F.H. Buckley teaches at Scalia Law School and is the author of “The Republic of Virtue: How We Tried to Ban Corruption, Failed, and What We Can Do About It.”
Political debates in Washington have risen to fever pitch: The Democrats are traitors for failing to applaud the State of the Union, Trump is a tyrant in serious need of treatment. But I want to top everyone with the most shocking suggestion of all. What if, in all the craziness about Russia, no crime was committed? What if nothing improper happened?
Start with the Trump campaign advisers who sought a reset with Russia. (That would include me.) But that’s just a belief about foreign policy, which can’t be a problem unless political differences are criminalized.
Next, consider the Trump campaign people who met with Russians, like George Papadopoulos. Not the sharpest knife in the drawer. He told a Russian that the Trump administration would want a reset. But that was scarcely news. Trump had announced the same thing in a public speech.
Then there are the campaign workers who wanted to hear dirt about their opponent from a foreign source. You’re going to tell me they’ll not want to hear it? Don Jr. had a meeting with a Russian national for that purpose, but the meeting lasted only a few minutes. When the Russian wanted to talk about foreign adoptions, she was kicked out.
If that was a problem, what do you say about the DNC’s involvement in the Fusion dossier? They paid for the entirely implausible info, then saw it spread. On a culpability scale, that’s a lot worse. Except I don’t think it’s all that culpable, in the end. It’s politics, not paddy-cake.
Turn it up a notch, and consider the hypothetical Trump campaign officials who offered a quid pro quo. If the Russians release dirt of Hillary, we’ll do a reset. Does such a person exist? We don’t know. What’s interesting is the unproven assumption in the press that such a deal was offered. No evidence that we know of, but that doesn’t seem to matter.
Moreover, it’s easy to believe that no such deal was offered. It was known that Trump wanted a reset from the get-go. The Russians must have thought he’d be easier to deal with than Hillary.
That’s enough to explain what happened — the revelation of Hillary’s e-mails, with love from Russia, apparently.
Let’s move on to the Trump official who, after the election, promised a quid pro quo. That would be ex-national security adviser Mike Flynn. Leaving aside the Logan Act, what’s wrong with that? Flynn wasn’t challenging Barack Obama’s authority as president. He was just saying things are going to be different come Inauguration Day. Isn’t that exactly the kind of bargaining that is part and parcel of diplomacy?
That, in turn, is a function of one of the stupidest provisions in the Constitution — the idea that there has to be a 10-week gap between the election and the inauguration. When a government in Britain falls, the new Prime Minister kisses hands with the Queen the next day. You’re telling me that if the changeover were the next day in America, a president-elect couldn’t have his cabinet in place?
Next consider the role of the FBI. I don’t fault them for wanting the info Fusion had, or even bringing it to the attention of the FISA court. Here’s the point. The members of the FISA court aren’t the patsies everyone seems to assume they are.
Sure, the hearings are ex parte, which means nobody’s arguing from the other side. But for that reason, FISA proceedings are very different than those of a regular court. The judges ask probing questions and seek to evaluate the basis for any assertion. Where did you get that, they ask, and just how credible is it. That’s why I assume that the court was well aware that much of the Fusion dossier hasn’t been substantiated from other sources.
The FISA court hasn’t spoken up about any of this. From its silence, I infer that they don’t have a problem with the way the order was sought. Nor do I.
There’s a simple explanation for the madness. It’s the hoariest of procedural tactics to avoid substantive questions: the burden of proof. On one side an irrefutable presumption that Trump is a criminal. With an equal and opposite burden for the other side.
That’s how they do religious wars.