How to jail the Russian hoax colluders

Now comes word that Attorney General Pam Bondi is opening a grand jury investigation into the attempt to falsely dragoon President Donald J. Trump with criminal Russian meddlers during the 2016 presidential election. In attempting to direct some measure of sunlight to ground that has been well trod and littered with distracting debris, the US Department of Justice will be facing a significant uphill battle.

First, various government officials planted seeds of disinformation and sowed misdirection during the first Trump administration, aided and abetted by the Biden administration in subsequent years. Robert Mueller was appointed in May 2017 to investigate alleged Russian interference in the 2016 election and purported ties to the Trump campaign. Mueller’s appointment came on the heels of the President’s decision to fire FBI Director James Comey, who had already arranged to leak classified information to the press in his own bid to bring down the President.

After nearly two years of dragging the President through the mud, Mueller’s “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.” No matter. Massive reputational damage had been done, and nearly half of American voters have been deceived into thinking President Trump colluded with the Russians to win elected office. As well, Mueller indicted a half dozen of the President’s associates for false statements and fraud, but no election interference crimes.

Second, the DoJ already investigated the matter of deep state prejudice, under the authority of Attorney General William Barr and Special Counsel John Durham. Barr, a brilliant attorney and one of the President’s first term attorneys general, as well as Durham, a career prosecutor with unimpeachable credentials, did not procure the smoking gun for which the President was searching. Durham’s three-year investigation concluded that the FBI committed a grievous wrong when it launched Operation Crossfire Hurricane, used a lower standard when it evaluated wrongdoing by the Clinton campaign, and “failed to uphold their important mission of strict fidelity to the law.”

For all their good faith and hard work, Barr and Durham, against massive deep state resistance to their investigation, suffered two acquittals but secured one guilty plea from an FBI lawyer who admitted doctoring a document It is difficult to fathom a different result with a different cast of prosecutors, nearly a decade after the fact.

Third, the DoJ is acting upon a referral from the Office of the Director of National Intelligence, Tulsi Gabbard. Despite her many talents, Director Gabbard is not an attorney. Nor is the ODNI a traditional law enforcement agency tasked with investigating criminal violations. ODNI does not possess the resources, training, or expertise to bring to bear that a more typical law enforcement partner would, such as the FBI or IRS. For example, it does not appear that ODNI has identified any particular section of the federal criminal code transgressed, how the elements of those statutes were violated and which actors in particular committed what violations.

Director Gabbard did state that there was a “treasonous conspiracy” to “lay the groundwork for what was essentially a years-long coup against President Trump” by “President Obama and his national security team.” Treason is the most serious federal criminal offense chargeable; indeed it is the only crime defined by the Constitution itself. Treason is punishable by death.

In the history of the republic, only about 12 people have been convicted of treason, and the government has prosecuted only about 40 cases. According to the U.S. Constitution, “Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.” Under existing caselaw, a conviction for treason would require the DoJ to prove two elements: (i) adherence to an enemy of the United States demonstrating an intent to betray; and (ii) the provision of aid and comfort to that enemy through a specific act or acts. At least two witnesses must testify as to the same overt act, unless the DoJ obtains a confession from the accused in open court. In other words, treason goes beyond sabotaging a current government; it requires championing an alien government. As the Supreme Court observed, “The law of treason… properly makes conviction difficult but not impossible.”

The DoJ will have to invest significant resources into the heavy lifting of investigating who did what and when, and all before any relevant statutes of limitations expire. Witnesses must testify, voluminous records must be subpoenaed and produced, and appropriate legal theories must be researched. Then, the DoJ must compile a cohesive and credible chronicle of how the Russian hoax was perpetrated on the world. That record must be demonstrated to a grand jury by probable cause and proven to a petit jury beyond a reasonable doubt. The burden and time pressure this puts on the DoJ could not be overstated.

Thus far, the mainstream media has largely ignored the origins of the “Donald J. Trump as Russian asset” defamation diatribe. The fourth estate’s failure to engage in investigative journalism when the targets are Democrats is yet another egregious example of media bias that distorts the public narrative. Perhaps the opening of a grand jury investigation will make the press’s continued silent treatment impossible. Certainly, the American people as well as President Trump deserve the truth. The pressure is now on Attorney General Bondi to deliver.