Wednesday, July 31, 2019

Joe DiGenova: John Durham’s 'Lightning' Fast Investigation--And A Case Theory!

I have to say this right up front--Joe diGenova, speaking with his wife Victoria Toensing on Lou Dobbs tonight, did NOT say when the declassifications would happen. However, they had a lot of other interesting things to say:

1) A nice succinct explanation of how the grand jury process works, and why it takes time;

2) A prosecutive theory that allows for the Big Picture conspiracy narrative that I've been hoping for--a theory that gets you past the nickel/dime false statement stuff. It's a conspiracy to defraud the federal government of the faithful services of the agencies involved--the FBI, CIA, maybe DoJ.

Wikipedia has a good discussion of Honest Services Fraud, under 18 USC 1346. Here is the statute:

"For the purposes of this chapter, the term scheme or artifice to defraud includes a scheme or artifice to deprive another of the intangible right of honest services."

And here are some notable excerpts from Wikipedia that should give an idea of how useful this could be for Durham:

The statute has been applied by federal prosecutors in cases of public corruption 
Since at least 1941, particularly in the 1970s and 1980s, and prior to 1987, the courts had interpreted the mail fraud and wire fraud statutes as criminalizing not only schemes to defraud victims of money and property, but also schemes to defraud victims of intangible rights such as the "honest services" of a public official. 
Honest services fraud is generally more easily proven in the public sphere than in the private, because honest services fraud by public officials can include most unethical conduct,  
The statute grants jurisdiction to the federal government to prosecute local, state and federal officials. It is frequently used to fight public corruption because it is easier to prove than bribery or extortion.

Also, because the Hillary/Doj deal--outrageous deal--has been in the news again, I include that part of the discussion. And for those who want to read about that in more detail I'll provide a link. We've known what was involved for a long time, but now we have the documentation: ACLJ Obtains Obama DOJ’s Immunity Agreements with Hillary Clinton Lawyers Cheryl Mills and Heather Samuelson to “Dispose” of Evidence and Refuse to Comply with Federal Law.

So here we go with Lou, Vicky, and Joe:

Dobbs: US Attorney John Durham--now conducting a criminal investigation, we understand. Not just a review. Victoria, this sounds like reason for hope--dare I hope?

Toensing: Yes! Please, please, hope! Listen, we've been telling you all along, Lou, that this was going to be a criminal investigation. But what Durham was doing ...

Dobbs: You didn't tell me it was gonna take this long, Victoria!

Toensing: Have some patience, Lou! Here's what he [Durham] had to do. He had to interview these witnesses. People who are cooperating witnesses should be interviewed beforehand. You don't wanna just throw someone in a grand jury cold turkey and start asking them questions. You wanna have, as a prosecutor, the whole range of information that they have. Maybe they say something and bring something up and there's more investigation that needs to be done before they come to the grand jury. So, unless someone who's being subpoenaed and is gonna take the Fifth, the prosecutor has already spent time to interview them.

Dobbs: So is this process, Joe, moving quickly, is it moving slowly, as it seems? Is there any reason for me for everyone watching and listening to you and Victoria to think that we're actually gonna see the scoundrels who made up the leadership of the Department of Justice and the FBI are going to be held accountable?

diGenova: Yes, yes, and by the way--by any traditional standard this thing is moving with lightening speed. In a very short period of time John Durham has interviewed, I understand, DOZENS of potential witnesses and has moved to setting up a grand jury. So it’s going to happen. I will say this. I think people need to be reasonable in the expectation of potential criminal charges. This is a very difficult area of the law, to bring criminal charges where government officials are claiming that they acted in good faith. We may see some initial cases which are not brought, but eventually Durham is focused on a very large criminal conspiracy involving defrauding the United States government of the faithful service of these agencies. I think ultimately he will get to the point of bringing charges. It isn’t going to happen quickly. And there are going to be some instances where he isn’t going to have enough evidence to charge even some pretty big people initially. But some of these players will be involved in more than one series of criminal investigations. So if they get a pass in one instance, they may not get it in another. It's gonna be rough, it's gonna be difficult, but believe me--Bill Barr is not going to pass up the opportunity to do the right thing.

Toensing: And how long did it take Mueller to find nothing? Two and a half years.

Dobbs: Yeah. I can't even imagine making the comparison between Mueller's enterprise and that of John Durham or Bill Barr. But I do wanna ask you this, as we wrap it up. Is there any reason for us to expect an explanation, and a clear explanation, and a clear accounting for why Hillary Clinton could be exonerated by the FBI, and by the Special Counsel as well, even as we are watching evidence disappear and be disappeared, immunity given away like hotcakes to the staff of Hillary Clinton ...

Toensing: I predict that Hillary will be by the wayside and focus will be on what happened with the FISA authorization and the investigation of the Trump campaign. ...

diGenova: I have no idea if they're gonna give any further explanation of what happened to Hillary. I don't know how the IG could NOT do that, given the centrality of Comey's decision making to everything that followed. I think as a result of investigating all of this CIA, FBI, coverup stuff and the effort to frame President Trump I think they must explain how the Hillary exoneration fit in to that broad conspiracy to frame Donald Trump. So I think there will be an explanation of how the Hillary exoneration fed into a bigger conspiracy.

Toensing: But I think Lou still wants Hillary punished, right?

diGenova: That's never gonna happen. They're not gonna go back and try to indict her.


  1. Toensing & diGenova both, unprompted, said "grand jury", which got my attention. Also, diGenova said "broad conspiracy".
    Add to that Durham's resume of racketeering convictions against agents of the FBI, La Cosa Nostra and the KKK, and it sounds like Barr is intent on making this stint as Attorney General a memorable one.

    1. Absolutely. Durham was a significant choice. Not to mention his investigation of Mueller in Boston.

  2. It may just be too early in the morning, but I am not as optimistic as you, Mark, and others that the actions of Comey, et al, result in criminal prosecutions and convictions. I sure hope there is an 'honest services' case or some other case brought on solid legal grounds to convict and punish these people for what they have done to destroy the rule of law in our country.

    As I said in an earlier comment prosecutions inevitably will be defended by government officials claiming they simply went 'by the book'.

    Now I read diGenova saying essentially the same thing: "I think people need to be reasonable in the expectation of potential criminal charges. This is a very difficult area of the law, to bring criminal charges where government officials are claiming that they acted in good faith".

    And on top of that diGenova says of potential charges in respect of Mrs Clinton's undoubted criminality: "That's never gonna happen. They're not gonna go back and try to indict her."

    What a horrible thought to contemplate: Not only the likelihood that Mrs. Clinton's intentional criminal misuse of classified information while holding one of the highest positions of trust and responsibility in our country will continue to go unpunished, but so will her intentional destruction of evidence in the face of criminal investigation. Poof! Like it didn't happen.

    And then the very same officials in the Federal Bureau of Investigation and Department of Justice who 'conspired' to exonerate the candidate of the favored political party (yes, exonerate: as in no reasonable prosecutor would bring such a case) turned around and cynically used the awesome powers vested in them under our criminal and counter-intelligence laws and procedures to fabricate (yes, invent) evidence of criminal behavior against the presidential candidate of the opposition party and his associates, and then criminally investigate them for such behavior, with no other real purpose than to destroy politically first his candidacy and then, against all odds, when he won, destroy his presidency.

    I know you, Mark, and others commenting here place your hopes in Barr ("trust Bill Barr") and Durham that successful prosecutions will be brought. I hope so, too, but am terrified that the barriers will prove too high and the bad guys will win out.

    If they do it will be a terrible omen for the future prospects of our country.

    1. I agree with your conclusion: if there is no accountability that "will be a terrible omen for the future prospects of our country." The fact that so many are placing their hopes in one man, Bill Barr, is in itself I suppose "a terrible omen ..."

      Still, it appears to me that Barr's focus is where it should be, from a well conceived investigative standpoint: the FISA abuse (where my focus has also largely been) and the ICA assessment. Comey and Sally Yates seem ultimately responsible--or most responsible--for the first and Brennan appears to have been in charge of the second. The third area of focus, overseas ops, goes to my other main area of focus, namely predication for the targeting overall. That takes in Comey and Brennan, but also Rosenstein and Mueller.

      diGenova is correct that intent is difficult to establish in such cases. The only way to do that is to patiently work your way up the ladder to those with authority who gave the directions. I continue to believe that that can be done and that the classified stuff is a blip. However Toensing and diGenova are again correct to warn that this takes time--and he seems to realize that he may be responsible for feeding unrealistic expectations as to a timeline.

      The Hillary stuff--and for me the Clinton Foundation is the important thing--is disheartening.

      OTOH, compare this to the actual legal outcome of Watergate. Any convictions will be far more consequential and the reputations ruined should also be more consequential. If handled right, a report could change the landscape. But I do believe prosecutions must happen.

    2. Thanks for the thoughtful comment.

  3. You're welcome.

    "OTOH, compare this to the actual legal outcome of Watergate. Any convictions will be far more consequential and the reputations ruined should also be more consequential. If handled right, a report could change the landscape. But I do believe prosecutions must happen."

    At the end of the day, the most consequential result of Watergate was the ruination of Richard Nixon.

    I will be delighted if Barr and Durham can reach the man who was POTUS when this stuff went down.

    1. I don't doubt that they have that in mind when they speak of getting to the origin. The ruination of the people behind this, whether prosecuted or not.

      In the meantime, see what you think of more mundane considerations in the updates to the latest post: UPDATED: Are diGenova And Huber On The Same Page?

  4. Let's remember that ultimately it's The People who decide if our country is saved. I want prosecutions as much as anyone. But if The People re-elect DJT, sweep out the Dems, especially AOC and the Squad, elect conservatives and turn off CNN and MSNBC, that is a good thing, too.

    The following is a non sequitur but it illustrates my point. Procter and Gamble came up with anti-masculinity type ads for Gillette and they just had an $8 billion write-down.

  5. I wonder if the Clinton deal could be done undone because it was obstruction of justice. The evil Dems just tried to get Trump on this stuff. Can they be hoisted on their own petard?