President Trump seizes on political slogans with the casual ease of a college bro trying on shirts before hitting a nightclub on the Jersey Shore. He tries them on, sees how they work and leaves a number of them in a pile on the floor. For every “Make America great again,” there are a half-dozen “Build the wall and crime will fall”s cluttering up the White House residence.
Since the release of special counsel Robert S. Mueller III’s redacted report on Russian interference in the 2016 election, Trump has developed a refined version of a sales pitch he has been making for several years now: It was the Democrats, not Trump, who did some crimes. And how could you impeach Trump when there were no Trump crimes? (As he said Monday.) How do you impeach him for crimes done by Democrats? (As he phrased it over the weekend.)
We will set aside the fact that anyone can essentially be impeached for anything, that the “high crimes and misdemeanors” rhetoric in the Constitution means essentially whatever a majority of the House says it means. It could include the sorts of almost-crimes that Mueller’s report hinted at in various places. Appealing to the cool-minded rationality of members of the House to avoid being impeached seems like a risky bet, but that was Trump’s sales pitch in brief. But, again: We’re setting that aside.
Let’s instead consider the other side of that argument. What, exactly, are the crimes that the Democrats committed?
This is a surprisingly difficult question to answer. It has the feel of something approximating a political argument, but any assessment of it as a serious argument falls apart quickly. It hinges significantly on a robust understanding of the parallel line of argument that has run through conservative media over the past two years, in which phrases such as “insurance policy” are loaded with a weight that allows whole swaths of sketchy argumentation to be summarized and quickly moved past. But picking the argument apart reveals how sketchy it is.
Consider this depiction of the Real Crimes™ as articulated by conservative commentator Mark Levin over the weekend. A video of Levin making this case was tweeted by the president Monday and, for a time, pinned to the top of Trump’s Twitter page, ensuring visitors would see it.
“There are things that have been done in the last thee years to candidate Trump, President-elect Trump and President Trump that should not occur in the United States of America,” Levin said. “Senior levels of the Federal Bureau of Investigation. These individuals should be charged. They’re the ones who interfered in our election, even more effectively than the Russians.”
What’s more, Levin said, “they’re still at it.”
"They planted a spy — that’s right, a spy — in the Trump administration,” he continued. “They lied to federal courts not once but four times, the FISA court, in order to get a counterintelligence warrant. And they got it. And who were they spying on? Page? It was a backdoor effort to go after the Trump campaign. You had the Hillary campaign, the Obama administration, trying to take out the Republican candidate for president of the United States,” because of the “preposterous” idea, Levin said, that Trump was conspiring with Russian President Vladimir Putin.
In some circles, this is accepted almost as a baseline of reality about how the Russia investigation came to be. But it makes little sense, just as Levin’s claim in March 2017 that Trump had been wiretapped — indirectly spurring an infamous Trump tweet and a forceful denial from the government — was similarly weak.
So let’s pick it apart. Levin says that senior FBI officials should face criminal charges for having “interfered in our election.” There’s no question that a senior FBI official did affect the election — then-FBI Director James B. Comey, whose last-minute statement about the investigation into Hillary Clinton’s email server shifted the focus of the final days of the 2016 campaign. But there’s also no question that the quiet investigation into possible coordination between Trump’s campaign and Russia didn’t attract much attention before Election Day — despite the fact that, if those senior officials Levin disparages had wanted to, they could have released a slew of information about sketchy contacts between Trump’s campaign and Russia that were already under investigation before the election occurred. They didn’t.
They planted a spy in the Trump administration, Levin claims, presumably meaning the Trump campaign, since the administration necessarily followed the election. It’s also not true that there was a spy placed in the administration, as we’ve noted before. There were specific individuals, such as foreign policy advisers Carter Page (referred to by Levin) and George Papadopoulos, who came under FBI scrutiny because of their links to Russia, including, according to reports, with outreach by a confidential informant. There’s no evidence that the FBI targeted the campaign itself, which would have been one pretty direct way to spy on the campaign.
As for those four lies to the Foreign Intelligence Surveillance Court (the FISC, or the FISA Court), that’s conservative shorthand for the warrants to surveil Page, which were predicated to some extent on a dossier of reports compiled by British ex-intelligence officer Christopher Steele. That dossier and the Page warrants are central to the line of argument that Trump was targeted unfairly, because the dossier was work completed with funding from a law firm that worked for Clinton’s campaign and the Democratic Party. The warrant (and three subsequent renewals) mentioned that the dossier was probably part of an effort to find “information that could be used to discredit [Trump’s] campaign” but not specifically that it was funded by the Democrats. Therefore, per Levin, a lie. And therefore, apparently, a crime, aimed at keeping Trump from being elected.
Levin doesn’t mention that the Page warrants were first obtained after he left the campaign or that Page was already on the FBI’s radar as a counterintelligence target or that Page traveled to Russia in July 2016 and held meetings there that even Mueller’s team couldn’t fully detail in scope. Levin breezes past that, because it’s all taken as an article of faith in his circles that the Page FISA warrant was a mark of bias by the FBI.
A key originator of this charge is Rep. Devin Nunes (R-Calif.), whose staff last year wrote a four-page memo, eventually released by Trump, to make the case of FISA warrant bias public. Again: This was not a warrant to spy on the Trump campaign — it followed Page’s work with the campaign — but since the starting point for Trump and his allies is generally to discredit the Russia investigation broadly, they will take what they can get.
Trump’s recent interest in declaring the Democrats as the Real Criminals™ appears to match up with Nunes’s latest effort to muddy the water. As ranking Republican on the House Intelligence Committee, Nunes has pledged to send eight criminal referrals to the Justice Department with the hope that eight people will face criminal charges for their actions.
He’s not saying who those people are, mind you, but he did offer hints.
“So there’s five direct referrals based on lying, obstruction, congressional investigation and leaking,” Nunes said in an interview on Fox News. “We have a global leaks referral, which involves just a few reporters but could involve multiple people. … And then you have conspiracy referrals. One is based on the manipulation of intelligence. The second one is based on FISA abuse and other matters. So that’s where we stand.”
Nunes told Fox News’s Sean Hannity that he wouldn’t identify the people but that Hannity could probably guess who some were.
So Nunes probably means people such as Peter Strzok, a then-FBI agent who exchanged anti-Trump text messages with a colleague while working on investigations linked to Trump, including the Russian-interference probe. (He was removed from Mueller’s team a few weeks after Mueller was appointed when the texts came to light.) He probably means former FBI deputy director Andrew McCabe, who became a target of Trump’s even before the election. He was fired last year — for allegedly misleading investigators about a conversation he had with a reporter that, ironically, had the effect of drawing negative attention to Clinton. At the end there you see that Nunes mentioned “FISA abuse,” again a referral to the Page thing.
Now we overlay another complication: Many of the people Nunes and the conservative media have targeted aren’t Democrats. McCabe was a Republican during the period at issue, for example, as was Comey. Nunes’s eight referrals (which, by the way, the Justice Department can essentially ignore) might include former intelligence officials targeted by Trump, such as former CIA director Michael Hayden, who is an independent.
There have been other, public criminal referrals. Early last year, Sens. Charles E. Grassley (R-Iowa) and Lindsey O. Graham (R-S.C.) referred Steele, the dossier author, to the Justice Department for allegedly lying to Congress. House Republicans similarly referred Trump’s former personal attorney Michael Cohen for the same alleged infraction.
But, again, those relate to things that happened after Trump took office.
In summary, it’s worth remembering this about Trump’s claims that his opponents broke the law: He doesn’t say who those opponents are, and he doesn’t say what laws they allegedly broke or when. He uses the allegation itself as a bookmark for all of the conspiracy theories above. If you accept this year-long narrative about Strzok and Page and so on, then you don’t need any specificity. It’s just understood.
Trump spoke to a local television station in Minnesota last week.
“Where there was collusion and where there was obstruction and where there was crime was on the other side,” Trump said, “because how did this whole thing start? It was a big con job, and everybody knows. … The crime was committed by the other side. This crime was all made up. It was all a fabrication. And that’s come out loud and clear.”
It’s important to note that Trump has a lengthy track record of claiming that his opponents have broken the law without any foundation in reality. From encouraging allegations that Clinton violated the law during the campaign (a mantra eagerly embraced by Hannity) to claiming that the Republican Party illegally tried to raise money during the 2016 primary to claiming that then-Attorney General Loretta E. Lynch illegally decided against prosecuting Clinton to claiming that a CNN commentator sharing a debate question was somehow illegal. Everything he doesn’t like is illegal, which makes narrowing down the specific allegations here sort of tricky.
Broadly, though, Trump seems to be saying that the fact that he was investigated and no criminal charges were brought means that the investigation itself was unwarranted or illegal. That’s not how it works, of course: The point of an investigation is to determine whether legal violations occurred. They are usually kept under wraps in part to avoid impugning people who might be innocent, but it’s not illegal to try to determine whether someone broke the law. (We’ll note here that the “exoneration” Trump likes to say he received from Mueller was something substantially less than that.)
Trump has also at other times claimed that the investigation was treasonous, which is definitionally not true. For example:
It’s a ridiculous claim, including that “Spying” is a “very serious crime” — by itself, it isn’t. But at least it’s fairly specific, unlike Trump’s usual presentation of what he alleges happened.
And with that specificity we can say with certainty: No, his political opponents didn’t break those laws.