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August 16th, 2018

Insight

Mueller in Hot Pursuit

Judge Andrew P. Napolitano

By Judge Andrew P. Napolitano

Published Feb. 22, 2018

 Mueller in Hot Pursuit

Last Friday, a federal grand jury sitting in Washington, D.C., indicted 13 Russian nationals and three Russian corporations for conspiracy and for using false instruments and computer hacking so as to influence the American presidential election in 2016.

The indictment alleges a vast, organized and professional effort, funded by tens of millions of dollars, whereby Russian spies passed themselves off as Americans on the internet, on the telephone and even in person here in the U.S. to sow discord about Hillary Clinton and thereby assist in the election of Donald Trump.

Though an indictment is a charge only, it presumably relies on hard evidence of a wide and deep Russian project — so wide and so deep that it could only have been approved and paid for by the Kremlin. President Trump's national security adviser, Lt. Gen. H.R. McMaster, characterized the allegations in the indictment as "incontrovertible." The New York Times reported over the weekend that its Russian sources have now revealed that more than 1,000 people in Russia were involved for over three years.

The project was run out of an office building in St. Petersburg, Russia, which also houses the Kremlin's favorite caterer, a company owned by one of Russian President Vladimir Putin's close friends. The techniques outlined in the indictment include using false and fictitious names, bank accounts and websites; organizing rallies and marches in the U.S.; making thousands of phony web posts; and aggressively revealing embarrassing data about Clinton.

The Russian work even included the orchestration of a few pro-Clinton rallies so as to deflect suspicion away from all these new pro-Trump entities that appeared to have come out of nowhere.

Though Donald Trump told folks as far back as 2011 of his interest in running for president and though Clinton ran in the Democratic primaries in 2008 and 2016, as well as in the general election in 2016, the Russian scheme appears to have materialized at some point in 2014.

The dates are important because we know from the revelations of Edward Snowden that the National Security Agency, the federal government's domestic spying apparatus, began its pursuit of capturing all electronic data on everyone in the U.S. in 2001 and succeeded in mastering the capture of all keystrokes, telephone calls and digital traffic by 2005. We also know that the NSA traffic proceeds through FBI computers and that the CIA keeps constant tabs on Russian spies in Russia and elsewhere.

Why didn't the CIA or the NSA or the FBI pick this up?

That is the $64,000 question that the indictment does not address, and we may never know the answer to it. If the purpose of all the warrantless spying — in direct contravention of the Constitution, no less — is to keep the country safe from foreign assault, whether by bombs in a subway or by guns in an office building or by hacking into computers, why didn't our 60,000 domestic, and G od only knows how many foreign, spies catch this Russian interference?

One answer is information overload. By spying on everyone all the time, the spies have too much data through which to sift, and they miss the evidence of coming terror — just as they did with the killings in Orlando, in San Bernardino, at the Boston Marathon, on a New York bike path and even recently at a school in Florida, all of which were preceded by internet chatter that would have tipped off a trained listener to the plans of the killers.

Special counsel Robert Mueller's efforts to uncover the Russian interference are not a "hoax" or a "witch hunt" as President Trump has argued. They are serious and professional efforts that have now borne fruit. But Mueller was not appointed until after the election — after the Russians ran unchecked through our computer systems and the American marketplaces of ideas.

The joke in the D.C. legal community this week is, "We all want a front-row seat at the arraignments of the Russians." That's a joke because a defendant must be physically present at his arraignment, meaning — since the Kremlin will surely not send its indicted spies here — no arraignments will occur. And no trials will occur.

These folks the grand jury indicted could be lured to other countries and arrested or even kidnapped there, but that would be very dangerous and would most likely invite violent retaliation. Even if these defendants ended up in a federal courtroom by murky or illegal means, that would not impair their prosecution.

However, because the American intelligence community has done similar "disinformation" projects in foreign countries (though not on this scale), these defendants and these indictments will go nowhere.

That leaves a question: Why would Mueller seek indictments of folks he knows he cannot prosecute? He did so for a few reasons. One was to reveal the scope of the unlawful activity that he has found. The American people are entitled to know what went on under our noses and who knew about this and looked the other way. As well, this indictment gives credibility to Mueller's work.

The other reason for the indictment is to smoke out any American collaborators. He has identified American collaborators, but not by proper name, and the Department of Justice has said — not in the indictment, in which case it would be bound by what it says, but in a press statement, which binds no one — that the American collaborators were unwitting dupes of the Russians. My guess is that Mueller's American targets are under electronic and visual surveillance and that he is listening to their (premature) sighs of relief.

It is a felony for foreign nationals to participate in American federal elections, and it is a felony for any Americans knowingly to assist them.

This is not the end of these indictments related to the 2016 election. It is the beginning.

Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel. Judge Napolitano has written seven books on the U.S. Constitution.

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