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.