June 8, 2023
Permission to republish original opeds and cartoons granted.
As Trump leads Biden in polls, Justice Department plans to indict him over documents he says he declassified
By Robert Romano
The U.S. Justice Department appears poised to indict former President Donald Trump over documents he says he declassified before he left office, with possible allegations of Espionage Act and obstruction of justice charges pending according to U.S. news outlets.
The news comes as former President Trump has been leading President Joe Biden in national polls of the imminent 2024 presidential election. The latest RealClearPolitics.com average of the head-to-head matchup between Trump and Biden has Trump leading 45.5 percent to 43.7 percent, and it’s not even 2024 yet.
Trump is also easily leading the pack in the Republican nomination, averaging almost a 31-point lead over his closest challenger, Florida Republican Gov. Ron DeSantis, including in early states like Iowa and New Hampshire.
The indictment therefore cannot be separated from the political ramifications that are likely to ensue from the optics of the sitting President and his administration taking down his top opponent in the presidential election.
On Truth Social, Trump issued a statement on June 7, calling the imminent federal case “election interference” on a scale never seen. He’s not wrong.
Trump stated, “Wow, this is turning out to be the greatest & most vicious instance of ELECTION INTERFERENCE in the history of our Country. Remember, I’m leading DeSanctimonious BIG in the Polls but, more importantly, I’m leading Biden by a lot. Also, & perhaps most importantly, they are launching all of the many Fake Investigations against me RIGHT SMACK IN THE MIDDLE OF MY CAMPAIGN, something which is unheard of & not supposed to happen. DOJ, FBI, NEW YORK A.G., NEW YORK D.A., ATLANTA D.A. FASCISTS ALL!”
And it might not even be that strong of a case.
The day before he left office, former President Trump declassified a trove of documents related to the Justice Department’s botched investigation of Trump that falsely accused him and his 2016 presidential campaign of being Russian agents.
In the memorandum, entitled, “Memorandum on Declassification of Certain Materials Related to the FBI’s Crossfire Hurricane Investigation,” Trump outlined how the materials were presented to him to be declassified: “At my request, on December 30, 2020, the Department of Justice provided the White House with a binder of materials related to the Federal Bureau of Investigation’s Crossfire Hurricane investigation. Portions of the documents in the binder have remained classified and have not been released to the Congress or the public. I requested the documents so that a declassification review could be performed and so I could determine to what extent materials in the binder should be released in unclassified form. I determined that the materials in that binder should be declassified to the maximum extent possible.”
But not before the FBI complained about the need for redactions, with Trump granting the redactions: “In response, and as part of the iterative process of the declassification review, under a cover letter dated January 17, 2021, the Federal Bureau of Investigation noted its continuing objection to any further declassification of the materials in the binder and also, on the basis of a review that included Intelligence Community equities, identified the passages that it believed it was most crucial to keep from public disclosure. I have determined to accept the redactions proposed for continued classification by the FBI in that January 17 submission.”
The Trump memorandum continued, “I hereby declassify the remaining materials in the binder. This is my final determination under the declassification review and I have directed the Attorney General to implement the redactions proposed in the FBI’s January 17 submission and return to the White House an appropriately redacted copy.”
That redacted copy was never returned to the White House as ordered. In May, former Trump administration official Kash Patel said he witnessed the declassification himself in a phone interview with Breitbart.com, but that the documents remained unaltered and had retained their classified markings: “The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified. I was there with President Trump when he said ‘We are declassifying this information.’”
Apparently, the Justice Department simply refused to comply with the declassification order, even with the redactions accepted by Trump, and so Trump was left with a decision. Leave it to Biden, or declassify everything and take them with him. Here, Patel appears to be saying that Trump simply decided to declassify the documents in toto and take his chances.
And the Biden Administration Justice Department led by Attorney General Merrick Garland never complied with the Trump memorandum either, Senate Judiciary Committee Ranking Member Chuck Grassley (R-Iowa) and Sen. Ron Johnson (R-Wis.) revealed in a Feb. 15, 2022 letter to Garland. It was a follow-up to an Oct. 2021 letter on the same complaining about the lack of disclosure.
These appear to be the same documents the FBI raided from Trump’s residence in Palm Beach, Fla., Mar-a-Lago, on Aug. 8, 2022. On Truth Social, on Aug. 12, 2022, Trump noted that “it was all declassified,” referring to the documents seized.
The President’s inherent powers to declassify military and other national security information derives from the Constitution’s Article II, Section 1 vesting clause: “The executive power shall be vested in a President of the United States.”
In 1988, in Department of Navy v. Egan, the U.S. Supreme Court outlined the contours of the President’s primary responsibility for classification of sensitive national security documents as deriving directly from Article II, not from any Congressional statute: “The President, after all, is the ‘Commander in Chief of the Army and Navy of the United States.’ U.S. Const., Art. II, 2. His authority to classify and control access to information bearing on national security and to determine whether an individual is sufficiently trustworthy to occupy a position in the Executive Branch that will give that person access to such information flows primarily from this constitutional investment of power in the President and exists quite apart from any explicit congressional grant.”
The years-long, top secret investigation began in July 2016 following false allegations by Clinton campaign operatives that Trump had somehow supported a Russian plan to hack the Democratic National Committee (DNC) email server and post them on Wikileaks, and then was carried over into the Trump administration in 2017, leading to the recusal of former Attorney General Jeff Sessions, the firing of former FBI Director James Comey and the appointment of former Special Counsel Robert Mueller, who found no such conspiracy.
The Mueller report ultimately stated, “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” and “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference.”
The problems with the Justice Department investigation were further outlined by Special Counsel John Durham in his devastating report outlining the Justice Department, State Department, intelligence agencies and FBI’s “confirmation bias” that led to the investigation of Trump’s 2016 presidential campaign, transition and then administration falsely alleging that Trump and his campaign were Russian agents who had helped Moscow hack the Democratic National Committee (DNC) and put their emails onto Wikileaks despite the fact that the FBI could not “corroborate a single substantive allegation in the [Christopher] Steele dossier reporting,” which was sourced to the Hillary Clinton campaign and the DNC.
During the course of the investigation, the Justice Department obtained surveillance against the Trump campaign and the GOP, first by targeting campaign foreign policy advisor George Papadopoulos via foreign agency efforts beginning in mid-2016, and then with Foreign Intelligence Surveillance Act (FISA) warrant applications on campaign foreign policy advisor Carter Page beginning in Oct. 2016, fueled by the DNC-Steele dossier falsely accusing President Donald Trump, Page and Paul Manafort of being Russian agents, that was renewed after the election and then finally the fateful strike on former National Security Advisor Michael Flynn in Jan. 2017, spying on his Dec. 2016 phone call with the Russian ambassador where Flynn attempted to deescalate tensions with Moscow, leaking it to the Washington Post on Jan. 12, 2017, sending the FBI to ask about it on Jan. 24, 2017 — all encompassing the bedrock of a three-year-long Justice Department investigation, undertaken under the mistaken belief that the nation had just elected a Manchurian Candidate, and risking nuclear war as matters continue to escalate in Ukraine following Russia’s invasion there.
And now it’s all coming to a head on the eve of the 2024 election. After 2020, former President Trump decided that he was not going to leave office lightly. He was going to take the truth with him. And as Kash Patel noted in the Breitbart.com interview, “he thought the American public should have the right to read [it] themselves.”
Instead, President Biden has apparently decided to reclassify those documents and continue to hide the truth from the American people, using the same Article II authority former President Trump used to declassify them in the first place.
The real question that might be asked is “What is Biden hiding?” We might find out soon, but ultimately, it will be for the American people to decide it this is all worth overturning the nation’s two-party system to prop up a failing president who appears to dread a head-to-head matchup with his former rival, and instead seeks to imprison him. This is dangerous, but politically, as the polls indicate, it could be benefitting Trump in unanticipated ways, predictable to see outside the Beltway, but less so for an entrenched political establishment and permanent state too blinded by their own power — and their desperation to keep it.
Robert Romano is the Vice President of Public Policy at Americans for Limited Government Foundation.
To view online: https://dailytorch.com/2023/06/as-trump-leads-biden-in-polls-justice-department-plans-to-indict-him-over-documents-he-says-he-declassified/
Video: Can One State Regulate the Entire Nation? The California Effect
To view online: https://www.youtube.com/watch?v=TXy8CG6n2sc
Aaron Mate: Russiagate Prober Durham Neglected DNC Hack Claim, Despite Evidence It Too Was a Democrat Sham
By Aaron Mate
Special Counsel John Durham’s final report faults the FBI for opening the Trump-Russia collusion investigation on baseless grounds and relying on Hillary Clinton-funded material to pursue it, all while ignoring a warning that Clinton was plotting to frame Trump as a Russian asset. Yet Durham does not address the Clinton campaign’s equally central tie to Russiagate’s other foundational allegation: that Russia interfered in the 2016 election by hacking Democratic party servers and releasing the material through Wikileaks to help elect Trump.
Durham’s silence on the Clinton team’s role in generating this unproven claim comes despite his unearthing of evidence that newly calls it into question.
Material obtained by Durham’s team shows that the Clinton campaign and its contractor, the cyber-firm CrowdStrike, stonewalled the FBI’s requests for critical data about the alleged Russian hack. Two key Clinton associates who were integral to the Russian hacking claim also appear to have perjured themselves before Congress.
RealClearInvestigations has pieced together these overlooked revelations through court documents connected to Durham’s probe, particularly his unsuccessful prosecution of Clinton campaign attorney Michael Sussmann on a separate perjury charge.
In April 2016, Sussmann hired CrowdStrike to investigate the alleged hack of the Democratic National Committee (DNC) and Democratic Congressional Campaign Committee (DCCC). In mid-June ‒ just as Christopher Steele and Fusion GPS were producing their first Clinton-funded dossier report alleging a Trump-Russia conspiracy ‒ Clinton-funded CrowdStrike came forward to publicly accuse Russia of hacking the Democrats’ computer networks. Sussmann, who worked closely with the firm, lobbied the FBI to endorse the allegation. The FBI initially declined, but reversed course months later despite failing to examine the DNC/DCCC servers. Instead, much like its use of Steele’s dossier for surveillance warrants and investigative leads when it came to collusion, the FBI relied on CrowdStrike’s forensics and redacted reports.
The Democrat-tied firm’s president has admitted it “did not have concrete evidence” of Russian hacking. Now new evidence casts further doubt on that scenario. But Special Counsel Durham did not pursue it.
CrowdStrike.com
The FBI’s dependency on CrowdStrike – and, indeed, the entire basis for the Russiagate probe ‒ was further called into question when it emerged that the firm’s president had admitted under oath that it “did not have concrete evidence” of Russian hacking. Shawn Henry, a former close FBI colleague of Directors Robert Mueller and James Comey, made the disclosure to Congress in December 2017. Yet his testimony was kept secret throughout the entirety of the FBI’s Comey- and Mueller-overseen Russia probes, and only became public in May 2020.
Exhibits released by Durham in Sussmann’s case expose a new problem for CrowdStrike and its client the Clinton campaign: In recounting their roles in the FBI’s Russian hacking probe in congressional testimony, Sussmann and Henry gave identical false statements.
FBI Officials Contradicted
When they appeared before the House Intelligence Committee in December 2017, both Sussmann and Henry claimed that the FBI did not try to conduct its own independent, onsite investigation of the Democratic Party servers. The pair’s account contradicted FBI officials, including Comey, who have said that they requested access but were denied.
Asked directly if the FBI sought access to the servers, Sussmann replied: “No, they did not.” He then added a caveat: “Excuse me, not to my knowledge.” The FBI, Sussmann added, “would have” had access “if they wanted it ... But it wasn't something that they were interested in at the time.”
CrowdStrike’s Henry also told the committee that he was “not aware” of the FBI ever asking for access to the servers or being denied it. Asked directly if he was ever told that the FBI “required access to the servers,” Henry said: “I have no recollection of them saying that to me or anybody on my team, no.”
Henry and Sussmann’s accounts are not only at direct odds with the FBI, but with their own emails that Durham obtained.
In October 2016, these emails show, the FBI directly asked Sussmann if the bureau could come onsite to inspect and copy the servers. Sussmann relayed that request to Henry and other CrowdStrike executives – who promptly stonewalled it.
In an October 13, 2016 exchange, Elvis Chan, a special agent in the FBI’s San Francisco office, asked Sussmann if the “DNC/DCCC would be amenable to letting FBI computer forensics personnel onsite to conduct the imaging” of the servers. “In theory, sure,” Sussmann replied, adding that he would “put you directly in touch with CrowdStrike.”
Contradicting what he would tell Congress the following year, Sussmann informed Henry and others at CrowdStrike that the FBI is “asking whether FBI computer forensics personnel can come ‘onsite’ to conduct the imaging.” Sussmann added that he was “connecting CrowdStrike and the Bureau to discuss directly on this email chain.”
In response, CrowdStrike executive Justin Weissert did not address the FBI’s request for onsite access. Weissert instead introduced a new proposal: CrowdStrike would send the FBI a copy of the firm’s imaging of the servers.
“As we just discussed under a separate email thread, CrowdStrike wants to assist with this effort and, given the nature of the past activities and our commitment to supporting our friends at the FBI, we’re going to move ahead with providing the information at no additional expense to anyone,” Weissert wrote.
Rather than remind CrowdStrike that he had asked if FBI cyber experts could come “onsite to conduct the imaging,” Chan accepted the offer and provided a mailing address. “FBI San Francisco greatly appreciates your help,” he wrote.
Given that Sussmann personally received the FBI’s request and relayed it to CrowdStrike, his erroneous recollection is especially suspect.
Asked about their false statements to Congress, Sussmann and Henry did not respond to RCI’s questions by the time of publication. CrowdStrike also did not respond to a request for comment.
A Missed Opportunity
In failing to address this episode, Durham missed an opportunity to press Sussmann and Henry on why they denied the FBI access to the DNC servers – and whether their false statements to Congress amounted to a criminal offense. By contrast, the Mueller team aggressively prosecuted four Trump associates for alleged false statements, including two cases – Roger Stone and Michael Cohen – for perjury before Congress.
The Durham materials also reveal that the FBI’s failure to examine the DNC servers was not its only rebuffed request. Emails obtained by Durham show that CrowdStrike and the Clinton campaign ignored what the FBI listed as its number one “Priority Requests”: “Un-redacted copies of CrowdStrike reports” on both the DNC and DCCC “incidents.” That request, also made to Sussmann, came in a September 30, 2016, email from FBI Special Agent E. Adrian Hawkins.
The FBI never got what it wanted. In a May 2019 court filing, the Justice Department disclosed that the U.S. government “does not possess” CrowdStrike's unredacted originals, and that Sussmann only provided “three draft reports” in redacted form.
In Senate testimony, James Trainor, then-assistant director of the FBI's Cyber Division, recalled that he was "frustrated" with the CrowdStrike report he received in late August 2016 and "doubted its completeness" because Sussmann had “scrubbed” it. According to Trainor, the DNC's cooperation in the hacking probe was "moderate" overall and "slow and laborious in many respects.”
CrowdStrike’s redacted reports were provided to the House and Senate Intelligence Committees, but have not been publicly released. The FBI has denied RCI’s Freedom of Information Act requests for the CrowdStrike reports, releasing only the documents’ cover pages.
Changing the FBI's Messaging
Other emails released by Durham in Sussmann’s case show that the Clinton lawyer personally reviewed and edited an FBI public statement on the alleged hack of the DNC.
On July 29, 2016 – just one week after WikiLeaks released a trove of embarrassing Democratic Party emails – the FBI drafted a press release on what it called “a possible cyber intrusion involving the DCCC.” Trainor contacted Sussmann for input.
“A draft response is provided below,” Trainor wrote. “Wanted to get your thoughts on this prior to sending out.”
In response, Sussmann took exception with the FBI’s mention of a “possible” hack. This qualifier, he noted, contradicted the Clinton campaign’s messaging on a Russian intrusion.
“The draft you sent says only that the FBI is aware of media reports; it does not say that the FBI is aware of the intrusion that the DCCC reported,” Sussmann wrote. “Indeed, it refers only to a ‘possible’ cyber intrusion and in that way undermines what the DCCC said in its statement (or at least calls into question what the DCCC said).”
Accordingly, Sussmann suggested new language that removed the FBI’s caveat of a “possible” hack. Trainor accepted the Clinton lawyer’s edit. “I am fine with the below suggestions,” he wrote.
The FBI’s failure to obtain both direct access to the DNC servers and unredacted copies of the CrowdStrike reports further calls into question U.S. intelligence officials’ claim that Russia hacked the DNC.
On October 7, 2016, the Department of Homeland Security (DHS) and the Office of the Director of National Intelligence (ODNI) issued a joint statement claiming, for the first time, that the “U.S. Intelligence Community is confident that the Russian Government directed the recent compromises of e-mails” from the Democratic Party. Jeh Johnson, who then served as DHS secretary, later testified that President Obama “approved the statement” and “wanted us to make [it].”
Yet as Durham’s Sussmann-FBI emails confirm, this Obama-approved claim was released one week before CrowdStrike denied the FBI’s request for an “onsite” inspection. This timing means that when the intelligence community made its first public attribution of Russian hacking, it had not only failed to inspect the servers, but had not even received CrowdStrike’s copies of them.
When the FBI and DHS released a more detailed report two months later, the document described the alleged Russian hacking effort as "likely leading to the exfiltration of information" from Democratic Party networks. (Emphasis added.)
The Mueller probe, having also relied on CrowdStrike’s forensics, failed to add any more certainty. Mueller’s final report of April 2019 likewise stated that Russian intelligence "appear to have stolen thousands of emails and attachments" from Democratic Party servers. (Emphasis added.)
Read in retrospect, these qualifiers – "likely" and "appear" ‒ signaled that U.S. intelligence lacked concrete evidence for their Russian hacking claims, given that CrowdStrike and the Clinton campaign had denied the FBI full access to the digital crime scene. The material emerging from Durham’s probe newly confirms this significant evidentiary hole.
Durham’s decision to ignore the FBI’s deference to Clinton-funded CrowdStrike is all the more striking given his criticism of the FBI’s extensive use of Clinton-funded sources in its hunt for collusion.
The FBI, the Durham report notes, relied on a “significant quantity of materials ... that originated with and/or were funded by the Clinton campaign or affiliated persons.” Accordingly, Durham concluded, the FBI should have considered whether the Clinton camp was feeding it false claims as “part of a political effort to smear a political opponent” and exploit “the federal government's law enforcement and intelligence agencies in support” of that goal.
For unexplained reasons, Durham did not apply this critique to the FBI’s reliance on Clinton-funded sources to probe the theft of Democratic Party emails. As a result, seven years to the month after CrowdStrike triggered the Russiagate saga, the U.S. public remains in the dark about whether the Russian hacking allegation was yet one more deception funded by the Clinton campaign and parroted by the FBI.
To view online: https://www.realclearinvestigations.com/articles/2023/06/06/what_durham_skipped_903673.html