Deputy Attorney General Rod Rosenstein at the Justice Department, October 2017. (Yuri Gripas/Reuters)

Mueller’s indictment is an ineffectual response to a provocation by Russia.

The Russians are engaged in “information warfare” against the United States. That was the big soundbite at Deputy Attorney General Rod Rosenstein’s press conference Friday afternoon, announcing Special Counsel Robert Mueller’s election-meddling indictment against 13 Russians and three Russian businesses.

That is certainly a fair assessment of what the indictment alleges. The account is disturbing, but its form leaves many of us underwhelmed. Our government says Russia is levying war. It is attacking a foundational institution — the electoral system of our democratic society and, more basically, our society’s cohesion as such. Our response should not be, nor appear to be, the filing of a lawsuit. That is provocatively weak.

The Russia probe has been a counterintelligence investigation, as it should be. That is why I’ve complained from the first that it was inappropriate to put a prosecutor in charge of it. This contention is reiterated in my weekend column. The main thrust of this complaint has been that a prosecutor should not be assigned unless there is first strong evidence of a crime. But that is not the half of it.


A government lawyer is a hammer who sees every problem as the nail of a lawsuit. As we saw in the Clinton and Obama years (and will tend to see in transnational-progressive governments that prize legal processes over the pursuit of national interests by the most effective means available), administrations dominated by government lawyers find even belligerent provocations by a foreign power to be fit for judicial resolution.


To the contrary, we use counterintelligence rather than criminal investigation to thwart foreign adversaries because prosecution is a woefully inadequate response. The point of counterintelligence is to gather information so we can stop our enemies, through meaningful retaliation and discouragement. Generally, that means diplomatic, economic, intelligence, and, in extreme cases, military means. It could mean deploying our own cyber capabilities. The idea is not to invade every rogue nation. It is to respond to provocations in a manner that hurts our rivals — conveying that the prohibitive cost we will exact makes attacking us against their interests.

That cannot be accomplished by a mere indictment on which no one will be tried.


When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia.


Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument. To the extent there are questions about whether Russia truly meddled in the election, the special counsel wants to end that discussion (although his indictment will not satisfy those skeptical about Russia’s responsibility for hacking Democratic accounts, or who wonder why the FBI and Justice Department never physically examined DNC servers). Otherwise, the indictment demonstrates that the special counsel has been hard at work. That is as it should be. Through all the months of public debate over whether there was criminal-collusion evidence against the president, we have stressed that the main focus of the counterintelligence investigation is the Kremlin, not the White House. It is good, then, that Russia has gotten so much of the special counsel’s attention.

What is not good is that he is a special counsel as opposed to, say, a high-ranking intelligence or defense official. It is only natural that a prosecutor sees his job as making a criminal case, but that is not really what is called for under the circumstances.


Obviously, if there were strong evidence that Americans had aided and abetted our foreign adversaries in their hostile acts, it would be essential to prosecute them. My objection has been that a special counsel was assigned despite the absence of strong evidence that crimes were committed by Trump-campaign figures. It is freely conceded that I do not favor special-counsel appointments except when a severe Justice Department conflict of interest leaves no other option. Thus, I do not see why a special counsel would have been needed for any Russia case involving suspects unconnected to the Trump campaign. But all that said, I have never contended that the assignment of a Justice Department prosecutor would be inappropriate if there were concrete grounds to believe Americans were guilty of crimes.

Nevertheless, we are talking now about the foreign adversary. The Justice Department’s comments Friday elucidated that information warfare is being orchestrated by Russia — i.e., the regime — not a random bunch of Russians. As we’ve stressed over the years in connection with many terrorism indictments, if a foreign power is engaged in warfare against the United States, an indictment is not a serious response — especially an indictment on which no one is ever going to be prosecuted. Deputy Attorney General Rosenstein suggested on Friday that, with formal charges now filed, the Justice Department will turn to the next step in the legal process: seeking the defendants’ extradition. Once the Russians stop laughing, I imagine they’ll send us a curt note in Cyrillic — or maybe they’ll just flip us the bird, the universal language.


There are reasons besides ineffectiveness to be concerned about turning this diplomatic dispute into a criminal-justice issue.

This is a dangerous game to play. Our government, American organizations, and individual Americans regularly take actions and engage in political expression (including pseudonymous expression) with the intention of affecting foreign political campaigns — or that could be understood that way regardless of American intent. In its lead story on Mueller’s indictment, the New York Times observes that “for decades,” the CIA has “work[ed] covertly to influence political outcomes abroad.” The Obama administration, on the American taxpayer’s dime, tried to get Israeli prime minister Benjamin Netanyahu defeated and agitated against Brexit. The Bush administration tried to democratize the Middle East. It is de rigueur to tut-tut that such meddling is unseemly, but it is what governments do and have always done. They have interests, and those interests can be profoundly affected by who is governing other countries.

Moreover, it is the proud boast of the United States that we promote the virtues and benefits of liberty throughout the world and encourage oppressed peoples to stand up against tyrants. Our government funds Radio Free Europe/Radio Liberty precisely to expose people to news and ideas that their despotic governments censor. Do we really want to signal that we see such agitation-by-information as an indictable crime, in response to which the affected government should issue arrest warrants that will inevitably make it risky for Americans to travel outside the U.S.?

Remember, we are talking here about a case in which Russia’s campaign, despite its energy and funding, was a drop in the ocean of American campaign spending and messaging. It barely registered. It had no impact. And, again, the indictment that has been filed is a gesture that will result in no prosecutions. Is it really worth opening this can of worms?


I know what you’re going to tell me: It’s not the same thing because we don’t do what they do: When we meddle, it is not through the kind of fraudulent activities that Mueller alleges the Russians engaged in — including bank fraud, wire fraud, and identity theft. But don’t kid yourself: What we are green-lighting here is criminal prosecution as a response to “interference” by alleged agents of a foreign power in another country’s elections and public debates. Once that is the rule of the road, we are not going to be able to control decision-making in other countries about what kind of conduct constitutes actionable “interference.”

Finally, since the indictment is a political document, we should evaluate its political impact at home. On balance, it is good for President Trump. The Russian election-meddling scheme stretches back to the years before he became a political candidate. To the extent there was Russian outreach to the Trump campaign, the indictment makes clear that the campaign acted unwittingly. Not only does that mean there was no collusion on the face of things; it means there was almost surely no collusion at all. Had there been an established framework of Trump–Russia coordination, there would have been no need for Russians to reach out to unwitting Trump-campaign officials.

All that said, the indictment — perhaps unwittingly, if I may say so — tells an unflattering story about the state of our country.

When we are attacked by forcible warfare, we instantly grasp the nature of the threat and tend to pull together as a people. Information warfare is a different beast, one that plays on our vulnerabilities, dividing us. The Russians are masters of this game. They understand that unlike bombs and missiles, attacks by political messaging are filtered through our politicized media before Americans internalize them. The messages are not conveyed to us as “the Russians are trying to divide and destabilize us.” They are taken at face value if the commentators and partisans calculate that doing so is helpful to their political agenda. Thus, we get nonsense like, “The Kremlin wanted Trump to win” and “Putin was motivated by his fear and loathing of Hillary Clinton,” etc., etc.

What happened here could not be more patent: The Kremlin hoped to sow discord in our society and thus paralyze our government’s capacity to pursue American interests.

In reality, what happened here could not be more patent: The Kremlin hoped to sow discord in our society and thus paralyze our government’s capacity to pursue American interests. The Russian strategy was to stir up the resentments of sizable losing factions. It is not that Putin wanted Trump to win; it is that Putin figured Trump was going to lose. That is why the Kremlin tried to galvanize Trump supporters against Clinton, just as it tried to galvanize Sanders supporters against Clinton, and Trump supporters against Cruz and Rubio, during the primaries. It is why the Russians suddenly choreographed anti-Trump rallies after Trump won. The palpable goal was to promote dysfunction: Cripple a likely President Clinton before she could even get started, wound President Trump from the get-go when he unexpectedly won, and otherwise set American against American whenever possible.


That should be the upshot of coverage of the indictment. Instead, it’s the usual cherry-picking to bolster our partisan arguments. For example, in its aforementioned report, the New York Times rejects out of hand the president’s matter-of-fact observation that because Russia’s “anti-U.S. campaign” started long before Trump announced his candidacy, the indictment cuts against the narrative of Trump–Russia collusion. The Times counters: “Mr. Trump’s statement ignored the government’s conclusion that, by 2016, the Russians were ‘supporting the presidential campaign of then-candidate Donald J. Trump’ and disparaging Hillary Clinton, his opponent.” The Gray Lady is then off to the races, framing Mueller’s indictment as confirming “a startling example — unprecedented in its scope and audacity — of a foreign government working to help elect an American president.”

And so it goes.

We don’t have collusion. We have division. And we have an adversary that thrives on our division.