Inquiry into origins of Russia investigation is a scam

President Donald Trump ratcheted-up his war on law enforcement last week when he ordered all federal intelligence agencies to “quickly and fully” cooperate with Attorney General Bill Barr’s probe into the origins of the FBI investigation into Russia’s interference in the 2016 presidential election.

Ordinarily, a presidential order directing federal agencies to cooperate with a Department of Justice investigation would be hailed as strong and decisive support of law enforcement. But not here. Not now. Not with President Trump. 

The president’s move to “investigate the investigators” is designed to make agents and prosecutors think twice before they pursue legitimate evidence against him — which threatens a chilling effect on other investigations still in progress.

It’s no great surprise that Trump took this path — or that his loyal base is now chanting “Lock them up” as a threat to law enforcement agents who dare investigate the president. The stunning development has been the eager participation of Congressional Republicans and the attorney general. 

While the past two years have exposed a frightened and cowed GOP, resigned to carry the president’s water, Trump’s first attorney general, Jeff Sessions, pushed back against White House efforts to morph the Justice Department into a pawn of the president. In sharp contrast, Bill Barr has shown his spine to be the moral equivalent of sugar-free Jello. 

Mr. Trump’s rallying cry to “investigate the investigators” began with his baseless 2017 claim that President Obama “wiretapped” his telephones. Since then, the president has manufactured similar claims that he’s placed on a public canvas like dots on a Seurat painting. Up close, they’re just a bunch of dots. But step back, view the larger picture, and you’ve got a full-fledged investigation into the FBI leadership and agents who investigated the president. Given that the FBI is part of DOJ, it’s like watching a dog gnaw its own tail to the bone. 

Nothing I’ve said should be interpreted as suggesting that law enforcement is immune from investigation. To the contrary, some of the most satisfying cases I handled as a federal prosecutor were investigations of bad cops. But there is a difference between investigating law enforcement agents who have violated the public trust and investigating agents for having the courage to do their job, even if it means shining a light on the corrupt underbelly of the most powerful man in the world.  

Any reasonable examination of these two possibilities points to only one conclusion: The Trump-Barr tag team is political retribution against the FBI, rather than a legitimate effort to hold law enforcement accountable for a misstep.

Trump’s loudest complaint has been aimed at the Steele dossier, a compilation of reports by respected former British intelligence officer Christopher Steele. Published in 2017, the dossier was an early guide to Russia’s efforts at hijacking the 2016 election.

Because the Steele dossier contained intelligence that was not conclusively proven, the president has claimed its use was illegal and that it tainted all that came after, including Special Counsel Robert Mueller’s report. The problem with the president’s claim is well-known to the attorney general: Information that is not fully verified is legally allowed to be used in a criminal investigation, and is routinely used in wiretap applications. More to the point, it was a disclosure by Trump aide George Papadopoulos that started the Russia investigation, not the Steele dossier.

Trump has also endlessly attacked the Russia investigation as biased, based on personal texts of Peter Strzok and Lisa Page, two FBI employees who worked on the investigation. Some of their personal texts were critical of then-candidate Trump. Strzok and Page were quickly removed from the investigation, as a precaution, when their texts were discovered. And while they should not have been texting personal political messages on their FBI phones, the notion that investigators are free from political opinions is as naïve in its application as it is misguided in its aspiration. 

Agents, prosecutors, and judges all have opinions that they set aside to make professional decisions every day. If an agent’s personal political beliefs barred him from investigating a politician, only supporters of the politician would be assigned to investigate. If that’s the hill on which the president and Congressional Republicans want to stake their flag, they should be forced to do so publicly. Let them issue a statement proclaiming that only law enforcement agents who voted for Trump may participate in an investigation in which he is a subject. 

In an effort to cement his complicity in the president’s unwarranted attack on the Russia probe, last month Barr told Congress that the Trump campaign had been “spied on” by law enforcement. It appears Barr was referring to court-authorized surveillance as “spying.” No prosecutor worth his salt would ever refer to legal surveillance as “spying,” and Barr’s decision to do so was designed more as a favorable Trump headline than a genuine revelation. 

The president, his Congressional proxies, and Barr have done everything in their power to create hysteria around the central theme that Trump and his campaign were victims rather than legitimate subjects of the FBI’s Russia investigation. Just last month, Mr. Trump told Fox News: “This was a coup. This was an attempted overthrow of the United States government.” And on Sunday, Rep. Liz Cheney (R-Wyo.) said FBI agents investigating Trump may have committed “treason.”

The problem for Democrats is that the law related to investigative techniques is complex and is not intuitive in a way the public can easily understand. Addressing allegations of impropriety does not come quickly or simply and is not amenable to a soundbite that can be absorbed when skimming a headline or half-listening to the news while preparing dinner.  

This works in the president’s favor, and he capitalizes on it by repeating phrases like “coup,” “fake dossier,” and “FBI bias.” Debunking these claims takes time and effort, both of which are in short supply with a public that is growing weary of all things Russia. 

Repetition has become reality, despite proof to the contrary. 

As a nervous flyer, I never listen to what the pilot says about the turbulence that is tossing us around like a toy boat in a two-year-old’s bath. I always keep my eyes on the flight attendants. If they are looking at each other in horror, I know I’m in trouble. But if they keep popping M&M peanuts into their mouths, I know I’ll live to see another day.  

The public can no longer look to the head of the Justice Department to reliably assess the truth of what comes from DOJ. Keep your eyes on the federal prosecutors who have become mainstays on most news outlets since Donald Trump moved into the White House more than two years ago. 

As former Justice Department prosecutors, we are no longer beholden to DOJ. We realize the peril of the partisan misinformation that is coming from the institution to which most of us dedicated our professional careers. More than 1,000 of us have signed a statement that contradicts the attorney general and tells the truth about Mueller’s report.

As the Trump-Barr effort to discredit the Russia investigation shifts into high-gear, I predict things are going to go from bad to worse. I also predict the public will again hear a united voice of former DOJ prosecutors who insist the truth be told, despite Bill Barr’s best efforts to the contrary.

Michael J. Stern was a federal prosecutor for more than 24 years with the Department of Justice in Detroit and Los Angeles, prosecuting high-profile crimes, including conspiracy cases related to international drug trafficking and organized crime. He has since worked on the indigent defense panel for the federal courts. Follow him on Twitter @MichaelJStern1.