As Robert Mueller’s investigation has amassed more indictments, Donald Trump has increasingly retreated from any defense of the facts to insisting Mueller has no right to investigate him at all. This weekend, Trump praised a Wall Street Journal op-ed by David Rivkin and Elizabeth Price Foley, two conservative legal apparatchiks. If you want to have a road map for where Trump’s defense is headed, and the radical actions he is likely to take, Rivkin and Foley are laying it out in plain view.
1. The jumping-off point for their defense of Trump is the recent FBI Inspector General report, which lambasted former director James Comey for evading Bureau protocol and announcing the reopening of the investigation of Hillary Clinton’s emails. While they concede that the report “found no evidence that then-FBI Director James Comey was trying to influence the election,” Comey confessed “that his election-eve decision to reopen the Clinton email investigation was motivated by a desire to protect her assumed presidency’s legitimacy.”
This finding of “bias” is the foundation for the argument. What they authors don’t acknowledge is that it was bias against Hillary Clinton. Yes, Comey was trying to safeguard the legitimacy of her presumably certain election. But what was he trying to safeguard it against? The conspiracy theories of the Republican Party, which was already ginning up a postelection campaign to discredit the election as “rigged.”
Comey erred by bending over backward to placate their paranoia. Now the far right is using Comey’s decision to break FBI protocol in order to placate Republicans as a rationale to demand breaking FBI protocol to help Republicans again, this time by quashing an investigation of Trump. You fucked up — you trusted us!
2. They proceed to argue that texts between Lisa Page and Peter Strzok, expressing a wide array of centrist political views including heavy criticism of Donald Trump, reveal a fatal bias in the department:
The inspector general concludes that the pervasive bias “cast a cloud over the FBI investigations to which these employees were assigned,” including Crossfire [Hurricane, the codename for the investigation of Trump’s ties to Russia.] And if Crossfire was politically motivated, then its culmination, the appointment of a special counsel, inherited the taint. All special-counsel activities—investigations, plea deals, subpoenas, reports, indictments and convictions—are fruit of a poisonous tree, byproducts of a violation of due process.
There are two problems with this line of argument. First, the report only details the personal views of Page and Strzok, and not any other FBI agents. Why is that? Because Page and Strzok were having an affair, and using FBI devices to communicate, making their personal views open to public scrutiny. But you’d have to be insane to think they were the only FBI agents who had strong partisan beliefs. Lots of FBI agents had preferences in 2016, and the strongest leanings reportedly were those in favor of Trump. If two other random FBI agents happened to have their texts seized, you could just as easily construct a bias narrative pointing the other way.
Second, as the IG report states, the personal views of those agents did not affect their work. Rivkin and Foley quote the scolding line about their texts “casting a cloud.” They ignore the previous sentence from the report: “our review did not find documentary or testimonial evidence directly connecting the political views these employees expressed in their text messages and instant messages to the specific investigative decisions.” In other words, there’s no evidence at all they let their views alter their investigation. It merely casts “a cloud.” But the cloud only exists because the public happens to see their frank, private exchange of political views.
The normal procedure is for FBI agents to express political opinions and have those never become known the the public. The unusual thing about this election was that two agents had an affair that exposed their political beliefs. The idea that this proves the investigation of Trump was fatally poisoned assumes that FBI agents have never expressed strong political opinions before, which is is obvious nonsense.
3. Rivkin and Foley go on to assert that the investigation of Trump was opened up in order to prevent him from winning. They do not explain why the FBI kept its investigation hidden, even going so far as to disinform the public by telling the New York Times they saw no connection between Trump’s campaign and Russia. They infer this anti-Trump motive from the fact that Trump’s campaign was being investigated despite there being no evidence of anything shady going on. “There appears to have been no discernible evidence of Trump-Russia collusion at the time Crossfire was launched,” they write, “further reinforcing the notion that it was initiated ‘for the purpose’ of affecting the presidential election.”
This is completely false. Crossfire Hurricane was opened up on July 31, 2016. By that point, there were four Trump campaign officials under FBI scrutiny for their ties to Russia: Michael Flynn, who had been paid to attend a dinner with Vladimir Putin; Paul Manafort, who had been paid to run a pro-Russian cut-out campaign in Ukraine; Carter Page, whom the FBI believed had been recruited as a Russian spy; and George Papadopoulos, who had met with Russian agents. That is not even to mention the financial ties between Trump, his inner circle, and the Russian Mafia, or the intelligence intercepts of Russian officials describing their inroads in the Trump campaign, all of which predate the investigation.
Rivkin and Foley argue that Mueller is probing whether Trump colluded with Russia on the theft of Democratic emails, but “despite massive surveillance and investigation, there’s still no public evidence of any such exchange.” The absence of public evidence does not mean the evidence does not exist. Maybe Mueller has the evidence and isn’t leaking it. (If Mueller had made any of this evidence public, his leaking would also be used as a reason to stop his investigation.) Or maybe he’s trying to get somebody who can testify to this collusion to hand over the evidence.
Rivkin and Foley don’t want to take any chances of letting Mueller produce this evidence. They propose “that the special counsel’s activity be paused.” Then of course there won’t be any evidence of collusion, and they can kill the investigation for good, and conclude that Trump was innocent.