Saturday, August 3, 2019

Obstruction--And Barr's Strategy

We all know that the Mueller Dossier is divided into two parts: The Russia Hoax proper, which is to say, the "collusion" narrative, and obstruction--which necessarily flowed from the Russia Hoax but took on a life of its own. In the past I've maintained at great length that the legal basis for the Russia Hoax--the Crossfire Hurricane enterprise counterintelligence investigation--in fact lacked the necessary predication for a Full Investigation under the Guidelines that govern all FBI investigations. The corollary to that fact is that, ipso facto, the Mueller inquisition--which explicitly continued the Crossfire Hurricane (CH) investigation--also lacked the necessary predication. Yes, an argument could be made that facts developed between the inception of CH (end of July, 2016) and the authorization of the Mueller inquisition (mid May, 2017) could have offered a belated predicate--improper as that would have been. However, as we have also seen (and will note once again), that was not what happened. There were no new facts. In fact, the entire basis of CH--largely the Steele "dossier"--had for practical predicating purposes been entirely debunked at that point.

Many who have followed this scandal have drawn from this the conclusion that the Mueller inquisition was therefore never about "collusion"--it was always only about setting an ongoing "obstruction trap" for Trump. I have also argued that this fails to do justice (!) to the true extent of the lawlessness that was being perpetrated in the effort to oust Trump--once the effort to prevent his inauguration fell through. In fact, Team Mueller was determined to use the pretext of a "collusion" investigation to discover or, if need be, manufacture, chargeable offenses, whether related to Russia or not. I think every single case brought by Team Mueller witnesses to this lawless intent. At the same time, they were determined to set the obstruction trap and keep it baited for as long as possible. Which brings us to our topic for today.

Let's step back for a moment. We began by pointing out that CH lacked a factual predicate as required for any FBI investigation.

Recently a remarkable statement came to my attention. The statement was made by James Rybicki, chief of staff to the disgraced former Director of the FBI, James Comey, as well as for Chris Wray, until January, 2018. The context is an interview that Rybicki gave to the U.S. Office of Special Counsel or “OSC,” not to be confused with the office of former Special Counsel Robert Mueller (the OSC is a permanent office that investigates Hatch Act violations. Comey was under investigation for trying to influence the 2016 Presidential election). In the course of that interview Rybicki was questioned at length about the FBI's handling of the Midyear Exam case--the Hillary email case. In the course of the questioning a comparison was made to the handling of the "Russian influence" investigation--Crossfire Hurricane. Here's what Rybicki told OSC--in heavily redacted form:

RYBICKI: So with the Russia, the CI investigation into Russian influence, that had just started in July. It was in its infancy, right? If you get to October, right, it really -- at that point -- again, I want to be careful what I say about it, but you -- there's really nothing to say, even if you were predisposed to say something, right? [p. 124] 
In the case of the Russian influence, starting in July there would be nothing to say at that time, right? And you -- yeah, there would be nothing to say at that time. [p. 125] 
Q: So we understand that at some point in October of 2016 there was, I guess, a desire by the White House to make some kind of public statement about Russia's ... [bottom p. 126, redacted up to p. 132]

Now, let's be clear. What Rybicki here refers to as "the CI investigation into Russian influence" was CH. That was NOT simply an investigation into "Russian influence." It was an enterprise CI investigation into a de facto enterprise within the Trump campaign and it targeted four named individuals. In Rybicki's testimony to the House Judiciary Committee on January 18, 2018, here is how the Democrat staff attorneys characterized the target of that same investigation--with no objection or correction from Rybicki:

the Trump campaign and the Russian Government 
the Trump investigation, the Trump campaign official investigation 
the Trump campaign official investigation before the election [p. 161-162]

Here's the point. Rybicki is actually talking about the end of October, 2016. CH began on the last day of July, 2016. However, we know that the FBI's targeting of the four subjects of CH began many months before that--for some, probably in 2015. And here is James Comey's chief of staff stating that, three months after the opening of the full investigation on these individuals "It was in its infancy ... there's really nothing to say."

Clearly, what Rybicki knew about this investigation (CH) at the end of October, 2016, Comey knew, too. What this tells me is that, given that they knew there was no predication for the investigation as started--a purported investigation into an "enterprise" of four named individuals within the Trump campaign--the real reason for opening CH in the first place was precisely to get a FISA that would provide a facially legal window into the inner circles of the Trump campaign organization. And later into the transition and then into the actual Trump administration. Anyone who thinks Comey didn't understand this, well ...

Fast forward to May, 2017, and we have Peter Strzok texting Lisa Page that they both knew that there was "no there there." Yes, CH was known to be a hoax. My contention is that at that point in time everyone involved in the authorization of the Mueller inquisition knew that there was no predication for continuing CH. So, if Strzok and Page knew that, then Andrew Weissmann--who had been involved with CH since at least September, 2016--also knew that. McCabe, of course, knew that and Rod Rosenstein had every reason to know that as well. Aaron Zebley and Robert Mueller? I don't see any way that they could possibly have not known that the whole thing was a fraudulent coup attempt, that there was no predication or legal justification.

Fast forward again to the release of the Mueller Dossier and we have actual certification--for those who need it--that there never was anything there.

But how about obstruction? Was there predication for an obstruction investigation? And if there was, who would be the target? I think it's pretty clear that the target could only be Trump himself. But did Team Mueller start looking at obstruction right away? Gateway Pundit has provided two fascinating texts that show that obstruction was right there at the outset:

The following texts between the corrupt lovers Strzok and Page occurred on June 7, 2017 – 
5:05 pm Peter Strzok text: Unless you’ve got something going, I would. We’re starting obstruction team brief but just come. Sit in on whatever comes next.
5:06 pm Lisa Page text: I mean, I’ve got lots of work to do. But okay. Who is in it?
5:08 pm Peter Strzok text: Don’t then. I’m just saying, come over here and stick your head in. I’ve gotten more the past couple of days after hours talking with Aaron [Zebley] and [redacted] then all day the past week and a half. Was not suggesting it for any particular reason, just a dive in sort of thing. If you have work to do, I’d say do it.
7:06 pm Lisa Page text: I left. F it. There’s no amount of time I can spend and finish everything. Whatevs.

We now know that Aaron Zebley, Mueller's long time chief of staff, was actually in charge of the day to day operation of Team Mueller and ran the staff meetings, for the most part. These texts also tell us that, from the outset, Team Mueller was organized into various teams, and one of those teams was the obstruction team. If obstruction was the target of a "team" from the outset, it follows that "obstruction of justice" should have been mentioned in Rod Rosenstein's authorization letter appointing Mueller, and that Rosenstein should have examined the evidence and formally decided that there was predication for that investigation. After all, the regulations governing the appointment of a Special Counsel state:

§ 600.1 Grounds for appointing a Special Counsel. 
The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and - 
(a) That investigation or prosecution of that person or matter by a United States Attorney's Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and 
(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

Go figure, hey? Essentially none of that was even mentioned by Rosenstein. He simply says that Mueller will continue the investigation (CH) that Comey had already confirmed in March, without naming any subjects, and adds that Mueller will also investigate "any matters that arose or may arise directly from the investigation." I take that to mean that the "obstruction" aspect arose "directly" from CH. But where, exactly, is the conflict of interest for a US Attorney's office that wouldn't also exist for a Special Counsel--who is, after all, under the Department's supervision? Why, exactly, is this appointment "in the public interest"? Rod doesn't tell us.

Obstruction of what, you ask? Good question. Was it obstruction of CH for Trump to express his hope to Comey that Comey could see his way to going easy on Michael Flynn? Was it obstruction of CH for Trump to later fire Comey? These incidents were simply a president being the president exercising powers that presidents have under the Constitution. Comey and McCabe have both stated that these incidents weren't obstructive. And then again, if Rosenstein thought any of this was obstruction at the time, what caused him to change his mind when he agreed with AG Bill Barr that the Mueller Dossier's implied obstruction theory was all wet? Clearly, Rosenstein was involved in a conspiracy with McCabe and others at DoJ to get a Special Counsel by underhanded means, without revealing the reality of the hoax behind their move.

Here, I think, we see the brilliance of Bill Barr's strategy. Clearly, Barr came on board as AG, read the documentation and decided to call Mueller's bluff--force him to lay all his cards on the table. We see the result. On the one hand, Mueller was forced to admit that there wasn't ever any "collusion." Period. On the other hand, Mueller (or his keepers) tried to finesse the obstruction issue by slinging a lot of mud and then saying they couldn't "exonerate" the president. They refused to set out their theory of obstruction or to consult with the Department about the elements of an obstruction offense because they knew they had no legal leg to stand on. But Barr saw right through that dodge. He and Rosenstein examined the Mueller Dossier and decided--and I'd have loved to have been a fly on the wall for those Barr - Rosenstein conversations--that the elements of an obstruction offense were not presented.

But that wasn't really some exceptional insight that wasn't available to Team Mueller. The fact is that for two years they were pursuing an obstruction investigation based on facts which--under Office of Legal Counsel (OLC) guidelines that govern ALL DoJ prosecutors, including special counsels--did not constitute an obstruction offense. OLC opinions are not secret, they aren't kept hidden from prosecutors. The whole point of them is to let prosecutors know when they have a possible crime on their hands and when they don't. Here, they didn't. So what was Team Mueller up to? The conclusion is inescapable that they really were engaged in trying to goad Trump into a chargeable obstruction of an investigation that had no predication. Neither the "collusion" investigation nor the "obstruction" investigation had the required predication. But they were "investigating" anyway. That spells big trouble for everyone involved.

Bill Barr knows all this. No one understands this better. And now he wants to know how this whole thing got started.

Back in John Solomon's New Bombshell: Durham Revisiting Mifsud I concluded by quoting John Solomon to the effect that Team Barr, led by John Durham, is clearly looking at the Team Mueller operation with a very jaundiced eye:

There is now compelling evidence Mueller omitted or misrepresented important facts about Mifsud and Papadopoulos that could change the public’s understanding of events. And those aren’t the only omissions and factual errors to emerge. 
Mueller never disclosed in his report that Manafort business partner Konstantin Kilimnik, identified in the final report as having ties to Russian intelligence, actually was a regular informer for the State Department from 2012-2017. The report also incorrectly identifies an American citizen from the former Soviet republic of Georgia as a Russian. 
Such omissions and mistakes add to the mistrust of the final product. And as the Durham team’s overture to Roh makes clear, Mueller’s testimony before Congress may not be the final verdict for his findings.

This entire hoax, as described above, is beginning to look very much like what Joe diGenova described:

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.

Bill Barr has brought all this into clear focus. Yes, he's building on the work of others, but he's the one in the cross hairs of the progressive/media machine, and he's the one driving the investigation forward. I say this is a remarkable achievement, and I doubt that any other person put in this position would have had the sheer guts to set it all in motion. I say: Lets find some sort of medal to given him. Right now.


  1. So what law, specifically, did Mueller break? He didn't commit treason, or sedition, since as I understand it, those crimes entail working with another state against the interests of America. The Democratic Party may qualify as such an entity, but only technically.

    Also, do you believe Mueller, apparently willingly, went along with this fraud? He knew exactly what happened? What kind of man is this?

    Or is there another way to interpret his role?

    Great post, btw. You run the most informed blog on this and similar topics.

    1. Tx very much. The discussion is here: Joe DiGenova: John Durham’s 'Lightning' Fast Investigation--And A Case Theory! with links. The specific statute linked there is 18 USC 1346. An alternative may be 18 USC 371.

  2. In hindsight, when you carefully examine all of James Comey's interactions with Trump, from the Jan 06 2016 briefing until his last day in office, it is hard to not come to the conclusion that Comey was trying with all his might to get canned.

    I think Comey wanted Trump to fire him soon after the inauguration so that Sally Yates could appoint the Special Counsel. After Sessions was sworn in on February 9th 2016 (and after Yates had been fired), the Democrats immediately worked to get Sessions sidelined, finally succeeding in early March of 2017- this put Dana Boente, another Obama holdover, into the effective DoJ head of CH. Then came Rod Rosenstein, another Obama holdover (though initially put into the US attorney position by Bush II) in late April. Then comes Rosenstein literally helping Comey's firing in early May. Add into that that Comey revealed CH in a public hearing in mid March only after Sessions had been forced recuse himself. It all adds up to gaslighting Trump into firing Comey whenever the Obama holdovers had the power in the DoJ to appoint a special counsel.

    1. At a minimum they appear to have been actively looking for some plausible excuse, whatever it may have been. It seems inescapable to me that, as you say, at DoJ/FBI Trump was pretty much surrounded with people looking to take him out.

  3. This fishing expedition was a failure, so an obstruction story was created as the excuse. This makes sense and any jury of sentient beings would nod along.

    Unless the jury contains Democrats.

    Assuming we get beyond a grand jury and go to prosecutions, can we have the trials in a normal state instead of deep blue areas like D.C. & Virgina?

    1. Since Durham is USA in CT, that's where the GJ is. Unless they empanel a second one.

    2. I'm not certain CT is an improvement over VA--certainly over DC. Presumably any trial that grew out of a GJ indictment would be in Durham's USA District of CT.

    3. While I don't claim to know all the ins and outs of this, that's my assumption based on what I gathered from the Manafort cases (2 grand juries, each in a different district). I certainly never had experience with multiple grand juries.