Will The Rogue FBI/CIA/DOJ Operatives Ever Be Brought To Justice For Crossfire Hurricane?
/It has been obvious now for multiple years that the whole Trump/Russia “collusion” narrative was a total hoax from the start, concocted by high-ranking but rogue members of the intelligence community in the latter days of the Obama administration. This misuse of the powers of the government by the intelligence community to attempt to influence the 2016 election, and then to undermine President Trump after his election, has been described by many as the greatest scandal in American political history. The perpetrators of the scandal range from CIA head John Brennan, to FBI head James Comey, to FBI Deputy Director Andrew McCabe, to senior FBI agent Peter Strzok, and many others too numerous to mention.
All of the people named have lost their previous jobs, but beyond that none have thus far faced any consequences, particularly any criminal prosecution. They have books on sale or cable news gigs or both. We know that a federal criminal prosecutor, John Durham, has been named by Attorney General Barr to look into the matter, but after many months, we hear nothing. Several commenters have asked for my thoughts on whether criminal consequences are likely for any of these miscreants, and, if so, on what basis.
My bottom line: As egregious as the conduct of these people was, I still think it’s only about 50/50 that any of them get charged and convicted of any criminal offense. There are two major issues: (1) What is the crime? and (2) How do you prove the case?
What is the crime?
We start with a fundamental principle of our criminal justice system, embodied in the federal Constitution: the prohibition on so-called “ex post facto laws,” or in other words, laws that criminalize conduct after it has already occurred. This prohibition as against the U.S. Congress appears in Article I, Section 9 of the Constitution; and there is a similar prohibition against the states in Article I, Section 10. And thus, conduct — no matter how corrupt, and how evil, and how fundamentally wrong — can only be prosecuted criminally if it violated some statute that was on the books at the time the conduct occurred.
The flip side of the coin is that over the 231 years of our republic, the Congress has been completely promiscuous in creating crimes. How many federal crimes are there? A study commissioned by the Federalist Society back in 2004 concluded that, after “explosive” growth in the last decades of the twentieth century, there were then “over 4000” such crimes. Today, there are even more. But incredibly, the 2004 study found that attempting to enumerate the crimes in the federal code was so complex a task that a precise number of extant crimes could not be given. There is a section of the federal code (Title 18) that contains the main criminal laws; but there are hundreds (or thousands) of crimes in other parts of the code, for example environmental crimes, or crimes relating to securities.
Despite the incredible profusion of federal crimes, it unfortunately appears that none of them was specifically created to address the conduct of federal agents and prosecutors who misuse their law enforcement powers to seek to undermine, oust, or frame duly elected and appointed officials. Hey, aren’t these agents and prosecutors the good guys? Try as I might, I am unable to think of any prosecution in my lifetime of people in the FBI or Justice Department for abuse of their law enforcement powers. And thus, there isn’t an obvious precedent under an existing statute for prosecution of a Brennan, a Comey, or a McCabe.
So to analyze what these people might get prosecuted for, we need to let our minds range freely over the Constitution and the great body of federal criminal laws, and see what we can find that might be applicable. I certainly don’t have complete knowledge of these laws, but then, neither does anybody else; so anyone is welcome to take a crack at this exercise. Here are some thoughts:
Several commenters have suggested “treason” as the obvious first possibility. After all, if anything counts as “treason,” wouldn’t it be a wrongful attempt to oust the duly elected government? As reasonable as that may sound, it runs into the fact that the Constitution itself contains a very restrictive definition of what “treason” consists of: “Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” (Article III, Section 3). It appears that that restrictive definition was put there precisely to prevent indiscriminate charges of “treason” getting levied regularly by the political winners against the losers in the most recent elections.
How about “fraud”? Can we make that fit? There are two main federal criminal statutes dealing with fraud, 18 USC 1341 (proscribing any “scheme or artifice to defraud” by use of the U.S. mail) and 18 USC 1343 (proscribing any “scheme or artifice to defraud” by use of “wire, radio or television communication”). Federal prosecutors have often sought to use these statutes in going after political corruption, but frequently have run into the problem that the use of the term “fraud” in the statutory language imports common law concepts relating to that term, like the need for some false statement, and for some reliance on that false statement. In the Crossfire Hurricane context, it is not obvious what the false statement or the reliance would be.
After several examples of convictions for egregious political corruption under 1341 or 1343 getting overturned for lack of the false statement or the reliance elements, Congress in 1988 undertook to fix the problem by passing the famous “honest services fraud” statute, 18 USC 1346. That statute sought to cure the problem by adding to the two “fraud” statutes the following definition: “the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services.” Doesn’t that sound like just the thing for Brennan, Comey and McCabe? Unfortunately, nobody could figure out exactly what was covered by this language, leading several defendants to challenge the statute as void for vagueness. In the case of Jeffrey Skilling (of Enron fame) in 2010, the Supreme Court dodged the void for vagueness bullet by ruling that Section 1346 could only be used in a prosecution for a “bribery or kickback scheme.” That ruling then led to the overturning of multiple convictions for political corruption, including the conviction of Governor Bob McDonnell of Virginia and the conviction of Speaker Sheldon Silver of the New York State Assembly. In the case of Brennan/Comey/McCabe, it is hard to see their facts fitting the term “bribery or kickback scheme.”
The same analysis undermines the potential use of the general bribery statute, 18 USC 201. That’s the statute that famously requires the “quid pro quo” that you heard so much about in the recent Ukraine kerfuffle. It’s not obvious what that would be here.
Jed Babbin, writing today in the American Spectator, proposes the following as the best available statute: 18 USC 242, which criminalizes acting “under color of any law, statute, ordinance, regulation, or custom, [to] willfully subject[] any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . .” Oh, but further on in the lengthy statutory language there is an additional qualifier, which is “on account of such person being an alien, or by reason of his color, or race.” Is that a necessary qualifier on any instance of the crime? I’ve read the statute ten times, and I can’t tell! The statutory language is a jumbled mess.
As you can see, there are many, many options, but finding one that fits neatly is no easy task. But anybody can play this game, so I invite readers to have a go at it.
And then there’s the next issue:
How do you prove the case?
If you think that the Flynn plea agreement, plus the new documents that have come out in the past couple of weeks make it completely obvious that the FBI acted in a corrupt and criminal manner, then you are not thinking like a progressive. And remember that any prosecution here likely will have to be brought in the District of Columbia, where essentially all potential jurors are card-carrying progressives, if not Trump haters.
To get an idea how a card-carrying progressive views the recent revelations in the Flynn matter, you might want to read the op-ed by Norman Eisen that appeared in the New York Times of May 1 with the headline “Why Trump Is Obsessed With the Flynn Case.” Eisen most recently was out making a name for himself as special counsel to the House Judiciary Committee in the impeachment inquiry and trial. The op-ed is well summarized by the sub-headline: “It’s the perfect combination of distraction, fear-mongering and red meat for his base.”
But Norm, don’t the documents show wrongdoing on their face? Excerpt:
A review of these internal F.B.I. communications, however, shows none of the wrongdoing that Mr. Trump would like to see. But no matter: The mischaracterization of these documents as evidence of F.B.I. misconduct — and by extension, absolution of Mr. Flynn — signals that the president will escalate his abuses of power in the run-up to the 2020 election.
And what is the answer to the allegation that the FBI was setting up Flynn in a situation where they had no valid basis for any criminal investigation in the first place? Eisen:
The Michael Flynn scandal was one of the first to reveal the pattern of lawlessness that has characterized the Trump administration. In December 2016, Mr. Flynn, in a phone call, successfully implored Russia to moderate retaliation against the United States for sanctions imposed because of the attack on U.S. elections. The conduct raised serious questions under the Logan Act, which prohibits private parties from conducting U.S. foreign policy.
Yes, in Eisen’s view, a high-ranking member of the incoming administration talking to the Russian ambassador is part of a “pattern of lawlessness” and “raises serious questions under the Logan Act.” Believe me, no number of documents, no matter how explicit and how incriminating, is ever going to convince Mr. Eisen, or someone who thinks like him, to vote to convict.
What would? Potentially, some one or more witnesses who “flip” and agree to testify for the prosecution. And who are willing to say something like “we got together and plotted how to defeat Trump and, after the election, how to get rid of him”; and “Brennan, Comey, McCabe and Strzok completely made up the whole Russia thing and we knew it was a hoax from the get go.” Will there be any such people? As I said at the beginning, in my estimation it’s about 50/50 at best.
UPDATE, May 5:
With an additional night to think about it, and some help from a commenter, here are some additional ideas of potentially applicable criminal provisions:
Commenter Kent Clizbe points to 25 CFR Section 11.448, “Abuse of Office”: “A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she: (a) Subjects another to arrest, detention, search, seizure, mistreatment. . . .” That sounds rather on point. But wait: this is a regulation, rather than a statute. A regulation promulgated by what agency, and under authority of what statute? It turns out that this is a regulation of the Bureau of Indian Affairs in the Department of the Interior, found among the list of criminal offenses that can be prosecuted in the Indian Courts. The statutory authority (I think) is 25 USC Section 2805, which gives the Secretary of the Interior the power to prescribe by regulation what will be the criminal offenses in “Indian Country.” That seems a stretch for our CIA and FBI friends. Recall also that one of the impeachment counts against President Trump was “abuse of power” (rather close to “abuse of authority”), and Trump’s lawyers argued (persuasively, I thought) that “abuse of power” was not a crime because there was no such crime in the statute books.
Mr. Clizbe also suggests the RICO statute. That would be 18 USC 1962, which defines a crime of committing a “pattern” of “racketeering activity.” The term “racketeering activity” is in turn defined in 18 USC 1961. The definition consists of a long list of other crimes already set forth in the federal criminal statutes; but you need to fit under the terms of one or another of those. Basically then, RICO does not criminalize any previously non-criminal conduct, but rather makes an enhanced crime out of a “pattern” of the pre-existing crimes. The term “pattern,” by the way, means two or more.
Here’s one that is perhaps closer to the mark: Obstruction of Justice under 18 USC 1505. The conduct of Brennan, Comey, et al. may not seem to you to quite fit the word “obstruction,” but how about this additional language of the statute: “Whoever corruptly, . . . influences, . . . or endeavors to influence, . . . the due and proper administration of the law under which any pending proceeding is being had before any department or agency of the United States. . . .” It is perhaps not a perfect fit, but we are getting warmer.
And finally, I have one that I think unambiguously covers at least some conduct of most if not all of these guys, without any need to stretch or twist the language into some unusual interpretation. Yes, it’s the infamous 18 USC 1001 — the very statute under which Flynn was convicted, sometimes informally described as the statute that covers “lying to the FBI.” But if you look at the actual language of the statute, it covers not only lying to the FBI, but also any lying by anyone in any “matter” within the jurisdiction of any U.S. governmental body. “[W]hoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully— . . . (2) makes any materially false, fictitious, or fraudulent statement or representation . . . shall be fined . . . imprisoned . . . .” Lying by the FBI is covered every bit as much as lying to the FBI. So when Comey went to President Trump in the famous meeting on January 27, 2017, and told Trump that he was not personally under investigation, when in fact Trump was under investigation, and Comey was lying to Trump in order to keep Trump from discovering the investigation and shutting it down, that absolutely was a violation of 18 USC 1001. Other comparable instances of lying — whether to Trump personally, other White House staffers, Congress, an IG, etc. — can undoubtedly be found against all of these guys. Indeed, McCabe was fired for lying to people investigating leaks that, it was ultimately established, came from him. Why only fired, and not prosecuted? The same rules that the FBI applies to everyone else should apply equally to them.
The only problem I have with prosecutions under 18 USC 1001 is that this statute doesn’t really go to the heart of the matter, and is not really commensurate with the magnitude of the wrongdoing and of the scandal. On the other hand, if it’s the best anyone can find, I can’t think of any reason not to use it.