Friday, May 24, 2019

UPDATED: What If The Mueller Inquisition Was Only Ever An Obstruction Ploy?

The UPDATE turns up in about the middle. I've also modified a few things for clarity and added a reference that I forgot in the passion of writing. :-)

On May 17, 2017, the "Acting Attorney General for the Russia investigation" (Mueller, V2, p.4), Rod Rosenstein, appointed Robert Mueller as Special Counsel. In the letter appointing Mueller, Rosenstein specified the matters that Mueller would be investigating, as required by regulation. According to Rosenstein, the Mueller investigation was supposed to be a continuation of the already existing FBI Crossfire Hurricane investigation:

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; ...

In addition, Mueller was authorized to investigate

any matters that had already arisen in the course of that investigation or that might arise directly from it, and
any other matters within the scope of CFR 600.4(a)--which included obstruction of the Special Counsel investigation.

The upshot of the Mueller inquisition has been to confirm that there never were any "links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump." None. Further, although Mueller bizarrely seems to have had no interest in such matters--even though they arose directly from the FBI's investigation--a mountain of evidence has demonstrated:

1) That Christopher Steele, the former (?) MI6 spook, was utterly biased and unreliable as a source of information; 
2) That the FBI was fully aware of Steele's bias and unreliability; and 
3) That the FBI knowlingly misrepresented Steele's reliability to the FISA court in order to obtain a warrant on Carter Page, an foreign policy adviser to the Trump campaign, which warrant would allow the FBI to conduct far reaching surveillance on the Trump himself.

In other words, the entire Crossfire Hurrican investigation that Mueller took over was quite simply a hoax that the FBI and the Deep State generally perpetrated on the American people.

Devin Nunes and other House Republicans have conducted an intensive investigation into this Russia Hoax. Naturally, a pressing question that has arisen is this:

Given that Mueller concluded that there was absolutely no "collusion" between Trump or anyone associated with him and Russia, at what point in his investigation did he come to that conclusion? For example, was he aware that there was no basis whatsoever for the investigation by the time of the midterm elections and, if so, why did he not divulge that finding? Was he politically motivated?

Andy McCarthy, a former federal prosecutor, after lengthy consideration, has come to the conclusion that Mueller knew that Crossfire Hurricane--and therefore any Special Counsel inquisition based on Crossfire Hurricane--was utterly baseless no later than August, 2017, a few short months after the Team Mueller operation started up. McCarthy bases his conclusion on the fact that Mueller allowed the Carter Page FISA to lapse--although it had previously been renewed by the FBI three times. Clearly Mueller was not about to associate himself with the FBI's misrepresentations.

However, McCarthy's conclusion is in the nature of a terminus post quem--in other words, August, 2017, is the latest possible date at which any sentient human person (including Mueller) conversant with the facts could have avoided the obvious lack of a reasonable basis for the investigation. In point of fact, Mueller could have and almost certainly did know this much sooner. August, 2017, and the lapse of the FISA simply made that conclusion official.

Devin Nunes, who has had access to vast amounts of documentation has several times stated that Mueller knew that there was no "collusion" "the day he walked in the door" as Special Counsel. After all, Mueller's deputy, Andrew Weissmann was "in the loop" with Bruce Ohr--Chris Steele's DC handler for the FBI--going back to pre-FISA days during the campaign. Oh yeah, Weissmann knew, so Mueller knew, too. If that was in fact the case, there are troubling questions that must be asked.

For example, if Mueller knew there was "no collusion" the day he walked in the door, how could Rod Rosenstein--who appointed Mueller--fail to also be aware? After all, in a letter to Senator Charles Grassley, dated June 27, 2018, little more than a month after Mueller's appointment, Rosenstein stated to Grassley:

When Special Counsel Mueller was appointed, he received comprehensive briefings about the relevant allegations and documents that described them in considerable detail, as with previous special counsel appointments.

That being the case, what crime could Rosenstein have specified to Mueller that Mueller should investigate? The Special Counsel regulations, CFR 600.1, require a criminal predicate. Rosenstein was quite cagey in his response to Senator Grassley, declining to specify the crime on the grounds that it would be unfair to make it public. And yet, if the crime had something to do with "collusion" had he not already made that public when he referred to "any links and/or coordination between the Russian government and individuals associated with the campaign of Donald Trump?"

The answer to that question is now known, I think. As we have learned, the very day after disgraced former FBI Director Comey was fired, his (now also disgraced) Deputy, Andy McCabe, opened an obstruction of justice investigation on the President of the United States. Although McCabe and Rosenstein later admitted to the Gang of Eight that Trump had done nothing to actually obstruct the Russia Hoax, they reasoned that, well, it might somehow obstruct the hoax and so, why not? This fact is what I believe was concealed by Rosenstein in the innocuous sounding second clause of the Special Counsel authorization: any matters that had arisen in the course of that investigation. It was a matter that had only just arisen!

That this obstruction investigation was active has been confirmed by Undercover Huber, from a FOIA proffer submitted by the Special Counsel office:

It follows from this that Rosenstein and Mueller had perpetrated a fraud of sorts with the initiation of the Special Counsel inquisition. They couldn't very openly state that they knew there was "no collusion", but it seems quite apparent that the entire focus of the Mueller inquisition was on obstruction. That obstruction was the primary focus and the Russia Hoax was largely ancillary is explicitly confirmed by a leak to the WaPo less than a month after Mueller's appointment:

Donald Trump is reportedly being investigated for potential obstruction of justice by the special counsel looking into Russia’s interference in the 2016 presidential election. This marks the first time that the investigation, which has hung over Trump since his inauguration, has potentially implicated the president himself. 
The Washington Post reported on Wednesday night that the federal investigation into the Trump campaign’s ties with Russia during the 2016 campaign, being overseen by Robert Mueller, has now expanded into whether the president attempted to thwart that investigation. 
Trump tweeted early on Thursday morning: “They made up a phony collusion with the Russians story, found zero proof, so now they go for obstruction of justice on the phony story. Nice.” He later repeated his claims that such investigations were a “WITCH HUNT”.

The only way this makes sense at this point in time is if the obstruction theory of the case was based on Trump's non-obstructive interactions with Comey.

Now, Rosenstein and Mueller weren't so stupid as to undertake this monstrous hoax without some rationale to cover their behinds. Of course Team Mueller turned over every conceivable rock, looking for something that could be construed as "collusion"--who was to know that this was largely for show and to fuel the Russia hysteria that their media allies were drumming up? Of course they'd jump at anything--including ginned up process crimes, invented "crimes" but Russian internet trolls, etc.--that might present the appearance of "collusion," but that was all a game. We now know that they were simply trying to pin something, anything, on Trump, to force his resignation or impeachment. How do we know that? From the simple fact that Team Mueller was well aware that the Russian government and the incoming Trump administration had no established line of communications. They didn't even have each others' phone numbers! What kind of collusion is that? This simple fact shows up all the narrative fantasy of the Steele "dossier" for the nonsense it was.

By the same token, how could Trump have been obstructing an investigation that the investigators themselves knew was baseless? What we're looking at here--and this is only the bare bones outline, leaving out all the coordination among Intelligence related agencies and with foreign powers--is a conspiracy the scope of which this country has never before seen. This conspiracy began with Brennan and Comey, yes, but the hoax has been continued for the past two years by Rosenstein and Mueller, who have knowingly aided irresponsible politicians in the attempt to run an elected President out of office based on a fraud--under the guise of "justice."

Rather than simply chasing down every false statement--necessary as that is--I have maintained (Is There A Prosecutive Theory To Fit The Russia Hoax?) that the country, We the People, deserves to have the entire conspiracy put on display and prosecuted for what it was. Only that will render real justice for what the country has been put through.

UPDATE: This morning, 5/25/19, GP has a discussion of the theory I've outlined above. It's a good discussion that gets the big picture right, but I think makes a mistake in detail. GP claims that Rosenstein hid the obstruction investigation from plain view by referencing it in the third clause of the parameters of the Mueller inquisition: 600.4(a). That provision refers to violations arising during the conduct of the Mueller inquisition--but the obstruction that gives rise to that inquisition must, by the nature of things, arise before the investigation is launched. Citing 600.4(a) doesn't hide a thing--anyone can read it. It's clause two:

(ii) any matters that arose [i.e., have already arisen] or may arise directly from the investigation [i.e., the already initiated investigation]; 

that hides the ball. That is a clear reference, in context, to obstruction of the FBI's "Russia" investigation, Crossfire Hurricane, through interactions with Comey.

Below is an explanation of the 18 USC 371 Conspiracy To Defraud The US Government prosecutive theory, excerpted from the link above:


Mike Sylwester reminded me of 18 U.S.C. § 371—CONSPIRACY TO DEFRAUD THE UNITED STATES. And, better than just reminding me, Mike pointed me to the Department of Justices Criminal Resource Manual, which provides guidance on the application of criminal statutes by prosecutors. You can read the entire section on Conspiracy to Defraud the United States here, but I'll be quoting selected portions. As it happens, I've previously discussed 371 at some length as forming a possible theory that the Russia Hoaxers hoped to use against Trump. I'll append that discussion below, but suffice it to say that at that time I didn't find the theory far fetched as a theory--the problem was that Trump failed to oblige the Russia Hoaxers by engaging in a pattern of conduct that would match facts to theory.

So ...

Here's the text of 18 U.S. Code § 371, Conspiracy to commit offense or to defraud United States:

If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined under this title or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.

Seems fairly non-descript, right? How does that apply to a coup attempt, or an attempt to subvert an election? Well, that's where the Criminal Resource Manual, with its citations of relevant case law, comes in. Check it out:

Although this language is very broad, cases rely heavily on the definition of "defraud" provided by the Supreme Court in two early cases, Hass v. Henkel, 216 U.S. 462 (1910), and Hammerschmidt v. United States, 265 U.S. 182 (1924). In Hass the Court stated: 
     "The statute is broad enough in its terms to include any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of government . . . (A)ny conspiracy which is calculated to obstruct or impair its efficiency and destroy the value of its operation and reports as fair, impartial and reasonably accurate, would be to defraud the United States by depriving it of its lawful right and duty of promulgating or diffusing the information so officially acquired in the way and at the time required by law or departmental regulation." 
Hass, 216 U.S. at 479-480. In Hammerschmidt, Chief Justice Taft, defined "defraud" as follows: 
     "To conspire to defraud the United Statesmeans 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."
Hammerschmidt, 265 U.S. at 188. 
The general purpose of this part of the statute is to protect governmental functions from frustration and distortion through deceptive practices. Section 371 reaches "any conspiracy for the purpose of impairing, obstructing or defeating the lawful function of any department of Government."Tanner v. United States, 483 U.S. 107, 128 (1987); see Dennis v. United States, 384 U.S. 855 (1966). The "defraud part of section 371 criminalizes any willful impairment of a legitimate function of government, whether or not the improper acts or objective are criminal under another statute."United States v. Tuohey, 867 F.2d 534, 537 (9th Cir. 1989). 
The word "defraud" in Section 371 not only reaches financial or property loss through use of a scheme or artifice to defraud but also is designed and intended to protect the integrity of the United States and its agencies, programs and policies. [Case citations] Thus, proof that the United States has been defrauded under this statute does not require any showing of monetary or proprietary loss. [Case citations]


What acts might have been part of this particular conspiracy or coup attempt that we call the Russia Hoax? Well, the use of the Steele "dossier", knowing its highly dubious origins, will be highly suspect in any circumstance--such as using the "dossier" as the basis of an FBI Full Investigation, or obtaining FISA warrants, or ... authorizing a Special Counsel to lead a fraudulent inquisition of the POTUS! How about criminal leaks to the media? Yeah, that works, I think. Then there would be the setup and prosecution of people like Flynn and Papadopoulos--it was all in furtherance of a conspiracy to interfere with lawful government functions. Or so I would argue. And I'd argue that strenuously, even as I also pushed the individual criminal acts. I'd also probably want to argue that in addition to "impairing, obstructing or defeating the lawful function of any department of Government" we should also consider an intent to "pervert" the lawful function of any department of Government. "[B]y misrepresentation, chicane or the overreaching of those charged with carrying out the governmental intention."


  1. I suspect Mueller will claim that he was investigating whether the Trump Campaign or any satellites colluded with the Russians throughout his entire appointment as Special Counsel. He will point towards his failed attempts to interview Trump Jr about the Trump Tower meeting, questions regarding the behavior of Manafort & Kilimnik, and most pertinently his investigation of Roger Stone's communications with WikiLeaks and whether Trump directed Stone to make any outreach. All of those claims fail under a modicum of scrutiny; they're incredible, but so were his legal musings on obstruction of justice, yet he persisted in dipping his quill in the inkwell, again and again, for 200 odd pages.

    1. Right. Of course what they were mostly looking for was conflicting stories. It's hard to prove, but who knows? Reading that Mueller Dossier--what a mess! A lot of it really makes no sense.

    2. Did you read Goldsmith's latest takedowns of Mueller's obstruction theory?

      Part I (which I've read):

      Part II:

      A bit recondite for my liking, but a thoughtful appraisal nonetheless. I do think Goldsmith would be better off focusing his considerable talents on weighing in on the mechanics and consequences of Barr's investigation, perhaps he will eventually.

    3. No--I've been wondering when Part II would be out. Thanks. Yeah, he's definitely a Deep State guy and makes no bones about it, but he respects Barr. I have to wonder whether, with all his experience at DoJ, does he really not get what's been going on since he left? I'll take a look.

    4. BTW, he has an interesting take on the Assange case, too. Like so many other things that turn out just the opposite of what was intended--hard cases make bad law. The Pentagon papers case did more to enable Deep State bureaucrats than journalists.

    5. Goldsmith is smart, but frustrating. Obviously his analysis supports my contention that authorizing a SC based on obstruction (as I argue) was unwarranted under any normal interpretation of law as related to presidential powers (Goldsmith makes the arguments I'm not competent to make). OTOH, his conclusion only hints at what I would call improper motives--I'll say it: corrupt motives--on the part of Mueller in avoiding a yes/no prosecutorial decision. I'm sure Goldsmith doesn't approve of avoiding that responsibility so as to make "damnng insinuations."

      Notably, Goldsmith the NeverTrumper refrains for once from taking cheapshots at Trump. Perhaps he's finally come to an understanding of what's at stake and why Barr took this job. It's ultimately about the presidency and the constitution rather than Trump.

    6. A while back, he opined - a bit wishy-washy and a bit critically - on Madcap McCabe considering Trump a threat to national security, and investigating him as such, here:

      When Barr lays the plot (or if you like the conspiracy against the US) bare, Goldsmith will be like Capt. Renault in Casablanca: "I'm shocked that there is gambling in this establishment!"

      But I do think he'll be useful when hard evidence of wrongdoing and/or charges come to light, because he strikes me as one of the only members of the deep state that doesn't live in a world governed by situational ethics. We'll see.

    7. I tend to agree and hope you're right.

  2. "What If The Mueller Inquisition Was Only Ever An Obstruction Ploy?"

    There's a plausible case this about political spying that started mid 2012.

    There's much discussion of characters in the 2015-2017 time frame: Brennan, Comey, McCabe, Strzok, etc. but if the antecedents go back to 2012, Mueller is still FBI Director and the AG is...Eric Holder, IMHO one of the more sinister and under-scrutinized figures, and HRC heads State.

    If broader political spying is ever established it will dismantle the Left's defense of the "Orange Man Bad" pretext and alter political discourse entirely.


    1. Exactly:

      "if the antecedents go back to 2012, Mueller is still FBI Director and the AG is...Eric Holder, IMHO one of the more sinister and under-scrutinized figures, and HRC heads State."

      It seems pretty clear that the political spying began in time for the 2012 election. I'd have to do some searching, but somewhere I pointed out that it was Mueller who would have done the illegal MOU with CIA that was mentioned in the Chief Judge of FISC's order.

      We can see from the list of Departments and Agencies that Trump and Barr are going to dig deep. How deep is deep? Back to 2012? Rosenstein and Mueller need to be grilled. When was a SC first discussed? While Comey was still Director? They may have wondered how long they could continue without some decisive action.

      As Comey would say--"STILL so many questions."

  3. Occam's Razor. The Obama Administration transformed the Executive Branch into a massive criminal enterprise in which numerous felonies were routinely committed by senior officials. They did not want this lawlessness to be revealed when Trump surprisingly won the election, and so they conspired to neutralize him by any means necessary. At first, they tried to tarnish his campaign by manufacturing a crime via entrapment ploys (Page, Papadopolus, Trump Jr, and others). When this didn't work, they tried to blackmail him using the fake dossier in hopes he would bow out rather than be publicly humiliated. When this failed, Mueller was brought on board to try goading Trump into some rash act (such as firing Rosenstein or Mueller himself) in order to justify an impeachment and conviction. Trump never took the bait. This was always just a crime story writ large, and now they are left holding the bag and hope they can avoid legal accountability by finessing a rewrite of history.

    1. Let me take issue a bit ...

      "The Obama Administration transformed the Executive Branch into a massive criminal enterprise in which numerous felonies were routinely committed by senior officials."

      I prefer the characterization I've adopted: a massive criminal CONSPIRACY. Because a criminal enterprise a la RICO is different than a conspiracy to subvert our constitutional order. In a criminal enterprise, the crimes are committed more for their own sake, but in this 371 CONSPIRACY, they're committed for the larger purpose of--as Obama said--fundamentally transforming America.

      This is why I argue that this is MUCH MORE than "a crime story writ large." It's an attempted revolution that only descended into a failed coup attempt when the revolution failed to install a successor regime.

  4. The laws you’re explaining so well are applicable only to Republicans, I’m afraid.

    1. Heh--isn't that part of what Obama meant by "fundamentally transforming America?"

  5. It started as a criminal enterprise (the full spectrum of felony crimes committed by the Obama Administration is still largely concealed from the US citizenry), but then evolved into a criminal conspiracy in order to conduct a coup and remove Trump from office by any means necessary. Both the criminal enterprise and criminal conspiracy are still ongoing, and will continue until Barr cleans house. And if the topmost ringleaders are not prosecuted and held accountable, then this will all be repeated on steroids during the next Democrat Administration. There is still a lot to be revealed above and beyond the SpyGate/RussiaGate OPs. The extent of the criminality perpetrated by Obama's Administration is staggering in both scope and devastation.

    1. Read my new post. It reprises past material.

      It did NOT start as a criminal enterprise--it started as a plot to "fundamentally transform America" that incidentally required criminal acts for its implementation. But the core of it all was the determination to transform our Constitutional Order. That is the core Fraud. This, IMO, is what needs to be emphasized.

  6. Re Obama. FWIW, and I am just speculating, but I have wondered for quite some time why Obama didn't simply withdraw his support for Mrs Clinton's candidacy in 2015 or early 2016 when it must have been blindingly obvious to legal advisers in the White House that her emails and server problems were likely crimes which would never go away -- whether she was exonerated or not and whether she won or not. Obama might well have also calculated that the character-challenged Trump was beatable, but not by the even more challenged Mrs Clinton. In hindsight she was fatally compromised. A Democrat win in 2016 by another candidate would have certainly buried all of the surveillance and other abuses of his Administration which are now emerging.

    But he didn't withdraw his support and the resulting compromises, coverups and, yes, collusions of the White House with the DOJ, FBI, CIA, State Department, and Five Eyes which are now emerging, and which in many respects flow directly from Mrs Clinton's candidacy, are almost certain to ruin Obama's legacy.

    And I am wondering whether the reason Obama didn't withdraw his support for Mrs Clinton may well be that they were both complicit in the illegal surveillance and other activities of Obama's first term suggested in the comments above. Perhaps Obama simply couldn't say No to Mrs Clinton.

    At the end of the day it may well be that the hopeless and endemic corruption of the Clintons not only brought her down, but bring down Obama too.

    1. Again, read my latest, which draws extensively on others. Once you realize that the illegal domestic spying was a key part of Obama's own relection campaign in 2012, it's easy to see why he couldn't abandon Hillary.

  7. As more of the Russia hoax/Mueller investigation onion is peeled back, the more it resembles the unfolding of the Watergate investigation.

    Very simply, despite the fairy tale told about the "reporting" of Woodward and Bernstein, for well over a year the #2 man at the FBI, Mark ("Deep Throat") Felt, leaked confidential information to the intrepid stenographers Woodward and Bernstein, which helped to drive Nixon from office with drip, drip, drip stories in the WaPo, and repeated at length on nightly network news broadcasts. It was dealt with as a legal matter using a special prosecutor, but the media agenda ("The Narrative") was full-on partisan politics: get Nixon.

    And in that era of media concentration, there was no possible rebuttal to newspaper or network television reporting by the president or his defenders and supporters. Today, the president--and many other voices independent of newspapers and networks--can voice rebuttals and advocacy that gets an audience and a public hearing, a hearing unavailable in the 1970s. (For all the complaints that "6 corporations control 90% of the media," it's a far more level field than were the '70s.)

    Yet, the corrupt tactics are the same. Create a Narrative by leaking to the media, use media reports as corroboration of alleged/suspected conduct to initiate an investigation, then media reports an investigation, lather, rinse, repeat. A self-reinforcing circle of incestuous behavior that feeds the voracious appetite of The Narrative until the target is chewed up and spit out.

    And why wouldn't the Deep State believe they have such power? They leak to media, and it ends up in the WaPo, NYT, TV/Cable within the week (much less hours or days). The ability to create a narrative, to sway public opinion, or instill doubt is powerful and cathartic--an exhilarating adrenalin rush.

    Samantha Power unmasked something like 300 names in the last year of the Obama administration, and it's barely a footnote to the official corruption.

    Believing your $hit doesn't stink (Comey, Brennan, Strzok...) is child's play...

    1. Oh, I forgot to mention that in the current uproar, those associated with the Trump campaign, much less Trump himself, didn't do what was alleged--and have been cleared. And that's still not good enough for the Dems and their media acolytes because the agenda is: get Trump. Dems' conduct would be laughable, except for the criminal corruption.

    2. I hope you've read Conrad Black. Very enjoyable:

  8. The Clintons have been grifters the 70s and their days in Arkansas. When Bill won the presidency in 92, he brought his Arkansas mafia to DC with him and continued his reign of lifelong escalating criminal activity, but now in the big leagues. This ultimately culminated in the formation of the Clinton Foundation, which has rivaled the Russian oligarchs for world class personal enrichment via corruption. When Obama was elected, he was a novice and piker when it came to criminality, but learned fast and was ruthless about getting his hands into the public till as quickly as possible. His "transformation" meme was genuine with regard to his socialist ideology, but even it was in second place behind person wealth building. Both the Clintons and Obamas are crooks first and ideologues second.

  9. "Both the Clintons and Obamas are crooks first and ideologues second."

    I think that's too simplistic. Hillary and Barry grew up as ideologues.

    1. Obama was certainly raised by hard core leftists and was mentored to a Communist. Hillary's early writings and subsequent career all testify to her ideology first leanings.

    2. Hillary an ideologue?? She wrote her senior college thesis ('69) on Saul Alinsky, who would later gain fame as the author of "Rules for Radicals" (1971), also known as Alinsky's Rules.

      In law school, during summer of '71, she interned at the Oakland, Ca, law firm of Treuhaft, Walker and Burnstein, where four of its partners were members of the Communist Party USA.

      Whatever her crookery, you can be assured her good intentions were a result of her ideology. ;-)

    3. Exactly. I think it's very important to stress that this is all ultimately driven by radical politics rather than simple crookery. Crookery can be dismissed by the populace--all politicians are dishonest to one degree or another, right? But the intent to radically transform America in the image and likeness of Alinsky or any of the other Cultural Marxists--that's what we need to strive to get across. That's what drives the Russia Hoax and the domestic spying, whether by government surrogates or Big Tech surrogates. It's all for The Cause.