Thursday, September 5, 2019

UPDATED: Is Bill Barr Shirking His Responsibility?

That's what sundance at CTH has been claiming for months now--because Barr hasn't secured the declassification of a list of documents that sundance has compiled. Last night in HPSCI Member Devin Nunes Files Lawsuit Against Fusion-GPS Claiming Racketeering and Conspiracy sundance makes the following claim: in the context of a Hannity interview with Devin Nunes regarding his lawsuit against Fusion GPS and Campaign for Accountability--Sara Carter also weighs in (PDF of complaint in Nunes v. Fusion GPS and CfR):

The Nunes lawsuit alleges Fusion GPS participated in racketeering and conspiracy smear campaign Nunes and the House Intelligence Committee; in an attempt to impede the committee investigation of coordination between the Clinton campaign, Fusion GPS and the FBI.  [Cloud Link to lawsuit – Scribd Link to lawsuit]. 
According to the Tick-Tock club everyone must work together with Senator Lindsey Graham because the “Deep State” will attempt to obfuscate, hide information, block oversight and impede any effort to highlight damaging institutional information. 
In essence what they are saying is that U.S. Attorney General Bill Barr is incapable of releasing the information.  CTH does not agree. AG Barr is capable, he’s just not delivering; quit defending his inaction. Stop the nonsense.

If Barr is "capable" (perhaps in contrast to Jeff Sessions) of doing what's necessary and required but simply refuses to "deliver"--by sundance's standards--then one is left to suppose that Barr's course of "inaction" is deliberately chosen. In other words, he doesn't want the information to come out!

Sundance thinks that the Hannity interview supports his claim, but I beg to differ. What Nunes, backed by Sara Carter, is saying is that "everyone has to pull together", meaning that civil lawsuits are an essential part of the mix of actions that will be necessary to expose the entire scope and detail of the "soft coup" (Carter's term) attempt against President Trump. What needs to be kept clearly in mind is the difference between the standard of proof in Nunes' civil suit (he's asking for $9,900,000 in damages), which entails proving by a "preponderance" of the evidence--basically, at least 51%, if you want to quantify it--and the standard of proof in a criminal prosecution--"beyond a reasonable doubt"--which is a very high standard.

Nunes' lawsuit is focused on the Steele "dossier"--opposition research on behalf of the Clinton campaign--and three ethics complaints that were later brought against Nunes. Here's Nunes' concluding summary:

Fusion GPS, Simpson and Steele fraudulently developed the “Steele Dossier” and disseminated it to U.S. Government officials and the press as if the salacious accusations were true. Plaintiff investigated this wrongdoing, causing Fusion GPS and Simpson to retaliate against him and to take action that was intended to harass, intimidate and influence Plaintiff in the performance of his congressional investigation. That retaliation and obstruction of justice consisted of a coordinated effort by the Defendants to manufacture “ethics” complaints against Plaintiff and to utilize the press (McClatchy) as a weapon to pressure Plaintiff to back off his investigation of Fusion GPS and Simpson. Defendants’ corrupt acts of racketeering are part of their regular way of doing business. That way of doing business must end here and now.

Opposition research, while sometimes unsavory, is not illegal--per se. It involves core First Amendment rights, and it's easy to imagine why Barr would be loath to begin his efforts to clean up the mess left by the Russia Hoax by launching a criminal investigation of activity that is not illegal in an of itself. There could be crimes involved in presenting the fraudulent "dossier" to the US Government but the bottom line is this: Barr would be required to prove beyond a reasonable doubt that Simpson and Steele knew the "dossier" was a fraud. Not that they simply failed to verify it. In sharp contrast, FBI officials are required to verify the facts that they submit to the FISC. To prove beyond a reasonable doubt that the FBI used the "dossier" in without verifying it, knowing that it was unverifiable, yet not revealing these problems to the FISC is a very reasonable undertaking--despite the high burden of proof. In short, it's far more practical for Barr to attempt to prove that government officials engaged in criminal activity--illegitimately using the "dossier"--than it is to attempt to prove that the exercise of activities that are facially protected by the First Amendment are in fact part of a criminal conspiracy.

The same goes for the filing of ethics complaints. Barr doesn't want to be in the position of seeming to discourage the filing of ethics complaints against the Congressional members of a particular party. Nunes understands that, and that's why you don't hear him demanding that Barr launch a criminal investigation in that direction.

On the other hand, while discovery in a civil lawsuit may not be as powerful a tool as grand jury subpoenas, Nunes' civil lawsuit may well be able to uncover key information that would shed light on aspects of the Russia Hoax that could place Simpson and others in the light of co-conspirators in a criminal conspiracy. Barr might then be able to draw Glenn Simpson, Fusion GPS, and Campaign for Accountability into a criminal investigation. Of course, Barr and Durham are undoubtedly--should undoubtedly be--on the alert for any such evidence.

Sara Carter, beginning shortly after the 7:15 mark, says this:

What we're seeing now, and I like the use of the word "conspiracy in the legal sense," because what we've seen is a vast network. Not only spying overseas, but spying within the White House, which is what the ACLJ is looking into, and what Devin Nunes is looking into, which is Fusion GPS being at the epicenter of all of this. And what I'd like to know what John Brennan knows. I'd like  to know when he knew about that dossier, if he leaked that dossier to people in the Gang of Eight, in particular, and how far that web spread, because once we know those answers we will know who to indict and who to charge. And I'm sure that's exactly what John Durham is doing.

Maybe sundance has better sources than Carter, and John Solomon, but I'm skeptical. Durham has to approach this investigation very logically. Ideally, Simpson would be a primary target, against whom there is clear evidence of criminal wrongdoing, and from whom Durham would obtain information to work up the ladder to the most important players. However, in this situation, the only crime Durham may have to work with against Simpson may be the false testimony before Congress. I don't know the details of all this, so I'll give Durham the benefit of the doubt. Durham will have a far stronger hand to play against Simpson if he can uncover evidence that he was more than an opposition researcher who may have lied to Congress--evidence that he was a witting co-conspirator with government officials. Nunes' lawsuit could prove useful in that regard and could go in directions that Barr and Durham would prefer not to go at this point--or, not publicly. And that includes investigating the role of members of a co-equal branch of government--the Legislative Branch.

Barr and Durham have to be primarily concerned with building a watertight prosecution. Not providing sundance with documentation for his blog. I'm as frustrated as anyone at how long this is taking, but I think it's wrong at this point to be casting these types of aspersions.

UPDATE: Perhaps a good example of the different dynamics at play here is the issue is the use that Nunes makes of the allegation--true, in my opinion--that Glenn Simpson "lied" both to HPSCI and to the Senate.

For Barr and Durham to make productive use of that allegation--which they may yet do--they need to believe that they can prove the elements of perjury ("knowing and intentional" lying under oath) beyond a reasonable doubt. Note, also, that Simpson's alleged perjury, because it came after most of  the important events (opening Crossfire Hurricane, getting the FISA, etc.) isn't probative of much else--unless Simpson can be tied in to the Russia Hoax as a co-conspirator. That isn't easy, but Nunes' civil suit could turn up--through discovery and depositions--the kind of facts that make that possible.

For Nunes, on the other hand, those concerns don't apply. Nunes is concerned precisely with actions taken against himself, after all those criminal acts in the Russia Hoax had already taken place. Nor does Nunes need to prove that Simpson did, in fact, commit perjury. He is simply alleging that Simpson engaged in racketeering activity in order to intimidate Nunes from making a criminal referral. None of that needs to be proven beyond a reasonable doubt. On the other hand, of course, part of the racketeering allegation requires that Nunes prove that racketeering was part and parcel of Fusion GPS' ordinary course of business. That won't be easy to prove, but Nunes may not care. He's off to the discovery and deposition stage of things, and if his lawsuit is later dismissed he may have accomplished much of what he was after in the first place. And he may have aided the cause of justice into the bargain.

These are the kinds of considerations that need to be taken into account when discussing the Barr/Durham investigation and comparing it to other legal activity surrounding the Russia Hoax. Durham is obviously not going to discuss his case theory publicly, so we need to be patient--although I see no reason why more could not be done in terms of declassification.


  1. Look at all Judicial Watch has accomplish with Witch Hillary's case. Hit them with many cases like this.

    1. It's true. While, ultimately, GJ powers are more powerful and can accomplish more in a shorter time period than discovery in a civil suit, a lot can be accomplished through discovery and through FOIA that might not be accessible in a civil suit. That's because for an ethical investigation you do have to believe in good faith that you're proceeding in the direction of proving a crime beyond a reasonable doubt. If not, you shouldn't even have a case open. That's not so problematic in a civil lawsuit.

  2. I don't read Sundance, but it's silly to argue that Barr is shirking his responsibility in light of an absence of knowledge regarding what the AG has been doing. (I don't sense that he has a mole in the AG office.) Barr leads and manages the DOJ, he doesn't investigate/prosecute the matter before us.

    Sundance and CTH are media, which is basically entertainment, i.e. he needs eyeballs, an audience who keeps coming back. This is no different than the NYT and WaPo writing provocatively, and with an agenda.

    Frustration emerges from unrealistic expectations about the speed and progress on matters out of our control and purview. On what basis does Sundance have that this matter should've moved faster, except for his own impatience?

    It's very likely the network of people associated with the hoax and coup were knowingly working with a similar objective (disrupt, influence, obstruct, by any means necessary), but without any direction--based on winks and nods. As gov't lawyers and bureaucrats, they weren't oblivious to laws, statutes, regulations. An actual conspiracy amongst two or more may be quite challenging to prove BARD.

    Barr wrote the 18-page memo critiquing the Mueller/Weissman obstruction theory as a private citizen. What would be the point of doing that, if not to get to the bottom of the whole episode? He didn't need the AG job to polish his resume or for his legacy.

    No doubt there are plenty of swamp creatures who could've been named AG, and would've put the Mueller report to bed and moved on--nothing to see here-style.

    How is it necessarily a bug, as this matter rolls out, and not a feature as it unfolds into campaign season--highlighting what was done during the last election...

    1. Excellent, and the reminder re Barr's memo, etc., is salutary.

  3. If "declassification" means public exposure of government officials’ activities they don’t want publicized, I’m asking myself “why?” Just for our amusement?
    If "declassification" means providing AG Barr all that information, then yes, obviously that must happen and AG Barr would announce (leak?) what he wants publicized if/when he wants it publicized.
    So I don’t see the problem.

  4. Long time reader of your great blog - first time posting...

    You say "However, in this situation, the only crime Durham may have to work with against Simpson may be the false testimony before Congress"

    Isn't a FARA violation a plausible avenue for Durham to take? Simpson/FGPS have left a long trail to inspect...

    1. Hi, greencork. It's an interesting angle, but doubtful. Here's an article that discusses that: Five things to know about Fusion GPS. You have to read down quite a way, but:


      Information uncovered by Fusion as part of its contract with the U.S. law firm defending Prevezon ended up in the anti-Magnitsky lobbying effort — sparking complaints that Fusion had failed to register as a lobbyist for a foreign interest under the Foreign Agents Registration Act (FARA).

      Fusion said in a statement that it “worked for and under the supervision of an American law firm to provide support for civil litigation in New York” — in other words, that its work product was for the litigation related to Prevezon, not for the anti-Magnitsky lobbying campaign.


      The thing about FARA is that it's rarely used as a standalone charge. For example, Team Mueller used it as a predicate felony for other charges, but not as a count in an indictment. In the Flynn case the issue wasn't failure to register but whether Flynn knowingly made false statements in a FARA registry statement--he denies that.

  5. I think anyone who reads the Nunes brief will come away with a very nice big picture view of what Fusion GPS is all about and what it's extremely simple "formula for success" is. Also, since it's a trial brief, it's pre-discovery/deposition process and so can only make assertions at this point. Reading it, though, it's very easy to imagine just how valuable this process should be if allowed to proceed fully - valuable not just to the case at hand but, as this post explains above, to the larger project, as well.

    1. Yes, it's a very good read, informative about matters--liberal tactics--that have been largely behind the scenes.

  6. I was thinking about what I might write to you about Sundance and Barr from a post that you did yesterday.

    Pretty much your latest entry shows that we're thinking along the same lines. This stuff isn't easy. It's not a slam-dunk to get a conviction. It's also a goal of Barr to restore the Rule of Law.

    I want this done right. I'm human like everyone else and want to see the smugness wiped off of Comey's face, not mention all the other creeps. I get discouraged, frustrated and have a roller coaster of emotions.

    But it's easier and helps me keep my sanity to acknowledge that Barr is fighting corruption that didn't happen overnight. Sometimes I think that eventually Barr is going to release a tsunami on the Deep State. To avoid disappointment, I'm managing my expectations.

    1. "corruption that didn't happen overnight."

      Absolutely. I simply can't believe that Barr did not understand what he was letting himself in for. He has said as much several times--that he DID understand what he was letting himself in for. That being the case, I can't believe he has somehow caved.


    Interesting perspective from J.E. Dyer. I'm not sure we don't want convictions and punishments for those who broke the law, but I would have to agree that there is a much bigger picture here and we really should -- somehow -- get to the bottom of it.

    1. Thanks, I'll get to that soon. Not having read it I agree very much that we need to get to the bottom of the big picture at all costs. However, having taken a quick glance and seen talk of a Congressional commission--and having seen what a terribly mixed bag those creatures have been, at best--I'll approach Dyer's these with a skeptical eye.

    2. However, before reading I'll add--to decline to prosecute and punish crimes is simply an endorsement of a two tier justice system. Which is unquestionably how it would be perceived. Liberals will regard that as vindication for their view that the end justifies the means and conservatives will view it as a continuation of a hoax--now endorsed by even "conservative" powers that be.

    3. I've read it. She makes a lot of excellent points, presents a coherent and worthwhile perspective. However, ...

      In doing so she sets up--needlessly, IMO--a number of straw men that simply get in the way of her larger point.

      Also, her overall analysis suffers from too short an historical perspective. While that's understandable, since a line needs to be drawn somewhere for effective action to be taken, it also obscures what have become seemingly intractable divisions in the American body politic.

      Perhaps this would be a good topic for the future.

  8. Right.

    I offered up her thoughts not because I think her prescription is comprehensively correct...but because its important to read as many different perspectives as possible...

    FWIW, my position is that charges need to be brought wherever (unbiased) prosecutors believe crimes have been committed.

    But there is so much accumulating evidence of pervasive corruption of our institutions...not clear how this evidence can be marshalled and effectively presented to the American people (large numbers of whom are co-opted by the Left or oblivious).

    This problem (really a crisis) is just as large (larger?) than the Russia Hoax...

    I think.

    1. Yes, I totally agree. What I was hinting at is that the problems she describes arise from the nature of Liberalism as analyzed by Patrick Deneen and others of similar views. The result is that you can trace the source of the Russia Hoax back to the Founding, which may not seem terribly helpful for solutions at this point in history--although perhaps for longer term reforms, if such should be feasible, such an understanding is essential.

      Neil Gorsuch has an interview today in the WSJ that may, in some respects, point the way. But it's all very complex and, in the nature of political reality, there's never any perfect and permanent solution.

    2. If I had to choose between indictments, or no indictments with deeper knowledge of the big picture, I'll choose indictments.
      There will always be evil in the world, and it's imperative to knock it down when you find it, or it just grows and grows.

    3. Fortunately, I don't think there's any reason why we should have to choose--that's one of the straw men I think Dyer throws up. She's obviously right that we have to take a hard look at the whole domestic spying thing, but IMO that will probably end up being something for the SCOTUS. In the meantime, confronting people like Comey, McCabe, Brennan, and so forth with very serious jail time just might get us that big picture.