Briefly Noted: The Full Story, Obstruction Theories, Nadler's Plans, Ukraine

I've decided that when there is no new information or events concerning which I believe I'm able to comment usefully at length--based on background and experience--I'll nevertheless briefly note new developments that may point toward the direction that investigation into the Russia Hoax may take. For now it seems clear that Bill Barr will, to a great extent, be calling the shots.

Most recently, in The Big Picture Behind The FBI's Really Big FISA Problem, I linked to a very lengthy article at DC Whispers: The Full Story of How Obama, Hillary and Brennan Carried Out The Crime of the Century. It really does offer an excellent overview, and I especially like the early part that goes over the interaction between Rod Rosenstein and Andrew McCabe on the one hand with the Congressional Gang of Eight, leading up to the appointment of the Special Prosecutor. In that light, Trump's successful removal of Paul Ryan and Bob Corker from Congress probably tells us a lot about which RINOs were most involved in colluding with the Dems.

One area of disagreement that I have with the "Full Story" is the claim that the in a redacted provided to Devin Nunes by Rosenstein that bears on the Carter Page FISA, “the name of a country and the name of a foreign agent who supplied information ... is Germany and the foreign agent was either Angela Merkel or someone who worked for Angela Merkel in foreign intelligence." I strongly believe, based on all available evidence, that the country in question must be the UK.

On related topics, Andy McCarthy offers a succinct portrait of Rosenstein and the possible motives behind his legally insupportable actions:

Increasingly frustrated by Comey’s refusal to state publicly the assurances he’d given Trump privately, the president fired the FBI director on May 9. In announcing the dismissal, Trump relied on a memorandum by Rosenstein, which cited bipartisan condemnation of the director’s mishandling of the Hillary Clinton emails caper during the 2016 campaign. 

Why did a personnel decision that Rosenstein himself had endorsed become, just eight days later, Rosenstein’s pretext for a sprawling special-counsel investigation? The hapless deputy AG — a Republican careerist who had carefully cultivated good relations with Democrats — miscalculated that he would be lauded for his memo. Democrats, he failed to grasp, had moved on from rage over Comey’s role in Hillary Clinton’s defeat (particularly his public reopening of the criminal investigation against her a few days before the election). By the time Comey was canned, the FBI director had become useful as a thorn in Trump’s side, especially after he announced the Trump/Russia probe (in contravention of Justice Department rules against public commentary about investigations). 

...

Rosenstein became distraught as Democrats savaged him for his role in the affair, ... Desperate to show he was still one of Washington’s good guys, he ludicrously brainstormed with Andrew McCabe, Comey’s deputy and acting successor, about invoking the 25th Amendment to remove Trump and about covertly recording the president in the Oval Office (Rosenstein says he was being sarcastic; McCabe says he seemed quite serious). Finally, with no warning to the White House or the attorney general, Rosenstein abruptly named Mueller as special counsel. ...

McCarthy then goes on to ask a very pertinent question:

A nagging question persists: Why did Mueller allow the investigation to continue for well over a year after it must have been patent that there was no collusion case? Indeed, the several indictments Mueller filed, including two against Russian operatives, appeared to preclude the possibility that the Kremlin sought to partner with any Americans, let alone with the Trump campaign. Why did neither Mueller nor Rosenstein issue an interim report? That would have enabled Trump to govern without a cloud of suspicion that he might be a clandestine agent of Russia, yet permitted the overarching inquiry into Russia’s operations and even the obstruction probe to continue. The country deserves an answer.

McCarthy believes the answer lies in the pursuit by Team Mueller of an obstruction charge, after they already had determined that there was no "collusion." Hopefully we'll get the truth in a few weeks when Barr releases more of the Mueller report. However, I expect something a bit different to come out. We all know that there's no such thing as a crime of "collusion," and yet we also know from Rosenstein's public statements that Mueller was appointed to continue the investigation of a crime that was part of the Crossfire Hurricane investigation. I have argued extensively in the past that the crime in question is related to the claim of a corrupt quid pro quo between Trump and Russia: sanctions relief for help in the election. The federal bribery statute seems a likely criminal predicate based on that theory, although there are other possibilities, such as the federal fraud statute. This explains why we know that Team Mueller was until not long before it was shut down by Barr was still trying to nail Don Jr. and Jared Kushner regarding the Trump Tower meeting and to tie that meeting to Trump himself.

McCarthy, however, believes

Mueller’s team pursued a novel theory: An obstruction charge might be premised on lawful exercises of the president’s Article II prerogatives (e.g., firing subordinate officials, weighing in on the merits of investigations, considering pardons) if a prosecutor — the president’s subordinate — later deduced that the acts had been improperly motivated.

I think this is, on balance, unlikely--at least as an explanation for the unconscionably prolonged investigation. While I agree that Team Mueller was quite capable of attempting to employ such an absurd theory, two factors militate (in my opinion) against such a view.

First, John Dowd has pointed out Trump's remarkably extensive cooperation with Mueller's inquisition. That cooperation effectively put the lie to any claim that the firing of Comey was "improperly motivated." The firing itself was not ipso facto obstruction because it was a lawful act--it could only be construed as obstructive based on further overt acts. But Trump's cooperation demonstrated that there was no obsructive intent.

Second, there is Rosenstein's response to Bill Barr's 19 page memo. As McCarthy notes, Barr's memo, issued in June, 2018, was a sustained attack on precisely the obstruction theory outlined above. Jack Goldsmith, a highly regarded legal expert on these matters, has explained that he doubts that Mueller was actually using such a theory, and cites Rosenstein in support of that conclusion:

In sum, Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. ... Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

I agree with Goldsmith that Rosenstein's words probably exclude the obstruction theory that concerned Barr. I am, however, surprised that a scholar of Goldsmith's stature would dignify Marcy Wheeler's rather IMO harebrained theories with a mention (Wheeler has a PhD in comparative literature). As it is, however, Goldsmith does discuss my favored theory regarding the federal bribery statute, and he agrees that this statute could serve as a vehicle for an obstruction charge under Barr's understanding of the law on obstruction. Therefore, if Team Mueller was still attempting to squeeze Flynn, it would probably have had to do with the bribery statute or some similar theory. If so, Barr, obviously, was utterly unconvinced that further pressure on Flynn was warranted by and known facts.

Moving along ...

sundance at CTH has his knickers in a bit of a knot over Jerry Nadler's presued plans to call Mueller to testify, as well as various prosecutors and agents from Team Mueller. I find his concern overdone:

Attorney General William Barr’s motives and intents are still unclear, and caution should be applied.

With Rosenstein and Mueller still participating in the greatest soft-coup in our nation’s history, there is obviously a great deal of pressure on AG William Barr to join his life-long friends, get rid of Trump and gain the accolades of the administrative state.

To me, this is pure speculation that is unsupported by the circumstances surrounding Barr's nomination to the AG position and inconsistent with his actions since taking office. Further, 1) any testimony by Team Mueller members will have to be seen in light of the release of the Mueller report, and 2) as employees of DoJ, all of these officials will undoubtedly be accompanied by DoJ attorneys to insure that they don't stray, just as Rosenstein did with all the witnesses who testified to the House. Additionally, I find it highly unlikely that the American public is awaiting such testimony with bated breath and expect that further documentary revelations will have far greater impact.

Finally, I'd like to draw particular attention to the latest in John Solomon's continuing writings regarding the Ukrainian connection: Ukrainian to US prosecutors: Why don't you want our evidence on Democrats? I've written about this recently in

The Soros, Ukraine, FBI Connection

Do All Roads In The Russia Hoax Lead To Ukraine?

I have nothing really to add at this point, except to highly recommend Solomon's work. The article is too dense and detailed to easily summarize, but it's clearly potentially blockbuster stuff both with regard to the 2016 election as well as the Dem operation generally.

UPDATE: Commenter Anonymous (see below in comments) suggests that I not be too quick to state that the redacted country/person in the FISA application relates to the UK, or not exclusively. If anyone can come up with some real documentation, please let me know. In the meantime, George Neumayr wrote in John Brennan’s Plot to Infiltrate the Trump Campaign in January:

As Trump won primary after primary in 2016, a rattled John Brennan started claiming to colleagues at the CIA that Estonia’s intelligence agency had alerted him to an intercepted phone call suggesting Putin was pouring money into the Trump campaign. The tip was bogus, but Brennan bit on it with opportunistic relish. 

Out of Brennan’s alarmist chatter about the bogus tip came an extraordinary leak to the BBC: that Brennan had used it, along with later half-baked tips from British intelligence, as the justification to form a multi-agency spy operation (given the Orwellian designation of an “inter-agency taskforce”) on the Trump campaign, which he was running right out of CIA headquarters. 

The CIA was furious about the leak, but never denied the BBC’s story. To Congress earlier this year, Brennan acknowledged the existence of the group, but cast his role in it as the mere conduit of tips about Trump-Russia collusion: “It was well beyond my mandate as director of CIA to follow on any of those leads that involved U.S. persons. But I made sure that anything that was involving U.S. persons, including anything involving the individuals involved in the Trump campaign, was shared with the bureau.” 

But if his role had truly been passive, the “inter-agency taskforce” wouldn’t have been meeting at CIA headquarters. By keeping its discussions at Langley, Brennan could keep his finger wedged in the pie. Both before and after the FBI’s official probe began in late July 2016, Brennan was bringing together into the same room at CIA headquarters a cast of Trump haters across the Obama administration whose activities he could direct — from Peter Strzok, the FBI liaison to Brennan, to the doltish Jim Clapper, Brennan’s errand boy, to an assortment of Brennan’s buddies at the Treasury Department, Justice Department, and White House. 

The bogus tip from Estonia led the group into its first cock-up: sending FBI agents to sniff around the computer server connected to Trump Tower. After that effort flopped, Brennan’s group had to go back to the drawing board (on the electronic intelligence front, it had already hatched plans for national security letters and FISA warrants). Someone in the group must have proposed blasting a swampy old CIA source and Hillary supporter, Stefan Halper, into the Trump campaign orbit to see if he could catch a couple of minor campaign volunteers out in collusion. 

...

So, yes, it's possible that the bogus Estonia tip showed up later in the bogus FISA application.