Sunday, December 30, 2018

Are You Kidding Me?

It's hard to overstate the debt of gratitude that conservatives owe to sundance at Conservative Tree House for the quantity and quality of information he has brought to bear on the Russia Hoax. Just yesterday he had an excellent reprise, tying various threads together: Why Flynn? – A Confluence of Highly Charged Political Events … Therefore to read the very same day such a ... I want to choose the right word ... deeply unserious blog by the same author is beyond disappointing. Way beyond. And yet that's truly about the kindest thing I can say about Solutions?

The problem for which sundance claims to have a solution is the institutional corruption of our federal justice system, specifically the politicization of the DoJ and FBI:

The institutions of the DOJ and FBI are corrupted; not just a few people within it, but rather the entire apparatus has been weaponized, over time, by participating political members who have politicized every function within the institution.

Let's grant the premise for the sake of the argument. What is sundance's solution?

Any solution has to come from a position external to the organization or the cycle will simply continue.
Putting a former U.S. DOJ official in charge of the DOJ, regardless of former term or professional/honorable intent, only maintains the status quo. The career mechanisms inside the organization will expel any action adverse to their interests, and the rules are set to aide their retention.

He's speaking here of Bill Barr, Trump's nominee to replace Jeff Sessions as AG. And so there's no chance that you'll mistake who he has in mind, he has a picture:

Friday, December 28, 2018

A Message Of Hope

For Christians, Christmas is perennially a season of hope, so it seems an appropriate time of year to offer a message of hope to conservatives generally. In the comments to recent articles regarding the ongoing Russia Hoax a note of resignation and even dejection has been noticeable. And yet even as the assault on our constitutional order continues (and I use this phrase advisedly) there are, I believe, positive developments--even reasons for cautious good cheer.

The most obvious positive result is to be found in the results of the midterm elections. True, the GOP lost the House, yet on the positive side Paul Ryan--who played a key role in slowing down the House investigations into the Russia Hoax and even, as it turns out, the initial dissemination of the Clinton campaign's "dossier"--is gone. That alone is a positive development, as is the emergence of a more unified Republican caucus.

On the Senate side the news is even better. The GOP majority has been expanded--an historically unlikely achievement. Traitorous members have been discarded--McCain, Flake, Corker--and replaced by either more conservative new senators or new senators who owe their election to Trump's remarkable campaign effort and who will therefore be in his debt. This bodes well for confirmations, both of judges--including very possibly another seat on the Supreme Court--but also for perhaps the key cabinet position: the confirmation of a new Attorney General to replace the feckless Jeff Sessions.

Already, in that regard, we have good news. Matt Whitaker, the acting AG, has been cleared by an internal ethics review at DoJ to supervise Team Mueller. Of course, emboldened by their success with Sessions, the usual Democrat suspects brought forward the by now standard demands for recusal, citing Whitaker's past criticisms of Mueller. Whitaker, despite anonymous DoJ sources suggesting recusal out of "an abundance of caution," wisely and out of a strong sense of principle, refused to recuse. The notion that anyone who has paid attention to ongoing events in the public life of the nation and who has both an opinion and the gumption to express that opinion, should recuse himself from a position of authority is too bankrupt for serious consideration.

The stage is now set for Whitaker to play an active role in oversight of Team Mueller. If the Democrats have a problem with that, there is a ready solution. They can try their luck with Bill Barr by allowing his confirmation as AG to proceed expeditiously.

Sunday, December 23, 2018

UPDATED: Judge Sullivan's Challenge

Despite the fact that Judge Sullivan totally shot himself in the foot with his absurd speculation regarding the possibility of General Flynn being charged with treason, it does appear that Sullivan remains focused not only on the misconduct (read: possible criminal conduct) by Team Mueller and the FBI, but also on the legal insufficiency of the charge against General Flynn--False Statements to the US Government, 18 USC 1001.

In that regard, legal tweeter Techno Fog flagged this fascinating exchange--note that the "Kelner" who responds to Judge Sullivan is one of Flynn's attorneys, Michael Kelner:

Near adjournment, Judge Sullivan mentions that he will likely have "many, many, many more questions" - including: 1) how the gov't investigation was impeded 2) What was the material impact of the crimes /end

The important point Sullivan has in mind comes toward the end, when he says:

"These are questions that you would prepared to answer anyway, such as, you know, how the government's investigation was impeded? What was the material impact of the criminality? Things like that."

Obviously Flynn's lawyer, Kelner, likes what he's hearing, is very much in favor of "things like that," and he says so:

Tuesday, December 18, 2018

UPDATED: Setting False Statement Traps Is Not Official FBI Business

As the slow motion drama of the Michael Flynn prosecution winds slowly toward sentencing, it has become increasingly clear that the conservative commentariat feels conflicted. On the one hand, they can't approve of what appear to be lies on the part of Flynn--inexplicable as this appears to have been in the circumstances (Flynn knew that the FBI had a recording of his conversation with the Russian Ambassador). On the other hand, there seems to be something distinctly fishy about the entire case against Flynn. The evidence of investigative and prosecutorial misconduct--possibly including criminal acts--has become overwhelming. Nor has Robert Mueller's reply to the Flynn response to the sentencing memorandum allayed any of those misgivings--quite the contrary, as Scott Johnson (one of the Powerline bloggers) puts it:

I find the reply memo to be a shocking document. Something does not compute.

Something is clearly wrong with it all. Whether or not Flynn lied, it all seems so unfair, including the very way in which the agents conducted the interview. Another of the Powerline bloggers, Paul Mirengoff nicely sums up what we instinctively know was going on:

There’s no mystery about what happened to Flynn. Towards the end of the Obama administration, this decorated General and top intelligence official left the government and became the leading critic of the administration’s national security policy.  
Compounding his offenses against the deep state, Flynn joined the Trump campaign team. ...  
For the deep state, this was the last straw. Once Flynn was named Trump’s national security adviser, it sought revenge. ... 

Yet, the question arises: Is there a legally principled way to address the Flynn situation, one which does justice to Flynn--despite his misconduct--but preserves the integrity of our justice system and, crucially, of our courts? I believe there is and addressed it this past Saturday. The solution should, in fact, be glaringly obvious, but has escaped notice--most likely because it requires an examination of the basic principles underlying law enforcement in our constitutional system. In our system of law the State is not authorized to simply test its citizens--citizens are entitled to be left alone unless law enforcement has some articulable reason for approaching them. Let me state this very bluntly, with application to the Flynn case, before examining it in more detail:

False Statement Traps Are Not Official FBI Business. The FBI has no authority to interview random people to see whether they will lie. They must have an articulable reason for the interview to begin with--one that flows from their official duties. All else must follow from that.

It's About Sanctions Relief For ... What?

In two recent blog posts--Crossfire Hurricane: The Theory Of The Case and More On Mueller's Theory Of The Case--I outlined what I view as the centrality of sanctions relief for Russia to Team Mueller's continuing jihad against the Trump administration. In the most straightforward version of the theory, Trump would have entered into a straightforward but corrupt quid pro quo with "the Russians": sanctions relief for Russia in exchange for something of value--some type of help for Trump's campaign, be it the release of supposedly "hacked" DNC emails or unspecified "dirt" on Hillary. This would constitute bribery under the terms of the Bribery statute (18 US Code 201), which covers not only government officials but also any "person selected to be a public official." In a more convoluted version of the theory, outlined in More On Mueller's Theory Of The Case, a case might be attempted--relying on the same corrupt transaction--for fraud against the United States (18 U.S.C. § 371).

While this theory of a sanctions relief for DNC emails deal is featured early on in the Steele "dossier" reports, I have always believed that the famous Trump Tower meeting was an early attempt to involve the Trump campaign in just such a corrupt quid pro quo deal. I described it in this way:

Monday, December 17, 2018

About That Contingency Plan

Back in October I wrote a shortish blog (by my usual standards) called The Russia Hoax As Contingency Plan, in which I argued that the Russia Hoax was developed as a contingency plan to steal the presidential election in case Hillary lost. I noted that while the Russia Hoax really took off just before and after the election, it actually had deep roots, all the way back to at least early Spring of 2016.

And now we get confirmation of that from no less authoritative a source than Christopher Steele himself!

When last we heard of Christopher he was embroiled in a law suit in London:

Christopher Steele was dragged into court in a defamation suit filed by three Russian bankers in London who claim they were smeared in a discredited Slate article about a computer server, Trump Tower and Moscow’s Alfa Bank — the three Russian bankers, Mikhail Fridman, Petr Aven and German Khan also filed a lawsuit against gutter oppo research firm Fusion GPS.

The Gateway Pundit notes that Slate's fake news story about the Alfa Bank was tweeted out by Hillary Clinton just one week before the election, based on hot new "information" that Christopher had just dreamed up in report 112 of his "dossier".

Steele has just responded to interrogatories in the case, and the Washington Times has provided us with one response:

Mr. Steele wrote: “Fusion’s immediate client was law firm Perkins Coie. It engaged Fusion to obtain information necessary for Perkins Coie LLP to provide legal advice on the potential impact of Russian involvement on the legal validity of the outcome of the 2016 US Presidential election.
“Based on that advice, parties such as the Democratic National Committee and HFACC Inc. (also known as ‘Hillary for America’) could consider steps they would be legally entitled to take to challenge the validity of the outcome of that election.”

And here's an image of the original, per Sean Davis, including the questions Steele was responding to:

And there you have it: Russia Hoax as contingency plan. I'd call it official now. And this is what's been behind "the resistance" for the past two years. A Russia Hoax dreamed up by an agent of a Foreign Power to overturn a US election. Any bets on the amount of column space or air time this will get in the MSM?

UPDATED: Dersh Gets It Right

Today on Fox News Alan Dershowitz hit a hanging curve out of the ball park--and followed up with an article at The Hill: Did Michael Flynn lie? Or did the FBI act improperly? I have only one, partial, reservation with regard to his statements, which I'll make clear.

Quite simply Dershowitz states:

Is it the proper role of law enforcement to conduct criminal morality tests to determine whether citizens will tell the truth or lie when given the opportunity to do either by FBI agents?

As I've been saying, the answer--perfectly obvious to any sane person--is: Absolutely not! Dershowitz then takes it a step further, referring to Mueller's handling of potential witnesses:

Is it proper to target individuals for such tests for the purpose of pressuring them into becoming witnesses against the real target? These are important questions for all citizens who care about civil liberties and prosecutorial abuses.

That one is bound to involve trickier factual situations, but there's no doubt that Dershowitz is touching on exactly what he describes: "important questions for all citizens who care about civil liberties and prosecutorial abuses."

Here's my reservation and, as I said, it's only a partial reservation that pertains to the particular circumstances of the Flynn case. Dershowitz is absolutely clear that Flynn did nothing wrong in speaking to the Russian Ambassador. I only wish that Dershowitz had made it equally clear that the FBI had no business interviewing Flynn because there was nothing to talk to Flynn about that was within the field of the FBI's duties--neither criminal nor national security.

Mueller's "Enterprise" Witchhunt

In past articles on the Russia Hoax I've stressed that the guidelines that govern FBI investigations are the key to understanding the Deep State's assault on the Trump administration. In that regard I have several times referred to the FBI's Crossfire Hurricane case as a sort of "umbrella" investigation, one that subsumes the investigations on given individuals, such as Carter Page. The whole issue of the precise nature of the Crossfire Hurricane investigation has arisen once again, in the context of disgraced former FBI Director James Comey's testimony last week before the House Permanent Select Committee on Intelligence (HPSCI). I think it will prove helpful to revisit this topic because, as I hope to show, there are important consequences that flow from this.

What Kind Of Investigation Is Crossfire Hurricane?

Back on March 20, 2017, then FBI Director Comey testified before HPSCI regarding Russian "active measures" during the 2016 election. Chairman Nunes characterized the committee's work as concerned with Russian "active measures" during the 2016 presidential election, but the Democrats stated that it was all about "collusion" between the Trump campaign and "the Russians." In his testimony Comey confirmed for the committee that the FBI's investigation, which we now know as Crossfire Hurricane and which began in late July, 2016, was concerned with "any coordination between people associated with the Trump campaign and the Russians."

This is important, because in Deputy Attorney General (DAG) Rod Rosenstein's letter of May 17, 2017, in which he appointed Robert Mueller as Special Counsel (SC), Rosenstein's authorization closely tracks Comey's testimony:

The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump; ...

There are several important bits of information that we need to take special note of in this.

  • First, Mueller is not starting up a new investigation--he's taking over an already existing investigation, the same one that was confirmed by Comey two months earlier. 
  • Second, and very importantly, Mueller's investigation is not authorized as a general investigation into Russian "active measures" (i.e., interference, meddling) in the 2016 campaign but instead is rather narrowly focused on "coordination between people associated with the Trump campaign and the Russians."

In other words, Rosenstein did not authorize Mueller to investigate coordination between people associated with the Clinton campaign and the Russians--only the Trump campaign.

Saturday, December 15, 2018

UPDATED: Russia Hysteria, False Statements, And The Michael Flynn Affair.

Flynn's Rise

Where to start with the Michael Flynn saga? We could start with Flynn's outspokenness regarding the origins of ISIS that so angered the Obama administration, or perhaps with his interference in Deputy Director Andrew McCabe's jihad against former FBI agent Robyn Gritz, but presidential candidate Donald Trump's revisionist ideas about relations with Russia--and Trump's criticism of the sacred cow of sanctions--perhaps gets to the heart of the matter more quickly.
In late March 2016, steaming toward the Republican nomination ... Donald J. Trump made a lengthy case for giving President Vladimir V. Putin what he wanted most: relief from American-led sanctions for his annexation of Crimea.
... from the start of his campaign in mid-2015, several months before prosecutors say his company began considering a deal in Russia, Mr. Trump departed from the normal Republican hard line about Russia, attacking President Barack Obama’s approach because it alienated a potential partner.
“I believe I would get along very nicely with Putin,” Mr. Trump said soon after announcing his run for the presidency. “I don’t think you’d need the sanctions.”
This kind of talk set off alarm bells in the globalist establishment of the Deep State. Opposition research went into high gear. By July, 2016, the "sources" for ex-MI6 spook Christopher Steele's "dossier" were telling him that it was all a done deal: "the Russians" had done the DNC "hack" and had already entered into a quid pro quo with Trump: Putin would pass the emails to Wikileaks and Wikileaks would serve as a cutout for the release of the emails that would power Trump to the presidency. In exchange for sanctions relief. The Russia Hoax was up and running, and no one in the establishment media or the political establishment in Washington, DC, was questioning the official version of the "hack" nor the provenance of the rumors that began to circulate about Trump and Russia.

Where was Flynn in all this? Flynn was in retirement, having in 2014 been "forced out of the DIA after clashing with superiors over his allegedly chaotic management style and vision for the agency." He and his son started up a consulting firm, in which Flynn displayed a rather promiscuous penchant for changing his views depending on his clients' requirements. He also displayed a cavalier attitude toward reporting requirements regarding his status as a foreign agent under FARA as well as DoD and DoS requirements for retired military officers. Clients included Russian and Turkish entities.

Sunday, December 9, 2018

UPDATED: More On Mueller's Theory Of The Case

In the week since I wrote Crossfire Hurricane: The Theory Of The Case the conservative commentariate has continued to deny that Mueller is investigating any Trump crimes. As I stated earlier, I agree in that overall assessment of the Russia Hoax--that any crimes are fictional or ... trumped up--but I disagree in this respect: I believe that Team Mueller does have a theory of the case and is continuing to work to find proof for that theory.

As an example of the type of conservative commentary I'm referring to, Paul Mirengoff at Powerline Blog published two blogs, one last night and one this morning, regarding the Mueller "probe": Report: Mueller Pressing Hard on Trump Tower Meeting and Mueller’s theory: Trump defrauded voters. In fact, Mirengoff touches on some central issues that deserve more attention and which, when properly understood, reveal the scope and aim of the highly secretive Mueller operation.

A lot of clarity can be gained by looking at the whole Mueller operation in light of the Steele Dossier. The central allegation of the Dossier boils down, quite explicitly, to the simple proposition: Trump entered into a corrupt quid pro quo arrangement with "Russians": a bribery scheme. This is the aspect of the Mueller case theory I examined in the blog that's linked above, the bribery statute: 18 US Code 201(b)(2). The Dossier's version of this general proposition is that, in exchange for the release of DNC emails by the Russians through Wikileaks--"a thing of value," in that the release of emails could lead to Trump's election--Trump agreed to grant sanctions relief to Russia.

But "dirt on Hillary" works just as well as "a thing of value" to be exchanged for sanctions relief, for purposes of the bribery statute.

Monday, December 3, 2018

Crossfire Hurricane: The Theory Of The Case

For those of us who try to follow developments in the Russia Hoax it's easy to get bogged down in the details and lose sight of the big picture: what I call the "theory of the case." Every investigation needs a guiding theory, even a hoax investigation, and a solid grasp of that overall case theory is a big help in coming to grips with the big picture.

To arrive at the overall theory driving the Russia Hoax it's useful to look at two aspects together: first, the Carter Page FISA, and second, Rod Rosenstein's letter authorizing the Special Counsel.

We've all heard the criticism of Rosenstein's authorization letter: it fails, the critics say, to cite a criminal violation, and so the appointment of Mueller as Special Counsel is illegitimate because the regulations governing the appointment of a Special Counsel require that a criminal violation be stated. But like so many things we think we know, this turns out not to be true at all.

For starters, the regulations only state that the Attorney General (or, in our case, the Acting AG) has to "determine[] that criminal investigation of a person or matter is warranted"--it doesn't state that the actual criminal violation has to be named. I agree that the presumption must be that no investigation should be initiated without some specific criminal statute in view. Moreover, it's natural and fair that the subject of an investigation should know what he's being investigated for, and just as natural that the investigator should like to keep the subject in the dark about as much as possible. What would be a reasonable sounding explanation for refusing to cite a criminal statute? The reason is right there in Rosenstein's letter:
The Special Counsel is authorized to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017 ...