Saturday, August 1, 2020

Targeting Trump

Andy McCarthy has a nice overview article of the Russia Hoax this morning. In it he emphasizes something that I also pointed out in a comment yesterday. Here's what I wrote yesterday, edited for clarity outside the context of the original post (Fact Or Fiction?), using brackets to indicate those edits:

It's slightly more complicated than that. Officially, [after the election and inauguration of Trump] [the FBI] still had C[rossfire] H[urricane] open--so there was an official investigation. However, note that CH was the umbrella, and each individual [who was under investigation] had a subfile investigation [in their name or codename]. We've never heard that an investigation of Trump himself was opened under the umbrella of CH--not until McCabe did so after Comey was fired. That means to me that Comey was conducting investigative activity that was specifically targeting Trump without an open and predicated investigation [on Trump himself].
Now, [Comey] would defend [against] that [charge] by claiming that note-taking during or immediately after official conversations is established practice. However, I believe evidence is accumulating to show that much of this activity was intended to instigate or incite statements from Trump that could later be used to trip him up--not simply to document official discussions. Tricky to prove, perhaps, but I believe that's where the evidence points.

What I'm saying is something very simple and basic, but something that many people fail to internalize. A lot of people seem to think that the FBI just goes out and ... investigates stuff. But the FBI is like any other government agency. It is ultimately a creation of Congress (through DoJ, itself a creation of Congress) set up to undertake official government business--not personal or political business. It can only take official action if there is an official reason for taking that particular action--an official action that is sanctioned by laws, regulations, and guidelines. Moreover, that official action has to be documented in official records (which is what Congressional oversight is about). In the case of the FBI, all investigative activity has to be documented to a case file--which presumes, in the first place, that a case file has been opened for a validly articulated official purpose.

Comey, by contrast, was using official FBI resources to engage in activity that appeared to be official business, but for which he had no official reason, basis, or predication. He was, in reality, misappropriating official FBI and government resouces for his own personal and political benefit. That's a fraud against the government, because it defrauds the government of the honest services of its officials--a duty which Comey owed to the government. And Comey, as well as possibly other FBI officials, compounded this offense by creating records of their faux-official activities at least some of which they treated as their own personal records and maintained in what appears to have been a private--i.e., personal--file system. This was done to conceal what they were doing, which was unauthorized by law, regulations, or guidelines.

This is all at the heart of what Durham is investigating. Part of why the Durham investigation is taking so long is because Durham and Barr are dealing with past masters at manipulating the federal bureaucracy for their own interests. Comey--the disgraced former FBI Director--and the rest are adept at concealing the true nature of their activities. Thus, while Comey engaged in blatantly illegal activity but concealed it for many months, others in the conspiracy covered their criminal activity by concealing it under the forms of legality. For example, investigations were opened using official forms--ECs--and claiming official purposes behind them. Only closer inspection reveals the lack of official sanction, and that leaves the investigator with the difficult task of determining the intent behind these actions: were these actions the result of sheer stupidity, a misguided failure to understand the limits of official authority, or real criminal intent? Recent revelations--the Danchenko interview, the Priestap and Strzok notes and memoranda--are so important because they bear on that question of intent.

We'll return to this a bit later, comparing it to what McCarthy says on these points. The comparison will enhance both and add clarity. However ...

First, here's the link to McCarthy's article:

New Disclosures Confirm: Trump Himself Was the Target of Obama Administration’s Russia Probe

As I said, I like the article overall and urge you to read it in its entirety. There are a few places at which I wish McCarthy had been a bit more hardhitting. For example, I believe McCarthy cuts Congressional Republicans too much slack:

Prior to the 2016 election, the FBI intentionally concealed the existence of the Trump-Russia probe from the congressional “Gang of Eight” (the bipartisan leadership of both houses and their intelligence committees). Senior Republicans were thus kept in the dark regarding purported suspicions that the Republican presidential campaign was a Russian front, unable to pose tough questions about the probe’s gossamer predication. 

Heh. "Gossamer predication"--I like that, and that's exactly right. But, we know for a fact that 'senior Republican' were not in the dark, and had every reason to understand the true nature of the Russia Hoax. One thinks first of John McCain, but there were others.

Crucially, the Trump-Russia fabulists managed to sideline two Trump loyalists who would have been positioned to thwart the effort: national-security adviser Michael Flynn and Attorney General Jeff Sessions. That left in place Obama holdovers and Trump-appointed placeholders. They were indifferent to Trump himself and cowed by the prospect of being framed as complicit in a Trump–Russia conspiracy, or a cover-up. 

Of course this was true. However, ask yourselves: Could Michael Flynn have been 'taken out' as easily as he was without the consent of Republicans? Weren't there, therefore, Republicans who had their own reasons for wanting Flynn removed? As for Sessions, it seems obvious that his decision to recuse was baked into his confirmation--it was a deal by which Sessions would receive a few Dem votes to create the appearance of bipartisan approval, but at the cost of betraying Trump.

The paper record is profoundly embarrassing, so it is only natural that the FBI and Justice Department resisted its disclosure. But documents about the investigation were demanded by congressional investigators starting years ago — particularly by the investigation led in the House by then–Intelligence Committee chairman Devin Nunes (R., Calif.). 

Yes, documents were demanded. But subpoenas were not authorized. Because Paul Ryan. Again, Republicans undermining Trump. Why? Here I tend to come down on the side of CTH. There were policy reasons behind the hamstringing--or attempted hamstringing--of Trump. The GOP, 'the stupid party', finally caught on to the insanity of what they were engaged in, but incalculable harm had already been done.

Congress’s investigation was stonewalled. The more revelation we get, the more obvious it is that there was no bona fide national-security rationale for concealment. Documents were withheld to hide official and unofficial executive activity that was abusive, embarrassing, and, at least in some instances, illegal (e.g., tampering with a document that was critical to the FBI’s presentation of “facts” to the Foreign Intelligence Surveillance Court). 
Democrats wanted this information suppressed all along. So of course, once Democrats took control of the House in 2019, there was no possibility of pressing the question of why the Justice Department and FBI failed to comply with House information demands back in 2017–18, when Republicans led the relevant committees.
One wonders, though, why the GOP-controlled Senate had so little interest in finding out why this paper trail stayed hidden despite repeated inquiries. Ditto the House Republican leadership in the first two years of Trump’s term. It is hard to draw any conclusion other than that the GOP establishment bought the “Russian interference in our democracy” hysteria.

Yes, "one wonders" about what was going on in the GOP leadership during the first two years of Trump's term. Unlike McCarthy, however, I refuse to conclude that the GOP establishment bought the Russia Hoax. They're just not that stupid. And Devin Nunes, to his credit, had exposed it for even the dumbest in the GOPe to see. This was about politics, about policy, not about national security or the rule of law or anything of the sort.

However, let's return to what McCarthy has to say especially about the FBI's crucial subterfuge--targeting Trump under the pretext of investigating persons within the Trump campaign. If you combine what McCarthy says here with my comment above I think you'll have a pretty clear understanding of what Durham has been up against.

McCarthy begins by pointing out, along with others, that the Pientka "briefing" of Trump was quite transparently investigative activity. Pientka's writeup shows that Pientka was very much focused on Trump, even as he also assessed Flynn. Problem: There was no open case file on Trump:

Among the most significant of the newly declassified documents is a memorandum written by FBI agent Joe Pientka III, ... It was Pientka who, ..., purported to brief Trump and two top campaign surrogates ... 
In reality, Pientka and the FBI regarded the occasion not as a briefing for the Republican presidential nominee but as an opportunity to interact with Donald Trump for investigative purposes. Clearly, the Bureau did that because Trump was the main subject of the investigation. The hope was that he’d blurt things out that would help the FBI prove he was an agent of Russia. 
The Obama administration and the FBI knew that it was they who were meddling in a presidential campaign — using executive intelligence powers to monitor the president’s political opposition. This, they also knew, would rightly be regarded as a scandalous abuse of power if it ever became public. There was no rational or good-faith evidentiary basis to believe that Trump was in a criminal conspiracy with the Kremlin or that he’d had any role in Russian intelligence’s suspected hacking of Democratic Party email accounts. 

Nor, as we have seen from our examination of Pientka's two key ECs in the Flynn case--the opening and proposed closing ECs--was there anything remotely like predication for investigating Flynn.

... To believe Trump was unfit for the presidency on temperamental or policy grounds was a perfectly reasonable position for Obama officials to take — though an irrelevant one, since it’s up to the voters to decide who is suitable. But to claim to suspect that Trump was in a cyberespionage conspiracy with the Kremlin was inane . . . except as a subterfuge to conduct political spying, which Obama officials well knew was an abuse of power. 
So they concealed it. They structured the investigation on the fiction that there was a principled distinction between Trump himself and the Trump campaign. In truth, the animating assumption of the probe was that Trump himself was acting on Russia’s behalf, either willfully or under the duress of blackmail. By purporting to focus on the campaign, investigators had the fig leaf of deniability they needed to monitor the candidate. 
Just two weeks before Pientka’s August 17 “briefing” of Trump, the FBI formally opened “Crossfire Hurricane,” the codename for the Trump-Russia investigation. The Bureau also opened four Trump-Russia subfiles, related to Trump campaign officials Paul Manafort, Carter Page, George Papadopoulos and Flynn. 

Please read this next paragraph closely. McCarthy is absolutely correct on every point, but notice that, while the supposed predication--the pretext--for opening Crossfire Hurricane was actually the Downer - Papadopoulos conversation, every single factor that McCarthy cites here is drawn from the Steele "dossier". The Steele "Russia Hoax" narrative is what the conspirators really wanted to hang their hat on because they knew that that was what could take Trump down--not bartalk in London between Papadopoulos and an Aussie intel operative under diplomatic cover. Once the bogus investigation had been opened, the FBI used the Steele "dossier" to justify all of their subsequent actions--most crucially, the Carter Page FISA. And everyone who was anyone in Washington under stood this:

There was no case file called “Donald Trump” because Trump was “Crossfire Hurricane.” The theory of Crossfire Hurricane was that Russia had blackmail information on Trump, which it could use to extort Trump into doing Putin’s bidding if Trump were elected. It was further alleged that Russia had been cultivating Trump for years and was helping Trump’s election bid in exchange for future considerations. Investigators surmised that Trump had recruited Paul Manafort (who had connections to Russian oligarchs and pro-Russia Ukrainian oligarchs) as his campaign manager, enabling Manafort to use such emissaries as Page to carry out furtive communications between Trump and the Kremlin. If elected, the theory went, Trump would steer American policy in Russia’s favor, just as the Bureau speculated that Trump was already corruptly steering the Republican party into a more pro-Moscow posture.

To close out, here's another smart point that McCarthy raises that, while simple, is highly suggestive regarding the mentality of the plotters and their intent. It has to do with Pientka's memo that documented his "briefing". First, however, I want to clarify something. McCarthy writes that the FBI was "exploiting the U.S. political process to try to turn nothing into a federal case." I get what he means. But, for investigative purposes--as well as for later prosecutive purposes--the key here is that the FBI was actually exploiting the appearance of engaging in official sanctioned FBI business while in reality it was engaging in wholly unpredicated investigative activity for political purposes: McCarthy

You’re thinking, “So what?” Yeah, well, that’s the point. They had nothing, but the agents were exploiting the U.S. political process to try to turn nothing into a federal case. And would any public official voluntarily attend a security briefing, ostensibly meant to help him perform his public-safety mission, if he thought the FBI might be spying on him and writing reports with an eye toward portraying him as a hostile power’s mole?
Just as we’ve seen in the Flynn investigation, Pientka’s official FBI report is marked in bold capital letters: “DRAFT DOCUMENT/DELIBERATIVE MATERIAL.” Why deliberate over a draft when the purpose is to document a suspect’s statements? After all, he said whatever he said; there shouldn’t be a need to edit it. Drafts and deliberations are necessary only if a report is being massaged to fit the perceived needs of the investigation. Observe that, although the briefing was August 17, the memo is dated August 30. Nearly two weeks later, and it’s still in the form of a deliberative draft, meaning they’re not done yet.

One suspects that what the FBI was hoping for was that Trump might make public statements that could be used to enhance the briefing narrative. The idea would be that by inserting documented public statements into a report of a private briefing the report could be slanted in the direction of the preferred narrative of Trump's collusion with Russia. In a way, this would not be too different from what actually happened with the multiple "collaborative" 302s in the Flynn case.


  1. Excellent analysis.

    related development:

    >> Paul Sperry
    DEVELOPING: Sources say special prosecutor Bash is looking @ Obama admin's "to/from/about" queries related to NSA's upstream collections of FISA Sec 702 data going back to 2015 & earlier,which include collections involving US citizens & the use of that raw data by FBI contractors
    11:34 AM · Aug 1, 2020 <<

    >> <<

    If true, Durham is not pulling any punches; I have long suspected the political spying in the IC goes wayyyy back.

    1. It goes back to about 2008. This justifies my confidence in Barr. It also explains sundance's elation of late. He apparently put two and two together finally.

    2. Bash is a pretty talented lawyer. Barr didn't pull him in simply to to look at a few penny ante unmaskings or leaks. Same goes for the other USAs he's pulled in, like Jensen. If Jensen is reviewing the whole Flynn thing, you can bet it's not a surface review--it's part of a targeting of Team Mueller. Does that suggest why the DC Circuit is willing to go full political to keep Flynn wrapped up for as long as they can?

  2. I am not a McCarthy fan. He has shown himself to be someone who arrives late. after other investigative journalists have done the legwork, then writes something that is derivative and too often plain vanilla. It took him forever to finally get up the energy to read some of the Strzok-Page texts. He love to appear on Fox. He loves to do book tours. Another one who wants to be invited to the right cocktail parties?

    1. I use whatever I can get my hands on to make my points. :-)

    2. Bebe - even worse McCarthy has an enormous blind spot when it comes to malfeasance by the FBI. He just can’t/won’t see it/admit it. He equivocates & makes excuses.

    3. It's not the FBI. It's prosecutors. Comey was a prosecutor and came through SDNY like McCarthy. Like Mueller.

    4. I read the McCarthy piece this morning and just about gagged over the same stuff Mark pointed out in this post, especially the stuff about those poor ol' Republicans who just got duped - not that they were passively or even actively participating in the cover up or anything like that, you understand (!)

      But even if McCarthy frequently seems willfully naive or late to the party, his way of framing and explaining things is often top notch. The final 1 1/2 paragraphs of today’s piece, for example, go like this:

      “…We haven’t considered the collaboration of American and foreign intelligence agencies in the scrutiny of Trump, or the collaboration of Obama officials and congressional Democrats, as well as the media, to promote the narrative that Trump was a Russian operative. There is much still to learn and to weigh.

      “But this much we know: In the stretch run of the 2016 campaign, President Obama authorized his administration’s investigative agencies to monitor his party’s opponent in the presidential election, on the pretext that Donald Trump was a clandestine agent of Russia. Realizing this was a gravely serious allegation for which there was laughably insufficient predication, administration officials kept Trump’s name off the investigative files. That way, they could deny that they were doing what they did. Then they did it . . . and denied it.”

      That’s good stuff, imho -esp the last two sentences- and that’s just one little pull from just one day. I’ll keep taking the good with the bad, with McCarthy and others, because I just don’t know of enough writers out there who don’t piss me off at least now and again.

  3. I wouldn’t be at all surprised to find that McCarthy reads your blog, Mark.

  4. "The GOP, 'the stupid party', finally caught on to the insanity of what they were engaged in....
    And everyone who was anyone in Washington understood this:"

    Any guesses, as to when the GOPe finally caught on, and when their *deniability* disappeared?

  5. Anyone who wants a no BS analysis comes to Mark's site.
    Like the song sez, "Nobody does it better."

  6. No mention of Senator Warner’s communications with Steele and the Russian oligarch.

    As well as the leaking by the Senate Staffer.

    Until the midterms where Trump took out 3 sitting Democratic Senators, the chamber of commerce backed Senate Republicans did not give Trump the time of day. There is still some of this going on with nominations, recess appointments, and allowing the Dems to play games / delay.

    Ryan is such a disappointment.

    1. Ray - what do you expect of a guy who loses a debate to Joe “Bite Me” Biden?

  7. A couple of things:

    Trump was to Establishment Republicans an "NOS" or "not our sort", as Mrs. Astor dubbed the upstart plebeian Vanderbilts when she was excluding them from invitations to her soirees. Paul Ryan was obvious in his disdain of Trump. McConnell less so because he needed Trump to fill the long list of judicial vacancies that Obama carelessly left unfilled. On nearly every other subject, McConnell kept Trump at arms length, subtly undermining him whenever Trump didn't pursue McConnell's priorities. Shame on Trump the neophyte for having his own ideas! Only Devin Nunes saw the value in having an outsider bombthrower in the White House.

    I think it was Shipwreckedcrew at Red State who divined that Pientka was probably wearing a wire during the initial FBI defensive briefing of Trump, due to the way he reported Trump and Flynn's responses verbatim.

    I don't trust Kevin McCarthy as far as I can spit because Ryan was/is his mentor. We'll see a radical change in him if the Republicans take back the House, I'm afraid.

    I agree that Andrew McCarthy is a DOJ/FBI apologist. Many moons ago, he lauded the choice of Robert Mueller as Special Counsel.

  8. An important post to encourage us all from Sundance:

  9. I think Andy McCarthy laying out this argument in such a pointed way is an indication of a turning point where any skeptics who needed a reason to embrace this story now has one. When a cautious and reasoned individual makes a charge like this, it has the potential to change minds, or at least focus them on the scope and scale of the wrongdoing.

  10. Probably O/T, but this piece in WaPo certainly surprised me. Written by Hugh Hewitt, it lays out all the wonderful accomplishments of Trump. I'm surprised WaPo had the nerve to publish, but I suppose it generates lots of clicks.

    Then to read the comments - I read about 100 before I gave up. The TDS is so strong.

  11. Pouring a gallon of bleach into your eyes is preferable to reading a stream of idiotic, unhinged delusional "Resistance" comments. A few minutes of that is enough to cause even an athiest to pray for the meteor.

  12. Having seen McC in action in the SDNY, I have no respect for him
    personally nor professionally.

    1. I have no personal experience to speak from. I often disagree with McC's evaluations of both people and of factual situation. Otoh I do respect his knowledge of criminal law and the prosecutorial process.

  13. I found this statement from McCarthy to be utter horseshit:

    -->To believe Trump was unfit for the presidency on temperamental or policy grounds was a perfectly reasonable position for Obama officials to take<--

    The Obama officials referred to are the national security officials such as Comey, Brennan, Rice, Lynch, Clapper, who are expected to be professionals, not partisan hacks.

    Their "reasonable" grounds for opposing Trump should be strictly limited to the voting both--not in the conduct of their national security authorities and responsibilities. Professional ethics demands that partisan opinions are knowingly left at home, and purposefully kept out of the workplace.

    If you want to be a partisan hack, then run for political office, or take a partisan advisory or policy job. Just don't hold yourself out as evenhandedly effectuating executive authorities and responsibilities while pursuing a wholly partisan agenda.

    These cabinet members and agency heads take an oath of office--presumably that demands an allegiance and scrupulousness regarding their behavior

    1. But McC says that that "reasonable position" was "irrelevant" to any official actions. I.e., it was a personal position.

    2. Yes, I'm splitting hairs. And I saw McC's caveat.

      But to maintain that holding the opinion that Trump was unfit for office, while backhandedly dismissing it as irrelevant, is to miss the broad side of a barn by a mile. Such a rationalization gives a cover gloss to holding such an opinions; engaging in such views means that partisanship plays a role in the background and context of decision-making and professional judgment.

      And of course the results of these partisan opinions are clear for all to see--they weren't irrelevant. In fact, they appear to be the prime motivating factor that corrupted the the principles of predication and investigatory legitimacy. They investigated the man, and not a crime. They used vast authorities of espionage surveillance and counter-intelligence as cover for unleashing a criminal investigation on the basis of partisan wishful thinking due to the opinion that Trump was unfit for office--because it was a reasonable position.

      McCarthy's rationalization comes down to, not corrupt practices were pursued, but "mistakes were made." He completely (or mostly) dismisses that institutional corruption occurred because that reasonable position was relevant.

  14. @ Forbes

    "-->To believe Trump was unfit for the presidency on temperamental or policy grounds was a perfectly reasonable position for Obama officials to take<--"

    The problem with this statement is that I'm certain McCarthy himself sympathizes with the belief. Notwithstanding the utter impropriety of officials acting on this belief, (I believe) there is a not insubstantial part of McCarthy who deep down agrees with the sentiment. That's why its 'reasonable'.

    McCarthy still doesn't get the Miracle of Trump...the critical role he is playing and will be seen to have played in saving our country...

    Its the difference between reading McCarthy and, say, Victor Davis Hanson...or Mark Wauck!

    1. Of course I understand where McC is coming from--as you say. However, he is careful here not to suggest it was in any way reasonable for Obama's people to act on their belief. And to add that it was all just a subterfuge.

    2. Mark -- I agree with you. McCarthy's strength is that he is generally exceptionally clear-eyed in his legal analysis and I applaud him for having the courage to reach conclusions which conflict with the Establishment narrative.

      I just don't think he gets Trump.

      I know I'm repeating myself.