As the Republican nominee for president, Trump was lawfully exercising a fundamental right guaranteed under Article II of the Constitution—running for office. Nearly every aspect of his campaign was also protected by the First Amendment’s free speech clause. Any attempt by government agents to abridge those rights was a violation of the law, as noted above.
Therefore, the FBI’s investigation of Trump, a candidate for president, should have been undertaken only upon a reasonable and good-faith showing that a crime might have been or could be committed and based on reliable, “articulable” facts upon which the bureau became aware. In the absence of credible allegations or information that a specific law was broken, the probe was unlawful.
Periodically, the FBI sought to justify its investigation by claiming it was a counterintelligence probe to gather only information about illicit Russian activities and not a criminal case requiring the bureau to first ascertain a potential crime. This was a subterfuge to hide the true purpose, which was a criminal investigation of Trump and his campaign. As McCarthy explained, “It may be called a ‘counterintelligence investigation,’ but the objective is to undermine Trump, not Russia.”23
This became evident when Comey appeared before the House Intelligence Committee on March 20, 2017, and delivered the following carefully prepared statement defining the FBI’s objective:
I have been authorized by the Department of Justice to confirm that the FBI, as a part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.24
The last sentence is the operative one. Comey appears to admit that the FBI’s counterintelligence investigation was, in fact, a search for criminal activity involving the Trump campaign. But the FBI is only allowed to open such a probe if it has first identified something that might constitute a crime.
Former Special Assistant U.S. Attorney Fred Tecce believes that the FBI launched an investigation in search of a crime against Trump in violation of the law:
I have yet to see any evidence of a crime. The way it is supposed to work is that the FBI comes to the U.S. Attorney and says “we believe that this crime is being committed and here are the reasons why.” There must first be some evidence of criminal activity. It is not enough to say “we think these guys are doing something nefarious, so let’s go investigate them.” It’s even more troubling in this instance because they used this kind of counterintelligence, which gives them a little more leeway to start an investigation of U.S. citizens. That’s an absolute outrage.25
So, again, what crimes are we talking about? And what facts did the FBI have in its possession when it decided to investigate Trump over alleged collaboration with the Russians during the campaign? The immutable truth is that there were no crimes and no culpable facts from any credible sources.
“Collusion” Is Not a Crime
The word “collusion” became a prominent part of American lexicon the moment word leaked out that the FBI was investigating Russia’s interference in the presidential election and whether anyone in the Trump campaign was involved.
Although the FBI initiated its probe in July 2016, the bureau kept it hidden from public notice for months. Still, the word “collusion” began to creep into the national conversation when outgoing Senate Minority Leader Harry Reid, a Democrat from Nevada, sent a letter to FBI director James Comey on August 27, 2016. In what was obviously an attempt to influence the election, Reid made his correspondence public—surely hoping it would damage Trump. A key paragraph contained an incendiary claim:
The evidence of a direct connection between the Russian government and Donald Trump’s presidential campaign continues to mount and has led Michael Morrell, the former Acting Central Intelligence Director, to call Trump an “unwitting agent” of Russia and the Kremlin.26
Without citing any evidence, Reid had accused Trump of being a Russian agent. He further implied that the Republican nominee’s campaign was involved in the cyber theft of emails hacked from Democrats’ computer systems. He demanded that Comey investigate, although Reid probably already knew there was a Trump-Russia investigation. His goal was to find a way to make it public.
What precisely prompted Reid’s inflammatory accusations? He would not say, but it was later reported that two days before Reid’s letter, he had received a visit from CIA director John Brennan, who told the minority leader that “the Russians were backing Trump.”27 Brennan, a well-known partisan who had served in the Obama White House, had every interest in seeing Clinton succeed his boss. The fact that Reid did not mention Brennan but, instead, cited his predecessor, suggests a clever diversion to hide the true source. Documents later obtained by Congress revealed that Brennan’s visit to Reid was intended to damage Trump’s candidacy and was sanctioned by the White House.28 Representative Mark Meadows (R-N.C.) later discovered the documents in his work on the House Oversight and Government Reform Committee:
It appears there was coordination between the White House, CIA, and FBI at the outset of this investigation and it’s troubling.29
Text messages between the FBI’s Peter Strzok and Lisa Page reportedly corroborated the coordination between the agencies and the Obama administration to target Trump.30 Indeed, one text message dated August 5, 2016 states, “the White House is running this,” an apparent reference to the FBI’s Trump-Russia “collusion” investigation.31
Comey, of course, had already opened an investigation into the Trump campaign. Brennan and Reid likely knew this but were searching for a way to make the matter public before the election. Reid’s leaked letter to Comey served the desired purpose. It was picked up by news organizations. Notable was the Washington Post’s story which characterized the accusations against the Trump campaign as “collusion.”32 This seemed to have been the genesis of a term that was laden with criminal overtones.
The story, however, gained little traction beyond the initial reporting. So, ten days before the election with the outcome in doubt, Reid fired off another letter to Comey with the goal of contaminating Trump with the same unfounded accusation:
In my communications with you and other top officials in the national security community, it has become clear that you possess explosive information about close ties and coordination between Donald Trump, his top advisors, and the Russian government—a foreign interest openly hostile to the United States, which Trump praises at every opportunity.33
This time, several news organizations ran with the story. The Washington Post called it a “brazen claim . . . even for a man known for bare-knuckle politics.”34 But the newspaper once again described Reid’s claim against Trump with the invidious term “collusion.” With that, the word seemed to take on a life all its own. Over the next year and beyond, it would be misused and misunderstood in a deliberate effort to falsely accused Trump of crimes he did not commit. The media, which never bothered to examine the legal meaning of “collusion,” embraced it as their cudgel to bludgeon Trump in the press and on the airwaves.
Reid, of course, had a notable history of spreading a lie to damage a Republican candidate for president. In the 2012 campaign, he took to the Senate floor and declared that GOP nominee Mitt Romney had paid no taxes over the past ten years.35
Reid had no evidence to substantiate his claim. He made some vague reference to an anonymous “source.” In all likelihood, he simply made it up. It was a completely false accusation. Romney’s tax returns showed he had, in fact, paid millions of dollars in taxes. Reid’s deception earned him Four Pinocchios from “Fact Checker,” while “PolitiFact” slapped him with its infamous “Pants on Fire” award.36 Reid was unrepentant and later seemed to brag about how his spuri
ous allegation may have cost Romney valuable votes.37
As for Trump-Russia “collusion,” the Office of Director of National Intelligence had found no evidence of any such activity when it made public its declassified ICA report on January 6, 2016, just before the new president’s inauguration. That same day, in a private meeting, Comey assured Trump he was not personally under investigation. The FBI director later confirmed this when he testified before Congress in June:
Prior to the January 6 meeting, I discussed with the FBI’s leadership team whether I should be prepared to assure President-Elect Trump that we were not investigating him personally. That was true; we did not have an open counter-intelligence case on him.38
While Comey and the FBI had found no evidence that Trump committed any wrongdoing or had otherwise collaborated with Russia, the agency maintained its investigation into whether members of the Trump campaign, other than the candidate himself, had “colluded” with Russia. Comey first acknowledged this publicly in March 2016 during his appearance before the House Intelligence Committee.39
The revelation that Comey and the FBI continued to pursue “collusion” even after the bureau had participated in the larger and far more encompassing ICA probe, which found no evidence of it, raised serious suspicions that the bureau was chasing a criminal case against Trump for political reasons. These suspicions were reinforced in a March 30 conversation when Comey refused Trump’s repeated requests that the director simply reveal the truth to the American public—the president was not under investigation for “collusion” with the Russians.40
Lost amid all of the speculation about “collusion” was the fundamental fact that no such crime even exists anywhere in American law as it pertains to political campaigns. Comey had tasked his agents with finding a crime that wasn’t a crime at all. It was, at its core, a legal impossibility. The FBI could engage in all manner of spectacular jurisprudential gymnastics, but it would never change the fact that colluding with Russia was not, by itself, a violation of any provision in America’s criminal codes.
Maybe it should be a crime. Perhaps these events will prompt Congress to consider criminalizing such conduct in political campaigns some day in the future. But other than monetary prohibitions on campaign contributions, there is not a single statute outlawing collaboration with a foreign government in a U.S. presidential election. Or any election, for that matter.
Why, then, were so many people who followed the Trump-Russia saga under the mistaken impression that “collusion” is a crime? Principally, it’s because the word is loaded with an historically criminal connotation.
“Collusion” became a prominent part of the legal vocabulary when Benjamin Harrison occupied the White House and Congress passed the Sherman Antitrust Act in 1890 outlawing “collusion” in some business practices.41 Specifically, price fixing and other anticompetitive activities became a criminal offense under Sections 1 and 2 of the Act. Almost overnight, the word “collusion” was converted into a legal pejorative.
However, “collusion” is only criminal in an antitrust setting. It has nothing whatsoever to do with elections. That did not stop politicians, pundits, and journalists from either misunderstanding the concept and/or misconstruing its application to the Trump-Russia hysteria that reached a deafening pitch.
When I first wrote a column arguing that “collusion” was not a crime in the context of an election, some in the media turned to law professors to try to disprove the argument.42 While the academics all seemed to concede that “collusion” applies strictly to anti-trust matters, they suggested that other statutes with different names might have been violated if the Trump campaign was conspiring with Russians. Of course, a person can conspire to commit a crime. But what crime?
One professor suggested a fraud statute that makes it a crime to “deprive another of the intangible right of honest services” would be applicable.43 This, he claimed, would include “fixing a fraudulent election” (which, of course, is redundant). It is true that such a fraud statute exists, and, in the abstract under certain specific circumstances, it might be germane to some other case.44 But it bears no resemblance to any of the facts or claims in the Trump-Russia case.
This was made clear in Skilling v. United States when the Supreme Court ruled that the honest services law only covers bribes or kickbacks schemes.45 No one has asserted this ever occurred in the investigation of Trump and his campaign, nor is there any evidence of it. So the referenced fraud statute does not apply—not even close.
Another professor pointed to campaign laws that prohibit foreign nationals from donating “money or other thing of value” in a U.S. election.46 But, again, neither facts nor accusations in the FBI’s investigation of Trump support a violation of law on this basis. No one has suggested that the Russians contributed money to the Trump campaign. Even if information was conveyed, it is not considered a “thing of value” under election laws. This will be explored in greater detail later in the book in a discussion of the infamous Trump Tower meeting involving the president’s son.
Still another professor referred to a “general anti-coercion federal election law” as a possibility.47 But this statute is not pertinent either because it forbids acts that “intimidate, threaten, command, or coerce” a government employee involved in political activities and elections.48 How does that remotely apply to the Trump-Russia case? It does not.
What about the hacking of emails in the accounts of the Democratic National Committee and an associate in the Clinton campaign? To be sure, such conduct is a crime under the Computer Fraud and Abuse Act, as another professor insisted.49 Indeed, if the Trump campaign conspired to work with the Russians to accomplish this, it would be a conspiracy crime under the Act. But there was never any evidence this occurred. It therefore had no relevance.
It is true that during the campaign Trump once quipped that the Russians should try to locate the thirty thousand emails Clinton destroyed. But a facetious public gibe hardly qualifies as a secret conspiracy. Verbal encouragement to locate missing documents is not enough under the law. Normally, it would require an overt act and agreement to assist in the commission of the crime. It appears that no one outside of the U.S. government, including the Trump campaign, even knew about Russia’s hacking efforts until well after they were accomplished and made public two days before the candidate’s remark.
The elusive nature of “collusion” did not, however, deter the intensive search for incriminating evidence of coordination between the Russians and Trump or his campaign. Various congressional committees and other agencies spent months scouring records, documents, and written communications. Countless people were interviewed.
After a nine-month investigation, the Senate Intelligence Committee revealed that it had conducted in excess of 100 interviews over 250 hours, held 11 open hearings, produced more than 4,000 pages of transcripts, and had reviewed some 100,000 pages. Every intelligence official who drafted the ICA report on Russian election meddling was interviewed, as were all relevant Obama administration officials. Every Trump campaign official the committee wanted to hear from was interviewed.
What did the committee find? Nothing to speak of—literally. The bipartisan leaders would only say, “The committee continues to look into all evidence to see if there was any hint of collusion.” The next day, the Chairman Richard Burr criticized the sensationalized media coverage when he said, “We will find that quite a few news organizations ran stories that were not factual.”50
It is unlikely Burr’s committee had uncovered evidence of Trump-Russia collaboration. He said as much when he informed reporters in his home state, “To date, there has been no evidence of collusion.”51 His co-chair, Senator Mark Warner of Virginia, agreed. When asked on CNN whether there “is any evidence of collusion,” he responded, “There is a lot of smoke. We have no smoking gun at this point.”52
In the months leading up to the Senate committee’s update, others with access to the various investigations were equally can
did. Leading Democrats, like Diane Feinstein of California and Joe Manchin of West Virginia, confirmed they had seen no evidence of Trump-Russia collaboration. Both sit on the Intelligence Committee. If such evidence existed, they would certainly know about it.
In addition to the Senate investigation, the House Intelligence Committee conducted its own probe, examining some 300,000 documents and interviewing roughly 70 witnesses. In early February 2018, its chairman, Devin Nunes, announced there is “no evidence of collusion.”53 A month later, his committee’s majority issued a report announcing the same conclusion.54 The ranking Democrat on the Committee, Adam Schiff, who had spent more than a year condemning Trump for colluding with the Russians, claimed it “still remains to be seen,” but he could offer no evidence after spending months searching in vain.55 During that time, he had described the evidence as “ample” and “damning.”56 However, two weeks after the committee’s report became public, he seemed to concede during a televised interview that there was no proof that Trump or his campaign ever colluded with the Russians to influence the presidential election.57
Representative Trey Gowdy, Chairman of the House Oversight Committee which conducted its investigation, also confirmed there was no evidence of “collusion.”58
The results of these probes put a lie to the repeated statements of Democrats who had consistently condemned Trump in numerous public statements in the preceding months. Senator Harry Reid, a master of false accusations and smears, said the Trump campaign was involved in Russia’s hacking of election emails and stated unequivocally, “There is collusion there, clearly.”59 He offered no proof.
Representative Debbie Wasserman Schultz, who was forced to resign as Chairwoman of the Democratic National Committee amid her own scandal, said that contacts between people associated with the Trump campaign and Russians “reeks of collusion.”60 Congresswoman Maxine Waters, known for her inflammatory and overwrought statements, promised she could “guarantee” that Trump was “in collusion with the Russians to undermine our democracy,” although she offered nothing in the way of evidence.61 Neither Wasserman Schultz nor Waters ever produced a scrap of evidence to support their fallacious claims.
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