Suppose the Shoe Was on the Other Foot

So, William Barr is troubled by the investigation of Trump.  What if the shoe was on the other foot, he asks.  During the 2008 election birther rumors were flying about Obama being born in Kenya and being a secret Muslim in league with America's enemies.  Suppose GW Bush had investigated those rumors?

Well, first off, I will admit that our side got a bit paranoid about GW Bush.  His "unitary executive" theory that allowed him to do anything so long as he said "national security" first was alarming, but not as much a threat to domestic liberty as we thought at the time.  His defense of indefinite detention and torture were intolerable from the perspective of universal human rights, but not a threat to domestic liberty.  His claims to warrantless surveillance were alarming on several levels, but he really does not appear to have surveilled domestic enemies, as Nixon did.  And I will also admit to being more than a little paranoid about Trump -- seeing many contacts with the Russians as sure signs of collusion when they turned out to be less than they first appeared.

Nonetheless, let us try to imagine if the shoe had been on the other foot in the 2008 election.  First, we would have to assume that Islamic terrorists, or some Islamic state with strong terrorist ties were hacking the RNC server and McCain's campaign manager and posting the contents in a manner calculated to cause maximum harm to the McCain campaign.1  

Well, okay, you may say, sure that would be troubling, but Obama would hardly be to blame. 

Next, we must assume that Obama, far from denouncing this interference, built his campaign around what was being released, and also that he regularly parroted jihadi talking points in his speeches.  And suppose that he called on the jihadis to hack McCain's personal server in a public speech on national television,

Scandalous, you may say, but not in way a crime.

Well, then, we must also assume that Obama's campaign manager was a former adviser and unregistered lobbyist for an organization believed to be a terrorist front group.2  And let us also assume that one of Obama's foreign policy advisers was on the FBI radar screen as a target for recruitment by terrorist several years before he signed up with team Obama.  And we must also assume that during the summer of 2008 this adviser traveled to some Islamic country with terrorist ties (fill in the blank as you wish) and gave a public speech condemning US interference in the Middle East, going so far as to suggest that terrorist attacks on the US were understandable reactions to such intervention.

At this point you may be thinking it over and saying that really investigation would not be necessary, since a candidate like that would stand zero chance of actually being elected.  That might seem like a reasonable assumption, but it leaves to key factors out.  One is the support of the mainstream media and its ability to sway large swaths of voters.3  The other is the unique circumstances of the 2008 election.  There was no October Surprise in that election, but there was a major September surprise -- the worst financial crisis since 1929.  With the financial crisis causing major damage to the incumbent party, US authorities would have to take the possibility of an Obama victory seriously.

OK, so all this is pretty shocking, one may say, but there is still nothing to suggest that the Obama campaign is in any way in league with terrorist.  Scandalous and improper, but no evidence of anything actually calling for an investigation.

But then suppose that routine surveillance of Islamic countries tied to terrorists, or Islamic organizations believed to be fronts for terrorists keep picking up a most abnormal volume of contacts with the Obama campaign.  Nothing incriminating is being said, you understand, but the volume is disturbing.  And then one of the campaign's foreign advisers  makes comments to some foreign diplomat(s) suggesting that he may have had advance knowledge of the hacks.4  And are you still going to say that the feds should definitely not have investigated possible Obama ties to terrorists?  Is asking friendly intelligence services to see what they can learn about these communications totally out of line?  What about sending in an informant to ask the foreign policy adviser some discrete questions about just what he knew and when he knew it?

Then suppose the RNC hires and opposition research firm.  (Anyone who believes hiring an opposition research firm is dirty pool, as opposed to a smelly but absolutely routine part of any national campaign, practiced by both parties, is uncommonly naive).  Suppose the RNC tells its opposition research firm to investigate Obama's possible ties to terrorist or fellow travelers.  (Not to do so under the circumstances would be political malpractice).  The opposition research firm employs a retires British counter-terrorism expert who has cultivated informants in a variety of terrorist organizations. Is it your position that this retired counter-terrorist should absolutely not, under any circumstances, have contacted his informants to find out what they know?  Does doing so mean that the McCain campaign has now colluded with terrorists, and that what it has done is worse than anything the Obama campaign has done to date? 

But Steele paid for his tips from informants, Republicans may say.  Yes, paying for information is one of those smelly but necessary things that spies and law enforcement do.  Police routinely pay their informants.  Anyone seeing those signs in the post office offering rewards for information leading to the apprehension of various fugitives knows as much.5 

So, let us suppose that the RNC and/or its opposition research firm decides to allow the British counter-terrorism expert to activate his sources.  They figure that if what he hears doesn't check out, they can always not use it in their campaign.6  The Brit's sources tell him some pretty wild tales about an ongoing conspiracy between terrorists and the Obama campaign.  The Brit becomes so alarmed as to take his information to the FBI.  Should the FBI have indignantly rejected the information on the grounds that it was opposition research and therefore irredeemably tainted?7  It is a rather obvious truism that anyone coming forward with derogatory information about a person will probably not be a friend or ally, or even a neutral.  Some motive of hostility will almost always apply.  Is there any reason that such information coming from Obama's political rivals would be tainted in a way that would not apply to a professional or romantic rival?

OK, we have already postulated an Obama foreign policy adviser who was previously targeted for recruitment by terrorist and who during the campaign traveled to a terrorism sponsoring country to denounce US intervention in the Middle East and at least suggest that terrorist attacks are an understandable response.  Suppose the opposition research alleges that the adviser was not just traveling to give a public speech, but was conveying information between the campaign and terrorists and planning future strategies.  Now, I would actually agree with Trump defenders that these are just third-hand rumors and not sufficient grounds for a wiretap of the adviser's phone, even if they do come from a counter-terrorist who has provided reliable information in the past.  But here is the thing.  Does the rumor's origin as opposition research so taint it that the FBI cannot even look for corroboration?  Must the FBI determine who hired the opposition research firm?  Must it specifically name the RNC instead of just an unnamed political opponent of "Candidate 1"?8

All right, so suppose that Obama is nonetheless elected.  Investigation of his possible ties to terrorism continues.  He fires the FBI director to stop the investigation.  How do we know that was why he fired the FBI director?  Because he says so on national television.  Also in a meeting with representatives of an Islamic country suspected of supporting terrorism, Obama again says that he fired the FBI director to quell the investigation, and the casually blurts out some super-top secret classified information that causes great harm to Israel.9  Might the intelligence community be justified in becoming really alarmed?

A special counsel is appointed.  The special counsel investigates for two years.  At the end of that time, special counsel finds no evidence of conspiracy or campaign related communication between the Obama campaign and any terrorist organization, front for terror, or terrorism-supporting country.  None of the information from the British agent checks out.  Many activities that on the surface looked alarming turn out to have been less than they appeared.  Nonetheless, the special counsel also reports the following:

1. At that time that Obama was running on a message of improving relations with Arab countries, he was pursuing a lucrative business deal with a country strongly tied to terrorism, and publicly lied about it.
2. The Obama campaign regularly shaped its message around the information being released by the terrorists.
3. Obama (probably) had an old friend who was not part of the campaign contact a third-party that was releasing the e-mails stolen by terrorists to ask for advance information on what was going to be released so he could modify his message to match it.
4. When Obama asked the terrorists to hack McCain's e-mails, they responded by trying, unsuccessfully.
5. Obama ordered one of this top advisers to find McCain's e-mails.  The adviser tasked two people outside the campaign with the job.  The two searched the dark web, unconcerned that they might be dealing with terrorists.10
6. Obama's campaign manager, the one who was a former adviser and unregistered lobbyist to a terrorist front organization, fed a steady stream of campaign polling data to his translator, for reasons that special counsel was not able to determine.

In this case, would you consider the report a complete exoneration of Obama.  And assuming that you did, would you find the report so exonerating as to show the investigation should never have been started at all?

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1And just to be clear, it is not necessary to assume there was anything very scandalous released.  What the DNC and Podest e-mails revealed was really nothing worse than politicians behaving like politicians -- not a very edifying sight, but nothing even remotely shocking let alone criminal.  It seems a safe assumption that the RNC e-mails would be equally unedifying.
2Not quite as crazy as it sounds.  John Bolton, for instance, has strong ties to the MEK, a group of Iranian revolutionaries classified as terrorists until recently.
3And just for the record, I don't share the right wing assumption that the MSM is hopelessly biased against them.  But for a right winger this would invariably have to be factored in, just as we factor in the right wing noise machine in understanding support for Trump.
4Most famously, George Papadopoulos spoke to the Australian ambassador to Britain, who alerted the FBI and started the investigation. The Mueller report says that Papadopoulos also spoke to the Greek foreign minister, although it does not say how they found out.
5Steele's critics have three main lines of attack.  The first is that he was passing on third-hand rumors, not solid information, which is true.  Steele was a curator of rumors, and was passing on what he learned from sources that had previously been reliable, but he was, nonetheless, just passing on rumors, so his information should the devalued accordingly.  The second is that the Russians might have figured out what Steele was up to and deliberately spread false information.  That is also a very real risk.  But in both cases, it does not mean that Steele's third-hand rumors should not have been investigated at all, it simply means that corroboration was needed before they could be taken seriously.  The third complaint is that the Steele dossier was a complete fabrication, the result of deliberate conspiracy between Steele, the DNC, the Clinton campaign, and the Russians.  The only evidence for that theory is the supposition that Trump was innocent by definition and that therefore all evidence against him must be fabricated. 
6And somehow lost in Republican outrage over Steele talking to actual Russians while investigating Trump's Russia ties, is the fact that neither the DNC nor the Clinton campaign ever used and information from the dossier.  Yes, material from the Steele dossier did appear in the media twice before the election, but in both cases the source appears not to have been either the Clinton campaign or the intelligence community, but Steele himself.  The FBI fired Steele over the second leak.
7In criminal law there is a thing called the "fruits of a poisonous tree" doctrine.  That means that if certain evidence comes from a tainted source, it may not be admitted at trial, and that any further evidence derived from the original tainted source is also tainted and inadmissible.  Tainted sources mean improper investigation by law enforcement.  They also include improper investigation by a private citizen under the direction of law enforcement.  However, if a private citizen improperly obtains incriminating evidence without the direction of law enforcement (say, a petty thief steals something that points to a much more serious crime and then panics and turns it over to the police) fruits of a poisonous tree does not apply.  No one has ever suggested that fruits of a poisonous tree applies to opposition research.
8Reading the Page FISA warrant, it devotes several pages to Steele's report.  Then two pages are blacked out.  Then it gives various news accounts of Page denying meeting with Russian officials.  Whether the warrant was proper, IMO, depends on what is on those two pages.  Is it some stronger corroboration of the Steele rumor or -- what?
9This is one case where I admit the hypothetical looks a lot worse than what actually happened.  The hypothetical Islamic country would presumably be a mortal foe of Israel in a way that Russia is not, and Obama would certainly not have the sort of pro-Israeli cred that Trump does.
10I admit, this one also does not work because McCain's missing e-mails were not the number one campaign issue.