Friday, September 13, 2019

MAJOR UPDATE: Could There Be No Indictments From The OIG FISA Report?

Well, I suppose anything's possible, but I believe such an outcome is highly unlikely--I expect OIG will recommend prosecutions. The only reason I raise this question is because Conservative Treehouse raised it in a way that's likely to be very misleading for a lot of people. Initially I didn't intend to even comment regarding the news that OIG has completed its FISA report--there didn't seem much point in saying anything until the report is made public. However, since I've seen a number of conservative forums expressing unwarranted pessimism and even hinting at an impending coverup, I decided to address the statements made this evening at CTH: Trey Gowdy Warns Everyone to Lower Their Expectations.

To start with, that's not exactly what Trey Gowdy said in speaking with Sean Hannity. The point that Gowdy was trying to make was that DoJ needs to match up what happened with the right criminal statute. In fact, when Hannity suggested the possibility of a civil rights ("1983") violation, Gowdy immediately responded: "Aha! Now we're getting somewhere!" In other words, now we're articulating a coherent prosecutive theory; now we have something to discuss. My takeaway from the exchange is that Gowdy, like me, would prefer to see the FISA charges brought within the context of a broader conspiracy--whether that conspiracy is one to deprive persons of their constitutional rights or to defraud the government of honest services. Or both. But Gowdy wasn't warning anyone to lower their expectations. Rather, he was offering a warning that we shouldn't expect quick and simple trials from this. Preparing for a major conspiracy trial of this sort is not a one week affair.

What really bothered me, however, was the following statement:

One point of focus from Horowitz’s letter today is that he *only* looked at the singular FISA issues surrounding Carter Page, nothing more. Therefore if Carter Page was not a victim; meaning if Carter Page was an active participant (mole) in the FBI operation – willing to be the vehicle by which the Steele Dossier could be injected into the investigation; then there will likely be no criminal conduct outlined by Horowitz.

This is a theory that I've seen presented in a number of places (including the twitter feed of a commenter here last night): that Carter Page was not a victim but instead was a participant in the FISA fraud. I personally don't buy that. One reason--and I don't intend to argue this point at any length--is that Page went very public about the rumors that were being circulated about him before the FISA application was even presented to the court. If he was a participant in the fraud, that simply makes no sense to me--the conspirators would not want to draw attention to Page.

However, my main point here is simply this. Even if we suppose that Carter Page was a participant, and not a victim, that emphatically does NOT mean that there would be no criminal conduct. That notion is simply daft. What that would actually mean would be that Carter Page was himself a co-conspirator in the fraud on the FISA court and would himself be facing criminal charges for conspiracy.

So, my advice is to rest easy until the FISA report is actually out. I remain of the belief that Bill Barr knows that he can't restore trust in DoJ if half the electorate believes he's covering up an attempted coup against their preferred candidate for POTUS. Nor will he restore tht lost trust if FBI and DoJ officials are given a very public pass for lying to a court. Barr is a  military history buff, so I presume he sees himself more or less like a general in the middle of a major campaign. He will want to have all his ducks in a row before making a decisive move, simply because he knows so well how much is at stake. He will want to have a very clear idea of what his objective should be, and to ensure that he has the battlefield prepared. Or, better yet, has his opponents faced with no alternative but to surrender.

If I'm wrong about this, I'll be the first to admit it. But I don't think I am.

UPDATE: Fox News hosted a brief discussion last night between a former prosecutor with national security experience, Bradley Moss, and former DoJ official and current law professor John Yoo. While the to-be-released OIG FISA report is referenced, the primary focus is on the possibility of a prosecution of Andrew McCabe for lying to investigators about a leak in which he confirmed that the FBI was investigating the Clinton Foundation--within the broader Russia Hoax context.

Bradley Moss makes the legitimate point that proving that McCabe intended to provide a false statement to the government won't be easy, especially in light of the fact that, by virtue of his official position, he had the authority to make the disclosures he made. This is why I've said that this case does not excite me.

John Yoo's rejoinder, however, takes the discussion out of the realm of legal niceties and places the McCabe case within the context of the interests of justice and of public trust in government:

John Yoo: Even if a jury does not convict, I think it's utterly important for a jury to bring charges because people like McCabe are at the highest levels of the Justice Department. It is because they have to set an example for the rest of the country. If they're lying to FBI agents and federal investigators, how do they expect average citizens to interact with the Justice Department? Second, and this I think is equally important, people who were in the Trump campaign were charged for things--think about Michael Flynn, think about George Papadopoulos, all these figures you just mentioned, Mike--they were all convicted or pled out to false statements under oath too, for things just as seemingly insignificant or less significant than things that Mr. McCabe's accused of. So, to make sure that the Justice Department is carrying out equal justice under the law, I think they have to charge one of their own high officials to show that they're even handed.

I will say this: Yoo's argument holds water only if DoJ truly believes that the grand jury has it wrong. Two wrongs (prosecuting Flynn, Papadopoulos) don't make a right (prosecuting McCabe). Prosecuting a despicable government official because we think he deserves it or to provide political balance isn't the rule of law. Nevertheless, Yoo is right about the larger point: How do we expect average citizens to interact with the Justice Department in the wake of the the legal abuses of the Obama years, the corruption of the Clinton criminal organization, and now the grotesquery of the Russia Hoax--collusion of our government with foreign powers against our Constitutional order?

The good news is that there are ample charges, charges of a far more substantive and serious nature, to be brought against McCabe and the other conspirators.

Moss makes the easy rejoinder:

Bradley Moss: Michael Flynn and George Papadopoulos chose to plead guilty. We don't know what would've happened if they had been charged. That was their voluntary choice. Andrew McCabe is saying at the moment, I'm not guilty of a 1001 charge. Let's see what happens with the Grand Jury.

Let's leave Papadopoulos aside for the moment, because his case in my opinion presents unique abuses. Michael Flynn's guilty plea was, as I've said in the past, indefensible. It was a lie under oath, a lie not only to the court but to the nation. I fully understand the pressure that was put on Flynn to coerce the guilty plea and the possibility of substandard, or worse, legal advice--Moss smarmily ignores that aspect of our "justice" system in calling Flynn's plea "voluntary." Nevertheless, it was Flynn's duty--and I know this may sound harsh--it was his duty to fight for the truth and against injustice--not to perjure himself to get a better deal. It comes down to Plato's famous question: Is it worse to commit an injustice than to suffer an injustice?

That Flynn has turned and is now fighting is a good thing. The issues involved are too important to simply cop a plea.


  1. The Deep State is fighting back with everything it's got and they will throw up a massive defense of McCabe (including a media campaign and behind-the-scenes influence operations). That is to be expected, and it will take an extraordinary prosecutor to win a conviction against McCabe on the "lying under oath" charge.

    The best weapon that the Good Guys have is declassification and transparency. Let the legal process against McCabe take it's course and start rolling out the evidence that is currently hiding behind the bureaucratic walls at FBI/CIA/NSA. That will be the game changer, not a token show trial. Public outrage can be Barr biggest leverage in flipping some of these underlings.

    1. I agree. Especially the second paragraph.

    2. Except the original FBI interviewer said he did not think Flynn lied. That is what this whole thing with Sidney Powell is all about.

    3. Read J. E. Dyer's recent article: The Flynn Brady request: A reminder of how this whole thing could have been avoided. Hopefully the plot will in the end blow up in their faces.

    4. I think Dyer is gratuitously slamming Trump for something he didn't do (she says Trump defensively fired Flynn in reaction to media reports. Really? That doesn’t sound like the Trump I know)
      IIRC Trump fired Flynn because he lied to Pence. Trump had to choose between Pence & Flynn. Flynn lost.
      Maybe Pence should have laughed off the media reports as Trump probably did. But Pence is no Trump.

    5. I think she actually faults "Team Trump" for not having their national security act together and allowing themselves to be taken off guard--which then placed Trump in an untenable position vis a vis Flynn/Pence. "Team Trump" is the phrase she uses. She speaks of the FBI "sowing seeds of confusion and discord in the Trump team." Not Trump himself. That's how I read it.

  2. I read the articles on CTH last night which you are referencing. I have to say that I'm almost at the point where I question if Sundance is a net good.

    Yes, he can be very insightful at times. But he can also be quite smarmy, smug, sarcastic, etc., at times. A cursory glance at his work can leave be feeling distressed.

    I'm trying hard to lower my expectations of prosecutions, especially with resulting convictions.

    This does not mean that I am losing faith. It just means that I am trying to take this one day at a time. I don't want to be set up for a major disappointment.

    Prophecies of doom don't help, nor do Pollyannas.

    1. "I don't want to be set up for a major disappointment."

      Of course not, yet it's only natural to try to form some reasonable expectation. That's what I'm trying to help with by discussing these issues from a limited perspective.

    2. "Of course not, yet it's only natural to try to form some reasonable expectation. That's what I'm trying to help with by discussing these issues from a limited perspective."

      For clarification, I am referring to Sundance, not you. I appreciate your reasoned perspective.

      For Pollyannas, I was thinking of Joe DiGenova who was saying that Brennan needs five lawyers. Than, within one month, he was of the opinion that they might all skate. (Assuming that I'm not taking his comments wrongly.)

      My point is that I am very emotionally invested in this and I want to have, as you say, "a reasonable expectation."

    3. I don't wish to come across harshly regarding Joe DiGenova. I am a fan of his. But he does seem to vacillate.

      I love the way he skewers all of the creeps.

  3. Treehouse is a forest of misinformation (and I don’t say that lightly).

    It’s Devin Nunes that we need to be paying attention to. At the close of Mueller Probe, he outlined the arc of the emerging legal attack which has been building on the secure foundation of the Memo bearing his namesake, authored in tandem with Trey. Nunes has been pretty vocal in several interviews about referring criminal charges to Barr, specifically “conspiracy to defraud” and “conspiracy to manipulate intelligence”, both occurring under the defraud clause of 371, as you’ve oft suggested. This *is* the arc.

    On April 4th, upon the unveiling of his conspiracy referrals, he penned an article for the Examiner w/the following 2 paragraphs:

    “The efforts to feed the dossier’s allegations into top levels of the U.S. government, particularly intelligence agencies, were championed by Steele, Fusion GPS co-founder Glenn Simpson, and various intermediaries. These allegations were given directly to the FBI and Justice Department, while similar allegations were fed into the State Department by long-time Clinton aide Sidney Blumenthal.

    Their efforts were remarkably effective. Officials within the FBI and DOJ, whether knowingly or unintentionally, provided essential support to the hoax conspirators, bypassing normal procedures and steering the information away from those who would view it critically. The dossier soon metastasized within the government, was cloaked in secrecy, and evaded serious scrutiny.”

    A close eye will see the first para seems to comport nicely with Nune’s recently filed RICO case against Fusion et al., whereas the second para appears to preview Horowitz’s FISA investigations, inclusive of already released FISA related closed-door transcripts (Trisha, Baker, Page, etc.)

    In short, the case for conspiracy under 371 has strong legs, has been building for some time, and all OIG reports have only continued to provide requisite evidence. See latest Comey Report, wherein Nunes said Horowitz is “teeing up Comey for a conspiracy charge” by illustrating he was acting as an "agent" for the Small Team (Jan 6 meet w POTUS), tying him *directly* into the conspiracy.


    On another note… yes, Treehouse’s comments regarding Carter Page are of course asinine, and completely contrary to nearly ALL the available evidence. At the same time, you have my understanding of Carter misplaced; backwards in fact! I have nowhere claimed Carter is a “participant” in the FISA fraud. To the contrary, his initial denials executed through official channels in fact EXPOSED the FISA, legally trapped Comey & Co in their scheme within a week of launching the FISA, and served as the scaffold for Nunes memo and resultant Legal Arc discussed above. Carter Page triggered this all with an email to the OSCE on October 28th while under FISA surveillance.

    Its not surprising that Treehouse has Carter’s role in fact 100% backwards. He’s had me blocked since March 2018 when I asked him questions about plagiarizing and completely misunderstanding my work on Page. Still untangling the repercussions ever since! As I said, its a Forest...

    1. Thanks for clarifying your position re Carter Page. Some form of conspiracy, as I've maintained, is the only way to definitively expose the whole Russia Hoax. As I've maintained in the past, using uncharged violations as evidence is consistent with Barr's philosophy of prosecution.

      Useful reminders re Nunes.