The Situation: A Ghost Grand Jury and a Ponzi Scheme

The Situation on Monday considered strategies of non-cooperation.

That same day, Fox News broke the news—which is to say the Justice Department injected into the ether—that: “Attorney General Pam Bondi directed her staff Monday to act on the criminal referral from Director of National Intelligence Tulsi Gabbard related to the alleged conspiracy to tie President Donald Trump to Russia, and the Department of Justice is now opening a grand jury investigation into the matter, Fox News Digital has learned.” 

Hmmmm. Interesting wording.

The story doesn’t say that the Justice Department is presenting evidence to a grand jury. It doesn’t say that a grand jury is sitting. Come to think of it, the story doesn’t even say where the “grand jury” it does not claim is sitting is not sitting.

Rather, the story claims only that “the DOJ is moving forward with a grand jury probe,” and that it is “unclear whom the grand jury is expected to target and what charges could be in play given the statutes of limitations for much of the activity from nearly a decade ago have lapsed.”

Other news outlets were quick to match the story—with similar vagueness. CNN, like Fox News, reported that “Attorney General Pam Bondi directed federal prosecutors to launch a grand jury investigation into accusations that members of the Obama administration manufactured intelligence about Russia’s 2016 election interference, a source familiar with the matter told CNN.” 

Note again that the story did not report that federal prosecutors had actually launched such a grand jury investigation, merely that the attorney general had directed them to do so.

NBC News used almost the exact same language: “Attorney General Pam Bondi has directed Justice Department prosecutors to launch a grand jury investigation of whether Obama administration officials committed federal crimes when they assessed Russia's actions during the 2016 election, a senior Trump administration official said.”

NBC also advanced the “story” slightly with this notable passage:

The senior Trump administration official said that there is no exact timetable for when the grand jury will meet and that it could take months for the proceeding to begin. ...

The official said a letter signed by Bondi instructs an unnamed federal prosecutor to begin presenting evidence to a grand jury to secure potential federal indictments. But the letter does not say what the charges would be, whom the grand jury will investigate or where it will meet.

Then the New York Times stepped in and added an important clarifying detail. Like the others, the Times did not report that there actually was a grand jury investigation. But the Times did clarify where the grand jury would be convened if it ever was:

Attorney General Pam Bondi this week authorized prosecutors to investigate the inquiry the president calls the “Russia hoax” and present a case to a grand jury in South Florida if the evidence warrants it, according to people briefed on the move who spoke on the condition of anonymity to discuss ongoing investigations.

Details are scant, including whether prosecutors have taken action. But Trump appointees are reluctant to present evidence to a grand jury in the District of Columbia where key decisions in the Russia investigation were made nearly a decade ago. They believe it would be nearly impossible to find sympathetic jurors in a courthouse overseen by a federal judge, James E. Boasberg, whom the Trump team regards as an enemy.  

The Washington Post then reported that the Justice Department had “demand[ed] archived intelligence assessments from the nearly decade-old [2016] race, according to a letter obtained by The Washington Post”:

So where are we? Well, it seems that the Justice Department is reading the material Gabbard sent over and that it is asking the National Archives for documents. But not only does the grand jury the attorney general was eager to have reported publicly not yet exist, “there is no exact timetable” for its coming into existence; maybe months. The attorney general has instructed a federal prosecutor to convene a grand jury at some point in the indeterminate future, in a place that is probably South Florida and certainly isn’t Washington, D.C., in order to present such evidence as may materialize of charges yet to be determined against targets as yet unknown.

To which I say again, hmmmm.

This isn’t the first time the attorney general or the FBI has leaped to disclose a supposed investigation of Russiagate matters under circumstances that might lead a reasonable person to doubt that such investigation is more than spectral. A month ago, I wrote that I suspected that the supposed investigation of John Brennan and James Comey emanating from CIA Director John Ratcliffe’s “tradecraft review” was not a real one. When Gabbard got in on the action and alleged a “treasonous conspiracy” a couple of weeks later, I predicted that a criminal investigation would be announced imminently and would be similarly vacuous. And when the attorney general then announced a “strike force” the following day, I pointed out that this announcement was almost entirely devoid of substance:

When the Justice Department announces a real investigation—which it often does not do—it tends to say clearly that it is investigating something, not merely reading material sent over from another agency. It tends to give some clarity as to the subject matter of the investigation. And it tends to wait on announcing a “Strike Force” until it can actually do these things.

So now Bondi has taken the logical next step: The department has put out that it is not presenting to a grand jury (which does not yet, in any event, exist) the information that it is not generating in an investigation that is actually not obviously more than an exercise in reading previous intelligence documents.

Why am I so confident of this? Because there is nothing to investigate here.

As I have explained before, the statutes of limitations will have run on nearly all crimes one could allege—assuming that there were any crimes. To the extent a prosecutor tried to use a “conspiracy” charge to get around this problem, one still has to allege a conspiracy to do something illegal. Slapping the adjective “treasonous” in front of the word “conspiracy” doesn’t change this inconvenient fact.

A conspiracy is an agreement to do something illegal and where some overt act toward the fulfillment of this agreement has taken place. Nobody—not President Trump, not Tulsi Gabbard, not Pam Bondi, and not whatever “senior Trump administration official” or “source familiar with the matter” is gabbing about the whole thing—has given the slightest indication of what this predicate offense might be.

Gabbard, for example, alleges that “[t]heir goal was to subvert the will of the American people and enact what was essentially a years-long coup with the objective of trying to usurp the President from fulfilling the mandate bestowed upon him by the American people.” Even assuming this lie were true, where exactly in Title 18 has Congress made it illegal to try to undermine the legitimacy of the president?

Bondi, for her part, has never said what actual crimes her strike force might look at. She has tasked it merely with looking at what “potential next legal steps ... might stem from DNI Gabbard’s disclosures.” 

This is a null set.

A Ponzi scheme is defined as an investment fraud where the fraudsters promise investors high rates of return with no underlying business activity that could deliver those returns. The fraudsters pay off the original investors—and themselves—with investment funds from later investors. And the whole thing can work for a while as long as the fraudsters are bringing in enough new investors to pay off the previous round. But eventually, Ponzi schemes always collapse because they don’t actually grow the pot. They merely shuffle funds between investors. And eventually, the demands of old investors exceed what the scheme can get from new ones.

Something similar is happening here. The original investor is Trump, who wants an investigation to go after his enemies. Bondi has to appease him, and Gabbard has forced her hand with a disclosure of nonsense that Trump loved. But she can’t actually deliver. She can announce an investigation, sort of, by announcing a ghost probe, and she can keep it going by announcing another one, by pretending that there’s an active grand jury investigation when what she means is that there will be one, at some point, if she can find a place to do it and evidence of something to present.

But there’s no underlying business activity, because there is no underlying crime, and there thus can’t be enough to support the hype, which has to continually escalate in order to satisfy the investors. How do we know this? Because John Durham and others have already been over this garbage. Because Barack Obama has presidential immunity. Because statutes of limitations exist. And most importantly, because the intelligence community assessment was correct and non-corrupt and it wasn’t a criminal conspiracy to do anything. So eventually, you run out of fake investigative steps to announce and you run out of any real investigations you may be able to gin up as well.

Unless, of course, someone does something stupid and makes a false statement to the ghost investigation, or someone has other skeletons in his or her closet. And this is, I suspect, the hope. The Ponzi scheme will keep Trump happy for now with a constant stream of leaks of faux developments and then, just maybe, something will happen that can be spun to justify it all retrospectively.

There’s a problem with this theory, of course. It’s that these are dishonest people who are investigating honest ones. And they are projecting upon them the way they might behave themselves if the walls were closing in on them. But I’m skeptical that James Clapper and John Brennan and Barack Obama and Jim Comey are going to suddenly engage in a coverup related to lawful activity of which they are proud—and of which they should be proud—and bail out this particular Ponzi scheme. 

So at some point, it’s all going to come crashing down.

But at least until it does, The Situation continues tomorrow.