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.
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."