Friday, July 26, 2019

Small Ball, Long Ball

As if on cue ...

Wednesday we had the Nadler and Schiff's Mueller Meltdown in the House. Immediately afterwords President Trump introduced a new meme into the discourse: Investigate the investigators. This meme was quickly picked up by prominent legal commentators at various news and opinion outlets.

Yesterday I expanded on that notion, trying to present the big picture behind it. At the same time, as a sort of bottom line, I expressed the hope that the Barr/Durham investigation would not confine itself to what could called an investigative version of "small ball"--going after real but highly specific violations of the false statement or fraud variety. Rather, I expressed the hope that they would come up with a case theory that would encompass the full scope of what really happened--an attempted coup. I suggested as a possible theory something in the nature of an extortion conspiracy to pressure the president into resigning. That would be a prosecutorial form of "long ball."

I believe that the Trump administration, closely coordinating at both the White House and DoJ levels, is engaged in a sophisticated and carefully timed public relations campaign. The object is both to educate the public but, almost as importantly, to reassure supporters that progress is being made. The quick response to the Mueller Meltdown was part of that campaign. It was notable that Trump's remarks signalled a move beyond merely spiking the football, so to speak, and very deliberately advanced the discussion into a new area that has been going on in the background, up to now.

Today we have an interesting article at Fox that in a sense draws those two aspects together--small ball and long ball--under the somewhat opaque title DOJ’s Russia probe review focusing on 'smoking gun' tapes of meeting with Trump aide: sources. Here's what they're getting at. They're suggesting that Barr and Durham believe they've identified a "smoking gun" violation:

The Justice Department’s internal review of the Russia investigation is zeroing in on transcripts of recordings made by at least one government source who met with former Trump campaign aide George Papadopoulos overseas in 2016, specifically looking at why certain "exculpatory" material from them was not presented in subsequent applications for surveillance warrants, according to two sources familiar with the review. 
The recordings in question pertain to conversations between government sources and Papadopoulos, which were memorialized in transcripts. One source told Fox News that Barr and Durham are reviewing why the material was left out of applications to surveil another former Trump campaign aide, Carter Page.
“I think it’s the smoking gun,” the source said.

There are two aspects about this that we need to focus on. First of all, taken as a snapshot, what we see here is "small ball." The violations involved would certainly be of the discrete, false statement variety, rather than a big picture conspiracy view. However, if we view this as simply a moment in a dynamic investigative process, the notion of this being a "smoking gun" takes on more significance. The characterization of this development as a "smoking gun" may also indicate that the investigators have the goods on one or more key players in the bigger conspiracy--that they're now in a position, if need be, to exert pressure to cooperate with the full scope of the investigation.

Keeping that in mind, the Fox article also points out that Barr and Durham are also looking at big picture issues, probably with a view to playing "long ball" later:

The sources also said the review is taking a closer look at the actual start date of the original FBI investigation into potential collusion between members of the Trump campaign and the Russians, as some allege the probe began earlier than thought. Both components are considered key in the review currently being led by Attorney General Bill Barr and U.S. Attorney from Connecticut John Durham -- an effort sure to draw more attention in the coming weeks and months now that Robert Mueller's testimony is in the rearview.

Here's why this is a real big picture approach. Obtaining FISA warrants was merely, as it were, a moment in the overall investigation. In other words, the FISA applications don't truly stand on their own--they follow upon the predication that served to initiate the investigation in which they figure. The key, then, if you want to understand the full scope of what was going on is to scrutinize the origination of the overall investigation. That would be contained, in the case of Crossfire Hurricane, in the EC that Peter Strzok wrote to open the case--with input from John Brennan, Bruce Ohr, and Chris Steele. As far as we know, Devin Nunes is one of the few non-FBI people who has seen that EC, and he's sworn to secrecy. That EC may not provide the full picture, but it's certainly a key part of the jigsaw puzzle.

Let me round this out by suggesting an example of how these two investigative approaches can work in complementary fashion.

We've seen in the last few days how busy Rod Rosenstein was with the initiation of the Mueller inquisition: Timeline: From Comey's Firing To Mueller's Appointment. The importance of this in the big picture is this. The Mueller inquisition is, of course, based on Crossfire Hurricane's predication. Crossfire Hurricane represents the Russia Hoax taking a truly institutional form. However, if it had been dropped at Trump's inauguration, it could almost certainly have been covered up. The Mueller inquisition represents a major step beyond what had been attempted to that point. In a sense, it's the Russia Hoax and the Resistance gone metastatic. With the appointment of Mueller as special counsel--based, as former FBI Assistant Director Chris Swecker put it, on no predication "whatsoever"--the coup plotters had definitively crossed their Rubicon.

To repeat, we've seen what a busy boy Rosenstein was in the week between the firing of James Comey and the appointment of Mueller on May 17, 2017. Now, consider. In persuading Mueller to accept the SC gig, what steps might Rosenstein have taken? We know he took one very remarkable step: under some sort of pretext (the exact nature is disputed) he accompanied Mueller to the Oval Office. This allowed Mueller to take the measure of Trump the man, and possibly to also record the POTUS surreptitiously! I think we also have to assume that Rosenstein's discussions with Mueller--and very possibly with Andrew Weissmann--would have included matters such as funding, staffing, support, etc. But there's another very important matter that, in my view, would certainly have been discussed: continuation of the Carter Page FISA, which provided a window into Trump world.

By that point, mid May, 2017, the Carter Page FISA had been inititated (October, 2016) and renewed twice. The Russia Hoax investigators had obtained absolutely NOTHING of true investigative value--nothing that advanced Crossfire Hurricane in any meaningful sense--from the FISA. Follow this closely. In order to renew a FISA, the FBI must certify to the FISA court that they're making progress as expected--in other words, the FBI must certify that they're obtaining the type of information that they had certified to the court that they expected to obtain. They were coming up to the expiration date for the latest renewal, with still nothing to show for it.  But having that FISA, especially at the outset of the Mueller inquisition, would have been absolutely essential for Mueller and Weissmann--they needed a window into the Trump administration's mindset. I'd be willing to bet that they pressed Rosenstein to renew that FISA one more time--as a condition for accepting the special counsel position. And Rosenstein did renew that FISA, one month later. This was certainly a fraud on Rosenstein's part.

Thus, examining the false certifications that were made on that FISA renewal application should lead directly to Rod Rosenstein. Those false certifications should be violations of 18 USC 1001, which carries the possibility of a five year prison term. Faced with that prospect, Rosenstein may well be willing to talk about the big picture--if anyone is in a position to do so, he certainly should be. If he is not squeezed--or hasn't already been squeezed--like a grape over this as well as over the predication for the investigation, then something is terribly wrong. And the same will go with all the other coup plotters. The big picture should be within Barr's grasp.


  1. A kind of sidebar question: where do you think Jeff Sessions was in all this Rosenstein stuff? Yes, he recused himself, but he was still the Attorney General. Seems he gave Rosenstein an awful lot of latitude.

    1. As nearly as I can tell he went around making public appearances. I'll grant that he acted as an ambassador for Trump's agenda, making speeches. But the problem was he wasn't taking control of DoJ, and after 8 years of Obama that should have been top of the agenda for any AG.

  2. To me, a non-lawyer, this Statute applies to the White House folks who conspired to find somebody they could frame as a traitor.

    "Sec. 241. Conspiracy against rights. If two or more persons conspire to injure, oppress, threaten, or intimidate any person ... in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; ..."

    10 years penalty. Except for the guys who arranged for Seth Rich to be killed; for them it's this:

    "...if death results from the acts committed in violation of this section ... they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death."

    1. Thanks. I was looking at the following section, 242. 241 is the conspiracy violation, 242 covers actual deprivation of rights--they go together.

      While you can tell from the language that this probably originated with concerns about the KKK, the language does on its face seem to cover the Russia Hoax situation.

  3. Looking back now at the timeline of the Carter Page FISA warrant and renewals--doesn't the same theory (as in your final paragraph) hold true for each of the signatories to each application/renewal?

    Page had left the campaign, did not take a job anywhere in the administration, and there was no collection of anything (regarding him or whom he communicated with directly) that could be characterized as advancing the investigation or progressing any expectations regarding evidence, especially of an enterprise conspiracy.

    As I understand the FISA warrant process, two from DOJ and two from FBI attest to the merit and accuracy of the warrant application. Quite a few people beyond Rosenstein are in hot water, based on my memory of multiple different people signing-off of the application.

    1. Yes to all. I just wanted to keep it somewhat simple. Lots of people went over it in one way or another, lots are in trouble. This is very possibly what diGenova was referring to the other night, saying that people are suddenly remembering things and asking to be reinterviewed.

  4. Senior government officials in Great Britain, Australia, Italy, and Israel were complicit in both Spygate and RussiaGate. MI6 managed key aspects of the OP, including the sting on Papadopolus which began in March 2016 when the GOP nomination was still in play. Mifsud and Downer were activated shortly thereafter and the June 9th sting meeting with the Russian Veselnitskaya added an interesting twist. We also know that Steele was using two high level Russians for his sourcing as well. In other words, for most of 2016, the OP was being implemented by foreigners. The FBI was late to the party and served a steaming pile of doodoo, which in October led to the fraudulent FISA application.

    If I were Comey, I'd be real pissed at Brennan for screwing up all the foreign operations and then dropping the turd in his punch bowl. Comey is now facing some very serious prosecution liability under the small ball venue, but he sat in on all the White House meetings where the original conspiracy was hatched. Wanna bet he made copious notes or has other incriminating documentation that goes directly to the Obama Oval Office?

    Barr needs to make sure that Comey is not Arkancided before ha can flip.

    1. As for Comey keeping notes, I certainly wouldn't bet against that.