From Russia With Love?

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Let’s cut thorough the Trump/Russia hysteria. Russia did not cost Hillary Clinton the election, and President Donald Trump is not accused of breaking the law with Russia.

Confused about the Russia investigations? Here’s a decoder.

First, let’s look at what Russia is not accused of doing:

  • Russia is not accused of manipulating vote tallies to give Trump the election (i.e., it did not alter vote counts in Florida, Pennsylvania, Wisconsin, or elsewhere and thereby cause Trump to win a majority of votes in the Electoral College).
  • Russia is not accused of revealing Hillary had a secret server she and her husband were using while she was Secretary of State and thereafter to shake down foreign governments for bribes. (Those sincerely concerned about foreign interference in U.S. policy would do well to investigate why foreign governments paid the Clintons tens of millions of dollars.)
  • Russia is not accused of hacking emails from Hillary’s server — others apparently did that.
  • Russia is not accused of revealing the FBI investigation of Hillary, or Bill’s secret meeting with Attorney General Loretta Lynch in the middle of the investigation.

Also:  Russia did not make Hillary refer to a large segment of the population as “deplorables,” or cause her flip flopping on numerous issues. And Russia was not responsible for the failed Obama administration which sparked a public backlash favoring Trump.

In short, Hillary lost the election on her own, and would have lost without any Russian interference.

So what is Russia accused of doing?

Russia is accused of hacking or phishing (or helping to hack or phish) truthful emails from the Democratic National Committee. These actual emails (not fake emails) showed the tawdry inner workings of the DNC and mainstream media as they sought to cripple Bernie Sanders during the Democratic primaries. (Examples include party staffers working with CNN to plant debate questions for Hillary and reveal questions to her pre-debate.)

I am not sure when disclosure of bad conduct by public officials became more important than the bad conduct itself, but Hillary has been able brazenly to complain about the revelation of her misconduct as though she were a victim – rather than someone who engaged in at least sleazy and likely unlawful conduct. Lots of chutzpah there.

In any event, did the one thing the Russians are actually accused of doing related to the election – revealing DNC emails — cause Hillary to lose to Trump?  Certainly not.

And, so far, Trump is not even accused of doing anything illegal with Russia. Instead, he is “accused” of “colluding” with Russia to influence the election. “Colluding”? What the heck does that mean? An intentionally vague and ambiguous word. Trump is not accused of helping Russia hack the DNC emails mentioned above. Even former FBI director James Comey, who clearly hates Trump with the passion of a thousand suns, admitted Trump was not even under investigation for “colluding” with Russia – let alone was there evidence of Trump/Russia “collusion.”

If colluding means Russia wanted Trump to win, there is nothing illegal about that, or about Trump also agreeing he should win, or coordinating with Russia to win — were that so. “Colluding” in that sense is not illegal. Foreign governments try to influence U.S. elections all the time, as U.S. politicians try to influence foreign elections all the time. Witness former President Barack Obama’s endorsement in the recent French election, and the sides taken by U.S. politicians on Brexit. Nothing illegal about this sort of “collusion.”

Why would Russia prefer Trump to Hillary, anyhow? As Secretary of State Hillary began her tenure with the (misfired) “RESET” button a la Staples; whereby she and President Obama offered to make amends to Russia for how mean the United States had been to them. Obama mocked Mitt Romney during the 2012 Presidential debate for asserting Russia was our country’s biggest threat — hey Mitt, “the 1980s are now calling to ask for their foreign policy back!” Russia then had its way with Obama during the following four years, annexing Crimea and pushing into Ukraine. For the first time in nearly a century, Russia muscled the United States out of control of the Middle East, and scoffed at President Obama when its ally Basher Assad gassed civilians across Obama’s redline. Russia showed Obama to be in way over his head, an impotent leader. Why, indeed, would Russia want a Republican in the White House? (And, exposing the schizophrenia of the press, two months ago the press criticized Trump for being too hard on Russia/Syria when Trump ordered air strikes to punish Assad for again using poison gas.)

All that said, Putin is having a ball as the media and anti-Trump crew obsess over Putin’s alleged ability to install a U.S. president of his choosing. Democrats and the media are falling right into Putin’s hands.  Not since the days of Senator Joseph McCarthy has there been so much concern about Russian (Soviet) interference in the United States.

But what about allegations Mike Flynn and Jared Kushner spoke to Russian officials in December? First, December is AFTER the election. Second, of course people involved in the transition spoke to foreign officials. Trump rightly could have been criticized for not preparing to assume the presidency had his team not reached out to foreign governments. Nothing illegal there.

But Trump asked Comey to drop the investigation of Flynn, you say — isn’t that obstruction of justice?  Of course not. Even if Trump explicitly ordered Comey to drop the investigation (which so far has not been alleged), such an order would not be obstruction of justice or illegal. President Trump is the chief executive and deciding whom to investigate or prosecute falls under his responsibility under the unitary executive theory of our federal constitution. Simply put, the president cannot obstruct himself. You might not like it. You might think it is a bad decision.  You might think he should pay a political price for it. But exercising this power is not a crime. Prosecutors decide all the time whom to prosecute and whom not to prosecute – including not prosecuting guilty people — and such decisions are not obstruction of justice. The remedy is not criminal prosecution; the remedy is political.

In the United States, we do not (as a rule) have government officials who answer to no one. The FBI director answers to the president, and the president can direct what he does and fire him if he likes. The President, in turn, answers to the American people, and they can throw him out of office in the next election if they so choose.

The last time the United States had an all-powerful FBI director answerable to no one, J. Edgar Hoover, things did not go so well. As Karl Rove recently noted, history might have been different had President Kennedy fired Hoover, or at least told him to stop investigating Martin Luther King.

Similarly, it was not the crime of obstruction of justice during the election when President Obama loudly defended Hillary Clinton’s email conduct. During Comey’s ongoing investigation, Obama minimized Hillary’s conduct, saying she had merely been careless, and proclaiming she would never “intentionally put America in any kind of jeopardy.” Shortly after Lynch met Bill Clinton on a tarmac, the Hillary campaign leaked that Hillary was considering keeping Lynch on as AG if she won the election. Do you think Obama’s and Hillary’s statements might have influenced Attorney General Loretta Lynch’s investigation? Did they cause Lynch to tell Comey to refer to the criminal investigation of Clinton as a “matter” involving a “server” and not the criminal “investigation” of Hillary he knew it was? Do you think Comey missed the message? Did Obama’s and Lynch’s statements have any less influence on Comey than Trump saying, “‘I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go”? Trump did what Obama did but in a less subtle (and less effective) way.

In short, it would not be obstruction of justice if Trump had said to Comey:  I fired Flynn for lying to Vice President Pence; Flynn has been punished enough and I now think it is in the best interests of the country not to investigate Flynn for talking to Russia during the transition, as that was perfectly legal anyway, so let’s move on.

Interestingly, had Flynn committed a crime — and there is no indication he did in speaking with the Russian Ambassador — Trump always could have pardoned Flynn. And unlike when President Bill Clinton and Eric Holder pardoned Marc Rich, there is no allegation Trump received a bribe, and of course Clinton and Holder were not prosecuted for pardon selling.

Stepping back, what makes the Comey obstruction of justice brouhaha so overblown is that what Trump said to Comey in private, Trump had made abundantly clear to Comey and to the world in public. It was no secret Trump wanted Comey to say publicly that Trump was not under investigation. It was no secret Trump wanted Flynn cleared. It was no secret Trump wanted the investigation over. And it was no secret Trump was considering firing Comey – and no secret Democrats and Republicans, in turn, had called for Comey to be fired. Surely Comey knew all this, and knew he was more likely to keep his job if he did what Trump wanted.

In sum, despite all the hyperventilating, there is no allegation of a crime, let alone any evidence of a crime involving Trump and Russia — other than leaks of classified material by anonymous sources of which Trump was the victim. Hate him though you may, Trump won the election because a majority of people in a majority of states with a majority of electoral votes liked him better than Hillary — not because of those Russkies.


John B. Daukas practices law in Boston. The views expressed in this column are his own and not those of his law firm.