by Lee Smith
The Times article caught the attention of seasoned legal minds. Less than a week later, a former attorney general in the George H. W. Bush administration wrote a letter to deputy attorney general Rod Rosenstein sharply critical of the special counsel’s apparent approach. Under Mueller’s theory, wrote William Barr,
simply by exercising his Constitutional discretion in a facially-lawful way—for example, by removing or appointing an official; using his prosecutorial discretion to give direction on a case; or using his pardoning power—a President can be accused of committing a crime based solely on his subjective state of mind.
Barr noted that “this theory would have potentially disastrous implications.” If the Justice Department accepted Mueller’s theory, it would legitimize political prosecutions. Any president or his appointees could be targeted for political differences—i.e., the “corrupt” intention behind their lawful actions. He argued that “the President’s motive in removing Comey and commenting on Flynn could not have been ‘corrupt’ unless the President and his campaign were actually guilty of illegal collusion.”
But if they had “colluded,” why was the special counsel formulating a case for obstruction?
“Either the President and his campaign engaged in illegal collusion or they did not,” wrote Barr. “If they did, then the issue of ‘obstruction’ is a side show. However, if they did not, then the cover up theory is untenable.”
The special counsel was building not a case but a gallows to string up the president. Barr recognized the play; he’d seen it more than a decade before. Mueller’s tactics bore a remarkable similarity to those employed in the DOJ’s 2003 investigation of an unauthorized disclosure of the identity of a CIA official. Both cases even featured James Comey as a central character.
In 2002, Valerie Plame’s CIA affiliation was published in the press after her husband, Joseph Wilson, cast doubt on the Bush administration’s justification for going to war in Iraq. The leak was seen as retaliation from a vengeful Bush White House.
When the FBI first opened its investigation in early October 2003, it learned from Deputy Secretary of State Richard Armitage that he had been the source of the leak.
Comey, then deputy attorney general, persuaded Attorney General John Ashcroft to recuse himself from the investigation and appointed his friend Patrick Fitzgerald, godfather to one of his children, as special counsel.
Both Fitzgerald and Comey already knew that Armitage had disclosed Plame’s identity to the press. But they saw the investigation as an opportunity to hunt big game—in particular Vice President Dick Cheney. To position himself for a shot at Cheney, Fitzgerald targeted his chief of staff, I. Lewis “Scooter” Libby.
Fitzgerald put Libby through roughly twenty hours of FBI interviews and grand jury testimony. He threatened to indict Libby for obstruction of justice, making a false statement, and perjury. He told Libby’s lawyers he’d drop the indictment on all counts if Libby gave up the vice president.
So what if Cheney hadn’t broken any laws? Libby was a lawyer; he could make something up that would stick to Cheney, something good enough to save his own skin. But he refused to perjure himself.
Libby was found guilty in 2007, and Bush commuted his sentence in 2008. After a key witness admitted that she had testified falsely at trial because Fitzgerald had withheld key evidence from her, Libby was reinstated as a lawyer. In 2018, he was finally pardoned by Trump.
Barr and other leading members of the DC legal community had concluded that the Libby case had been a baseless media-driven scandal, a press frenzy that had resulted in a miscarriage of justice.
Mueller 2017 was a replay of Fitzgerald 2003. The latter went after Cheney, the former Trump.
“If a DOJ investigation is going to take down a democratically-elected President,” Barr wrote in his June 2018 memo, “it is imperative to the health of our system and to our national cohesion that any claim of wrongdoing is solidly based on evidence of a real crime.”
When Trump nominated Barr for attorney general on December 7, the Mueller team saw their window of opportunity closing. After the new attorney general was cleared to oversee the special counsel in March, they knew the only option was to use the report to hang a dark cloud over Trump and increase the rift dividing the country.
On March 22, Mueller filed his report with the Justice Department, and two days later Barr summarized its findings in a letter.
Part one established that the Russians had interfered in the US election. There were two components: the Internet Research Agency, a Russian troll farm, had waged a disinformation campaign through social media, and further, the Russian government had been involved in computer-hacking operations to influence the election.
Mueller charged Russian nationals and entities in connection with those activities and found that there had been no coordination with any Americans, including the Trump campaign.
In part two, the special counsel considered a number of Trump’s actions that had raised “obstruction-of-justice concerns.”
However, rather than deciding whether to prosecute or decline to do so, Mueller punted. He left it to Barr, who determined that the evidence did not establish that Trump had committed an obstruction of justice offense.
At the same time that Mueller, a career prosecutor, abdicated the special counsel’s traditional prosecutorial role, he dirtied Trump’s presidency. “While this report does not conclude that the President committed a crime,” stated the special counsel, “it also does not exonerate him.”
For Patel, it was another instance of an unaccountable DOJ acting recklessly. “Exoneration,” he says, “is not the job of the prosecutor in a system that presumes innocence. Your only job is to make a charging decision. If you decline, then it’s on to the next case.”
Patel had seen it before with the Clinton email case. Comey had overstepped his bounds when he had announced that Clinton would not be charged in the email case. That was not the investigator’s role; rather, it was the job of the prosecutor to decide whether or not to charge.
“Not only did Mueller fail to do his job as special counsel by refusing to make the call,” says Patel, “he went so far past the rules and ethics with his ‘exoneration’ charade. It was a complete bastardization of prosecution and due process. It was the epitome of a prosecutor gone rogue.”
Further, by leaving it to Trump’s attorney general to conclude that Trump’s conduct did not constitute obstruction, Mueller meant to paint Barr as a political lackey. Rather than resolving the investigation in order to edge the country back to national cohesion, the special counsel chose to institutionalize the political divide.
Barr countered, using an instrument close to hand: the deputy attorney general.
In January, after Barr’s confirmation, Rod Rosenstein had announced that he was retiring, but the new AG had insisted he stick around to help clean up the mess he’d helped make.
“It’s clear that Rosenstein flipped at some point,” says Nunes. “Whether Barr initiated it or Rosenstein offered himself up, he started becoming very helpful.”
On April 18, Barr announced the release of the full Mueller Report. At the press conference, the attorney general stationed the wooden-looking Rosenstein directly behind him, like a prop. It was a masterful piece of stagecraft, dramatizing the point Barr wanted to make: that it wasn’t just he, a recent Trump appointee, who had concluded that the evidence of obstruction of justice was insufficient. No, he and Rosenstein—the man whose antipathy to the president was so profound that he had suggested recording him for the purpose of removing him from office—agreed there was no evidence of obstruction.
“Barr didn’t say anything we didn’t already know about there being no collusion,” says Nunes. “Everyone knew there was nothing there and the dossier was a fraud. The special counsel used smoke and mirrors to set the obstruction traps for Trump. Barr called them out.”
Nunes took to calling the special counsel’s report the “Mueller Dossier.” Li
ke Steele’s reports and the January 2017 intelligence community assessment, it was a political document collating the efforts of anti-Trump operatives, compromised intelligence officials, and the press to undermine Trump. As an account of reality, it was worthless.
“If Americans really want to know what happened in the 2016 election cycle,” says Nunes, “they should read our Russia Report. It’s got all the facts, and we didn’t bill the US taxpayer thirty million dollars for a document that reads like a bad Russian spy novel.”
“The sign the Mueller Report was a BS report,” says Jim, Patel’s investigative partner, “is that there are no recommendations.”
Excepting, of course, the special counsel’s barely veiled recommendation to impeach the president.
The more than four hundred pages constituting Mueller’s Report on the Investigation into Russian Interference in the 2016 Presidential Election are riddled with countless errors and misstatements of fact woven into a tapestry of innuendo and invective further smearing Trump and his associates.
But the character of the Mueller Dossier is most clearly conveyed by three key omissions.
First, the report made no mention of Fusion GPS or its principals, such as Glenn Simpson. It refers, once, to “the firm that produced the Steele reporting.” Mueller frequently cited Steele. But the former British spy was just a front man. By omitting Fusion GPS’s role, Mueller buried the central facts of the Russia investigation that Nunes and his team had uncovered: that Fusion GPS had been paid by the Clinton campaign to smear Trump in the media and federal agents had used the politically funded dirt as evidence to spy on the opposing presidential campaign.
The second omission deals with the origins of the FBI’s Russia investigation—the information about Clinton emails that Mifsud passed to Papadopoulos. The Mueller Report mentions Mifsud dozens of times but does not explain who the mysterious Maltese professor is. Surely he must be a Russian spy or at least an asset that would make the information “Kremlin sourced.” If not, then the FBI had no basis on which to open its Trump-Russia investigation. Yet after spending nearly two years and tens of millions of taxpayer dollars, the special counsel produced no evidence that Mifsud is in any way connected to Russia.
Finally, there is no mention of Stefan Halper. The dirty tricks operative and “October surprise” specialist whose fingerprints were on nearly every part of the investigation—Flynn, Page, Papadopoulos, and the dossier, too—was nowhere to be found.
Mueller was hired as a fixer, to ensure the success of the coup. After Barr stopped it, the special counsel became a cleaner, who erased any evidence of it.
Across the country, scores of Americans who had enlisted in the collective madness inspired by a fake text felt let down by the special counsel; Trump was still there.
But they continued to believe in Mueller. The furies of the new dynamism he had brought with him required breaking with the old ways—especially the things that shape how Americans live with one another, such as law and politics. So the collusion faithful had nothing else to believe in.
At the end of May, Mueller made a brief TV appearance. His ashen complexion and unsteady demeanor fed rumors that he was ill. Nevertheless, he once more pushed against the pillars of the US justice system. “If we had had confidence that the president clearly did not commit a crime,” he said, “we would have said so.” In other words, the enemies of the political establishment do not merit the presumption of innocence.
Having failed to bring down Trump, the lesson of the special counsel was that terror tactics would be directed against anyone who threatened the power held by the top echelon of unelected bureaucrats. Not only had the dossier outlined the scope of the special counsel, it had also become the means through which reason had been replaced with the ethos of the witch trial.
In June, Schiff conducted a public hearing on the Mueller Report and invited two retired FBI counterintelligence officials to testify. The ranking Republican member made opening remarks.
“For two years,” said Nunes,
the American people were subjected to endless hysteria by the media, Democrats, and anonymous intelligence leakers. Seemingly every day the media triumphantly published a supposed bombshell story, often based on classified documents the reporters had not actually seen, which purportedly proved that President Trump or some Trump associate was a treacherous Russian agent. Democrats on this committee regularly joined cable news pundits in denouncing the traitors.
Committee Democrats whispered to each other as congressional aides conferred with members of the press. They ignored what Nunes was saying.
The entire scheme has now imploded and the collusion accusation has been exposed as a hoax. One would think the Democrats would simply apologize and get back to lawmaking and oversight. But it’s clear they couldn’t stop this grotesque spectacle even if they wanted to. After years of false accusations and McCarthyite smears, the collusion hoax now defines the Democratic Party. The hoax is what they have in place of a governing philosophy or a constructive vision for our country.…
I’d like to remind the Democrats that this committee was created to do important oversight of our intelligence agencies. This work is even more crucial now that the media have abandoned their traditional watchdog role and instead have become the mouthpiece of a cabal of intelligence leakers.
Reporters sat in the back row. A young woman next to me slid out of her shoes and massaged the thick carpet with her toes. The reporters ignored Nunes. They came to attention when Schiff’s two witnesses spoke.
Stephanie Douglas and Robert Anderson were former executive assistant directors in the FBI’s National Security Branch. One of them had been Strzok’s supervisor. They said they had been surprised by the evidence of his bias.
Nunes said he was shocked that “there’s not more former DOJ and FBI officials who aren’t out there saying ‘Look, this is wrong.’”
Anderson and Douglas said they hadn’t prepared to discuss Fusion GPS’s role in the investigation. They’d prepared only to talk about the report filed by their former boss. Mueller’s report didn’t mention Fusion GPS.
“This counterintelligence department over at the FBI,” Nunes said, “is in big trouble.”
Both former agents testified that they had not read the dossier. Their former colleagues had used the dossier to obtain a spy warrant on the Trump campaign. It was the centerpiece of the biggest scandal in FBI history. Or, for those among the legions of the possessed, the dossier was proof of collusion, for which there was no other evidence.
Schiff, who’d invited the former agents to testify, had read large parts of the dossier into the Congressional Record when another former FBI colleague, James Comey, had testified in March 2017. But the ex-spies said they hadn’t read it.
Schiff didn’t push them. He’d invited them in order to keep the wheel turning: spies, political operatives, journalists. They were enacting the scene that Nunes had described in his opening statement:
Mueller produced a perfect feedback loop: intelligence leakers spin a false story to the media, the media publishes the story, Mueller cites the story, and the media and the Democrats then fake outrage at Mueller’s findings.
It was as if Nunes were guiding a tour of the underworld, describing to the living the proceedings of the dead. The dead could no longer hear him.
Chapter 23
A RECKONING
WITH THE MUELLER REPORT FILED, the hunted became the hunter. Nunes warned, “I’m coming to clean up the mess.” He pushed the advantage and began moving on new fronts. He put his faith in the law.
He announced that he was sending eight criminal referrals to the new attorney general. He also brought two suits against social media and media organizations and said it was just the beginning. “I think people are beginning to wake up now,” he said. “I’m serious.”
In March 2019, he filed a defamation suit seeking $250 million in compensatory and punitive damages against Twitter and several of its users
, including political operative Liz Mair. The complaint accused the platform of secretly hiding Nunes’s content by “shadow-banning” him, while hosting and monetizing content defaming Nunes, such as Mair’s.
A second suit in April again named Mair along with the US media conglomerate the McClatchy Company. Nunes asked for $150 million in compensatory and punitive damages. A McClatchy publication, the Fresno Bee, had published a defamatory piece falsely implicating Nunes in a sleazy yacht trip.
The press ridiculed Nunes for bringing the suits. They said he had thin skin. But it wasn’t personal. If he didn’t take action, what was already happening—conservatives being thrown off social media platforms and defamed in the press—would only get worse.
In fact, it was already worse. Americans had been spied on because they had backed a candidate that intelligence bureaucrats and the press didn’t like. The legal system had been used to drain them of their homes and savings, sometimes their liberty, while their names were savaged in the media.
Their punishment had been a warning to others tempted to enjoy the right to participate in political campaigns or even express their opinions: Don’t step outside the political consensus, or you’ll be silenced or smeared or fired or deplatformed or arrested. The suit was to defend Americans in danger of being “disappeared.”
Another purpose of the legal action was to hold accountable the various institutions and individuals who’d sought to hinder HPSCI’s investigation. The last two years of the Russia investigations had shown Nunes that the problem was larger than just the Russia investigations. What those institutions and individuals had done to a president and a political campaign could be done to the entire country and any American. The last two years had hardened him.
Though many would find it hard to believe, another of Nunes’s aims in targeting the media and social media was to try to restore the integrity of one of the institutions that had been waging war on him for two years running: the free press.