“Nothing has changed.”
That was House Judiciary Committee Chairman Jim Jordan (R-Ohio) at a June 21 committee hearing taking testimony from Special Counsel John Durham, who in his final report exposed an effort by federal government intelligence agencies, the Justice Department, the State Department and the Hillary Clinton campaign to falsely accuse Clinton’s political opponent in 2016, former President Donald Trump and his campaign, of being Russian agents.
Despite the investigation going nowhere—former Special Counsel Robert Mueller found there was no Trump campaign conspiracy with Russia to hack the DNC and give the emails to Wikileaks—it carried on for close to three years, embroiling not only the Trump campaign, but also the transition after he won and the Trump administration in a top secret inquiry to kneecap the Trump presidency.
According to Mueller’s final report to the Attorney General, “the evidence was not sufficient to charge that any member of the Trump Campaign conspired or coordinated with representatives of the Russian government to interfere in the 2016 election.”
As Durham noted in his voluminous report, “it seems highly likely that, at a minimum, confirmation bias played a significant role in the FBI’s acceptance of extraordinarily serious allegations derived from uncorroborated information that had not been subjected to the typical exacting analysis employed by the FBI and other members of the Intelligence Community. In short, it is the Office’s assessment that the FBI discounted or willfully ignored material information that did not support the narrative of a collusive relationship between Trump and Russia. Similarly, the FBI Inspection Division Report says that the investigators ‘repeatedly ignore[ d] or explain[ ed] away evidence contrary to the theory the Trump campaign … had conspired with Russia …. It appeared that … there was a pattern of assuming nefarious intent.’ An objective and honest assessment of these strands of information should have caused the FBI to question not only the predication for Crossfire Hurricane, but also to reflect on whether the FBI was being manipulated for political or other purposes. Unfortunately, it did not.”
And it wouldn’t end there. Now, the Justice Department is engaged in another top-down investigation of Trump, indicting him for documents he possessed when he left office that were effectively declassified his actions President under Article II of the Constitution, even as Trump stands for reelection in 2024 against sitting President Joe Biden.
That’s what dictatorships do. If one crime doesn’t stick, they just find another one with which to jail their political opponents over policy differences. Durham gave members of Congress a road map with how it all went wrong, citing what he called “personal bias” by members of the Justice Department who were determined to take Trump down at any cost.
The price has been public faith in the institution of justice. As Jordan noted, “60 percent of Americans now believe there’s a double standard at the Justice Department. You know why they believe that? Because there is.”
Jordan is right, there is a double standard. but he might be relatively alone in expressing a willingness to use actual legislative vehicles to take this on. There are too many invested in a system that seeks to control public officials through leverage and threats of disloyalty if they don’t toe the line, particularly on foreign policy issues.
It has become a French Revolution style Committee on Public Safety, with Robespierre-like led persecutions against opponents of the regime. But not for crimes against the state, but policy differences.
In fact, Trump’s policy proposals related to Russia were laced all throughout the original Oct. 2016 Carter Page FISA warrant as part of the justification for the surveillance, with allegations that Russia was attempting to convince the Trump campaign to not send weapons to Ukraine and to instead recognize Russia’s annexation of Crimea in Ukraine, telling the FISA Court that the Trump campaign, per the FISA application, “worked behind the scenes to make sure [the Republican] platform would not call for giving weapons to Ukraine to fight Russian and rebel forces” stating Trump “might recognize Crimea as Russian territory and lift punitive U.S. sanctions against Russia,” citing news reports.
The Justice Department also included an Aug. 2016 Politico story highlighting Trump’s positions on Ukraine, including his suggestion the people of Crimea preferred to live in Russia, and his doubts that the territories Russia had seized could be reclaimed suggested without World War III, which Trump was running against on the campaign trail as much as Hillary Clinton.
At a Harrisburg, Pennsylvania, Politico quoted Trump saying a military conflict to take back Crimea would risk nuclear war: “You wanna go back? …You want to have World War III to get it back?” And it quoted Trump on ABC’s “This Week” suggesting the people of Crimea supported Russian annexation: “The people of Crimea, from what I’ve heard, would rather be with Russia than where they were.” This was Trump’s anti-war position in 2016 that helped him secure narrow wins in Pennsylvania, Michigan and Wisconsin and an Electoral College majority against Hillary Clinton, who he often called a war-monger.
These were policy differences between Trump and his opponent, Clinton, that inevitably were transformed into a plot by a foreign adversary to create a Manchurian candidate of sorts.
So, what to do about all of this?
Durham towards the end of his report adopts a reform proposal by former NSA General Counsel Stewart Baker to have non-partisan Justice Department official who is tasked to act in an adversarial manner at the FISA Court and after FISA surveillance has been initiated to essentially poke holes in the Justice Department’s case against an individual: “Stewart Baker proposes having a ‘career position for a nonpartisan FBI agent or lawyer to challenge the FISA application and every other stage of the investigation.’ This would be done in investigations that ‘pose partisan risk.’” Durham wrote, “we recommend that the Department seriously consider Baker’s proposal for an official to challenge both a politically sensitive FISA application and other stages of the investigation.”
But is that enough? Jordan for his part at the committee hearing appeared skeptical, instead calling for legislative action by Congress to rein in the Justice Department—before it’s too late.
As Jordan declared, “That has got to change, and I don’t more training, more rules is going to do it. I think we have to fundamentally change the FISA process, and we have to use the appropriations process to limit how Americans’ tax dollars are spent at the Department of Justice.”
Standing for election against an entrenched political establishment, calling to “drain the swamp” and disagreeing with U.S. foreign policy has become a crime. The question is what is Congress going to do about it.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
