Is It Time For The Courts To Get Involved In The Russia Hoax?

Back in February of 2018 Hugh Hewitt, law professor and pundit, conducted a fascinating interview on his radio program with Devin Nunes, chairman of the House Intelligence Committee. As it happens, that interview serves very nicely as an introduction to a development that hasn't received much attention, coming as it does in the leadup to the Midterm elections. That development was reported by John Solomon in The Hill: Silence of 'the lambs': The deafening quietude of the FISA court and John Roberts. Let's begin with the Hewitt/Nunes interview.

Hewitt and Nunes revealed themselves to be very much aware of not only the legal aspects of the Russia Hoax, specifically regarding the Carter Page FISA, but also of the Constitutional aspects. This is entirely understandable, given that all three Constitutional branches of the US Government were either involved in the approval of the Carter Page FISA or are now involved in getting to the bottom of the Russia Hoax--in which the FISA aspects present the most danger of criminal liability.

As the interview progressed, Hewitt raised the very possibility that Solomon now refers to: that of interviewing Chief Justice John Roberts, who appoints the FISA Court (FISC) judges. Hewitt clearly believes that the Judicial Branch has a lot at stake in the Russia Hoax and therefore considers that it would be a good idea for Congress to approach the Courts. The exchange begins with a discussion of the Separation of Powers issues involved in Congress seeking to interview the Chief Justice, but it then moves to the issue that's at the heart of criminality in the Russia Hoax: the apparent effort by the FBI and DoJ to disguise from the FISC the true origins of the material that came to be known as the Steele Dossier. The FBI's subterfuge was embodied in a footnote to the FISA application, and Hewitt gives it as his opinion that the footnote constitutes a "material omission. He also cites the opinion of a Federal judge to that effect as well. Here's the exchange:

UPDATES: The Spy In The Trump Campaign

Sundance at Conservative Tree House has a fascinating blog up tonight. He begins from a tweet by George Papadopoulos:

George Papadopoulos‏ @GeorgePapa19

While I cannot disclose the information publicly, it’s a fact that both me and congress know who the SPY within the campaign was. Congress will likely include it in a report later on. Eyes were everywhere during 2016.

3:05 PM - 28 Oct 2018

Sundance posits that the source was the former US Representative from Michigan, Mike Rogers--not to be confused, as we'll see, with former NSA Director Admiral Mike Rogers. Rogers, the former US Rep., was a Special Agent for the FBI in Chicago from 1989 - 1994 (I didn't know him, but recall hearing the office buzz when Rogers resigned to go into politics). More to the point, after leaving the House in 2014, having served as Chairman of the Permanent Select Committe on Intelligence, Rogers joined the Trump campaign in 2016 as national security adviser. Sundance points out Rogers' dodgy role in the Benghazi whitewash and then asks: "So how did Decepticon Rogers come to be an advisor to the Trump campaign?" Unfortunately, he offers no views on that.

Rogers was abruptly terminated within days after the election--much to the dismay of the Washington DC establishment. For example, in the Washington Post David Ignatius reported the dismissal in telling terms:

Just how far the new administration may depart from long-standing U.S. national-security policies was demonstrated by Rogers’s own departure.

You could imagine the jaws dropping Tuesday across the intelligence community when people heard the news of Rogers’s ouster. ... the intelligence agencies literally don’t know what to expect next.

Sundance himself ties Rogers' dismissal to the well known visit of Admiral Mike Rogers to Trump Tower a few days after the election, which led to the move of the Trump transition team headquarters from Trump Tower to a Trump golf resort in Bedminster, New Jersey. However, once again, sundance offers no further details.

The question, then, becomes: What would the NSA Director have to do with a human source inside the Trump campaign? Wouldn't that be the purview of the FBI? Would the NSA Director even know of the existence, much less the identity, of such a source? And even supposing that Admiral Rogers disclosed the existence and identity of a human source inside the Trump campaign, why would that necessitate a removal of the Trump transition team from Manhattan to rural New Jersey? Wouldn't removal of the source from the transition team solve the problem, without the need for a disruptive move?

Is It Possible To Be Guilty Without Violating The Law?

In the comments section to Did James Baker Really Skate? Mike Sylwester (h/t) and I had an interesting discussion regarding the Mueller/Weissman theory of prosecution for "conspiracy to defraud the government." To the best of my knowledge this theory has never been tested on appeal: defendants in the cases in which this theory has been used have--again to the best of my knowledge--pled guilty to other charges. Now, it appears that this theory is about to be put to the test in Mueller's "Russian bot case" against Concord Management and Consulting in the Southern District of New York. Judge Dabney Friedrich has issued a three-page order in which she requires that the Government answer her questions about their theory of prosecution. The judge's doubts about this theory of "conspiracy to defraud the government" can be read in the full order here. However, the gist of the problem and of the judge's objection to the Government's theory (in slightly, but only slightly, simplified form) is as follows.

According to the Government, Concord engaged in various social media activities related to US politics but failed to register as an agent of a foreign power under the Foreign Agents Registration Act (FARA). However, the judge points out that in previous hearings the Government has also maintained that to make its case it will not have to prove that Concord actually violated any regulatory law (such as FARA) but only that Concord engaged in "deceptive acts" that "interfered with the regulatory functions" of the government "in a way that precluded [the government] from ascertaining whether those substantive statutes were violated." In other words, the Government is maintaining that it needn't prove that Concord actually was acting as an agent of a foreign power, but that it was "deceptive"--and thus engaged in a conspiracy--because they didn't register with the government so that the government could make that determination.

Judge Friedrich's objection to this theory thus comes down to this: how can a failure to register be "deceptive" if the Government is unable to show a duty to register in the first place? To which I say, Good question!

The real explanation to all this is one that, unlike the Mueller/Weissman theory, won't make your head hurt. The explanation is that Mueller/Weissman never imagined that the Russian defendants would hire competent US attorneys and contest the bogus case. They thought this prosecution would be a freebee.

Did James Baker Really Skate?

There's been a fair amount of comment and outrage over the revelation by DoJ's OIG yesterday that a "senior FBI official" 1) accepted tickets to a sports event from a journalist, 2) lied under oath about it to the OIG (he first maintained that he had paid for the tickets, then admitted 5 days later that he hadn't), 3) but then was able to avoid criminal prosecution when prosecution was declined, although he subsequently "retired." In a legal environment in which the supposed crime of "lying to the FBI" has become for prosecutors that-than-which-nothing-more-heinous-can-be-conceived, this certainly smells at first whiff of swampy dealings.

And who am I to say that that's not exactly what's going on? On the other hand, there is another quite plausible possibility.

Everyone seems to agree that the "senior FBI official" in question is James A. Baker, former General Counsel to the FBI, whose more recent excellent adventures in the criminal justice system have been chronicled here: James Baker Identifies Another Source Behind the FISA Application and It's James Baker's Turn To Throw Rosenstein Under A Bus. It seems clear that the the threat of prosecution for making false statements to the government (18 USC 1001) was a major part of the legal leverage that was exerted on Baker to get him talking to OIG, Congress, and prosecutors. He apparently sang in bell like tones to Congress and is also said to be cooperating against his former good friend, James Comey. He has also been identified as "Mr. FISA" in the FBI, the top lawyer in the FBI who vetted the Carter Page FISA.

All that being the case, until I learn otherwise I'm going to assume that Baker is facing additional criminal jeopardy involving fraudulent filings with the FISA court and other aspects of the Russia Hoax. That means that he has not evaded prosecution entirely, but only for a relatively minor part of his exposure. I expect that he will continue his cooperation, and that will be the proof that he still faces possible prosecution. Further, given the seriousness of his misconduct I will be sorely disappointed if Baker is not required to plead guilty to some significant criminal charge. If that should happen--if he really does skate in the end--count me among the first who will charge: corruption.

Let me add that, in my opionion, Baker is positioned to be an extremely important witness for the Government if prosecutions occur in the future. As General Counsel to the FBI he was, basically, Comey's lawyer for official purposes. As such he would also have cooperated closely with many top officials at DoJ who have been implicated in the Russia Hoax: among others whose names come to mind I would count Bruce Ohr, David Laufman, John Carlin, Sally Yates, and Mary McCord. It goes without saying--but I'll say it anyway--that he would also have been privy to most of the Russia Hoax and NeverTrump machinations at the FBI itself. For that reason, and for reasons similar to those I outlined in Whose Afraid of Lisa Page? Baker's cooperation and testimony is a game changer when it comes to swamp draining at the FBI and DoJ.

The Russia Hoax As Contingency Plan

Remember, back in August, 2016, when Peter Strzok and Lisa Page were obsessively texting one another? One exchange went something like, well, exactly like this:

"[Trump’s] not ever going to become president, right? Right?!" Page texted Strzok.
"No. No he won’t. We’ll stop it," Strzok responded.

Fast forward a couple of years and here we are in October, 2018, just about two years after Trump's electoral triumph, and for reasons best known to themselves Ben Rhodes and Jen Psaki have decided to reveal to NYMag that the Russia Hoax was a key part of the Obama Administration's--and presumably the Clinton campaign's--contingency plan to, well, steal an election: Obama Had a Secret Plan in Case Trump Rejected 2016 Election Results. We're all adults--right?--so there's no need to quibble over the meaning of words like "results." Here's what Rhodes and Psaki are saying:

The Obama White House plan, according to interviews with Rhodes and Jen Psaki, Obama’s communications director, called for congressional Republicans, former presidents, and former Cabinet-level officials including Colin Powell and Condoleezza Rice, to try and forestall a political crisis by validating the election result. In the event that Trump tried to dispute a Clinton victory, they would affirm the result as well as the conclusions reached by the U.S. intelligence community that Russian interference in the election sought to favor Trump, and not Clinton. Some Republicans were already aware of Russian interference from intelligence briefings given to leaders from both parties during the chaotic months before the election. “We wanted to handle the Russia information in a way that was as bipartisan as possible,” Rhodes said. 

The existence of the postelection plan has not been previously reported. A July 2017 op-ed by Obama’s chief of staff, Denis McDonough, refers to Obama directing his staff to “prepare possible responses” to claims of Russian interference in the election.

Psaki said the plan was one of a larger set of “red-teaming” conversations to address how the White House should respond to postelection scenarios that did not have any historical precedent. “There was recognition that we had a Democratic president who was quite popular but also divisive for a portion of the population,” she said. “For them, just having him say the election was legitimate was not going to be enough. We didn’t spend a lot of time theorizing about the worst thing that could happen — this isn’t a science-fiction movie. It was more about the country being incredibly divided and Trump’s supporters being angry. Would there be protesting? I don’t want to say violence, because we didn’t talk about that as I recall.”

A lot of internet blog commenters have been belly aching about Trump putting a hold on his declassification order in the runup to the midterm elections, but this seems just as good--real red meat for the GOP base. Why Rhodes and Psaki thought it was a good idea to feed the GOP base like this is anyone's guess. I realize NYMag doesn't cater to that base, but Fox alertly picked this story up. But back to 2016 ...

Of course, the Obama and Clinton camps never foresaw--or so they claim--Trump winning the election. They feared a squeaker, a cliff hanger. Or, two years on, that's their story. So let's try a thought experiment of sorts. By dispensing with some of the coded language or doublespeak we come up with this more succinct version of what Rhodes and Psaki are saying:

Trump, Declassification, Leverage

I think interested observers are now in a position to put the whole Russia Hoax in some sort of global perspective--quite literally, as we'll see, in important respects. Recent posts by bloggers who write from widely varying perspectives give us the ability to discern the current state of play.

Let's start with the domestic front of the Russia Hoax. Sundance at Conservative Tree House has an excellent post up: President Trump and DAG Rod Rosenstein – “No Collusion”, No Immediate Worries … The overall theme is one that's dear to sundance's heart: leverage. The state of play is this. Congressional investigation has progressed to the point that it's clear beyond cavil that the entire Russia narrative is, in fact, a hoax and a fraud--both on the American people in general but also on our legal system. Which is to say, that real criminal liability exists for the key players who developed the plot against Trump. John Solomon summarizes what Congress has discovered in succinct fashion:

There is now a concrete storyline backed by irrefutable evidence: The FBI allowed itself to take political opposition research created by one party to defeat another in an election, treated it like actionable intelligence, presented it to the court as substantiated, and then used it to justify spying on an adviser for the campaign of that party's duly chosen nominee for president in the final days of a presidential election.

And when, nine months later, the FBI could not prove the allegation of collusion between Trump and Russia, unverified evidence was leaked to the media to try to sustain public support for a continued investigation.

But sundance spells out very specifically where the greatest risk--and therefore the greatest leverage--lies:

Deputy Attorney General Rod Rosenstein created the special counsel under fraudulent pretense.  That origination material (Ohr 302’s, FISA pages, origination EC, and Page/Strzok messages) is now a risk to the Deputy AG.

UPDATED: It's James Baker's Turn To Throw Rosenstein Under A Bus

Not long ago I did a blog with the title: Dems Throw Wray And Rosenstein Under The Bus. John Solomon is now reporting that, according to James Baker in his recent House testimony, that business about Rosenstein maybe wearing a wire against Trump was no joke--or at least not from the perspective of the FBI--Former FBI lawyer: Plot to record, remove Trump not a joke:

Baker told lawmakers he wasn’t in the meeting that McCabe had with Deputy Attorney General Rod Rosenstein in which the subject came up. But he did have firsthand conversations with McCabe and the FBI lawyer assigned to McCabe, Lisa Page, about the issue.

“As far as Baker was concerned, this was a real plan being discussed,” said a source directly familiar with the congressional investigation. “It was no laughing matter for the FBI.”

Solomon is properly circumspect about what might be behind Baker's statements--after all, this could be simple truth-telling, or it could be payback for Rosenstein's cooperation with Trump in recent weeks? It remains possible, even likely, that Rosenstein wanted nothing to do with McCabe's idea of recording President Trump and seeking to invoke the 25th Amendment to remove Trump, no matter what his personal views on Trump. On the other hand, the FBI leadership--knowing what their criminal jeopardy was should Trump become aware of their shenanigans during the 2016 election--doubtless saw this as a life and death matter. For them. It wouldn't be for Rosenstein, although Rosenstein went on to create his own problems for himself--appointing the Special Counsel, approving the final FISA, all on fraudulent grounds. Solomon rightly stresses the extraordinary implications of all this:

UPDATED: James Baker Identifies Another Source Behind the FISA Application

It's been known for some time that James Baker, the former General Counsel of the FBI, has been cooperating with investigators. As General Counsel Baker was essentially former Director James Comey's legal adviser, just as Lisa Page filled that function for former Deputy Director Andrew McCabe. Today, while the rest of the country remained focused on the Kavanaugh nomination, Baker testified before the House Oversight and Government Reform Committee, pursuant to a confidentiality agreement that was reached with Baker and his attorneys. In general terms Baker responded to questions about the origin of the Russia Hoax operation--apparently terming the handling of the investigation "abnormal" and influenced by the political views of those handling it--as well as about the sourcing of the FISA application.

The most important aspect of Baker's testimony today, which Rep. Jim Jordan characterized as "pretty explosive", appears to have been the new information that Baker provided about the sourcing for the FISA application. To this point it has been assumed that the probable cause for the FISA application largely rested on the so-called Steele "dossier"--both Comey and McCabe have confirmed that. However, today Baker told Congress that there was another source as well. Per Fox News: