Collusion: The Criminalization of Policy Disputes

What a weasel word “collusion” is.In Washington, Senator Richard Burr (R., N.C.), chairman of the Intelligence Committee, has now seen fit to pronounce that, after two years of investigation, the panel has found no evidence of collusion between the Trump campaign and the Russian regime. Meanwhile, in a nearby courtroom, Special Counsel Robert Mueller’s senior staffer, Andrew Weissmann, told a federal judge that an August 2016 meeting between the then-chairman of the Trump campaign and a suspected Russian intelligence officer “goes . . . very much to the heart of what the special counsel is investigating” -- which sure sounds like Mueller’s collusion hunt is alive and well.What gives?Readers of these columns know that the “collusion” label has been a pet peeve of your humble correspondent since the media-Democratic “Putin hacked the election” narrative followed hard on the declaration of Donald Trump’s victory in the wee hours of Wednesday morning, November 9, 2016.The reason for the collusion label is obvious. Those peddling the “Putin hacked the election” story have always lacked credible evidence that Trump was complicit in the Kremlin’s “cyber-espionage.” They could not show a criminal conspiracy. Connections between denizens of Trump World and Putin’s circle might be very intriguing, and perhaps even politically scandalous. But only a conspiracy -- an agreement by two or more people to commit an actual criminal offense, such as hacking -- would be a reasonable basis for prosecution or impeachment.This dearth of proof was significant. The Russians apparently started hacking operations in 2014, long before Trump entered the race. The FBI first warned the Democratic National Committee about penetration of its servers in September 2015. By the time Trump won, the Bureau and U.S. intelligence agencies had been working hard to understand the nature and extent of Kremlin-directed hacking operations for two years. The investigation was so high-level, so intense, that shortly before the election, there were confrontational conversations between CIA director John Brennan and his Russian counterpart, FSB chief Alexander Bortnikov, and later between President Obama and Russian president Putin.Yet, as thorough as the investigation was, no one could credibly say Trump was a participant in Russia’s malfeasance. The best Obama’s notoriously politicized CIA could say was that Trump was Putin’s intended beneficiary.Unable to establish conspiracy, Trump’s opposition settled on collusion. It is a usefully slippery word. Collusion just means concerted activity -- it can be sinister or benign. It can refer to a conspiracy or to any arrangement people have together, including those that may be sleazy but non-criminal.This commitment to ambiguity came in handy for Deputy Attorney General Rod Rosenstein when he appointed Robert Mueller to be special counsel. After President Trump fired FBI director James Comey on May 9, 2017, and then shamefully talked Comey down for the consumption of Russian diplomats visiting the White House the next day, Rosenstein came under intense pressure. Because he had written the memorandum originally used to justify Comey’s dismissal, congressional Democrats slammed him for complicity in what they portrayed as Trump’s obstruction of the Russia probe. Rosenstein wanted to appease them by appointing the special counsel they were demanding.Special counsels, however, are not supposed to be appointed unless there is a solid basis to believe a crime has been committed. Rosenstein was lawyer enough to know that a president’s firing of an FBI director -- a firing that Rosenstein himself had argued was justified -- could not be an obstruction crime. And he knew that there was no proof that Trump had conspired in Russia’s cyberespionage. So . . . how to justify appointing a special counsel?Easy: Make it a counterintelligence probe. That way, there would be no need for a crime, since such investigations are just intelligence-gathering exercises.What’s that? You say there’s no basis in the special-counsel regulations to appoint one for counterintelligence? You say the Justice Department does not appoint prosecutors for counterintelligence investigations, which are the FBI’s bailiwick? So what? The special-counsel regulations expressly say that they create no enforceable rights enabling anyone to challenge the Justice Department’s flouting of them. Rosenstein knew he could ignore the rules and there was not a thing anyone could do about it.So instead of a prosecutor investigating a crime of conspiracy, we have a bloated staff of prosecutors gathering intelligence about “collusion”: Every contact between anyone connected to Trump and anyone connected to Russia.Some of this could be valuable information. That brings us back to that August 2016 meeting Andrew Weissman was talking about, between Trump’s campaign chairman and a suspected Russian intelligence operative. Paul Manafort, the campaign chairman, had high-level contacts and conducted multi-million-dollar business with oligarchs close to the Kremlin. Konstantin Kilimnik, his partner in Kiev, certainly is suspected of having a “relationship with Russian intelligence,” as Weissmann obliquely put it in the court session.That “relationship,” however, goes back to the early 1990s, when the Soviet Union fell and the United States was quite content to do business with lots of people who had “relationships” with Russian intelligence, the Kremlin, and even the Communist party. One of Kilimnik’s first jobs when he left the Russian military was to work for the International Republican Institute -- the democracy-promoting enterprise that Senator John McCain ran for over 20 years. Kilimnik started there as a translator -- hired for the skills he’d learned at the military academy that prepared translators for service in Russian intelligence. It didn’t seem to bother anyone -- by the early 2000’s, Kilimnik was running the IRI’s Moscow office.My point is not to defend Kilimnik. Not only has Mueller already him indicted for witness-tampering conspiracy in Manafort’s case (a charge to which Manafort has pled guilty). Kilimnik also hovers as an unindicted co-conspirator in the case of Samuel Patten, a lobbyist friend of Manafort’s who has pled guilty in a separate Justice Department case to being an unregistered agent of Ukraine and to violating the prohibition against foreign contributions to political campaigns -- enabling Kilimnik and two Ukrainian oligarchs to donate to the Trump presidential-inaugural committee and attend the inauguration festivities.The point is that if we are going to obsess over collusion rather than the actual crime of conspiracy, then we need to evaluate the Russian contacts of Trump associates in the context of everyone who has interacted with Russia in the last quarter-century. Under administrations of both parties, Washington has maintained that post-Soviet Russia was a perfectly fine country to partner with and do business with. Did the Trump campaign hope to tap Kremlin-connected sources for campaign dirt on Hillary Clinton? That seems undeniable. But it is not a crime per se. How does it rank on the scale of unsavory political behavior? You’d have to compare it to, for example, Democratic-party entreaties to the Kremlin -- back when the Russians were our Cold War Soviet antagonist -- for help in the campaigns against Presidents Gerald Ford and Ronald Reagan.I did not like candidate Donald Trump’s blandishments toward the Putin regime. It was part of why Trump was closer to the bottom than the top of my preferred GOP candidates. I thought his performance as president in the meeting with Putin in Helsinki was appalling. But we are talking here about policy disputes. Trump has a right to be wrong, even seriously wrong, on a policy matter. That does not make him a Russian agent.If members of Trump’s campaign were corruptly selling accommodations (such as sanctions relief) to Russia, then by all means prosecute them to the full extent of the law. But if the campaign was exploring whether sanctions relief could be traded for Russian actions in America’s interests -- just as Obama told us sanctions relief for Iran was being bargained in exchange for what he claimed were advances of America’s interests -- that might have been wrong-headed or naïve, but it wasn’t criminal.Apparently Senator Burr thinks of “collusion” as criminal conspiracy, and he thus realizes that there was not one. Special Counsel Mueller, by contrast, has been unleashed to probe collusion not just in the form of criminal conspiracy, but in whatever form: All manner of contacts with a regime that, just the blink of an eye ago, President Obama was mocking Mitt Romney for regarding as a geopolitical foe, even as Secretary of State Hillary Clinton helped Moscow build its version of Silicon Valley -- notwithstanding Defense Department and FBI worries that we were thus improving their military and cyber capabilities.What is “collusion,” then? Increasingly, it looks like the criminalization of policy disputes.

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