Monday, April 8, 2019

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.


  1. I think it was obstruction all along, but I think the entire operation was designed as a provocation to induce Trump to pardon people, fire Mueller, or to fight the turning over of evidence. I don't know who exactly to credit for it, but Trump did none of those things and left Mueller with basically nothing but the Comey firing and Trump's public condemnations of the investigation and it's members.

    Still, I think that latter would have been enough for Mueller and his team follow through with an obstruction charge, but for some reason McCabe cut Rosenstein off at the knees with the revelation of Rosenstein's offer to wear a wire. I don't know that Rosenstein was being serious or not, but that undermined any remaining legitimacy Rosenstein had. With the Senate majority increased for the Republicans, Sessions could be fired and replaced. This is what ended the Mueller investigation.

    I don't know what Barr is going to do- I have hopes, but I also have deep cynicism developed over watching these sorts of things over decades- I more or less expect no one will ever be indicted for starting this bogus criminal investigation. I hope I am wrong.

    1. I have to disagree on some of this.

      The reason I think there was more than obstruction alone--in the version that McCarthy presents and which Barr opposes--has to do with what people hwo have been questioned by Team Mueller have reported: that they were pushed hard on things like the Trump Tower meeting and not just on perjury traps. To me that indicates a determined effort to establish an underlying offense to support obstruction. Here's a possible distinction: the underlying offense might not apply to Trump himself (Flynn, Don Jr., Jared), but the obstruction of that offense would be applicable to Trump.

      I do agree that increasing the Senate majority was a real key, in part because it was an impressive demonstration of public support for Trump, who campaigned hard for the Senate. Ryan sabotaged the House.

      I'm out on a limb--I expect indictments.

  2. The short explanation for all Collusion/Obstruction happenings is Democrats are practitioners of Lawfare, and Republicans aren't.
    When Democrats use government power to punish Republicans, and, in response, Republicans "recuse" themselves from the fight, well, it's a pathetic sight.
    I hope that Barr, like a father confronting rebellious teenagers at home, uses the power of his office, which Sessions abdicated.

    1. I would put it this way: The problem isn't so much that the Republicans don't practice Lawfare, as that they always seem inclined to forgive and forget. The result is that no one fears them.

  3. I'm with you, Mr. Wauck, in expecting charges. And I'm going out on a limb, too. President Trump is very popular and loved by a large crowd of deplorables, er, patriotic, middle-class traditional Americans (of which I'm one. Look at his rallies and the enthusiasm. It's genuine.

    There's no way Clinton or Obama could draw these kinds of crowds, to say nothing of the crop of Democrats seeking the 2020 election.

    The plotters have failed, and they know it. I anticipate a reckoning. I think that AG Barr is woke. Why would this man give up his "good life" and take all this abuse from the media and the Dems if he planned to roll over?

    I didn't comment on your DC Whispers entry before now. I was furious with what I read. The audacity. I've said if before and I'll say it again. These men aren't smart. They only think they are. Clapper's plan to meet with one of the three female Supreme Court justices reeks of sedition.

    1. And don't forget re Barr, from the NYT:

      "Of 10 former attorneys general contacted Tuesday, only one responded to a question about what they would do in Mr. Sessions’s situation.

      “There is nothing inherently wrong about a president calling for an investigation,” said William P. Barr, who ran the Justice Department under President George Bush. “Although an investigation shouldn’t be launched just because a president wants it, the ultimate question is whether the matter warrants investigation.”

      "Mr. Barr said he sees more basis for investigating the uranium deal than any supposed collusion between Mr. Trump and Russia. “To the extent it is not pursuing these matters, the department is abdicating its responsibility,” he said."

  4. Sorry, I left out one or two points. When I mentioned DJT's popularity, I was building the case that he has leverage and the upper hand, due to his popularity.

    This supports my contention that the plotters know that they have failed.

    I would love to know what's in the mind of the conspirators. Playing amateur psychologist, I imagine that Brennan, Comey and McCabe know what's coming down the road. Clapper is probably in denial as to how much trouble he is in. Strozk came across as mentally disturbed in his congressional interviews.

  5. You can imagine that most of the Deep State establishment are in denial--totally stunned that Trump has not only survived but thrived.

    Re "mentally disturbed", John Dowd said almost exactly the same thing about James Comey.

  6. Comey is an odd duck. My impression is that he knows better and rationalizes his behavior. It's just a guess.

  7. Mark a minor comment about the foreign intelligence (either UK or Germany). As a former Brit living in Canada I would subscribe to the UK if only those 2 choices. But remember way back in early 2016 (if I recall March/April if not earlier) time-frame there was a story (I think more in UK press than USA) about "questionable communication between Trump personnel and the Rooskies" that came from a Baltic State (I believe Estonia took the prize). Could that be the "foreign country". At the time the PM of Estonia (sorry too lazy to Gaagle) had a brother who worked at that bastion of British virtue and integrity the BBC. Ho Hum. Perhaps the brother also knew my favorite Guardianista Luke Harding who was good pals with Chris Steele.
    Hugh W.

  8. Thanks, Anon. You're right to point out the ambiguities here. I've done a bit of searching without anything definitive, in the sense of getting a documentable source. Most of the results were lefty conspiracy stuff, but George Neumayr had an article in January that points at Estonia and the Brit connection, so I'll put that in an update. Tx again.

  9. Parsing words and theories in order to concoct a legalistic rationale for Spygate is a fools errand. Many departments within the Executive Branch were corrupted and weaponized for political purposes under the Obama Administration. That is no trivial matter. In addition, this hubris eventually evolved into a full-fledged coup to oust a duly elected president of the United States. That is a crime of unmatched significance in at least the past century and, perhaps arguably, the history of the Republic. If this crime is not fully investigated and redressed, then the rule of law is functionally obsolete as a foundation stone for our democracy. Should Barr abandon his duty in this regard, it will become an imperative for the citizens to march on Washington DC and seek to directly redress this treachery. Barr is standing on a precipice. Flimflam and balderdash will not suffice.

    1. If the "words and theories" that constitute the "legalistic rationale" for the Russia Hoax are not "parsed" then "this crime" will never be "fully investigated and redressed."

  10. Perhaps I was too obtuse in my comment. Allow me to be more visceral in pursuit of clarity.

    If someone sticks a knife in your abdomen, it doesn't really matter whether he twists it to the right or left. What matters is that there is a knife in your abdomen.

    During the Obama Administration, the seminal law enforcement institutions of the USA (DOJ/FBI) were corrupted into becoming criminal enterprises. The style of spinning that reality is less important than the fact that the DOJ/FBI became a criminal enterprise.

    1. Your metaphor is inapt. I think sundance is more on the money when he speaks of "the small group." The leadership of DoJ/FBI was indeed corrupt, but it's incorrect to say that the rank and file are corrupt--most had no idea what was going on, precisely because it was hidden from them. The distinction is a familiar one that I've discussed re Crossfire Hurricane. CH was, according to the Guidelines, an "enterprise" investigation, i.e., an investigation of an "enterprise" (small group) within a larger organization. The "enterprise" acted for its own interests. The "enterprise" in the Russia Hoax was mostly the top leadership, a relative handful.

      That doesn't mean that there isn't a major problem with personnel, just as there is in education, but understanding what's going on IS important to solving the problem.

    2. The real problem is that the American people have been corrupted and are largely complicit in the cancerous liberalism that has taken over our institutions. The primary source of that problem is the Gramscian hold on our educational institutions. As long as the American people tolerate the schools from K through however high you go as leftist indoctrination camps there will be no fundamental change.

  11. Re Unknown's comments and my responses ...

    It's difficult to address these issues in comments. One way, however, to point at the real problems is to point to Rod Dreher's recent blog, Harvard's Glass Menagerie, bearing in mind that the same basic problems are endemic from K through grad or professional schools, and are embraced in large corporations as well--not just in government bureaucracies. A "March on Washington" won't make a dent in all this. It's worldview, philosophical problem. Here's part of a comment to Dreher's blog, in which the commenter views America as a dystopia:

    "The thing that really concerns me is not trying to figure out whether these people are right or wrong, good or bad, morally speaking. I don’t care — I know I hate this new movement and I think their worldview is garbage.

    What concerns me is that it shows signs of stability. ... — rather than portending social chaos and civilizational breakdown, it seems to be stabilizing as a genuine dystopia.

    A dystopia is not a place that is threatened by genuine chaos — quite the opposite. It’s a moral horror because it actually stabilizes around evil things. The thing that was horrifying about Brave New World or 1984 was precisely that there could be no real challenge to an evil system. Indeed, most of the people living in those worlds do not see anything wrong with them, and accept them — compounding the horror further.

    ... I’m tempted to think that an ideology this blind to reality cannot succeed. But I’m chastened by the example of societies that are built on pretty terrible foundations that are nonetheless stable. ...

    It was around 2012-2014 that I started to really get angry about progressive ideology, and to worry about the extent to which it was actually gaining influence across society. It’s been 5 or 6 years since then. The opposition coalesced into the Trump movement, and as an opponent of progressivism the Trump movement has utterly failed, in my opinion. Progressivism shows no signs of abating or losing steam. I am worried.

  12. You are correct about the systemic nature of our national malady. At it's root, our essential human nature is being degraded by widespread Progressive indoctrination, largely via educational institutions but also habitual media exposure/smart phone technology. It models as a disease and is getting worse at an accelerating pace.

    I can envision three potential future scenarios.

    As above, we stabilize into a soft tyranny and decline as a species.

    Or, we rally via a political movement and change course.

    Or, we come apart in a maelstrom of chaos and uncertain consequences.

    Barr is uniquely positioned to "do the right thing" and investigate/prosecute the coup conspirators (small group) and then appoint sound leadership (not Wray) to rebuild the core law enforcement institutions that are very necessary to democratic governance. I do not blame the rank and file in either DOJ/FBI, but there should have been many whistleblowers coming forward over the past decade of the Obama Catastrophe.

    1. I truly believe that Barr will do the right thing to the best of his ability and I'll be pleased as can be if he does. But that won't turn the country around. What the country needs isn't a political movement but a spiritual rebirth of dedication to the truth of human nature under God. Politics will flow from that. In the meantime, I try to sort out the details.

  13. For those of us who believe in God, especially Christians or Jews, this is nothing more than a clash of belief systems that began in the Garden of Eden when Adam ate from the Tree of Knowledge of Good and Evil.

    There are solid religious people whose foundation is grounded in spiritual truth. There are also solid immoral people whose foundation is grounded in the Devil. These two groups of people believe in something and can't easily be moved to abandon their worldviews.

    Then there are the people who are easily swayed. They have no solid ground. They are the largest group of people. I suppose that I am illustrating the Parable of the Sower.

    The clash of ideologies seeks as its goal to persuade the third group. The immoral will also seek, at least to grind the third group down to silence, if persuasion can't be done.

    Truth is unchanging. The world's perception and belief in Truth ebbs and flows. Right now, we are in a trough. But The LORD will not forsake His People. Even then, we can never expect to triumph in this world. It's not until this world passes that good will triumph over evil.

    I want to emphasize to any nonbelievers who read my comments that I am not judging you. That is for Almighty God to do, not I. I read columns by professing atheists or agnostics who embrace freedom for all men. David Harsanyi comes to mind, as does the late Charles Krauthammer. I consider them to be in the first group of embracing spiritual truth, even if they don't have religious belief.

    1. I think everyone knows that I have decided views on these matters. However, for purposes of blog posts re the Russia Hoax I confine myself mostly to matters concerning which I believe my previous professional life gives me some insight. So, legal and investigative matters, rather than the BIG big picture. I have of course commented as well on political matters that impact on the legal and investigative matters.

  14. Yes sir, I respect that you confine yourself to issues where you have expertise.

    I'm just pointing out that,as the Founding Fathers stated, this nation needs virtuous people to flourish.

    1. Precisely. A point that has been suppressed in our public square for too long.

  15. ... “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.

    I suspect that the country is Estonia.

    1. Could be. OTOH, I wonder whether this was GCHQ using Estonia to cover its own tracks.