(Bloomberg Opinion) -- The past couple years have been tough for both believers and non-believers in Russiagate. First the investigation into Russian influence over President Donald Trump’s campaign fizzled out. Now one aspect of the investigation of the investigation seems to be, too.
What was hyped in 2017 as the greatest scandal in U.S. history ended in mid-2019 after Special Counsel Robert Mueller said he could not find evidence of a criminal conspiracy between the Trump campaign and Russia. That investigation itself is still being investigated by the Justice Department, with the president and his supporters promising the greatest scandal in U.S. history. On Tuesday, citing unnamed sources, the Washington Post reported that one part of this investigation did not turn up “substantive wrongdoing.”
This investigation, conducted by departing U.S. Attorney John Bash, examined requests made by outgoing officials in President Barack Obama’s administration to reveal the names of U.S. persons redacted in intelligence reports. The practice, known as “unmasking,” allows officials to learn the names of Americans incidentally picked up in surveillance to better understand the intelligence, or to warn someone they are in danger.
The Post’s story says reporters were “unable to review the full results of what Bash found.” It also says it’s unclear how Bash’s work intersected with the broader probe of the Trump-Russia investigation being conducted by U.S. Attorney John Durham, who is not expected to issue his report before the election.
While Trump himself has said the unmasking of his transition team might be a bigger scandal than Watergate, unmasking the names of U.S. persons in intelligence reports is not against the law and has been a common practice in both the Obama and Trump administrations.
The practice became a mini-scandal in 2017 because of a leak. Trump’s first national security adviser, Michael Flynn, was fired from his job after details about his conversations with the Russian ambassador were leaked to the press during the presidential transition. Flynn was accused by Trump of lying to Vice President Mike Pence about those communications, though both have since said Flynn would be welcomed back to the White House.
In May, the NSA declassified the names of Obama officials who had requested to unmask the identity of Flynn between Nov. 8, 2016, and Jan. 31, 2017. It revealed that 39 officials made requests that disclosed Flynn’s identity from NSA intelligence. But it’s likely those requests had nothing to do with Flynn’s phone call with the ambassador.
Former FBI director James Comey has testified that he ordered Flynn’s name to be unmasked after analysts discovered Flynn’s calls with the Russian ambassador and distributed the information to a small circle of senior officials. At the time, the intelligence community was trying to figure out why the Kremlin was not responding to new U.S. sanctions against Russia and expulsions of Russian spies in response to interference in the 2016 election.
Comey got his answer in the transcript of Flynn’s call with the Russian ambassador: The incoming national security adviser urged Russian officials not to escalate tensions, and sure enough, they didn’t.
At the time, all of this appeared to be far more scandalous than it really was. Earlier this year, when the Justice Department moved to drop its prosecution of Flynn for making false statements to the FBI, its legal brief said that Flynn’s message to avoid escalation “was consistent with him advocating for, not against, the interests of the United States.” Flynn was never charged with being a witting or unwitting agent of a foreign power. Indeed, declassified documents show the FBI was prepared to close the investigation altogether until it learned of Flynn’s calls with the ambassador.
But in early 2017 there was an active investigation into whether the Trump campaign colluded with Russia. Flynn himself was a guest of honor at the annual dinner for Russia’s propaganda network, RT, where he was seated at a table with President Vladimir Putin. In this context, Flynn’s call was portrayed as a smoking gun.
And this is why one sentence in the Post’s story about the alleged end of the unmasking probe stands out: “Even if it ultimately produced no results of consequence, legal analysts said, it allowed Trump and other conservatives to say Obama-era officials were under scrutiny, as long as the case stayed active.”
This is a legitimate concern. Politicians and bureaucrats often spin sensitive investigations to incriminate targets in the court of public opinion before charging them in a court of law. That’s exactly what happened during Russiagate — and if the Post’s reporting is correct, it also happened with unmasking.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Eli Lake is a Bloomberg Opinion columnist covering national security and foreign policy. He was the senior national security correspondent for the Daily Beast and covered national security and intelligence for the Washington Times, the New York Sun and UPI.
©2020 Bloomberg L.P.