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Russia, Trump, Mueller, and the 'Wilderness of Mirrors'

By Gray Connolly - posted Thursday, 28 March 2019

On the 9th of May, 2017, the US President, Donald Trump, dismissed the then FBI Director, James Comey. At the time, there were allegations that Trump's firing of Comey was related to the FBI's ongoing investigation of the Trump 2016 campaign and allegations of its links with Russian persons and the Russian state. At the same time, there was, also, a memorandum by the US Deputy Attorney General, Rod J. Rosenstein, recommending Comey's termination. Trump's own firing of Comey noted that Comey had told Trump privately that he was not under investigation, something that Comey would later admit was correct.

On the 17th of May, 2017, Mr Rosenstein appointed Robert Swan Mueller III, the former FBI Director, to thoroughly investigate the Russian Government's effort to interfere in the United States' 2016 election. The record of appointment can be found here.

It is important to note, here, that:

(A) the Mueller probe was, in its origins, a counter-intelligence investigation that contained a mandate for criminal prosecutions, where necessary and appropriate. A counter-intelligence investigation is necessarily protective – it is focused on identifying and assessing threats to national security, not merely investigating those criminal matters that may be prosecutable; and
(B) in the United States, the counter-intelligence and national criminal investigation functions are combined in the one agency: the Federal Bureau of Investigation. In other Western countries, in particular in the British imperial/Commonwealth nations, the counter-intelligence and national criminal investigation missions are often discharged by separate agencies (eg in the UK, MI5 and the National Crime Agency, in Australia, ASIO and the Australian Federal Police, and so on.) There is much sense in separating the functions, if only because these agencies have very different cultures and the sorts of people who excel at counter-intelligence work are, very often, the sort of eccentrics and social misfits who would, rightly, never be accepted as agents and officers of any respectable law enforcement body.

Keeping both (A) and (B) in mind, we come to now, late March 2019, and Mr Mueller has submitted his report as Special Counsel to the US Attorney-General, William Barr. The Mueller Report's contents remain undisclosed and, one expects, will require significant declassification and/or redaction before any part of it can properly be released.

On the 24th of March 2019, Mr Barr, as the Attorney General, supplied a synopsis of the Mueller report (see here), and its two key findings:

Firstly, Mueller cleared Trump and his campaign of conspiring or coordinating (a distinction without any real difference) with the Russian Government. While the Special Counsel did charge a number of Russian military officers with cyber/computer hacking for the purposes of influencing the US 2016 election, the Mueller investigation did not find that Trump or his campaign were party to the Russian effort – and "despite multiple offers from Russian-affiliated individuals to assist the Trump campaign". At the same time, while the Mueller probe may not have found evidence that established or supported any conspiracy, it is likely the counter-intelligence aspect of the Mueller probe has commenced or followed leads in respect of Russian and other foreign influences that will probably be run-down over the next few years if not decades. Mueller, as a former FBI director, was uniquely well-suited to oversee such a probe.

Secondly, Mueller left the issue of whether President Trump's behaviour evidenced "obstruction-of-justice concerns" at large. It is unclear what the alleged obstruction was: was it Trump's intercession for Lieutenant General Michael Flynn? Was it Trump firing former FBI Director James Comey? Or was it Trump attacking the Mueller probe? Or something else? Was it Trump denouncing the probe as a "witch hunt"? (The last of which may be unwise and against legal advice, but is arguably something Trump is as free to do as anyone else). So, the obstruction issue became one for the Attorney General to determine. Thus it came to be that both the Attorney General Barr, and the Deputy Attorney General Rosenstein, "....concluded that the evidence developed during the Special Counsel's investigation is not sufficient to establish that the President committed an obstruction-of-justice offense." More than anything else, Rosenstein's concurrence in this conclusion is critical, here. Rosenstein had both (A) advised Trump to fire the former FBI director James Comey and (B) had initiated and supervised the Mueller probe. Rosenstein would be the one US Government official who would be charged with pursuing, as well as the key government witness to, any allegation of obstruction. While there is no gainsaying the idiocies that any Congress will engage in, the legal question of obstruction was negatived by Rosenstein's express concurrence. [An interesting question, also, arises here, as to whether Mueller could have formed an independent view on the facts. Mueller was interviewed by Trump for the position of FBI director on 16 May 2017. It seems highly likely that Mueller would, at that interview, have become acquainted with Trump's views on Comey and why Comey was fired. It is also highly likely that Mueller has his own views of Comey, which may well have changed during the Special Counsel probe. Another question for another day.]


As a matter of full disclosure, you can find all my comments on the Mueller probe here and you will note, and I take no satisfaction in saying this, that, as early as the 15th of June 2017, it was clear, on the evidence, that Trump would be cleared. Moreover, as a matter of common sense given the colandar-like US system, does anyone seriously believe that if there was evidence of Trump and his circle conspiring with the Russians, it would not have leaked long ago? Donald Trump could barely coordinate with his own presidential campaign-why would any sentient being think Trump would be able to conspire with the Kremlin and keep it a secret?

This all said, though, in the best traditions of the "wilderness of mirrors" that is the arena of intelligence and counter-intelligence work, as well as the slow drudge of a criminal investigation and prosecution, the question inevitably arises, 'what did we learn'? In answer to this question, I say the following.

Firstly - and this did not require anyone of the stature of Robert Mueller to investigate - American politics is open to a degree of corruption and influence by foreign moneyed interests and foreign intelligence services (often the same thing in many countries) on a scale as great as, if not much worse than, any other first world country. The American republic, while it has so much to admire in its design and founding, is, in 2019, possessed of a political class that Russians, like the Chinese, Ukrainians, and a host of others, know is open to corruption, intelligence dangles, and compromise/kompromat. (Even Australia, felt it needed to donate money to the Clinton Foundation.) The Paul Manaforts and Podesta brothers and others are but archetypes of a notorious American cohort of political vagabonds. One hopes that the United States has now learned a valuable if painful lesson on why the swamps of professional politics are best drained permanently. One doubts, however, that anything will be done by a political establishment that is happy to be at least rented, if not bought. One foresees, instead, that the Russians, Chinese, and other malefactors, will simply see the Mueller probe as deterring them from doing nothing but seeking a smarter variety of traitor and useful idiot to now suborn in the future, and, especially, for 2020.

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This article was first published on Strategy Counsel.

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About the Author

Gray Connolly is a Sydney lawyer. Follow him on Twitter @grayconnolly.

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