UPDATED: Investigating The Investigators--And A Theory Of The Case

Today I want to try to accomplish two things. First I want to tie a number of threads from yesterday together. Second, I want to see if I can take a step forward on the whole idea of "investigating the investigators.

Where We Are Now

A good place to start is Andy McCarthy's interview on Fox this morning: Andy McCarthy's biggest takeaway from Mueller hearing. The entire interview is worth the 5 minutes of your time it will take to watch it, but here's the lowdown. Having managed to stifle his urge to simply laugh out loud, McCarthy made three major points:

1) Mueller's performance proved beyond any shadow of a doubt that it was simply "inconceivable" that Mueller could have run the investigation that bore his name.

Of course that raises the question: If not Mueller, then who? And we all know the answer--Andrew Weissmann, Mueller's longtime protege at both DoJ and the FBI.

McCarthy's second major point comes at the end, and he repeats what President Trump stated in his parting remarks yesterday afternoon:

2) It's time to "investigate the investigators.

That means, first and foremost: It's time to investigate the FBI. "Investigating the investigators" also includes those who provided the FBI with the pretext to launch their Crossfire Hurricane hoax investigation, and that means--above all--John Brennan and the CIA. This investigation has begun--in fact it's well under way already. But beyond that, as John Solomon has reported (links below), the investigation of John Durham is looking into the work of Team Mueller. This is an extremely important point that we'll return to.

McCarthy's final, and important, point is this:

3) With Mueller's (or whoever's) report and testimony behind us, now is the time to start declassification in earnest.

The important point that McCarthy leaves unspoken here--but which Sidney Powell partially articulated last night with Lou Dobbs--is that for the important work of laying bare the incredible assault on our constitutional order that the Russia Hoax was, the entire nation needs to be involved. Because this concerns the preservation of "our republic," as Powell said. The way to achieve that national consciousness and involvement is through the process that McCarthy pointed to: declassification of the key documents behind the Russia Hoax.


In this regard, I think we've seen signs this week that Bill Barr gets this, and has "got it" all along. The signs of this are in the remarkable articles by Paul Sperry (Sperry's OIG Bombshell: Comey Targeted Trump) and John Solomon (Andrew Weissmann: How Corrupt Does The Russia Hoax Get? John Solomon's New Bombshell: Durham Revisiting Mifsud). To this point IG Horowitz and USA John Durham have been working largely behind the scenes, with no leaks--Durham had actually been on the job for a couple of months before we knew of his central involvement. These stories by Sperry and Solomon seem to me to be a clear signal that Barr knows that the nation needs to know that he is on this case and that real progress is being made. That's also the meaning of Joe diGenova's revelation last night (TOTAL MUST WATCH--diGenova And Toensing, complementing John Solomon's work) that Joseph Mifsud has already been interviewed by both Horowitz and Durham. Barr is on the case, and the case is international in its scope--a point that Trump himself made yesterday, in his own way: "It's been collusion with other countries". UK, Italy, Ukraine. Barr's on it.

But let's return to the USA, and Andy McCarthy's first point--the inconceivability of Mueller running the Special Counsel op against Trump.

Investigating The Investigators

First of all, we can assume that, before accepting the special counsel position, Mueller engaged in discussions with DoJ officials, probably including issues such as the nature of the proposed investigation, availability of staff, etc:

GOHMERT: When you were appointed as special counsel, was President Trump’s firing of Comey something you anticipated investigating, potentially obstruction of justice?

MUELLER: I can’t get into that. That’s internal deliberations of the Justice Department.

Those internal DoJ deliberations would have had to have included, at a minimum, with Rod Rosenstein--the Deputy AG who was, due to the craven recusal of Jeff Sessions, Acting AG for all things Trump. But if it was "inconceivable" that Mueller could get the whole operation up and running on short notice, is it conceivable that the matter of the identity of the person who would be, in effect, the acting special counsel would be left out of the discussions? I say: Absolutely not.

In fact, the acting special counsel was waiting in the wings: Andrew Weissmann. As I documented in Why Andrew Weissmann, Weissmann was a longtime protege of Mueller both at DoJ as well as at the FBI, where Weissmann had served two stints under Mueller, including as Mueller's top lawyer. Just as importantly, Weissmann, although head of the DoJ Fraud section, had been working on the Russia Hoax virtually from its inception--as Bruce Ohr informed Congressional investigators:

Sources familiar with Ohr’s testimony before the House Judiciary and House Oversight Committees told The Daily Caller News Foundation that Ohr informed Andrew McCabe, Peter Strzok and Lisa Page about his interactions with Steele and Simpson. He also informed Justice Department prosecutor Andrew Weissmann about his dossier-related work. 

Weissmann is now serving as right-hand man to Robert Mueller at the special counsel’s office.

When Ohr told Congressional investigators that he "informed ... Weissmann about his dossier-related work" what Ohr actually meant was--Weissmann became intimately involved in all aspects of the Russia Hoax operation and its strategy. For example, Weissmann, whose official duties at the Fraud section had nothing to do with such matters, actually met with Christopher Steele in person (The FBI: Working Hand In Glove With Clinton Operatives):

When Ohr met Steele again in either late September or early October, 2016 he did so in company with quite a group: Peter Strzok and Lisa Page from the FBI, and three DOJ career officials from the criminal division, Bruce Swartz, Zainab Ahmad, and Andrew Weissman--currently Robert Mueller's deputy. Note that while Crossfire Hurricane was a CI case and Strzok was second in charge of Counterintelligence at the FBI, the DoJ officials were all from the Criminal Division. For prosecutors to meet with an asset at this early stage strongly suggests they were planning strategy. But this also probably means that they were planning for the FISA application, given that the application was submitted on October 21, 2016, immediately after Steele's October 20 report--the report in which Michael Cohen's famous trip to Prague for a "clandestine" meet superseded the clandestine Moscow meet of Carter Page, who was no longer with the Trump campaign. Which leads to the supposition that this meeting with Steele was to tell him, inter alia, that more detailed information was needed for the FISA application--which Steele duly provided, in the form of the now famous Cohen-Prague miscue. 

All in all, it's an interesting picture: three officials from DoJ's Criminal Division meeting with the second in command of the FBI's CI division (accompanied by the Deputy Director's counsel) to plan for a FISA on--in effect--a candidate for the presidency. Coaching the asset on what was now needed for the FISA to go through, which would be typical Weissman tactics. And all this without informing the Acting AG, Sally Yates. Or so they say.

Nor did Weissmann's involvement in these matters end with Trump's inauguration. In fact, already in April, 2017, just a month before Mueller's appointment as special counsel--or should we say Weissmann's appointment as acting special counsel?--Weissmann was already leaking to the media about future subjects of Team Mueller: Paul Manafort.

So Weissmann was the ideal candidate to run the Russia Hoax 2.0, the Special Counsel version. He was ready to step in and get things up and running at a moment's notice--which we now know, thanks to John Solomon, is exactly what he did. Consider. Weissmann was already totally familiar with the case, having been working on it for months and having met personally with the key players. He also had an insiders knowledge not only of DoJ but also of the FBI and all its workings, as well as extensive political connections to the Clinton camp. And, he was deeply unethical--which was the fly in the ointment. To name Weissmann with all his baggage as special counsel--which the FBI would certainly have favored--would have had even the GOP screaming bloody murder. Mueller, with his improbable reputation as Mr. Clean, was the solution for that problem.

The key player in all these machinations was Rod Rosenstein. His exact role--and his legal jeopardy--may only be known at this point to IG Horowitz, USA John Durham, and Bill Barr. But count on it--Rosenstein is central to this entire story.

To conclude this section on investigating the investigators, I can do no more that reproduce this timeline--lifted from CTH, and published yesterday in Timeline: From Comey's Firing To Mueller's Appointment. Note two things. Obviously, the central role of Rosenstein--but for his involvement, none of this gets off the ground. But also note that Weissmann's name doesn't appear. Nevertheless, his presence, based on what we know and have summarized above, can be sensed at every step of the way:

FBI Director James Comey was fired on Tuesday May 9th, 2017. According to his own admissions (NBC and CBS), Deputy FBI Director Andrew McCabe immediately began a criminal ‘obstruction’ investigation the next day, Wednesday May 10th; and he immediately enlisted Deputy Attorney General Rod Rosenstein. 

These McCabe statements line up with with text message conversations between FBI lawyer Lisa Page and FBI agent Peter Strzok – (same dates 5/9 and 5/10) ... 

The next day, Thursday May 11th, 2017, Andrew McCabe testifies to congress. With the Comey firing fresh in the headlines, Senator Marco Rubio asked McCabe: “has the dismissal of Mr. Comey in any way impeded, interrupted, stopped, or negatively impacted any of the work, any investigation, or any ongoing projects at the Federal Bureau of Investigation?” 

McCabe responded: “So there has been no effort to impede our investigation to date. Quite simply put, sir, you cannot stop the men and women of the FBI from doing the right thing, protecting the American people and upholding the Constitution.” 

However, again referencing his own admissions, on Friday May 12th McCabe met with DAG Rod Rosenstein to discuss the issues, referencing the criminal ‘obstruction’ case McCabe had opened just two days before.  According to McCabe: 

… “[Rosenstein] asked for my thoughts about whether we needed a special counsel to oversee the Russia case. I said I thought it would help the investigation’s credibility. Later that day, I went to see Rosenstein again. This is the gist of what I said: I feel strongly that the investigation would be best served by having a special counsel.”  

Recap: Tuesday-Comey Fired; Wednesday-McCabe starts criminal ‘obstruction’ case; Thursday-McCabe testifies to congress “no effort to impede”; Friday-McCabe and Rosenstein discuss Special Counsel. 

After the weekend, Monday May 15th, McCabe states he and Rosenstein conferred again about the Special Counsel approach. McCabe: “I brought the matter up with him again after the weekend.” 

Now, overlaying what we know now that we did not know in 2018, to include the John Dowd interview and McCabe admissions, a very clear picture emerges.
On Tuesday May 16th, Rod Rosenstein takes Robert Mueller to the White House to talk with the target of the ‘obstruction’ criminal investigation, Donald Trump, under the ruse of bringing Mueller in for a meeting about becoming FBI Director. 

Knowing McCabe launched a criminal obstruction investigation six days earlier (May 10th); and knowing Mueller was ineligible for the position of FBI Director; this “meeting” looks entirely different.  This meeting looks like an opportunity to gather evidence for the obstruction case. 

The next day, Wednesday May 17th, 2017, Rod Rosenstein and Andrew McCabe go to brief the congressional “Gang-of-Eight”: Paul Ryan, Nancy Pelosi, ¹Devin Nunes, Adam Schiff, Mitch McConnell, Chuck Schumer, Richard Burr and Mark Warner. [Note: McCabe attempted to exclude Nunes from the meeting.] 

… […] “On the afternoon of May 17, Rosenstein and I sat at the end of a long conference table in a secure room in the basement of the Capitol. We were there to brief the so-called Gang of Eight—the majority and minority leaders of the House and Senate and the chairs and ranking members of the House and Senate Intelligence Committees. Rosenstein had, I knew, made a decision to appoint a special counsel in the Russia case.” 

[…] “After reminding the committee of how the investigation began, I told them of additional steps we had taken. Then Rod took over and announced that he had appointed a special counsel to pursue the Russia investigation, and that the special counsel was Robert Mueller.” 

Immediately following this May 17, 2017, Go8 briefing, Deputy AG Rod Rosenstein notified the public of the special counsel appointment.

A Theory Of The Case

Yesterday commenter Forbes asked:

Is it too soon to ask what actual, specific crimes (may) have been committed by Brennen, Comey, McCabe, Strzok, Lynch, Yates, Rosenstein, Mueller, Weissman, etc. From this distance (my perch), lots of guidelines have been breached, all sorts of misconduct and malpractice, though surely there's some hint of criminal conduct that could find a grand jury indictment... 

Or am I being premature in this assessment and query...

My somewhat flippant response was: it's never too soon! But in reality there's nothing flippant about that response. In fact, without a theory of the case there can be no investigation--not a legally justified investigation. There must be some factual predication that includes a reasonable belief that a crime has occurred before an investigation can be initiated. I've written extensively on this from many standpoints, and the point was expressed well earlier this week by Chris Swecker, a former Assistant Director in the FBI's Criminal Investigative Division:

Chris Swecker: It would be difficult to overstate how egregious and in violation with the Attorney General guidelines and probably several criminal statutes that type of operation would be without predication. And in this case… I don’t see any predication whatsoever and certainly no documentation of an assessment or an intelligence assessment as Comey described it in his book, or a preliminary inquiry or a full investigation. And those are the only three types of investigations there are. So there would have had to have been some sort of documented predication to do that. 

"[I]n this case… I don’t see any predication whatsoever." Based on our past work, we'll take that as a given. The entire Russia Hoax, beginning with Crossfire Hurricane and continuing through the Team Mueller op, had no predication whatsoever. The Papadopoulos ploy, the Steele dossier--it was all bogus. And the key players knew it was bogus. It had been debunked early on.

Note, too, that Swecker believes that not only were AG Guidelines violated--another subject we've discussed almost ad nauseam over the last few years--but he also believes that "probably several criminal statutes" were also violated. And that leads to the question: What is Barr's theory of the case, his predication for "investigating the investigators"--specifically, or kinda specifically?

My initial response to Forbes was that a good place to start is with 18 USC 1001--the all purpose False Statements statute. The reason for this can be seen in Swecker's response: "there would have had to have been some sort of documented predication." Look at it this way--it's in the nature of all bureaucracies (which the FBI and DoJ most emphatically are) that all actions must be justified and documented. Therefore, if in reality there was no predication, then the documentation would have to be falsified to pretend that there was some sort of predication. In other words, the relevant case files should contain readily documentable false statements--it just takes some scrutiny. The FISA applications should be a slam dunk for 1001, so there's no lack of predication.

The false statement approach is in the nature of low hanging fruit. It's fairly easy to prove, and carries satisfying prison sentences. We've already seen what use Team Mueller has made of this workhorse statute, and turnabout would be poetic justice. On the other hand, there's something about using this statute that's not satisfying. Technical false statements, no matter how fundamental, don't really get to the heart of the case, to the heart of what the Russia Hoax was all about.

The Russia Hoax was an attempted coup--an attempt to oust the duly elected president of the United States. However, in the United States, because of our historical concerns for freedom of speech and association, the crimes of treason and sedition are subject to restrictions that make them impractical for prosecuting these sorts of political cases in which no force/violence was used. What we want is a statute or several statutes that would capture the enormity of what was done, the grievous assault on our republic, on our constitutional order.

I'll admit that I haven't looked at this in any depth, and I welcome input. My first thought was that there might be some relevant obstruction statutes. Then I reflected on what was actually done. As I've stated before, the main object of the Russia Hoax was to prevent Donald Trump from taking office as POTUS. How was this to be accomplished, if not by force/violence? The answer is fairly obvious. Trump was to be forced to withdraw or resign by non-physical means--the threat that he could be humiliated, his position made untenable, impeached, hounded from office, ultimately prosecuted. All these things are still being threatened, and that's the point. Threats would be leveled at Trump under the color of law or of official authority, threats that would be presented as if they had a factual predication. The threats would be presented by persons who had official positions in the US government and who would present those threats as expressions of their official authority. Which is to say that Trump would be, in effect, extorted under color of law.

For example.

What was Comey doing when he met with Trump at Trump Tower and told him that there were reports of sexual shenanigans involving Trump in a Moscow hotel? I would argue that Comey was attempting to create a situation in which Trump would feel compelled to withdraw before even being inaugurated as POTUS. I would argue that that is a form of extortion and that, coming from the Director FBI, a suggestion was being made that Comey had some degree of control over this situation--if Trump should withdraw, perhaps Comey could make the problem go away. It's an argument.

The appointment of a special counsel itself was an act under color of law, which had no legal predication, as we know and as both McCabe and Rosenstein both had ample reason to know. The fact that they discussed an attempted use of the 25th amendment is another indication of their knowledge of the lack of predication for a criminal investigation. Was the appointment of a special counsel made with the object of pressuring Trump to resign? His initial reaction ("I'm f*cked") is evidence. I would argue that this, too, was a form of extortion.

Finally, as John Solomon has reported within the last few days, within two weeks of the initiation of the Mueller inquisition Andrew Weissmann had approached the lawyers for a Ukrainian oligarch under US indictment and made offers that for all the world appeared to have been an attempt to suborn perjured testimony against Trump. The idea being, I would argue, that if the imminent threat of criminal allegations could be presented publicly Trump would feel forced to resign.

The question is: Is there a specific statute to cover this? Perhaps a reader can come up with something. My very tentative search just now yielded 18 USC 242:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States ...

At any rate, I think this general direction--some form of extortion--may hold some promise. But I welcome input.

UPDATE an already humongously long blog? Well ... I couldn't resist it:

Undercover Huber‏

@JohnWHuber

Someone should ask Rod under oath why didn’t take Mueller’s car keys off him never mind leave him with the keys to a $40m sprawling investigation of the President of the United States largely based on allegations ginned up by Team Clinton using Russian sources.

@JohnWHuber

The House had oversight of Mueller for ONE DAY and immediately folded him like a cheap suit.
Rod Rosenstein had oversight of Mueller for TWO YEARS and never noticed a problem with him?