The Justice Department is dropping charges against two companies controlled by Yevgeny Prigozhin, the Russian businessman and confidante of President Vladmir Putin. It was Prigozhin who financed the Internet Research Agency and its social media blitz in support of Trump in the 2016 presidential election.
As time went on the the case brought by Special Prosecutor Robert Mueller grew weaker, apparently because of a decision to not to declassify some information that would have been used in a trail.
The case was one of the signature indictments from Mueller’s two-year Russia investigation. Together with a separate case against Russian government hackers accused of breaking into Democratic email accounts, it revealed a sweeping Russian effort to influence, or interfere in, the race between Republican Donald Trump and Democrat Hillary Clinton. Concord was the sole defendant in the case to enter an appearance in Washington’s federal court and contest the allegations.
The dropping of charges is another setback for the U.S. government’s effort to prove Russian interference. I don’t think it proves Mueller’s case was a “hoax.” It shows the difficulty of making a case based on “national security” information. I wrote about how secrecy muted Mueller’s case against Prigozhin and the IRA in Just Security last year.
The U.S. prosecutors explained the decision like this, according to Politico.
“In light of the defendant’s conduct, however, its ephemeral presence and immunity to just punishment, the risk of exposure of law enforcement’s tools and techniques, and the post-indictment change in the proof available at trial, the balance of equities has shifted. It is no longer in the best interests of justice or the country’s national security to continue this prosecution,” Demers and Shea added.
They said the indictment would remain in place against Prigozhin and 12 other Russian nationals, as well as the company alleged to have coordinated the online rabble-rousing, the Internet Research Agency.
Trump appeared to celebrate the dropping of the charges and the scuttling of the trial as more evidence of the flaws of Mueller’s operation. Late Monday night, the president retweeted another user’s comment about the developments: “How embarrassing for Team Mueller.”
Then there’s this tidbit, from Politico
While prosecutors were not specific in their public filing, one disclosed at a recent court hearing that the Justice Department planned to introduce a mystery witness who they said would implicate Prigozhin in election interference outside Russia. It is unclear whether that person is an intelligence asset, defector or someone else.
Intelligence officials also may have concluded that revealing certain evidence against Concord could put at risk Russians who helped the U.S. conclude that the 2016 activities were directed by the Kremlin. One such Russian with Kremlin ties was housed by the CIA in the Washington suburbs until his identity became public last year.
The chair of CIA director Gina Haspel, who was promoted by John Brennan and Michael Hayden, is getting warmer, according to Politico
Haspel was the CIA’s station chief in London in 2016 when the U.S. Embassy there was made aware of Mifsud’s contact with a Trump campaign adviser, George Papadopoulos, by Australian diplomat Alexander Downer. Haspel was briefed on Downer’s outreach to the embassy, according to a person familiar with the matter.
The ongoing contretemps between President Donald Trump and the intelligence community forces a dismal and daunting question: Whose side must be taken in a power struggle between a legion of professional liars and a consummate bullshit artist?
Both the president and the spy agencies have mastered the arts of misrepresentation, self-righteousness, and Twitter (but perhaps I repeat myself). Both have extensive records of public statements that are demonstrably false, thoroughly misleading, or artfully deceptive. Both have the power to inflict violence on others, though as far as we know, Trump has not killed or tortured anyone. The CIA on the other hand…
you talk to people who knew Special Prosecutor Robert Mueller III when he was a
young man, you will hear a lot of what you already know. He was hard-working,
lacrosse playing, straight arrow who served in the U.S. Marines between
studying in the privileged precincts of Princeton and University of Virginia
will also hear some finer details. Friends and faculty describe a temperamentally conservative young man who
was comfortable with liberal ideas. Mueller was more methodical than ingenious,
his classmate say, a plodder not a plotter. “Not among
Princeton’s best and brightest,” said one otherwise admiring alumnus. And he
possessed a self-effacing quality that resulted in more than a few saying their
memories of him were dim.
Mueller is now reportedly in the last stages of his investigation of President Trump and his entourage for possible collusion with Russian state agents. His final report (if the recalcitrant Attorney General William Barr makes it public) will set the stage for the last two years of President Trump’s first term.
Whatever Mueller finds, his formative years are prologue to the fury to come.
Mueller’s intellectual formation took shape in his undergraduate thesis for the Department of Politics, submitted in April 1966. His topic: international law and apartheid. In 121 pages of dry prose he analyzed the 1962 decision of the International Court of Justice to accept jurisdiction for a case challenging South Africa’s imposition of apartheid in the territory known as Southwest Africa, now the independent nation of Namibia.
Mueller thanked his thesis adviser Richard Falk, a leftist
scholar for his “stimulating guidance.”
But when a reporter from the Chronicle of Higher Education called Falk last
year to ask him about Mueller’s thesis, he initially did not
remember its author.
Falk re-read Mueller’s 1966 thesis, “I was extremely impressed with the
maturity and sophistication of the analysis, which was quite unusual for
someone who had not attended law school,” he wrote
in The Nation. “Even though, from my perspective, it sided too strongly with
the conservative interpretation of these complex issues, he did it in a
judicious way and was very fair in his assessment of the opposing view.”
Falk noted the similarity between the situation facing the ICJ in 1962 and the special prosecutor today.
his antipathy to apartheid, Mueller clearly believed that the rejectionists had
the better of the narrow legal arguments. Yet, as suggested, this did not
resolve the issue for Mueller. He set forth an argument showing that South
Africa had pursued an oppressive set of policies and practices that were
imposed on the native population in draconian fashion.
other words,” Falk continued, “Mueller considers the larger purposes of the law
in this context to be the promotion of justice, respect for international law
and human rights, and even the maintenance of peace.”
It was a situation, Falk said, where the opposing views were “both based on
sound legal reasoning, producing a situation in which there is no way to
distinguish legal right and wrong on the merits, thus making non-legal factors
such as human rights, peace, and justice potentially decisive.”
“Yet that wider context,” Falk went on, “… the
court must show proper respect for sovereign rights, avoid the issuance of
ineffective decisions, and not be seen as engaging in judicial legislation.”
Falk’s point: As special prosecutor, Mueller
can’t afford to trample the rights of the accused, bring weak cases to court,
or act as a legislator.
How Mueller balances his legal findings about Trump and Co. with “the larger purposes of the law” will define his report on the president and the Russians.
After graduation, Mueller enlisted in the Marine Corps and served two tours in Vietnam. He returned to enroll in UVA Law School in 1970. He joined the law review and received his degree in 1973. His style was unobtrusive.
One classmate, Howard Meyers, now an attorney in Philadelphia,
said via email, “As a student, he was smart, hard-working and articulate… Bob
was also well liked and indeed admired by others who knew him during law
Otherwise, Meyers declined to comment.
“My impression is that Bob wouldn’t want his role as Special Prosecutor to be about him personally, but rather about the job that he and his colleagues are doing on the tasks assigned to them,” Meyers wrote. “I obviously can’t speak to those issues.”
McIntosh, now head of a private school in Baton Rouge, Louisiana, says he and Mueller
worked as junior editors on the law review “doing mundane things like
was the kind of person who conducted himself with credibility, the kind of
person who inspires confidence,” McIntosh said in a phone interview. “Of all
the positive things, I have read about him, nothing has been overstated. He is
all of that and more. “
on some people he made no deep impression. John Jeffries, editor of the UVA Law Review in 1972-73, said
via email that “Bob and I
were classmates and friends, but not intimate, and I am not in a position to
describe his intellectual formation.”
If history is any guide, Mueller’s forthcoming
Trump-Russia report will be long on facts, process and rule of law, short on
personality and anything but the most pedestrian politics. But unlike the young
man, it will not be forgettable.
Imagine the indictment of a former national security official in the Obama administration for violation of the Espionage Act. Imagine James Clapper or Sally Yates facing the same charges as Julian Assange or Chelsea Manning.
That dream of right-wing media (and some left-wing critics) came one step closer to reality Sunday, when President Trump announced the appointment of Rep. John Ratcliffe of Texas as the new director of national intelligence. On Sunday, Ratcliffe told Fox News host Maria Bartiromo, his number one idea for “investigation of the investigators”: prosecute a source of the Washington Post.
Ratcliffe expressed the hope that the Justice Department will investigate the leak to Washington Post columnist David Ignatius in January 2017 that led to the resignation of Trump’s first national security adviser, Michael Flynn. Ignatius’ reporting raised the possibility that Flynn had lied about a pre-inauguration conversation with Russian ambassador Sergey Kislyak. Flynn was forced to resign after only 24 days on the job.
Flynn’s “phone call with the Russian ambassador was a highly classified NSA intercept,” Ratcliffe said. “Someone in the Obama administration leaked that call to the Washington Post. That’s a felony.”
Both legally and factually, Ratcliffe’s statement is open to question, which is no surprise. Ratcliffe, a former federal prosecutor who has served in Congress since 2015, is short on intelligence experience and long on dubious claims. According to ABC News, he took credit for a terrorism financing case that other attorneys say he had nothing do with. He claimed that leaked FBI texts revealed the existence of an anti-Trump “secret society” in the FBI, a story that was picked up by Sean Hannity and Fox News. In fact, the reference to “secret society” was a passing joke, and Trump’s defenders have dropped the “secret society” meme. Whether Ratcliffe’s nomination will be approved by the Senate Intelligence Committee is an open question.
Fourth Go Round
Ratcliffe’s idea for prosecuting Ignatius’ source is the fourth iteration of Trump’s campaign to “investigate the investigators,” which the president hopes will turn the tables on his legal tormenters. First, John Huber, U.S. Attorney in Utah, was assigned by Attorney General Jeff Sessions to investigate the opening of the investigation of Carter Page, the Trump hanger-on who was never charged with a crime. Second, the Justice Department’s Inspector General, Michael Horowitz, took over Huber’s probe and is expected to report this fall. Third, Attorney General Bill Bar assigned another U.S. Attorney, John Durham, to delve into the origins of the Trump-Russia investigation; Durham’s probe is ongoing.
In addition, Ratcliffe’s claim that Ignatius’ column was based on an “NSA intercept” is unconfirmed. Ignatius has never said that. Indeed, it is not clear that the U.S. government has acknowledged that NSA intercepted Kislyak’s conversations, meaning it is possible that Ratcliffe himself may have broken the law against unauthorized disclosure.
(When I contacted Ignatius by phone about Ratcliffe’s remarks, he said, “No comment.”)
“According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions?”
Those were the killer questions. At the time, Ignatius wrote, Flynn and Kislyak had already acknowledged that they had talked. Both said publicly—and falsely—that they did not discuss U.S. sanctions on Russia. If Ignatius knew the substance of their conversation, he did not say it in the column. But because Flynn had indeed talked about sanctions with the ambassador and lied to colleagues about it, his days were numbered. When FBI agents interviewed Flynn on January 24, 2017, he lied again under oath.
By the end of the month, Sally Yates, a soon-to-depart Obama Justice Department official, informed the White House (in the words of another Post article) that she believed Flynn “had misled senior administration officials about the nature of his communications with the Russian ambassador to the United States, and warned that the national security adviser was potentially vulnerable to Russian blackmail.”
The message, according to the Post, “was prompted by concerns that Flynn, when asked about his calls and texts with the Russian diplomat, had told Vice President-elect Mike Pence and others that he had not discussed the Obama administration sanctions on Russia for its interference in the 2016 election, the officials said.”
So, around the time Ignatius wrote his column, Yates and other senior officials had definitive knowledge of “the nature” of the Flynn-Kislyak “communications,” and their information did not come from the testimony of either participant.
Where did it come from? An NSA intercept is one plausible source. It has long been an open secret that NSA routinely eavesdrops on the conversations of foreign ambassadors in Washington.
From a legal point of view, the key question is whether Ignatius’ source was sharing classified information when he or she said, “Flynn phoned … Kislyak several times on Dec. 29.” If so, Ratcliffe might have a case.
“The Justice Department does have a lot of legal precedent for saying that, if the information was classified, the person in the government who shared it violated the Espionage Act,” says Kate Martin, civil liberties lawyer at the Center for American Progress. “There are also strong First Amendment arguments against bringing charges on that basis.”
Assange and Manning were charged with violating the Espionage Act, a World War I-era law that forbids “unauthorized persons” from taking “national defense information” and either “retaining” it or delivering it to “persons not entitled to receive it.”
Politically, Ratcliffe’s idea is attractive for the Trump White House because Trump loathes publisher Jeff Bezos; because the paper’s coverage of the Trump Foundation was fatally embarrassing to the Trump Foundation; and because the ex-spy chiefs who criticize Trump have always enforced the Espionage Act selectively.
“It’s no secret that the rules are different for David Petraeus than for Chelsea Manning,” says Ben Wizner, a lawyer for the ACLU. “The government tolerates, even encourages leaks of classified information from senior officials, while whistleblowers are punished.”
The double standard is engrained in bipartisan Washington culture. In the runup to the 2003 invasion of Iraq, Bush administration officials selectively leaked information about Saddam Hussein’s WMD program without fear of prosecution. In 2015, the Obama White House leaked highly classified details about the raid to kill Osama bin Laden and faced no consequences.
By prosecuting the Post’s source, the Trump Justice Department could claim it was abolishing the double standard. As director of national intelligence, Ratcliffe would be in a position to help. Trump has empowered Barr to declassify documents from the Horowitz and Durham inquiries as he sees fit. Ratcliffe has little intelligence experience, but he does have a track record of distilling facts into misleading, Fox-friendly sound bites. “Ratcliffe would be a natural enabler in a pursuit to cherry-pick material—or, more to the point, to find material worth cherry-picking,” notes Slate’s Fred Kaplan.
If deeply concerned intelligence officials don’t manage to kill his nomination and if the Senate approves Ratcliffe to run the nation’s 17 intelligence services, then the source of Ignatius’ story may have reason to worry. A senior U.S. official might get treated like Julian Assange or Chelsea Manning. Some would see a witch hunt. Others would call it rough justice. Either would be a political victory for Trump, which is one reason why the Ratcliffe nomination will be resisted by the intelligence community.