Wednesday, October 17, 2018

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.


  1. It seems to me that Andrew McCabe will be charged as the main culprit in the plot to bring down President Trump by means of the 25th Amendment.

    For the public, this will be the most easy-to-understand and shocking charge in the plot.

    If need be, Rod Rosenstein will testify against McCabe.

    I wonder if James Baker too will testify against McCabe.

    If James Comey was involved in that part of the plot, then Baker would be able to testify against Comey.

  2. As far as I can see there would be no criminal violation in plotting to apply the 25th to President Trump--not in and of itself. After all, what point would there be in having a Constitutional amendment if action based on it would be a criminal violation?
    There could be a criminal violation in plotting to present false testimony in that regard, but that's purely speculative at this point. OTOH, I think McCabe and Comey are in a world of hurt.

  3. there would be no criminal violation in plotting to apply the 25th to President Trump

    Robert Mueller has been charging people he does not like with the crime of conspiracy to defraud the United States. That crime has been defined as follows:

    To conspire to defraud the United States means primarily to cheat the Government out of property or money, but it also means to interfere with or obstruct one of its lawful governmental functions by deceit, craft or trickery, or at least by means that are dishonest. It is not necessary that the Government shall be subjected to property or pecuniary loss by the fraud, but only that its legitimate official action and purpose shall be defeated by misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention.

    I think that this law could be applied to McCabe's plot to secretly record President Trump's conversations in order to remove Trump from his elected office by means of the 25th Amendment.

  4. I see your point, Mike, and there's no doubt that Mueller's prosecutorial theories stretch the the conspiracy statute beyond anything that it was intended to apply to. However, in this case we're dealing with an amendment to the Constitution. I don't see how an appeal to the Constitution can be construed as a criminal act. As long as the recording of the President was obtained legally, there would be no violation of law upon which to base a prosecution. A recording would not itself "interfere with or obstruct" a "lawful governmental function"--although an illegal recording could be a crime in and of itself.

    While it might seem like fair turnabout to use the Mueller interpretation against the plotters, I'd hate to see our legal system descend to that type of twisted reasoning. I strongly believe that there are other more solid bases for criminal prosecutions of all the plotters. I would also like to see Mueller's interpretation challenged on appeal--I don't believe that has ever happened. I'm open to correction on that last point, of course.

  5. Mike, perhaps I should explain what I think was going on at that meeting between McCabe and Rosenstein (and their respective supporting casts). Based on what I've read--and, yes, all accounts are from interested parties--I believe that McCabe and the FBI were trying to convince Rosenstein to spearhead an effort to invoke the 25th Amendment against Trump. That, of course, would require that they convince "the Vice President and a majority of ... the principal officers of the executive departments" that Trump was "unable to discharge the powers and duties of his office." It is in this context that I believe McCabe raised the possibility/desirability of Rosenstein obtaining evidence of Trump's suppsed "inability to discharge the powers and duties of his office", and I believe it is in this context that Rosenstein sarcastically responded: "What do you want me to do, Andy? Wear a wire?" I very much doubt that Rosenstein entertained such a course of action, even though the FBI probably would have been in favor of it. The reason I doubt that Rosenstein would have entertained that course of action is because he would still have had to convince "the Vice President and a majority of ... the principal officers of the executive departments." That would have been a very tall order. Instead I believe Rosenstein decided upon a course of action that was less decisive but which might obtain the desired result of removing Trump--the appointment of a Special Counsel.

    That doesn't mean I think Rosenstein acted wisely or even honorably. In fact, I think he acted both foolishly and dishonorably. That he acted foolishly--by appointing a Special Counsel--should be readily apparent. He finds himself completely boxed in and discredited, with no defenders of any real standing, and the position he finds himself in is a direct result of having made the same foolish mistake so many others have made and have come to bitterly regret: underestimating Trump. On the other hand, as I've said before, I believe Rosenstein behaved dishonorably in appointing the Special Counsel. That's because he was in a position to know--had the duty to know--that there was no basis for such an appointment, that the appointment would be based on a fraud. He then aggravated the initial dishonorable conduct by protecting Mueller in Mueller's pursuit of an utterly bogus "obstruction of justice" investigation--once again based on a fraudulent interpretation of the law and the Constitution regarding presidential powers.

    All of Rosenstein's actions are, at a minimum, firing offenses. That he wasn't fired has only to do with political calculations, but it also means that Rosenstein finds himself now under Trump's thumb and isolated politically. At the same time, while I'm no expert on these matters, I believe he could be facing disciplinary action for some of his decisions, as well as possible civil liability. Altogether an unenviable position to be in.

  6. Regarding civil liability--again, no one should act on my views--Julie Kelly just put up a great article at American Greatness: Carter Page Seeks Justice While the Real Trump-Russia Perps Sweat. Kelly lays out in detail why anyone who had a hand in the persecution of Carter Page, anyone who knew he was innocent and did nothing, should be very, very worried right now. As she says, payback is a bitch. The "dossier" WILL be declassified, and we already know that it's full of falsehoods about Page. No jury in American will let this sleazy crowd of defendants off the hook.

  7. Mark,

    I appreciated and agreed with your comment at 2:44.

    Just for fun, though, I want to ask a serious question about Mueller indicting people he does not like on a charge of conspiracy to defraud the United States.

    When Mueller as Special Counsel issues such an indictment, is his interpretation of that law just his own interpretation? Or does he have to obtain the Justice Department's approval of that interpretation and application?

    In other words, is it correct for me to say that the Justice Department endorses Mueller's interpretation if he actually has issued an indictment?

  8. Since you have referred your readers to the American Greatness website, I recommend that website's contributor Michael Thau. He has written superb articles about the RussiaGate hoax.

    Thau's most recent article is about Christine Blasey Ford's lawyer David Laufman, who has was involved in various political shenanigans in the US Justice Department. Laufman resigned from the DOJ on the day after the Senate Homeland Security and Governmental Affairs Committee issued a critical report on Laufman's investigation of Hilary Clinton’s private email server.

  9. Good point, Mike, and I'm not sure whether I can answer it. I'll give it a shot, and at least we can explore the issues a bit.

    Under the current regs, which date back to 1999, the AG (or whoever is acting as AG--Rosenstein, in this case) appoints the SC. That means the SC is part of DoJ, and so they are required to follow departmental policy. The AG (or the acting one) supervises the SC and part of that supervision should be to ensure that the SC is in fact following departmental policy.

    Of course, as you suggest, his indictments and the legal theory behind them have to be approved. I've already said that Rosenstein has allowed the SC to pursue a bogus "obstruction of justice" investigation that is based--not only in my opinion but in the opinion of highly qualified legal commentators--on a bogus theory of obstruction, as applied to the POTUS. IMO, that is Rosenstein's responsibility, and so too are those indictments that advance what I view as erroneous theories of conspiracy to defraud the US government.

    Thanks for bringing this up. I definitely don't want to give the impression that I'm absolving Rosenstein of responsibility for Mueller's abuses--far from it! Again, Rosenstein's foolish decisions to go along with Mueller are what have landed him in the soup. No matter what politicians or other bureaucrats (like the FBI) were urging him to appoint Mueller and give him free rein, the buck stops with Rosenstein. He owns all those bad decisions, all the abuses, all the stonewalling and phony redacting. The only excuses I've seen are those that postulate theories that it's all a trap being set by Trump and Sessions and Rosenstein are playing along with it until the trap is sprung. I don't believe those theories.

  10. Mike, thanks for the heads up re Thau's work. I'll check that out. Also, John Solomon stated last night (I think it was) that he'll be coming out with an article later this week that will open new vistas on the entire Russia Hoax.

  11. Is Too-Big-To-Fail a reasonable basis upon which to prognosticate about future events as the Spygate case moves forward? In other words, if there may be numerous (perhaps dozens) of senior federal officials and politicians (both past and present) who may be in legal jeopardy for having committed serious felony criminal acts, at what point does a coverup take priority over process? If this was just about prosecuting a few bad apples, then no big deal. But if the corruption is systemic and a clean sweep means fundamentally discrediting these institutions, then Sessions will be under enormous pressure to plea bargain down and let them off the hook in exchange for token censure and some toothless rule changes. He could be the perfect stooge for this betrayal because he is likely to be replaced after the election anyway and could take the reputation hit and then retire with a comfy swamp funded payday. If he does that, he will become as infamous as Judas.

  12. Unknown, sadly what you're saying is a real concern. Perhaps you've read the backstory re the Treasury leaker: Breaking: Yesterday’s Indicted Leakers Are Linked to Mueller Team Member ANDREW WEISSMAN and DOJ Fusion GPS Collaborator BRUCE OHR. I've been too occupied today to follow that story closely, but it's a good example of what you're talking about. Understand, Weissman's leak has been under investigation for a long time--that's a matter of public record. And yet he hasn't been required to step down. But I'm convinced that this story is only the tip of the iceberg.