indeed, made it inevitable). We need to understand not just who was talking to whom in our agencies and across national borders, but the agenda for their contacts, and what their purpose was in zeroing in on the 2016 election.

That's very eloquently put. I believe a theory of prosecution based on a conspiracy charge can accomplish that. I stand by my (now expanded) comment from this morning. A failure to secure indictments and pursue prosecution wherever those indictments lead will conclusively confirm just that break in faith with the American people that Dyer deplores--it will be perceived as an endorsement of a two tier justice system. Liberals will regard that as vindication for their view that the end--thwarting Trump and the deplorables--justifies any means. Conservatives will view a failure to prosecute as a continuation of a hoax--now endorsed by even "conservative" Establishment powers. The only way is forward on a parallel path of national security investigation and prosecution. It's the only right way to do it and is eminently possible.