“They caught the witches.” Those were the celebratory words of John Podesta, chairman of Hillary Clinton’s 2016 presidential campaign, in response to the indictment Friday of 12 Russian military intelligence officers for hacking efforts linked to the 2016 election. Only hours before, President Donald Trump repeated his favorite mantra, calling the investigation by special counsel Robert Mueller a “rigged witch hunt.”
Trump always has been wrong about the Mueller investigation, which many supported after he fired then-FBI Director James Comey. As this investigation once again proves, there be witches in those woods. The question, however, is the type of witches we were hunting.
The problem with hunting witches is that you can quickly forget what sent you on the hunt, or gradually view most everyone as a witch. In Salem, Mass., in 1763, Mary Easty was convicted by deranged girls yelling “O Goody Easty, O Goody Easty, you are the woman.” That was it. Witch.
{mosads}The problem in the Russian investigation is that we have plenty of crimes but not necessarily plenty of colluders.
The demonic Internet character Guccifer 2.0 was a carefully constructed false identity of a hacker, who turned out to be Russian intelligence officers. Before we all shout “O Goody Ruskies,” we should keep in mind the distinction between criminals and colluders. Trump is correct that none of these indictments have established any crime linked to collusion by himself or his key aides. That does not mean that the investigation is rigged or improper.
After 14 months of investigation (and for the second time in a formal indictment), the Justice Department has stated that it is not alleging any knowing collusion between Trump campaign officials or associates and the Russians. Back in February, Mueller handed down his major indictment of 13 Russians for actively interfering with the 2016 election by spreading false information. Both Mueller and Deputy Attorney General Rod Rosenstein expressly noted that the evidence involved “unwitting” communications with Russians adopting false identities. This indictment shows that same pattern of clearly concealed identities in seeking to hack and distribute email information from the Democratic campaign and its associates.
When I noted at the time of the February indictment that it was strikingly silent on evidence of collusion, some insisted that the indictment did not cover the hacking operation and that Mueller was likely waiting to indict Trump officials colluding on the theft and distribution of the emails. We are still waiting. While the indictment speaks of both a reporter and a Trump campaign associate unwittingly communicating with the Russians, the indictment does not allege knowing collusion. That does not mean that no one colluded on some level, but after 14 months we have yet to see compelling evidence of collusion by Trump or his campaign.
There are some individuals who, according to media reports, may have sought hacked material from WikiLeaks. There also is an unnamed journalist who sought such information, and even an unnamed candidate for Congress. That does not mean, however, that it is a crime for reporters or academics or political activists to review such information if they did not play a role in illegal removal. Indeed, numerous journalists, including at least one reporter for The Hill, sought access to Guccifer 2.0’s information.
Moreover, the efforts of the Russian operations detailed in these indictments do not establish a particularly significant impact on the election. When the Russians began this operation in 2016, we were already irreconcilably divided as a nation between the two least popular candidates ever to run for the White House. Thirteen trolls in St. Petersburg, or 12 military hackers in Moscow, certainly could spit into that raging ocean, but it remains highly unlikely to have had a material impact on the election.
As for the information shared by the Russian units, it is was rather underwhelming even to the recipients. For example, Guccifer 2.0 sends a Trump associate what is described as “the turnout model for the democrats entire presidential campaign.” The Russians were eager to help, even saying in similarly stilted language, “please tell me if i can help u anyhow … it would be a great pleasure to me.” However, the recipient simply responds that the information is “pretty standard.”
Indeed, much of this effort may have been much too “standard” for some of us to admit. The continued shock and revulsion expressed by many leaders at the thought of such interference is a tad forced. The United States has intervened in foreign elections for decades, including leaking stolen documents. Not long ago, our hacking of our own allies, including German Chancellor Angela Merkel, was revealed. Many nations regularly try to influence elections and this is nothing new for the United States, either as the culprit or as the target of such efforts.
In other words, if there were a real hunt for election witches, we would find ourselves at the head of the line to the pillory.
Does that mean that the Mueller investigation is somehow invalid? Of course not. This remains an attack on our system, there is still work to be done, and we should all want the FBI to continue that work unimpeded.
With minutes of its release, the latest indictment was unrecognizable after being put through the centrifuge of the Washington spin machine. The fact is that the indictment largely confirmed what we knew. It shows an effort by the Russians to undermine Clinton and influence the election; it also shows no evidence of knowing collusion and, indeed, very limited evidence of unknowing collusion.
So, ignore the exclamations of “O Goody Ruskies.” We can be outraged by the Russian operation without being hypocrites as to our own history. Likewise, we can support the Mueller investigation without ignoring the fact that no credible evidence has thus far arisen against Trump on collusion.
In other words, if you want to find witches, start by not being chumps.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.