The Russiagate Probe: ‘Clean Gene’ or ‘Dirty Harry’?

More than five years after the FBI’s “Russian collusion” investigation began, some pundits continue to insist on the righteousness of the FBI’s probe and the excellence of Special Counsel Robert Mueller’s inquiry. But to others, the most scandalous and disappointing aspect of Russiagate is the partisan, often dishonest, and clearly unethical conduct of the same investigators. 

So, which is it? A “Clean Gene” investigation or “Dirty Harry” abuse? 

Special Counsel John Durham’s sole indictment of an investigator, after two years, has been FBI lawyer Kevin Clinesmith, a junior official who altered an email from the CIA about Foreign Intelligence Surveillance Act (FISA) target Carter Page’s past counterintelligence cooperation, and relayed it to the Foreign Intelligence Surveillance Court (FISC). Clinesmith told the sentencing court he was attempting only to make the email more accurate, whereupon the court granted him probation. If that is all Durham could find, Clintonites have crowed, the FBI’s long, highly scrutinized investigation has emerged virtually unscathed. 

But out of the first 24 months of the Durham probe, at least 15 witnesses were bedeviled by COVID, which stymied the necessarily thorough grand jury proceedings. Only Clinesmith’s crime was provable without such proceedings. 

Moreover, Clinesmith was virtually forced to alter the email for the fourth FISA application because a welter of FBI officials had concealed Page’s patriotic cooperation in the first three—albeit without the need to alter a written document. Clinesmith’s crime was simply a dramatic, slam-dunk variation on a theme of continuing FBI high-level dishonesty. And Clinesmith’s dirty work on the fourth application most certainly was not discouraged or unknown by supervisory agents. 

In short, Durham is likely considering other indictments for officials who concealed Page’s past honesty. 

The FBI’s “Crossfire Hurricane” investigation began on July 31, 2016, the minimal basis for which opening the inspector general approved: Australian diplomat Alexander Downer’s interpretation of lowly Trump advisor George Papadopoulos’ statement that Russia had damaging information on Hillary Clinton, which Downer expanded to include his interpretation of an intent to publish hacked emails. 

What Justice Department Inspector General Michael Horowitz did not examine was whether this predicate had been fabricated by the FBI and its intelligence community allies. We now know that the inventive Downer was acting as an assigned “Five Eyes” spy when he confronted Papadopoulos.

Moreover, the investigators have continued to fraudulently conceal that Joseph Mifsud was also a Western intelligence asset, likely British, part of the “Five Eyes” intelligence team (which includes the United States, Britain, Canada, New Zealand and Australia). That the Russians had told Mifsud that they had damaging Hillary emails was a pure fabrication, designed to inject “collusion” into the Trump mix. 

In the government’s sentencing memo for Papadopoulos, the FBI and the Mueller team repeated this misleading history, suggesting (though not stating overtly) that Mifsud was in fact connected to Russian intelligence. 

A key allegation in the Steele dossier, on which the FBI relied and touted to the FISA court, was that there was a “well-developed conspiracy” of electoral collusion between the Trump campaign and Putin’s Russia. The source for this key charge, according to Steele as told to the FBI’s “Crossfire Hurricane” team, was Sergei Millian, president of the grandiloquently named Russian American Chamber of Commerce, a man who supposedly knew both sides of an international conspiracy called “Source D” and “Source E.” During the later inspector general investigation, the FBI continued to contend that Millian was this key source. 

But as Durham later found, Steele’s subsource never spoke with Millian. Rather, he sourced the allegations from Clinton campaign aide Charles Dolan, falsely claiming a Russian connected source.

Confusingly, while Millian was not involved with Steele, he had actively tried to entrap Papadopoulos into agreeing to a treasonous relationship with Russia, a seemingly fabricated offer. So, on whose behalf was Millian working, if not for Steele? It now appears, strongly if circumstantially, that he had been working for the FBI or, alternatively, one of the “Five Eyes” intelligence agencies in league with the FBI. 

If Millian was indeed a confidential Western intelligence asset, it is likely that only a few officials within the FBI would have known. If so, these officials condoned and encouraged from their lofty perch an invasively fraudulent “Russia collusion” investigation which roiled our country for years. 

Horowitz has identified 17 separate falsehoods or nondisclosures in commencing and pursuing the FISA investigation of the Trump campaign. But little scrutiny has been placed on the commencement of the Mueller special counsel investigation. 

James Comey knew the special counsel statute well, and therefore knew that the law allowed such an appointment only for a criminal proceeding. Yet the investigation Comey had started was counterintelligence. So there was no authority for the appointment of a special counsel.

But what about Comey’s claim that Trump had obstructed justice by firing him? Unlike a criminal proceeding, a counterintelligence investigation is the president’s own investigation under his constitutional national security powers. Such investigation is the president’s to pursue or not, and the president cannot obstruct his own discretionary investigation any more than the FBI can obstruct its own. While the Mueller team later conceived possible crimes in order to investigate possible obstruction by Trump, the Mueller appointment was made, and the investigation was unlawfully commenced, without a true criminal predicate. 

But there were more profound shortcomings the FBI knew about when Mueller began. As former FBI counterintelligence chief Peter Strzok wrote to his paramour Lisa Page, even this virulent anti-Trumper hesitated before joining Mueller’s team in 2017 because “there’s no there there.” This, from an investigator on the scent since late 2015. He knew by 2017 the probe would amount to nothing.

In fact, as Comey knew, substantive criminal liability was never the realistic goal of this fabricated “criminal” investigation. Knowing that there were no substantive collusion crimes, the FBI sought to prove process crimes (lying, obstruction), but only against Trumpers, not Clintonites, Steele operatives, or Russian agents. 

The much-ballyhooed “Russian collusion” probe, as it was pursued after Trump was elected, was simply a “perjury trap” investigation, a specialty of the unctuous Comey. He had in the past trapped Martha Stewart into thinking that a true answer to an agent’s question would be an “insider trading” crime, whereas it would not have been. So she lied, was indicted and imprisoned. Comey then trapped Vice President Dick Cheney’s Chief of Staff Lewis “Scooter” Libby into thinking that a true answer to a question about leaking the name of CIA employee Valerie Plame was a crime; it was not. Libby lied, was indicted and imprisoned. 

Comey also trapped former Trump National Security Advisor Michael Flynn into thinking that a true answer to a question about talking to Russian Ambassador Sergey Kislyak about sanctions was a crime under the Logan Act. Flynn fudged, perhaps did not lie, was indicted, and pleaded guilty to avoid bankruptcy. 

Comey’s agents scared George Papadopoulos into thinking that if he was with the Trump campaign when he first spoke to “Russian-connected” Professor Mifsud, he would be guilty of collusion. So Papadopoulos lied about the date of the meeting, and was indicted. 

Russiagate was Comey’s ultimate tour de force of entrapment. He knew that a rattled, blustery Trump would likely deny details if he thought it would help. Luckily for Trump, he had better lawyers than Richard Nixon and did not bite. Even at that, some of his private fulminations almost led to his indictment by a biased investigation team. 

Mueller, who is unimpeachably straight and honest, allowed his deputies the leeway to run an investigation that stretched discretionary authority beyond its elastic limits. Rather than simply asking Papadopoulos through his lawyers to surrender, the FBI arrested him in the evening, and made him stay in jail all night. Roger Stone and Paul Manafort were arrested in paramilitary pre-dawn raids, filmed by invited television cameras, with Manafort put in solitary confinement.

Was the entire “Russiagate” a Dirty Harry investigation? Dirty Harry cared about real crime and was not dishonest about what he did. Calling this a “Dirty Harry” investigation would be unfair to Dirty Harry. It was far worse. 

About John D. O'Connor

John D. O’Connor is a former federal prosecutor and the San Francisco attorney who represented W. Mark Felt during his revelation as Deep Throat in 2005. O’Connor is the author of Postgate: How the Washington Post Betrayed Deep Throat, Covered Up Watergate, and Began Today’s Partisan Advocacy Journalism.

Photo: Silver Screen Collection/Getty Images

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