White House chief of staff Mark Meadows has predicted indictments in the Justice Department’s probe of the origins of the FBI’s Russia-Trump investigation.
Although U.S. Attorney John Durham of Connecticut has been on the case since May 2019, however, it’s not clear what the precise criminal charges might be, if any.
“I expect indictments based on the evidence I’ve seen,” Meadows told Fox News Channel on Sunday. “You’re going to see a couple of other documents come out in the coming days that will suggest that not only was the [Trump] campaign spied on, but the FBI did not act appropriately as they were investigating.”
“It’s all starting to come unraveled,” the former North Carolina congressman said. “And I tell you, it’s time that people go to jail and people are indicted.”
Attorney General William Barr detailed Durham to conduct an investigation that has spanned several countries to determine whether high-ranking officials in the FBI, the CIA, or elsewhere used federal government power to block Donald Trump’s election in November 2016 and, later, to undermine his presidency by promoting a narrative of a conspiracy between the Russian government and the Trump campaign to influence the 2016 election.
“This may be literally the greatest abuse of power in history, but it could be hard to identify a specific statute that was violated,” Curt Levey, president of the Committee for Justice, a conservative legal group, told The Daily Signal.
However, Levey added, “In impeachment, the Democrats were convinced that Trump was guilty of abuse of power even if no identifiable laws were violated.”
Former FBI Director James Comey, former CIA Director John Brennan, and President Barack Obama’s national security adviser, Susan Rice, all have faced questions about alleged misuse of the Foreign Intelligence Surveillance Act and questionable “unmasking” of retired Army Gen. Michael Flynn and other Trump associates whose calls were intercepted under that law.
Lower-level officials in the Obama administration also are potential targets.
Some legal experts anticipate a report that details Durham’s findings, while others expect at least some indictments. Here are six potential outcomes of the U.S. attorney’s probe.
1. A Dud
The COVID-19 pandemic likely slowed down Durham’s probe, legal experts note.
“It slows everything down, just scheduling witnesses for an interview before you even bring anyone to a grand jury. I’m sure any good defense attorney is asking for as many delays as possible right now,” said John Yoo, a law professor at the University of California at Berkeley who wrote the book “Defender in Chief: Donald Trump’s Fight for Presidential Power.”
“If you look back on the timeline, people may be demanding too much in expecting charges to be brought,” Yoo, a former deputy assistant U.S. attorney general, told The Daily Signal. “I think it’s really only been a little over a year.”
He said the investigation is complex, “with all these high-powered people being investigated and all these legal issues involved.”
The timeline isn’t at all promising for legal accountability, said Tom Fitton, president of Judicial Watch, a government watchdog group
“Many, many Americans will be disappointed by the Durham investigation,” Fitton told The Daily Signal. “High level officials are unlikely to face legal accountability. I see no evidence the focus is on senior Obama administration officials.”
It’s not even clear that a grand jury has been impaneled to hear evidence, said Fitton, author of “A Republic Under Assault.”
“A serious investigation would have had a grand jury,” he said. “Senior officials would have been called before the grand jury. Now it is July and there have been no indictments. It’s been a year and a half, and nothing.”
“The Department of Justice has dropped the ball,” Fitton added. “The stonewalling is still going on.”
2. Lying to Judges or Investigators
If indictments happen, the most likely charge would have to involve lying to the secretive FISA court, to federal officials, or to investigators, former Justice Department lawyer J. Christian Adams said.
“If you lie in a FISA application, it is under oath,” Adams told The Daily Signal.
He specified 18 USC 1001 as the likely statute that could be used as the basis of criminal charges.
“That is exactly what Michael Flynn was charged with. So, the irony would be delicious,” said Adams, president of the Public Interest Legal Foundation, an election integrity group.
Flynn, Trump’s national security adviser for three weeks, was charged with lying to FBI investigators looking into conversations Flynn had with the Russian ambassador as incoming national security adviser.
3. Potential Targets
Based on public reports, multiple individuals face scrutiny in Durham’s investigation, including at least one high-profile figure, another who emerged with infamy, and a third lesser-known person.
FBI documents released in April show that Peter Strzok, who resigned in disgrace from the FBI, had ordered that the Flynn investigation remain open. This was despite a lack of “derogatory” information regarding whether Flynn violated the Logan Act, a law dating to 1799 that never has been used for a prosecution.
The Justice Department’s Office of Inspector General determined that two of the FBI’s four applications to the FISA court to spy on Trump campaign operative Carter Page had numerous errors and relied almost entirely on a document containing unverified and salacious material about Trump.
Compiled by former British intelligence official Christopher Steele, the document turned out to be funded by the Hillary Clinton presidential campaign and the Democratic National Committee.
Under the Trump administration, the Justice Department eventually admitted it lacked probable cause for a warrant to surveil Page.
The Justice Department’s Office of Inspector General report said that the CIA told former FBI lawyer, Kevin Clinesmith, that Page reported his Russian contacts to the CIA. However, the report said, Clinesmith omitted such exculpatory information in the FISA warrant seeking to investigate whether Page was a Russian agent.
The New York Times reported in October that Durham’s team had interviewed about two dozen former and current FBI officials. The team looked into “whether CIA officials might have somehow tricked the FBI into opening the Russia investigation,” the Times said.
The Times reported that Durham’s team “appeared focused at one point on Peter Strzok.”
“I suspect that Durham may be focused on Brennan and culpability in suppression of evidence on intelligence to justify surveillance on the Trump campaign,” Peter Flaherty, president of the National Legal and Policy Center, told The Daily Signal. “If he misled other parts of the bureaucracy, that could be a problem.”
In February, the Times reported: “Mr. Durham appears to be pursuing a theory that the C.I.A., under its former director John O. Brennan, had a preconceived notion about Russia or was trying to get to a particular result—and was nefariously trying to keep other agencies from seeing the full picture lest they interfere with that goal, the people said.”
Brennan became a high-profile critic of Trump on cable news shows and social media.
In April, The Wall Street Journal reported that investigators were focusing on Brennan, “examining whether he pushed for a blunter assessment about Russia’s motivations than others in the intelligence community felt was warranted.”
4. Illegal Leaking
In April, The New York Times reported that the Durham team was focusing on leakers, particularly those who leaked the information about Flynn’s conversations with Russian Ambassador Sergey Kislyak to Washington Post columnist David Ignatius.
Leaking classified information can be prosecuted under the Espionage Act, a World War I-era law meant to shield national security information, the Committee for Justice’s Levey said.
“The Espionage Act is interpreted broadly as dealing not just with the national defense, but national security,” Levey said. “It’s not all classified.”
Levey added that national security leaks also could be prosecuted under a theft law, 18 U.S. Code 641. If convicted, someone who “knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States” could face 10 years in prison.
“There is a possibility of [prosecution under] a general federal theft statute,” Levey said. “That could be prosecuting leaks for taking things of value to the U.S.”
Given the number of individuals apparently targeted by Durham, conspiracy could be a potential criminal charge, Levey said.
“A conspiracy charge could widen the circle of people charged, but [a criminal statute] would have to be clearly identifiable,” he said.
Several FBI officials, including Comey as director, were involved in the initial FISA application for a warrant to spy on Page. So a possible charge is conspiracy to violate the surveillance law, the University of California’s Yoo said.
Comey, a vocal Trump critic since the president fired him in May 2017, has said he trusted those who worked under him.
“I don’t think it’s a great defense to say, ‘I approved the use of extraordinary surveillance measures on an American and I didn’t read it,’” Yoo told The Daily Signal.
“I was involved with FISA in the [George W.] Bush years, and I’m pretty sure people read them,” he said. “As a mid-level person myself, I wanted to make sure they read them so they would know what they are doing.”
Yoo also cited a White House meeting in the closing days of the Obama administration in which Comey, Rice, Obama, Vice President Joe Biden, and Deputy Attorney General Sally Yates discussed the FBI’s Flynn investigation.
“You’re talking about the head of national intelligence, the White House national security adviser, they could all be potentially involved,” Yoo said. “You already have reports of this meeting at the White House … in early January with Comey and Biden and Susan Rice.”
“Somebody potentially might have known,” he said, about possibly improper actions to target the Trump presidency.
Judicial Watch’s Fitton, not bullish about indictments, said a conspiracy charge is possible if Durham can show that multiple individuals knowingly provided false information to the FISA court.
“There may be charges for conspiracy. That only takes two,” Fitton said.
6. Just a Report
Given the limits on time, and a desire to get the truth out well before the next presidential election to avoid an appearance of politicization, some legal experts think Durham may provide only a report and no criminal charges.
“I never liked the approach Mueller took of writing a report and not indicting people, except on the periphery, though a report was part of his job,” the National Legal and Policy Center’s Flaherty said, referring to special counsel Robert Mueller’s lengthy, two-part report concluding that neither Trump nor his campaign conspired with Moscow.
“But, in the case of Durham, a report might give us a sense of what happened in what was an ongoing effort to push a president out of office after they tried to prevent him from getting elected,” Flaherty said, adding:
Durham could find things that should be alarming to people of all political persuasions if we weren’t so polarized. I would hope they would agree that an effort at the highest level of government to push a president out of office or keep a candidate from being elected president is wrong. Whether Trump is a sympathetic victim or not shouldn’t make a difference.
Yoo said a report from Durham could be more important than indictments in informing the public before it makes a decision at the ballot box.
“I’ve always thought a better idea might be not to get prosecutions, but to get a report out that explains what happened,” he said, adding:
A report this summer could do a lot of good. He could also say, ‘I’m not going to charge people like President Obama,’ but point out what was wrong. In a report, you could decide ‘We’re not going to charge so-and-so, but here’s all the things they did.’