The Russia investigation and the rule of law

Byron York argues that the Russia investigation endangers the rule of law. My view is that it was worth investigating Russian interference in the 2016 presidential election and to consider whether the Trump campaign had any involvement in the matter — though not to have a special counsel do the investigating.

But Byron shows that facts and circumstances associated with the prelude to the investigation are disturbing and, indeed, inconsistent with the rule of law.

Byron focuses first on the Obama Justice Department’s entrapment of Michael Flynn through use of the Logan Act. The Logan Act bars private Americans from conducting foreign policy. It was passed in 1799, around the time of the Alien and Sedition Acts, and has never been used successfully to prosecute anybody. No one has even tried since the 19th Century.

The Logan Act was a response to attempts by George Logan to negotiate with the government of France during the “quasi-war” between that country and the U.S. He did so during the middle of John Adams’ administration.

Even if the Logan Act is not a dead letter, it cannot reasonably be applied to talks between representatives of a president-elect and a foreign government. Yet when intelligence intercepts picked up Michael Flynn, the national security adviser to-be, talking to the Russian ambassador in late December of 2016, the Obama Justice Department absurdly treated this as a possible violation of the Logan Act.

This view became the pretext for the interview of Flynn by FBI agents including the rabidly anti-Trump Peter Strzok. The interview was ordered by the equally rabid Sally Yates. It was during this interview that Flynn may have made false statements.

Byron concludes:

The bottom line is, the Flynn saga, which is at the heart of the Trump-Russia investigation, appears to have hinged on a trumped-up suspicion that a new administration had broken a centuries-old law that has never been prosecuted before — when in fact, the new administration’s real transgression was to make clear it would throw away many of its predecessor’s policies.

I would say the real “transgression” was breaking the Democrats’ stranglehold on executive power. In any case, the treatment of Flynn was hardly a healthy development for the rule of law.

Byron’s second example — the FBI’s use of the Trump dossier, compiled by the Clinton campaign as opposition research, as a part of its counterintelligence investigation into the Trump campaign — is even less healthy. The facts here are well-known, but Byron provides an excellent summary:

To compile the dossier, a Democratic law firm hired the oppo research group Fusion GPS, which hired a former British spy named Christopher Steele, who paid a number of Russian “collectors,” who then talked to other Russians, who provided gossip about Trump. The most spectacular gossip is the dossier’s description of Trump, in a Moscow hotel room in 2013, watching as prostitutes play out a kinky sex scene.

Steele took his material to the FBI, and the bureau agreed to pay Steele to keep gathering dirt on Trump — an astonishing development in the midst of a presidential election.

And even though the pay-for-dirt deal fell through, the FBI still incorporated the dossier into its Trump-Russia investigation. It was used as the basis to ask a secret court to grant a warrant to wiretap an American, Carter Page, in October 2016.

Nor were the anti-Trump forces in the U.S. government done with the dossier:

Fast forward to the transition. In early January 2017, intelligence chiefs James Comey, John Brennan, Mike Rogers, and James Clapper traveled to Trump Tower to brief the president-elect on Russian efforts to interfere with the 2016 campaign.

After the briefing, by a plan they devised earlier, three of them left the room, leaving Comey alone with Trump. Comey gave Trump a summary of the dossier, including the Moscow sex scene.

Imagine that. The very first time the incoming president met the FBI director face to face, the FBI’s message was: We know about you and those hookers in Moscow.

In their new book Russian Roulette, authors Michael Isikoff and David Corn report Trump thought the FBI was blackmailing him. . . .

Was it? We don’t know. But here’s what happened next:

The intel chiefs’ briefing of Trump soon leaked to the media. And the fact that top officials had seen fit to tell the incoming president about the dossier made it a legitimate news story. Within hours, BuzzFeed published the entire dossier on the Internet.

As Senate Minority Leader Chuck Schumer, D-N.Y., said as all this was happening: “You take on the intelligence community, they have six ways from Sunday of getting back at you.”

None, I’m pretty sure, is compatible with a robust rule of law.

Here is Byron’s conclusion:

With the Logan Act, Obama holdovers used a dead law as a pretense to push the Trump investigation. With the dossier, they used unverified opposition research not only to investigate the Trump campaign but to execute a clever maneuver to make the dirt public.

And this was all done by the nation’s top law enforcement and intelligence officials, targeting a new president. So yes, it is reasonable to say the Trump-Russia investigation endangers the rule of law.

I agree.

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