Wednesday, April 17, 2019

UPDATED: Has McCarthy Set The Bar(r)?

Andy McCarthy did a fine interview yesterday on WMAL. The whole interview is worth a listen, but in the course of it McCarthy did something notable. Over three quarters of the way through he spoke the truth. That alone might not seem notable, but what caught my attention was that he spoke the truth in an utterly unnuanced, the emperor-has-no-clothes, way. And there was just enough legalese in his remarks that they should have sent shivers up certain people's spines--if that hasn't happened already. In doing this I believe McCarthy has set the bar for success in defending our constitutional order.

Here's what McCarthy said (you can find the audio here or here at about the 6:25 mark):

Look, two years, the Justice Department, the FBI, the Special Counsel, put the country through an investigation of the President of the United States, on no factual predicate, that he was in a conspiracy with Russia, under circumstances where if you read the Special Counsel's indictments it has to have been pretty clear to him, since at least the end of 2017, that there was no Trump - Russia conspiracy, right?

I and others have been saying essentially the same thing for a long time, but McCarthy's rendition has the virtue of cutting to the very heart of the matter with admirable economy of words. McCarthy understands that, technically, James Comey was speaking truthfully when he told President Trump three times that he wasn't the subject of the Russia Hoax investigation (I explain the technicalities here: Mueller's "Enterprise" Witchhunt), but McCarthy also understands the reality of what was going on: it was Trump who was the real target.

So, let's rephrase McCarthy's statement of the facts: For two years the Special Counsel, conducted an investigation of the President which had no factual predicate--and for most of that time he was fully aware of what he was doing but kept doing it.

What are we talking about here, when we speak of "an investigation"? We're not talking about just any ordinary investigation. The enormity of Mueller's Inquisition is simply staggering. Here's what Barr said in his report of the main conclusions of Mueller's inquisition:

the Special Counsel ... employed 19 lawyers who were assisted by a team of approximately 40 FBI agents, intelligence analysts, forensic accountants, and other professional staff. The Special Counsel issued more than 2,800 subpoenas, executed nearly 500 search warrants, obtained more than 230 orders for communication records, issued almost 50 orders authorizing use of pen registers, made 13 requests to foreign governments for evidence, and interviewed approximately 500 witnesses.

The total cost is reliably estimated to have been at least $34 million dollars.

In other words, for two years Robert "Bob" Mueller and his enablers were knowingly hamstringing the President of the United States. To take one very important example of this hamstringing effect, John Dowd, one of Trump's lawyers, has recounted that he repeatedly told "Bob" that the president needed to get the inquisition over with, because in negotiations with foreign leaders Trump would be asked: "But, Donald, will you still be here?"

But all of that incredible inquisition was against the law. Neither the FBI nor DoJ is authorized to investigate, let alone prosecute, anyone without some factual predicate. And McCarthy baldly states that there was no factual predicate. For good reason, in my opinion. Let's conduct a modest experiment.

Today Holman Jenkins at the WSJ--a well known NeverTrumper--has an article in which he asks: Can the Media Survive Mueller? What’s the future of news outlets that decided it wasn’t news if Steele was lying? Let's take a look at a brief passage from Jenkins' article, but we'll switch out references to reporters and the media and substitute references to federal investigators and prosecutors:

Let’s go back to the beginning. The FBI and DoJ were not wrong in being open to Christopher Steele (a paid advocate) and his handlers (also paid advocates), but they were wrong not to notice that the one incontestable fact Mr. Steele had put before them had nothing to do with Mr. Trump and Russia. 
The one incontestable fact was that a paid advocate who was trading on his previous profession as a British intelligence agent, in the middle of a presidential election, was being shepherded around Washington by a notorious PR schemer and promoting allegations whose truth he was unwilling to vouch for and whose source he was unwilling to reveal. 
Unless you are an exceptionally dim FBI agent or prosecutor, whenever somebody peddles a salacious story to you, a question naturally and unbidden leaps to mind: Is the real story the one I’m being peddled? Or is the real story the fact that I’m being peddled it? 
Mueller would have surely been aware that none of his indictments and plea deals with Trump associates for lying and other offenses included any attempt to establish collusion-related crimes. 
An honest prosecutor might even be asking if the collusion-investigation circus was ever necessary or justified in the first place.

Ask yourselves--if, as Jenkins asserts--journalists should have been aware of what "Steele and his handlers" were up to, how much more should professional investigators and prosecutors, backed by the full resources of the federal government, have been on their guard? Were they incompetent? Or were they aware that they were helping to perpetrate a hoax and an injustice, as McCarthy states? That none of this was the result of honest mistake is strongly suggested by new revelations that Team Mueller systematically sought to railroad targets into false guilty pleas by distorting relevant facts and even omitting exculpatory information in court filings (cf. Paul Sperry's overview: GOP Fears Mueller's Collusion Bias Lives On in Final Report as well as Laura Ingraham's interview with Devin Nunes).

Here, I think, we see the bar that McCarthy has set coming into very clear focus. Certainly Barr needs to investigate, as he puts it, the "genesis" of the Russia Hoax. Determine what "Christopher Steele and his handlers" (Fusion GPS, Bruce Ohr, and assorted FBI agents) were up to. Probe to see how far back the targeting of persons associated with the Trump campaign went. Investigate the abuse of NSA databases. Do all that, but to stop there would leave the investigation woefully incomplete and would allow the injustice of the entire proceeding that McCarthy has so aptly summarized to stand. Senators Graham and Grassley as well as Representatives Nunes, Jordan, and Meadows have brought all this and more to Barr's attention. Unless everyone involved is subjected to a searching investigation any other good things Barr may accomplish will pale in comparison to the corruption left unaddressed.

Let's return to our starting point, with McCarthy's reference to the lack of any factual predicate for the investigation. Determining whether such a factual predicate exists is the bread and butter work of all prosecutors. The initial determination may be made by the investigators, but the investigation won't go very far without the determination of a prosecutor that a real factual predicate does exist. If we skip over the earlier targeting of Trump associates to arrive at the opening of the Crossfire Hurricane investigation in July, 2016, we face the initial question. What factual predication did James Comey think existed, that we now know did not exist? I say Comey, because there's just no way that the FBI initiates an investigation into a presidential candidate with Comey's go ahead. And yet, at the very inception of the investigation, as we have seen from Holman Jenkin's reflections, there was every reason to either delay proceed cautiously with any investigation--rather than charging full speed ahead for implementation of the extraordinarily intrusive implementation of a FISA. Fast forward nine months, and the investigator most knowledgeable with the facts was acknowledging that there was "no there there." No substance to the case, despite multiple FISAs. Which tells us pretty much all we need to know about the factual predication. And yet the case continued.

It seems clear that at this point any investigation needs to examine the involvement of not only Comey and McCabe at the FBI but also that of AG Loretta Lynch, her Deputy Sally Yates, and the entire cabal of lawyers responsible for the phony FISA applications.

When we arrive at the appointment of Mueller, the same dynamic applies. I've recently propounded my views on how the actual appointment worked. For our purposes today, the important point is that at every decision making step of the investigation, a review of the factual predication needed to be made. That means that the removal of Comey and McCabe from the scene did not absolve Rosenstein and Mueller from making that determination. And the longer the investigation continued--from its inherently dodgy origins--with the employment of ever more intrusive techniques, the more unlikely it became that any reasonable justification could be offered. Rosenstein and Mueller need to answer for that.

Devin Nunes has stated that Mueller--and, by the same token, Rosenstein and the FBI leadership--knew there was no factual predication from the very inception of the Special Counsel inquisition. McCarthy initially favored a cutoff date that focused on Mueller's failure to seek renewal of the FISA. While there is good reason for that view, he now favors the view of John Dowd--at the latest, Mueller knew there was no factual predication for the investigation by late 2017. And yet it continued for over a year past that point. For virtually the entire period, Christopher Wray was Director of the FBI. He had a duty to raise an alarm regarding the lack of factual predication, given that he was deeply involved in stonewalling Congressional oversight. He needs to answer for his actions and inactions. As also his top lawyer Dana Boente--who approved a renewal of the Carter Page FISA.

All of these people need to testify before a Grand Jury. Barr cannot allow the fact that his wife and Mueller's wife attend the same Bible Study group, or that they attended the weddings of each other's offspring, interfere with this necessary step. I don't see any other way. It must happen. That is the lowest bar by which to measure Barr's success in addressing this gravest of crises for our country.

The other day I mentioned the inherently corrupting practice of DoJ lawyers rotating between DoJ and the FBI leadership levels and back again. I believe that this practice, which became standard under Mueller's directorship, is extraordinarily dangerous to the rule of law in our criminal justice system. It joins the investigative function and the prosecutive function--in practice, disallowing the necessary separation. Thus, I wrote:

I believe Mueller's basic loyalty is not to the FBI per se, which he ran for so many years, but rather to the Deep State, i.e., the Legal/Intel Establishment. The FBI, after all, has always been under DoJ, and in the last two or three decades has become joined at the hip with DoJ through a revolving door of lawyers transferring between Main Justice and the FBI top management. Think: Mueller himself, James Comey, James Baker, Andrew Weissmann, Lisa Page, Trisha Anderson, and many more.

All those mentioned--and there are many more--have gone through that revolving door and all played prominent roles in the Russia Hoax that has so poisoned our public life and endangered our constitutional order. To those names I add: Christopher Wray and Dana Boente.

UPDATE: Mark Meadows speaking to Maria Bartiromo: IG Horowitz will be making criminal referrals with his report on FISA abuse:

“Jim Jordan and I met with DOJ Inspector General Horowitz — he and his team have been doing a great job, and I might add an independent job to verify some of the things that we have long assessed as problems.”
“We’re fully anticipating that the inspector general’s report will come out as Attorney General Barr said in the next four to six weeks, and I think it’s highly likely that we’ll see criminal referrals coming from them that will correspond with what Chairman Devin Nunes has already put forth.”

A portent of things to come?

UPDATE 2: The Washington Times has a pretty good editorial, making the same point:

A fully told story begins with a conflict and ends with a resolution. When Robert Mueller’s redacted report is made public this week, Americans will have a chance to read for themselves the final word on suspected collusion between Russia and Donald Trump’s 2016 presidential campaign. That should be the end of the story, but given that many Democrats still think that a coup is the only way they can get rid of the president, it probably won’t be. Still untold is an accurate account of how a charge of collusion got started in the first place. The last chapter of this sordid story must be the prequel. 
Mr. Barr will have the benefit of inquiries into aspects of the Trump-Russia investigation as he conducts his search for the facts. Justice Department Inspector General Michael Horowitz says the findings will be made public as early as May. A separate inquiry by U.S. Attorney John Huber into the Obama Justice Department’s lies to the FISA court, and the exoneration of the Clinton campaign, was an attempt to steal the 2016 election. Only when the prequel to the Russia-Trump collusion story is written will we know whether the attempted coup has been fully exposed.

Conservative and even "moderate" opinion appears to be gelling in favor of a thorough-going deep dive into the Russia Hoax.


  1. I would like to see Mr. Mueller's entire career subject to the kind of scrutiny he gave Trump. Let's see how he does. He has some very nefarious skeletons.

    Lynch, Yates, et. al. are political hacks. Lynch is stupid. Yates may be as well. They are dogmatists, committed to one party rule.

    But Mueller. Unless he is stupid, which can't be ruled out, Mueller knew from day one there was no there there. But he kept at it to the tune of $34 million.

    He disrupted our executive, made it impossible for him to function. My question: how is that not treason?

    Barr has been a breath of fresh air--so far. But will he be willing to sit these criminals, those 17 dwarfs Mueller hired, down in front of a grand jury?

    I'm not holding my breath. My worry is that Barr will find some way of embarrassing them that comes well short of sending them off to prison. A kind of a meet in the middle approach.

    I'd be happy with Mueller being dishonored, being censured, losing his law license. Ideally, I want him shot.

    Way I look at it is simple: if I knew well over a year ago that Trump wasn't guilty of anything more than having a big mouth and no impulse control, Mueller, with all the tools at his disposal, had to know as well.

    Yet, as you point out, he went on.

    Winter is coming (I hope).

    1. Some specific responses:

      "He disrupted our executive, made it impossible for him to function. My question: how is that not treason?"

      It is in the general sense, but in the US you'd need a constitutional amendment to bring that sort of case:

      Article III, section 3: "Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort."

      For historical reasons the Founding Fathers wanted to make it very difficult to charge treason.

      "But will he be willing to sit these criminals, those 17 dwarfs Mueller hired, down in front of a grand jury?"

      That, I think, is the crucial question. Encouragingly, even the NeverTrump WSJ is coming around on the need for a GJ.

      "My worry is that Barr will find some way of embarrassing them that comes well short of sending them off to prison."

      Agreed. I suspect the embarrasments will be coming, in the form of dropped prosecutions (including Roger Stone) and reexamined guilty pleas based on prosecutorial misconduct--Flynn and Papadopoulos?

      The fact that Congressional GOPers are keeping up a steady drumbeat is also good.

      But I want indictments.

  2. I think prosecutions are coming. Barr seems like too good a man to just "embarrass" them. Justice requires, well, justice, not blinking because their wives go to Bible study together. "I've had a good life, I'm not seeking this job for myself, etc."

    I think that DJT learned from being burned by the "trust me" picks given to him by the establishment. He wouldn't put in an AG who isn't going to go full throttle.

    1. I agree--there seem to be some promising signs. Part of it is that we're so used to being let down.

      Re being burned by the establishment, at CTH sundance has been going on about how there have to be establishment types whom he trusted who have undermined Trump in serious ways. He pointed particularly to bad personnel moves at DoJ, until Trump got Barr to take the job. I have to say, sundance's reasoning seems sound. And then I saw a thing about how Judge Jeanine claims that, of all people, Don McGahn--who was responsible for so many good judicial nominations--undermined Trump and was a constant leaker. So disappointing.

  3. Joe diGenova thinks that there are going to be prosecutions. As to criminal referrals by IG Horowitz, Joe is "100 percent" confident. See Joe appeared on Bill O'Reilly's podcast. I just watched it. It is from one day ago.

  4. Jeff Carlson and Sundance disagree about Dana Boente. I take it that you put Boente on the "rat list." I don't know who's right.

    I'm like a broken record but I'll say again, I think that DJT is too smart to be burned again. He assumed that some of these characters were patriots and he was taken in by the swamp creatures. I think that he learned by being burned. If Donald Trump is your friend, you've got a friend for life. If he is your enemy, you've got an enemy for life.

    This is what I've come to believe about him. I was never a Trumpist nor a Never Trumper. I have come to admire him. That doesn't mean that he is without fault or that I always agree with him. I'm not a Kool Aid drinker.

    He is a real patriot. I watch the man and he is a salesman but there is something lovable about him. He really cares about the common man.

    I quit reading and contributing to the National Review after being a huge fan. They are establishment Republicans. Too many David French and Kevin Williamson cheap shots at DJT. Rich Lowry is a more balanced observer. Bill Kristol? I no longer have any respect for him. Very little for George Will.

    When the Cov Catholic boys were falsely accused, Kristol and Jay Nordlinger tweeted some harsh things about MAGA. When the boys were exonerated, they both deleted their tweets. No apology. They both are big on lecturing how bad and cruse DJT is. So when they unfairly criticize Catholic boys for wearing MAGA hats, they don't have the decency to practice what they preach.

    If this is what it means to be a conservative, no thanks. It tools a long time but I finally learned to think for myself.

    1. I suspect that you're far from the only person who has been rethinking what it means to be a conservative. I think that's for the good. Here's a link to a couple of NeverTrumpers talking about the problem with Conservatism and, IMO, making some sense in this regard.

    2. What I'm getting at with that link has to do with a more humanistic conservatism. Not touchy feely, but rather based on human nature. I think that's what Trump appeals to.

  5. I'm going to bed. As you can tell, I'm fired up. Please forgive my typos.

    Keep up the good work.

  6. I have written it here before- it is no accident that the investigation was wrapped about a month after Barr was confirmed by the Senate. I think the intent was to indict Trump for obstruction, or at least make that recommendation. But two things happened that changed everything- (1) McCabe went public with Rosenstein's possible involvement in the plot to take Trump out by wearing a wire to the White House; (2) Trump invested a lot of political capital in expanding the majority in the Senate, and this allowed him to fire Sessions and replace him with Barr.

    If you believe the stories that are out tonight, the Mueller team expended almost all their effort in building an obstruction case, and the stories that have hit tonight suggest they were doing exactly what I said they were doing several weeks ago right here in the comments- the obstruction was being built on Trump's public comments about it being a witch hunt. They apparently were also planning to use Trump's questioning of aides whether or not he should do something to stop the investigation.

    Of course, all this is complete nonsense without an underlying crime whose investigation is being obstructed- without that, it is all the rantings and ravings of an innocent man fearing he is being framed. I think the public will see right through this attempt, and I expect that Barr will have Rosenstein make most of this point tomorrow morning- that public condemnations of an investigation without a crime can't possibly be interpreted as obstruction or even a desire to obstruct. I expect to hear words like that tomorrow morning out of both men.

    Of course, all these stories being printed tonight may be just more BS from the usual suspects, and the Mueller Report is actually fairly done and isn't an attempt to convict with innuendo. I guess we will see in about 7 hours.

    1. I agree, and looking back point #2 probably is underestimated. Trump didn't put his capital--he put it into the Senate races, making that a referendum on his popularity. He won, and got to choose the new AG on that basis--Barr wasn't the compromise that could've been forced on him if he'd lost ground or lost the Senate. And I agree re public opinion seeing through this--especially with the revelations to come.

      Which makes you wonder to what degree Mueller's operation was a defensive action, to hold off declassifications and obstruct oversight investigations and OIG. The game was up the day Barr walked into Main Justice.

    2. Re obstruction, the fact that so much effort was invested in the attempt to tie Roger Stone and Corsi in to "collusion" and the continual delay of Flynn's sentencing while they tried to coerce him--it all shows the desperate attempt to somehow bolster the obstruction case. But Barr shut it all down.