Resistance (At All Costs)

by Kimberley Strassel

  Mueller’s December 2018 charging document against Cohen likewise goes out of its way to present every single interaction Cohen ever had with a Russian (no matter how meaningless), to puff up their importance, and to exclude important context. The document is at pains, for instance, to point out that Cohen e-mailed no less than Vladimir Putin’s office twice in January 2016, in relation to talks to build a Trump Tower in Moscow. The document makes it sound as if there had been some secret communication line. But Paul Sperry, writing on RealClearInvestigations, pointed out that the document fails to note that Cohen did not have any direct contacts there and so was reduced to e-mailing a general mailbox. This fact, if anything, shows how disconnected the Trump team was from Russia. Yet, as Sperry noted, the press—true to form—seized on the Mueller misrepresentations. “Well into the 2016 campaign, one of the president’s closest associates was in touch with the Kremlin on this project,” exclaimed CNN’s Wolf Blitzer. In case anyone missed it, he repeated: “Cohen was communicating directly with the Kremlin.”

  The press used every new court document to suggest that Mueller was closing the noose around Trump necks. Mueller indulged this behavior, allowing a noxious cloud to continue spreading across the Trump administration, even though at the time of these filings he knew he had no evidence of collusion. His decision to do this can only be viewed in the worst light.

  For the few media skeptics out there, each Mueller filing provided the opposite: more proof that the collusion narrative was growing ever more outlandish. Nowhere was this more clear than Mueller’s final indictment against Roger Stone, which among other things accused him of lying to Congress about his interaction with WikiLeaks. Under the cloak of technical and serious legal terms, the indictment essentially describes a grasping Stone attempting to make himself look relevant to the Trump campaign. Stone tasks someone else with tracking down e-mails from WikiLeaks; he reaches out to a radio talk show host who had once interviewed WikiLeaks founder Julian Assange. He gets nowhere, and can’t even get the White House to call him back. This is how you operate a global plot? The WSJ in an editorial in January 2019 described it as “Keystone Kops Collusion.”

  The more the press reached to produce “collusion,” the more absurd its conspiracy theories grew. Consider that Trump Tower meeting between Trump Jr. and Veselnitskaya. Based on the information that emerged, we were essentially told to believe that collusion was being conducted via the daisy chain of Putin operating through a Russian oligarch who was operating through an international singer who was operating through his PR guy who was operating through a lawyer who was setting up meetings with Donald Trump Jr. about an unrelated subject. Go figure.

  * * *

  The media breathlessly anticipated the Stone indictment as the one that would finally lay collusion bare. When Mueller failed to produce the goods, a sense of panic set in among the press and Democrats. Schiff sat down with Ignatius at the Washington Post (purveyor of the crazy Logan Act theory) to lay out a new collusion theory.

  Schiff had spent the past two years accusing men like Page and Manafort of treason. He’d promoted wild theories, including that Trump had directed Cohen to lie to Congress (Mueller’s team issued a rare statement denying this report) and that Trump Jr. had placed mysterious phone calls to his father right before his Trump Tower meeting (the Senate Intelligence Committee shot this down). In his interview with Ignatius, he didn’t want to talk about any of that. Page who? Manafort who? He wanted to talk about his new theory, that the source of Trump collusion lay in Trump’s financial dealings with Moscow, in particular something shady to do with Deutsche Bank. Intriguingly, some of us had read the Deutsche Bank conspiracy theories before. Fusion GPS’s Simpson had spun them as part of his House testimony. The media nonetheless pivoted to these new Schiff claims, even as it held out hope that Mueller would still come through with something on the collusion front. After all, he still hadn’t announced the end of his investigation.

  Mueller might never have wrapped it up had it not been for Trump’s appointment of William Barr. Barr was an inspired choice for attorney general. He’d done the job before, and had been respected on both sides of the political aisle. He was great in a crisis, particularly internal ones. In his first swing as AG, he’d overseen a CIA scandal and fallout from the Iran-Contra Affair. He was no-nonsense, with a reputation for searing intellect and strong principles. And he didn’t need the job. At age sixty-eight, Barr had no interest in leveraging the post to new professional heights. He was genuinely taking the job out of a sense of duty. “I have a very good life, I love it—but I also want to help in this circumstance and I am not going to do anything I think is wrong, and I will not be bullied into doing anything I think is wrong, by anybody,” declared Barr at his confirmation hearing.

  Democrats didn’t want any effective oversight at Justice, and many turned on Barr as soon as he was nominated. When they realized Republicans wouldn’t be scared out of the nominee, they began pushing for Barr to recuse himself from the Russia investigation—on the grounds that as an outside citizen he’d written a memo on a narrow legal question of presidential obstruction. It was a frivolous complaint, and true to his word, Barr refused to be bullied into recusing. He was confirmed on a largely party line vote on Valentine’s Day 2019.

  It is no coincidence that Mueller finished only a few weeks later. The special counsel had gotten away with everything in the absence of effective DOJ oversight. John Dowd, who served as a Trump defense attorney and interacted with the special counsel team during its probe, told the Washington Examiner’s Byron York that Mueller had exhausted all of his witnesses and evidence by December 2017, and knew there was nothing to the Trump-Russia claims. Dowd separately blistered the special counsel for dragging the probe on for more than a year longer. “It’s been a terrible waste of time,” Dowd told ABC News in February 2019. “This is one of the greatest frauds this country’s ever seen. I’m just shocked that Bob Mueller didn’t call it that way and say, ‘I’m being used.’ I would’ve done that.” Dowd added: “I’d have gone to Sessions and Rosenstein and said, ‘Look. This is nonsense. We are being used by a cabal in the FBI to get even.’”

  But Barr was something else to reckon with, and Mueller hastily moved to close shop. He delivered his final 448-page report on March 22, 2019. Barr two days later released a summary of the report’s principal conclusions, and less than a month after that released a largely unredacted version of the report to the public.

  Volume I—on “collusion”—offered complete and total vindication for the Trump team, much to the haters’ mortification. As with his indictments, the Mueller report sought to play up every tie, every meeting, every conversation between Trump folks and Russians. And yet the report had to acknowledge it could find no prosecutable evidence that the Trump campaign had coordinated in Russia’s efforts to undermine the election.

  It was an even greater vindication than that. A close read of the report showed that, if anything, the core Trump campaign circle had been highly wary of Russian outreach and had repeatedly turned down offers of access. A close read also revealed just how diligently and creatively the special counsel’s legal minds had worked to implicate someone, anyone, in Trump world on Russia-related crimes. Mueller’s people mulled bringing charges “for the crime of conspiracy—either under statutes that have their own conspiracy language” or “under the general conspiracy statute.” It debated going after them for the “defraud clause,” which “criminalizes participating in an agreement to obstruct a lawful function of the U.S. government.” It considered the crime of acting as an “agent of a foreign government.” It pondered charging the participants at the Trump Tower meeting with “a conspiracy to violate the foreign contributions ban.” It even credited Democrats’ wild theory that Sessions had committed perjury at his confirmation hearings and devoted a section to this in the report. Yet after plowing through mountains of statutes, and subjecting Team Trump to an investigative colonoscopy, Team Mueller u
tterly struck out.

  The equally important takeaway from Volume I was (again) what was not in it. A significant number of the allegations Mueller had spent all that time investigating had come straight from a dossier supplied by the rival political party. Mueller’s failure to establish the veracity of any of those claims was a searing indictment of the FBI and its decision to proceed with that document. The nation had spent years engulfed in the dossier’s conspiracy theories, and Mueller had proved it all a hoax.

  Yet his report said none of this. It mentions the dossier only in passing, as part of bland descriptions of events. The Mueller team almost deserved an award for the painstaking efforts it took to write around the dossier, to pretend it played no role. One cost of this naked effort to protect the FBI was that it meant Mueller failed in a core mission. His job was to investigate Russian interference during the 2016 election. An obvious question is whether the dossier was itself disinformation—whether Russians used it to sow rumors and discord. Rosenstein’s appointment order clearly allowed Mueller to investigate this question. Yet Mueller provided no evidence that he ever probed whether the collusion story was all backward—whether it had been the Clinton campaign and the DNC that had aided Russia in sowing discord. And he obviously never investigated the practices of the FBI itself.

  Volume II—in which Mueller laid out his findings on presidential “obstruction”—was a different matter. Trump did himself no favors during the Mueller probe. His constant bashing of Comey and McCabe gave the disgraced FBI officials an opening to claim that Trump was responsible for diminished trust in intelligence community agencies (rather than their actions). His constant complaint that Mueller was on a “witch hunt” allowed critics to accuse him of attempting to obstruct the special counsel. More consequential, it inspired Mueller—out of pique or spite—to double down on his obstruction investigation. The special counsel got his revenge with Volume II.

  Mueller spent 182 pages detailing every action Trump took—from the firing of Comey to his tweets about Mueller—that might be construed as interfering in an investigation. Astoundingly, Mueller decided to make no “prosecutorial judgment” about all this. Instead, he said: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”

  It was a stunning and cheap line, the special counsel’s “Comey” moment. As responsible federal officials often remind their staff, neither the DOJ nor the FBI is in the business of smearing people. They are provided vast and intrusive tools, which they are supposed to use to conduct investigations. If at the end of those probes they do not find evidence persuasive enough to bring charges, that evidence is not made public. Comey was fired for giving a press conference in which he aired Clinton’s dirty laundry, even as he refused to prosecute her. Everyone from the DOJ inspector general to former attorneys general agreed Comey’s behavior was inexcusable.

  Yet here was Mueller doing the exact same thing. It was never Mueller’s job to “exonerate” Trump, as his cheap-shot line suggests. The DOJ does not exist to prove people are innocent. Mueller’s job was to investigate Trump for crimes and decide if there was evidence enough to charge. Mueller conceded in his report that he lacked evidence to know Trump’s motives in his actions. And as senior officials at DOJ would point out, Trump would have no reason to obstruct an investigation into a crime his campaign didn’t commit. But instead of leaving it there, Mueller larded the report with unflattering details about Trump’s private conversations with his staff, and with meandering legal theories about why all this might violate something or other. And note that Mueller only had all these ugly anecdotes because the Trump White House had complied with his every request, turning over millions of documents and making every witness available in person—save the president himself. The decision to release such a hit job was conduct unbecoming a government prosecutor.

  Barr was meanwhile forced to step up and be the adult that Mueller had not been. In his initial summary of the conclusions, Barr explained that he was making the call on obstruction, and the DOJ would not pursue charges. Barr explained that he’d made this decision on the legal merits and completely aside from standing DOJ guidelines that hold a sitting president cannot be prosecuted. Barr explained that there simply was not sufficient evidence for obstruction charges.

  The AG would later rightly question why Mueller had even pursued that half of the investigation, given he never intended to make a traditional prosecutorial judgment. At least some Republicans felt they knew why: Mueller was laying out a roadmap for Congress to pursue impeachment. And Mueller backed up that theory in late May, when he held a press conference. As the WSJ editorial page wrote in a piece titled “Mueller’s Parting Shot”: “The special counsel said the Russians he indicted for interfering in the 2016 election are innocent until proven guilty. About Mr. Trump he said only that ‘there was insufficient evidence to charge a broader conspiracy’ between the Trump campaign and Russia.” No one ever obstructed Mueller’s probe, as evidenced by his fulsome report. He nonetheless went out of his way to weigh in for the Democrats who wanted to impeach Trump.

  * * *

  He did a bang-up job. While the haters were bitterly disappointed with his no-collusion findings, they latched on to the obstruction theme. Within weeks, Democrats had fired off volleys of subpoenas, demanding yet new documents and witness testimony from Trump’s inner circle. The Trump White House—after having fully cooperated with Mueller—resisted. Democrats used that reticence to build on the “obstruction” meme—claiming that Trump, in refusing the legislative branch’s sweeping demands, had provoked a “constitutional crisis.”

  Mueller also put his boss, AG Barr, in an untenable position. He dumped Volume II in Barr’s lap, leaving the AG to clean up his “no-judgment” mess. Democrats instantly accused Barr of serving as Trump’s lapdog. They also accused him of “hiding” things from them. Judiciary Committee Chairman Jerry Nadler sent Barr a subpoena demanding an entirely unredacted report, as well as all of Mueller’s underlying investigatory material. Barr could not comply with the subpoena, since grand jury information is protected by federal law—as Nadler well knows. Nadler’s committee nonetheless used the noncompliance as an excuse to vote Barr in contempt of Congress.

  Meanwhile, on the eve of Barr’s testimony to the Senate about the report, the Mueller team leaked a letter showing that the special counsel had not been thrilled with Barr’s summary of his principal conclusions and had wanted the AG to quickly release parts of the report. Democrats hammered Barr, claiming this was proof that Barr had initially misrepresented the report’s findings, to better “protect” the president. Pelosi went so far as to accuse the AG of lying to Congress. She similarly accused Barr of acting as Trump’s personal attorney rather than as “attorney general of the United States.”

  These cowardly slurs fall at Mueller’s feet. Barr offered Mueller the opportunity to review his four-page summary before he sent it to Congress. Mueller declined to do so, instead waiting to complain until after the summary was made public. He meanwhile didn’t call Barr to voice concerns; he memorialized his unhappiness in an official letter. Prosecutors put things in letters for only one reason—to later leak them and cause mischief. This behavior, too, was reminiscent of Comey.

  Mueller and his team proved as much a part of the Resistance as the hooligans who marauded around Washington on Inauguration Day. They had the cover of fancy suits and sophisticated legal language. But their aim was the same—to destroy the legitimacy of a duly elected president and to provide Democrats ammunition to remove him with impeachment proceedings.

  But Mueller’s Resistance mentality came with real costs. His decision to use his post to undercut Trump—rather than simply provide information—further divided an already bitter country. He undermined long-standing powers of the presidency, in ways that will plague future chief executives. And he chipped away at long-standing legal principles—attorney-client privilege, equal justice, uniform enforceme
nt. In the process, he further destroyed trust in the very institutions—the Justice Department and the FBI—that he had served so long.

  Chapter 7

  “Deep State” Revolt

  If hell hath no fury like a woman scorned, Washington has no fury like a civil servant defied. Trump has no need to travel to a Resistance rally to meet his opponents; they work for him.

  Trump and his circle have their own term for this particular group of resisters—the “deep state.” I’ve used the phrase myself in speeches and in a column. The left likes to lecture people about the use of that term. They point out that it has traditionally been used to describe sinister cabals within foreign governments that rule by fiat, making the democratic process a facade. Fair enough, as no one would suggest that is what is happening in the United States.

  Then again, most people understand Trump’s meaning of the term. By “deep state,” Trump is referring to any current or former federal employee who works to undermine him. I find that definition too broad, and it misses an important distinction. The Comeys and Brennans of the world were appointed to their jobs by politicians and are subject to a certain level of public scrutiny and political accountability.

  “Deep-staters” to me are better defined as career civil servants who have growing amounts of power in our administrative state but who work in the shadows. These federal employees are tasked with processing government policy and decisions, and are supposed to do so with no judgment as to the political party in power. Many do. The federal government has plenty of honorable, talented, and hardworking individuals. But many others misuse their position. They have visceral political feelings and an unfortunate new willingness to act on them in the course of their duties.