In the middle of the coronavirus pandemic that has killed nearly 88,000 Americans as of May 16, President Donald Trump has revived his attacks on the Russia investigation — and on the Obama administration, which he claims orchestrated the whole thing to frame him.
Trump is now trying to make “OBAMAGATE!”a thing, though it’s really just the latest iteration of the fringe theory that former President Barack Obama and “deep state” holdovers from his administration have been illegally plotting to undermine Trump’s presidency since its start.
Trump hasn’t actually explained what those illegal acts are. When asked Monday what crimes Obama had committed, Trump told reporters: “Uh, Obamagate. It’s been going on for a long time. It’s been going on from before I even got elected, and it’s a disgrace that it happened.”
The case of Michael Flynn, Trump’s former national security adviser, seems to be the latest “evidence” of the supposed conspiracy. Trump and his allies have been suggesting that the Obama administration acted illegally when it pursued a case against Flynn, who lied to the FBI (and to Vice President Mike Pence) about his Russia contacts and admitted under oath that he did so.
“Obamagate” is nonsense, and distracts from the Trump administration’s slipshod response to the coronavirus crisis. But Trump’s amplification of it is not. His defenders in Congress and in right-wing media are boosting it, seizing on benign facts to ensnare Trump’s 2020 opponent in the melee.
It has spurred new “investigations into the investigators,” including a new congressional probe announced Thursday by Trump ally Sen. Lindsey Graham (R-SC). The central question now is whether Trump’s rallying cry will be powerful enough to rewrite the history of the Mueller investigation.
Think of “Obamagate” as a “witch hunt” rebrand of sorts
“OBAMAGATE!” Trump tweeted over a particularly busy weekend online where he tweeted and retweeted a number of right-wing conspiracies. “The biggest political crime in American history, by far!” he wrote in response to one.
Sounds huge. But Trump himself has a hard time articulating exactly what happened. When asked by a reporter this week what he meant, he replied: “You know what the crime is. The crime is very obvious to everybody.”
Unless you spend a lot of time on fringe parts of the internet, it’s not. But this is the gist of what Trump is claiming: Obama and officials in his administration tried to sabotage Trump’s presidential campaign; when that didn’t work and he was elected anyway, Obama’s team tried to undermine Trump’s presidency by having “deep state” operatives loyal to Obama stay on in government and work to take down Trump from the inside. The primary way they supposedly did that, of course, was through the Russia investigation.
In this sense, “Obamagate” is sort of a rebrand of the “witch hunt” or “Russia hoax.”
The details of the crimes that supposedly make up Obamagate are quite a bit harder to parse. This is partly because there have been multiple iterations of this conspiracy theory. The earliest versions involved Trump claiming Obama had his “wires tapped” and was “spying on his campaign” or sent spies to try to “entrap” members of his campaign.
The latest incarnation seems to revolve around Michael Flynn, who pleaded guilty in 2017 to lying to the FBI about his conversations with Russian diplomat Sergey Kislyak, and whose case the Justice Department is now seeking to dismiss.
There seem to be two threads to the Flynn part of the conspiracy theory; how they overlap is less clear, but here’s a stab at it.
First, a brief recap of the Flynn case
Flynn pleaded guilty to making false statements to federal law enforcement about his communications during the presidential transition (after Trump had been elected but before he officially took office) with Russian Ambassador Sergey Kislyak.
In December 2016, during Trump’s presidential transition, the Obama administration put sanctions on Russia for its interference in the 2016 election. Flynn communicated with Kislyak and asked him not to retaliate.
When FBI agents — who were then investigating Russia’s role in the election and possible ties between the Trump campaign and Russia — asked Flynn about those conversations in early 2017, he denied that he’d brought up sanctions. Prosecutors also found evidence that Flynn may have broken the law in other instances, including failing to register as a foreign lobbyist, but prosecutors only charged him with that one count of lying to the FBI, to which Flynn pleaded guilty in December 2017.
In return, Flynn agreed to cooperate with special counsel Robert Mueller’s investigation. At the time, it was a major development in the probe that someone directly connected to Trump’s White House was working with prosecutors. And, at first, Flynn cooperated on multiple investigations. Mueller’s team described his cooperation as “substantial” and recommended that he serve little or no jail time.
But then Flynn started to have a change of heart, suggesting he had been railroaded by FBI officials who didn’t warn him it was a crime to lie to the FBI, or had pushed to interview him without a lawyer present.
Mueller’s team dismissed Flynn’s accusations, basically saying that Flynn, a 33-year veteran of the US armed forces, would have known it was a crime to lie to federal officials. Mueller pointed out that Flynn also told this fake story — that he hadn’t talked about sanctions with Russia — to members of the Trump administration, including Vice President Mike Pence, which is at least what they told the public.
But Flynn’s lawyers kept up this “entrapment” argument, and Trump and his conservative allies rallied to it. They pressed on the fact that Peter Strzok, the FBI agent who had sent anti-Trump text messages, participated in the Flynn interview.
Flynn then went so far as to attempt to withdraw his guilty plea.
How Flynn became central to this new conspiracy, Part 1
As Flynn began battling out his case in court, a few other things happened.
The big one: Mueller concluded his investigation in the spring of 2019. In his final report, Mueller affirmed that Russia had interfered in the 2016 presidential election and had done so to benefit Trump. However, the probe did not find sufficient evidence to establish that the Trump campaign had conspired with the Russian government on its interference efforts.
This allowed Trump to claim vindication of “NO COLLUSION!” although the Mueller report is more nuanced than that. The report, for example, notes that the investigation into the Trump campaign’s ties to Russia was hindered in many instances because those interviewed were not always forthright. “Those lies materially impaired the investigation of Russian election interference,” Mueller wrote.
The second big thing that happened: Attorney General William Barr took over the Justice Department (and oversight of the Mueller probe) in February 2019, and he made his skepticism of the investigation known. He testified in April that he wanted to determine whether the Russia probe was “adequately predicated” — i.e., whether it had a legitimate basis.
Barr appointed a federal prosecutor, Connecticut US Attorney John Durham, to review the origins of the Russia case (more on that later), and later appointed another prosecutor, St. Louis US Attorney Jeff Jensen, to review Flynn’s case.
As part of that review, FBI documents related to the case were unsealed in April. The partially redacted materials outline some of the deliberations among agents ahead of the Flynn interview in January 2017.
In a handwritten note, an FBI official (believed, based on the initials, to be Bill Priestap, the former head of FBI counterintelligence) writes that the goal of the interview with Flynn was “to determine if he is going to tell the truth [about] his relationship w/ Russians.” In another section, the note reads: “What is our goal? Truth/admission or to ... get him to lie, so we can prosecute him or get him fired?”
The author also writes in the note at one point: “If we get him to admit to breaking the Logan Act give facts to DOJ + have them decide ... If we’re seen as playing games, WH will be furious. Protect our institution by not playing games.”
Flynn’s defenders pointed to these documents — especially the note asking whether the goal was to “get him to lie, so we can prosecute him or get him fired?” — as proof that the FBI went into the interrogation with the intention of getting Flynn to lie. His attorneys used the memos to argue that Flynn was set up.
And Barr’s Justice Department agreed. Last week, the DOJ moved to drop its case entirely against Flynn. “Even if Flynn told the truth, Mr. Flynn’s statements could not have conceivably ‘influenced’ an investigation that had neither legitimate counterintelligence nor criminal purpose,” states the filing, which was submitted by Timothy Shea, the US Attorney in the District of Columbia.
None of the prosecutors who had previously been working on the Flynn case signed the court filing asking to drop the charges, and one of the lead attorneys withdrew from the case.
Priestap has told prosecutors reviewing the case that the notes about the Flynn interview were “misconstrued,” according to the New York Times, though the Justice Department did not inform the court about the interview in its effort to drop the charges against Flynn. (The judge has put the dismissal of Flynn’s case on hold, for now.)
But the DOJ’s move seems to have validated, and intensified, the cries from Trump and others that Flynn was a martyr who was framed as part of Obama’s campaign to take down Trump.
Oh, and there’s more: The “unmasking”
This week, Richard Grenell, the acting director of national intelligence and a Trump loyalist, sent Senate Republicans a declassified list of Obama-era officials who may have received intelligence on Flynn during the presidential transition. Senate Republicans released that list.
Remember, Flynn’s conversations with Kislyak were discovered as part of the routine surveillance of Russian officials’ communications by the National Security Agency. Usually, the identities of any US citizens who happen to show up in these intercepted communications are protected, since the NSA isn’t supposed to spy on Americans unless they get a special warrant.
But US officials — including members of Congress — can ask the NSA to “unmask” the names of these US citizens to better understand the foreign intelligence intercepts.
The list Grenell provided shows the names of top Obama administration officials who had been authorized to access the intelligence, though NSA chief Paul Nakasone could not confirm that the individuals on the list actually saw “the unmasked information.”
Before you shout “bombshell!”: Unmasking is standard practice. The Obama administration did it. The Trump administration does it. According to NSA data, from August 2015 to August 2016, about 9,000 US citizens were unmasked in communications. In 2017, more than 9,500. In 2018 — Trump’s first full year as president — more than 16,700 US persons were unmasked.
The memo from the NSA that reveals the names of the Obama officials who might have seen intelligence on Flynn also says that “each individual was an authorized recipient of the original report and the unmasking was approved through the NSA’s standard process, which includes a review of the justification for the request.”
Again, unmasking is supposed to happen when US officials legitimately need to know an individual’s identity to better understand an intelligence report they’re getting, as the New York Times’s Charlie Savage explains.
But Grenell’s declassified document lacks this context. It doesn’t say which intelligence reports about Flynn were unmasked or why. The dates on the document provided extend from the specific time period of November 8, 2016, to January 31, 2017; at least when it comes to the Russia investigation, Flynn had conversations about sanctions with Kislyak in December of 2016. Some of those intel reports predate that, so it’s not even clear it had anything to do with the Russia investigation. (Flynn was also up to some strange stuff with Turkey.)
Of course, this is not exactly how Republican allies of Trump are spinning this. “In light of General Flynn’s unmasking by the Obama Administration, the job of Congress will be to perform oversight of these unmasking requests to ensure the process was used for legitimate national security concerns, not reprisals or political curiosity,” Sen. Graham tweeted Wednesday.
Overall, the Flynn case was one thread in a sweeping investigation with a lot of troublesome threads. Russia interfered in the 2016 election, and Trump appeared to welcome it. Back in January 2017, the question was: Why, exactly, did Flynn lie to everyone about his conversations with the Russians, especially given that they had just meddled in the US elections? That question still hasn’t fully been answered. The Department of Justice, while releasing documents that appear favorable to Flynn, still has declined to make public the transcript of Flynn’s conversations with Kislyak.
This is also not to say that the Russia investigation was perfect. Inspector General Michael Horowitz, the DOJ’s independent watchdog, documented “serious performance failures” in how the FBI handled some elements of the investigation, specifically the wiretap of former Trump campaign aide Carter Page. Some of this could be attributed to sloppiness and negligence, but Horowitz did find one instance of real misconduct, specifically an attorney who falsified information regarding Page.
Those findings were troubling, no question. But they may not be unique to the Russia investigation, but rather endemic to the agency itself. And, critically, Horowitz found that the Russia investigation was appropriately predicated. He failed “to find documentary or testimonial evidence that political bias or improper motivation” drove the investigation.
That undermines the Trump allegation of some sort of plot against him. But Barr didn’t agree — and he’s pursuing his own review of the Russia probe.
The investigation that Trump defenders are banking on
In May 2019, Attorney General Wiliam Barr testified before the Republican-led Senate Judiciary Committee, where special counsel Robert Mueller’s findings were the main topic of conversation. And Barr made it clear that he had some unfinished business to attend to about the investigation.
“These are the things that I need to look at. And I have to say that as I’ve said before, you know, the extent that there was any overreach,” Barr testified. “I believe it was some — a few people in the upper echelons of the bureau and perhaps the department.”
Shortly after that Senate appearance, Barr tapped John Durham, the Connecticut US attorney, to review the origins of the Russia probe and the FBI’s actions in the counterintelligence investigations.
Durham has worked for both Democratic and Republican administrations reviewing law enforcement’s conduct, including in two high-profile cases involving the FBI’s handling of informant and mob boss Whitey Bulger and the CIA’s use of torture after 9/11.
Durham had the right résumé and bipartisan credentials to review the FBI’s counterintelligence investigation. But his appointment was still unusual, mostly because the Justice Department’s watchdog, Horowitz, was already reviewing the origins of the Russia investigation.
So far, Durham’s review has rivaled Mueller’s investigation for keeping details under wraps. What began as a review, though, was reportedly expanded to a criminal inquiry this fall, which means Durham now has the power to subpoena witnesses and convene a grand jury.
Beyond that, news reports have hinted at the broad strokes of his investigation, which involves examining the intelligence community’s assessment in 2017 that Russia interfered in the 2016 election to boost Trump, and not simply to sow chaos.
In particular, Durham may be examining whether top intelligence officials may have tried to manipulate or selectively share intelligence to prompt an investigation into Trump. That has included looking at former CIA Director John Brennan, a critic of Trump and a target of the president’s ire. Durham has reportedly asked for Brennan’s communications, including his emails and call logs.
There was also some disagreement among intelligence agencies about how confident they were in the conclusion that the Kremlin backed Trump. “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him. All three agencies agree with this judgment,” the intelligence community’s 2017 assessment reads, adding that the “CIA and FBI have high confidence in this judgment; NSA has moderate confidence.”
Durham is reportedly examining this discrepancy between agencies, which might not necessarily be nefarious. Separate intelligence agencies don’t always come to the exact same conclusions because they may rely on different sources. (Also, a Republican-led Senate committee just reaffirmed the intel community’s 2017 assessment.)
Durham is also apparently examining how deeply the intelligence agencies relied on the Steele dossier, the opposition research compiled by former MI6 agent Christopher Steele about Trump’s Russia ties. That dossier has come under increased scrutiny, and even Horowitz noted in his report that the FBI found much of its information to be discredited.
And Durham is reportedly looking into media leaks about the probe, including some surrounding that Steele dossier. The New York Times reported in April that Durham was also probing leaks in the early days of Trump’s presidency that spotlighted the new president’s Russia ties, including a Washington Post column about Flynn’s communications with a Russian official. The question Durham may be asking is whether these leaks were intentionally designed to disrupt Trump’s presidency.
Barr’s visibility in the probe has also helped offer some clues. In the fall of 2019, Barr personally requested that other countries cooperate in the probe, even jet-setting to Italy (likely regarding a professor who met with Trump campaign aide George Papadopoulos).
Barr also urged officials in the UK and Australia to cooperate. Ukraine was also on the list, because of the baseless conspiracy theory that Kyiv framed Russia for the hacking of Democratic Party officials in 2016. You know, the conspiracy theory and bungled attempts to prove it that eventually became part of an impeachment inquiry.
Durham was, the Justice Department said in September 2019, “exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election.”
All of this information has come out in bits and pieces. Durham himself has remained quiet, except in one notable instance: to comment on the DOJ inspector general’s findings about the origins of the Russia investigation.
Horowitz, again, largely discredited the primary allegation of Trump and his allies: that law enforcement and intelligence officials wanted to undermine Trump. But Durham responded with a pretty extraordinary statement:
Our investigation is not limited to developing information from within component parts of the Justice Department,” Durham said. “Our investigation has included developing information from other persons and entities, both in the U.S. and outside of the U.S. Based on the evidence collected to date, and while our investigation is ongoing, last month we advised the Inspector General that we do not agree with some of the report’s conclusions as to predication and how the FBI case was opened.
Durham didn’t say which conclusions he didn’t agree with, but it leaves one big, overarching question: whether Barr and Durham are conducting a truly independent review, or whether they’re seeking information to fit the narrative that’s been pushed by the president about rogue Trump-haters at the FBI and CIA — in other words, a version of Obamagate.
This debate should be about whether the Trump administration is politicizing intelligence
It’s easy to dismiss Trump’s ramblings. The president has spent the better part of three years railing about the deep state, but, at this point, the people running his intelligence agencies are pretty much all Trump appointees.
Trump’s accusations about the Obama administration should be taken seriously. Not because they have merit — they don’t — but because the president might use institutions and selective intelligence in an attempt to smear one former Obama administration official in particular: Joe Biden.
The possibility that Trump might abuse his powers as president to try to undermine his political opponent isn’t exactly unthinkable. It now feels like a lifetime ago, but Trump was impeached for pressuring Ukraine to give him dirt on Biden, when the former vice president wasn’t even the Democratic nominee. Already, Trump is using the Obamagate conspiracy theory to attack Biden.
All of this also detracts from the reality that Russia is interfering in the 2020 election. Trump’s antics could have a chilling effect on intelligence and law enforcement work on the matter, especially if there is a fear that certain conclusions about that meddling could come with political reprisals.
“Obamagate” is a convoluted mess of conspiracy theories untethered to reality. It is a deflection from the utter catastrophe unfolding daily because of the Trump administration’s disastrous coronavirus response.
That may not matter. Trump has used the “witch hunt” strategy since the start of his presidency, and, when it comes to his base and his allies in Congress and the administration, it works.