Sunday, May 21, 2017

Special Counsel investigations have a long tradition of failure.

When former FBI Director Robert Mueller was appointed Special Counsel to pursue the investigation of alleged ties between Donald Trump's Presidential campaign staff and the Russian government, Democrats were elated. The headline in Politico summed the liberal sentiment succinctly: "Trump’s Worst Nightmare Comes True". In the Democrat universe, Robert Mueller is the Beowulf come to slay the Trumpian Grendel, something the Democrats (Geats) under Chuck Schumer (Hrothgar) are too weak and timid to do themselves.

Just as Beowulf is great epic poetry, the Democrat view of "Russiagate" is great political drama--at least to the Democrats.  Alas for the poor Democrats, the history of Special Counsels and the actual facts of Russiagate tells a much different--and much less gripping--tale.

Invariably, all Special Counsels are compared to the archetypes of the office, Archibald Cox and Leon Jaworski, the attorneys who ran the Watergate investigations that toppled President Richard Nixon in 1974. Arguably, all Special Counsels have visions (or delusions) of grandeur whereby they achieve results as monumental and historic as Cox and Jaworski.  Unfortunately, for both Special Counsel and Democrat in Congress alike, Special Counsels since Watergate have spent much, proved little, and accomplished less.

Moreover, Cox and Jaworski had perhaps the easiest mandate to fulfill, as that scandal's timeline of events makes clear.

Watergate began with a burglary--a mundane crime but indisputably a crime--and also an arrest, as the "Plumbers" were caught in the middle of the break-in. That Nixon specifically and explicitly attempted to thwart investigation into this burglary was the malfeasance that ultimately drove him from office. In Watergate, the answer to the imperative first question for all Special Counsel was simple and straightforward: burglary and obstruction of justice.

Watergate was made an even easier task for Cox and Jaworski due to the Plumbers themselves having been indicted (in September, 1972) and convicted (in January, 1973) for the break-in. Crimes were not merely alleged, but positively proven.

The scope of the Watergate scandal was also amply demonstrated prior to the Cox' initial appointment. L. Patrick Gray, who succeeded J. Edgar Hoover as FBI Director in 1972 and was confirmed in 1973, testified during his confirmation hearings that White House Counsel John Dean has "probably lied" to FBI investigators. Gray also was forced to resign in April of 1973 after acknowledging that he had destroyed files (arguably evidence) from Plumber operative E. Howard Hunt's safe.

All of these events occurred before Archibald Cox' appointment as Special Prosecutor on May 19, 1973. The shape and even scope of the scandal were thus well defined long before his investigation could even begin.

In the Iran-Contra scandal of Ronald Reagan's second term, the first reporting of the events occurred in November of 1986, While the public recitation of the matter was both salacious and scandalous--with United States selling arms to the same Iranian government that had seized the American embassy in Tehran not ten years prior, the proceeds of which were used to lend aid to the Nicaraguan Contra rebels despite a Congressional ban on such aid--the outlines of any actual criminal offense were at best imprecise and at worst nonexistent. In addition, the Democrats wasted no time in appointing a Special Counsel, with Lawrence Walsh receiving his mandate in December of 1986, while the essential events themselves were still being learned.

It comes as no real surprise that Lawrence Walsh secured no convictions on the substantive issues of Iran-Contra, with most of the guilty pleas being for either perjury or withholding information from his investigation.  The biggest convictions in that scandal were almost all overturned on appeal.

As murky and confusing as Iran-Contra was, Whitewater was murkier still.  While the core of the scandal read as run-of-the-mill real-estate, bank, and wire fraud, which was caught up in the Savings and Loan crisis of the late 1980s, the extent of President Bill Clinton's involvement was and is a matter of debate and conjecture.  A report on Whitewater and the related failure of Madison Guaranty Saving and Loan prepared for the Resolution Trust Corporation described Bill Clinton as a "passive" investor, which is to say the Clinton's invested money but were not involved in the decision-making; as they lost money on the venture, this would make them more victim than perpetrator.  Yet the swirl of questions and confusion surrounding the matter did not stop Congress for pushing for an independent counsel even as Bill Clinton was taking office--Robert Fiske was appointed by Clinton Attorney General in 1993, and was replaced by Ken Starr shortly afterward to remove any possible conflict of interest taint.

The failed real-estate venture itself produced a number of convictions, including that of then-governor of Arkansas Jim Guy Tucker, Madison Guaranty owner Jim McDougal and his wife Susan. However, the major accomplishments of the Ken Starr investigation were securing a guilty plea from Webster Hubbell, one-time Associate Attorney General and law partner of Hillary Clinton, for overbilling clients--a matter wholly unrelated to Whitewater itself--and the impeachment show trial of President Bill Clinton for his perjured testimony in relation to his extramarital affair with White House intern Monica Lewinsky. The impeachment proceedings were demonstrably more damaging to Republicans than to either the Democrats or Bill Clinton, being seen publicly as petty and vindictive.

The Valerie Plame Affair, a presumed national security brouhaha arising from the potentially unlawful disclosure of the name of a CIA employee, is perhaps the murkiest and most confusing scandal for which special counsel was named. To this day, it is by no means certain that a criminal act even occurred; the only conviction secured by special counsel Patrick Fitzgerald was that of Lewis "Scooter" Libby, an aide to Vice President Dick Cheney, for perjury committed during Fitzgerald's investigation.

Russiagate shares more in common with the Plame Affair than it does Watergate. When a proud Hillary Clinton supporter such as noted law professor Alan Dershowitz states repeatedly that any interaction between Donald Trump and Russia was not criminal, when former Director of National Intelligence James Clapper and Senator Dianne Feinstein state publicly there is "no evidence" of collusion between President Trump and the Russian government to win the election, the obvious question must be asked: "where is the crime?" So far, as Dershowitz reminds us, there is no provable crime even alleged, much less proven.

A review of these histories of Special Counsel investigation also highlights their epic failure to bring substantive prosecutions, or even to meaningfully impair a Presidency. Watergate did end in Richard Nixon's resignation, but Iran-Contra did not stop Ronald Reagan from meeting with Soviet Premier Mikhail Gorbachev in Reykjavic, nor from completing the Intermediate-Range Nuclear Forces Treaty with the Soviet Union in 1987. Iran-Contra did not stop President George H. W. Bush from bringing the Cold War to an end with a strategic alliance with Russia in 1991 (coming on the heels of the dissolution of the Soviet Union), nor from assembling the multi-national coalition to push Iraq out of Kuwait in Desert Storm. Whitewater did not prevent President Bill Clinton from signing the North American Free Trade Agreement, his signature Omnibus Crime Bill of 1994, nor the Balanced Budget Act of 1997. The Plame Affair did not prevent President George W. Bush from completing a transition to representative government in Iraq, nor from executing the "surge" strategy in 2007 under General Petraeus.

Far from imperiling or even damaging a Presidential term of office, the existence of a Special Counsel is a curious harbinger of Presidential success.  Every President between 1981 and 2009 endured a special counsel investigation; each had significant policy successes during and after the Special Counsel's investigation. Presidents Clinton and George W. Bush won reelection despite the presence of a Special Counsel. Contrast that with the tenure of Barack Obama, whose signature domestic achievement, "Obamacare", is already being undone by the GOP Congress even as it collapses in a death spiral of ever increasingly unaffordable insurance premiums and deductibles, and whose signature foreign policy achievements--the overthrow of Libyan dictator Muammar Gaddafi and the controversial nuclear arms deal with Iran--seem to have exacerbated Middle East tensions rather than ameliorated them.

It is always possible that Robert Mueller will unearth some damning bit of evidence that will topple President Trump. It is always possible that he will at last prove the Trump-Russia "collusion" narrative that Democrats continue to push despite a complete lack of evidence. It is far more likely, however, that Robert Mueller will either exonerate Donald Trump completely, or at worse indict a few people close to him for perjury, withholding information, and other arbitrary offenses arising more from the investigation itself than the underlying scandal.

Special Counsel do a lot of investigating, a lot of chasing after suspects, a lot of issuing of subpoenas. What they do not do a lot of is winning. That is the history of Special Counsel in this country.

Thursday, May 11, 2017

The Great Russian Hacking Hoax

How much new information have we learned since the Intelligence Community Assessment regarding Russian "interference" in the 2016 elections was published at the beginning of January?

None.

How much new detail on President Donald Trump's "improper contacts" with Russia during the election and since have we received?

None.

In the ten months since revelation of the DNC email leaks (or "hacks", depending on whom you believe), how much actual evidence has been developed either about Russia's involvement in that event, Donald Trump's supposed collusion with Russia surrounding that event, or any other form of "collusion" between Donald Trump or his associates and Russia?

None.

The great lie permeating the Fake News Media is that there is any evidence of any actionable improper conduct by Russia in the 2016 election. There is none--none whatsoever.

The entire "Russia Hacking" narrative is in fact the Great Russian Hacking Hoax.

First, read once more the ICA from January: when one strips away the formal verbiage and government doublespeak, the ICA is still nothing more than opinion. It is no more than that. It has no empirical data, it cites neither witnesses nor provides forensic detail of the presumed DNC server hack. It provides no external citation of any report, document, or statement by any Russian official. Far from being a damning indictment of Russian malfeasance, it is merely unsupported assertions by Intelligence Community officials that Russia is the ultimate bad actor behind everything that went "wrong" with the 2016 elections. It is their opinion, and only their opnion, that we should blame Russia for everything.

Opinions are not evidence. Opinions are not facts. Unless they are at the conclusion of a valid chain of logical reasoning based on facts and objective evidence, opinions cannot be taken as any form of conclusion at all.

As of this date, the Intelligence Community Assessment is the sum total of "evidence" of "Russian Hacking".

This is fundamentally confirmed by leaders of that very same Intelligence Community. Former Director of National Intelligence James Clapper said on national television in March that there was "no evidence" of any collusion between Donald Trump's election campaign and Russia. Former Acting CIA Director Mike Morrell said substantially the same thing
"On the question of the Trump campaign conspiring with the Russians here, there is smoke, but there is no fire, at all.... There's no little campfire, there's no little candle, there's no spark. And there's a lot of people looking for it."
Senator Dianne Feinstein bluntly conceded to CNN's Wolf Blitzer that, following a classified CIA briefing, there was no evidence of any collusion between Trump and Russia. 

Take a moment to view the links I have provided. They are links to televised statements made by specific individuals, attesting to their knowledge--or, more precisely, their lack of knowledge--of any substantive facts indicating Trump colluded with the Russian government to win the election. Moreover, these statements are made not by Trump allies, but by Trump adversaries. Senator Feinstein is certainly no friend of Donald Trump, and Mike Morrell has been a Trump critic since the beginning of Trump's election campaign. Whatever bias they might have in this matter tilts away from Trump, not towards him.

These statements are facts. These facts advance but one hypothesis, lead to but one conclusion: there is no evidence that Donald Trump "colluded" with Russia during the election. Logic admits of no other conclusion.

Did Russia "interfere" with the election on its own, without Donald Trump?  Certainly that is possible as an hypothetical. However, what data can be summoned to support that contention?  None.

Even the ICA acknowledges that no Russian malfeasance interfered with voting systems or resulted in any fraudulent or spoiled ballots. No Russian actor stuffed ballot boxes on behalf of either President Trump or Hillary Clinton.

Did the Russian government "hack" the DNC server? Again, as an hypothetical that is possible, but what evidence is there for that assertion? There is but one item submitted in that regard: a forensic analysis by cybersecurity firm Crowdstrike in the aftermath of the DNC email leaks. However, Crowdstrike's analysis is subject to challenge. In an unrelated forensic report, Crowdstrike attributed the same Russian hacking group, known only as "Fancy Bear", to a cyberattack that resulted in devastating losses of Ukranian field artillery in that country's ongoing civil war--losses that the Ukranian government as well as others say never even happened. Simply put, Crowdstrike's assessment of "Fancy Bear" hacking activities is provably wrong in at least one instance completely separate from anything related to the 2016 election cycle. The FBI never conducted its own forensic examination of the DNC systems, because the DNC declined to grant them access. Thus FBI assessments of the hack are little more than restatements of the Crowdstrike analysis, and if Crowdstrike is wrong, the FBI is also wrong. With no independent forensic examination, either by the FBI or another cybersecurity firm, the Crowdstrike report stands uncorroborated--and thus is not conclusive proof of anything.

Again, review the links. The Crowdstrike analysis exists, and makes the statements that it makes. The agencies and officials refuting Crowdstrike's analysis regarding Ukrainian field artillery made the statements they made. The refusal of the DNC to allow the FBI to conduct an independent forensic investigation is a matter of public record.

Again, these statements are facts. Again, these facts advance but one hypothesis, lead to but one conclusion: there is no evidence that Russian hacking to influence the election even occurred. Again, logic admits of no other conclusion.

I shall be clear on one point: Absence of proof is not proof of absence, and lack of evidence of guilt is never proof of innocence. We cannot say--and I do not say--that Russia categorically did not hack the DNC server, nor do I say that Russia categorically did not engage in activities to influence the election. We can say, we should say, and I do say, that there is absolutely no evidence to support the contention that Russia did either of these things, with or without the aid or cooperation of President Trump.

Without evidence, how to properly apprehend the hysteria in the Fake News Media regarding Trump and Russia? Call it what it provably is: The Great Russian Hacking Hoax.