Friday, October 25, 2019

Why Predication Matters So Much

I hate to sound like a broken record, but ...

I've been saying for months that the Team Mueller Witchhunt was based on the same bogus predication as the Crossfire Hurricane investigation. The Flynn case is similar. If an investigation is fraudulently started--in other words, based on invented predication, predication that's known to be untrue--then there is a strong case for suppressing all information that is gathered from the ensuing investigation. This is all the more true when  the investigation fails to turn up any wrongdoing or when the wrongdoing is strictly of a "process" type.

With that in mind, consider the ruling of Obama judge Beryl Howell. You can get the details at CTH: Federal Judge Beryl Howell Grants House Judiciary Committee Access to Mueller Grand Jury Material. Sundance makes the point that the whole point of Mueller's Grand Jury investigation was to gather evidence for impeachment, to hand over to Jerry Nadler. They found nothing on "Russian collusion." And Barr said, look, firing Comey was not illegal, so you can't claim that that firing obstructed the collusion investigation. And nothing else that Trump did amounted to obstruction.

Well, shouldn't that Grand Jury material remain secret? I think it should, and the ruling will surely be appealed.

But there's another angle to this, and it's one that comes to the fore now with the revelations in the Flynn case of egregious misconduct in the Team Mueller prosecution of Flynn. And then there's Powell's contention that I cited as "key": That the FBI had no basis in the first place to investigate Flynn at all.

We also know that "predication"--or, more specifically, the lack thereof--is at the heart of Barr's investigation. He's said so himself. That means he's questioning whether there was any basis for opening Crossfire Hurricane, and that must also mean that he questions the predication for its continuation: The Team Mueller Witchhunt.

If that's true, and if Barr has evidence at this point to make that argument, then he has a very strong argument to ultimately overturn Judge Howell's politically motivated ruling. Because the Grand Jury material produced by Mueller's witchhunt was based on a fraudulent investigation. Remember: Lead investigator Peter Strzok said just before the Witchhunt started up, we know there's "no there there." It was illegal, and the GJ material should be the fruit of a poisonous tree--and should be suppressed. Even destroyed.

This is why predication is so important.


  1. It seems to me that grand-jury material would exist in the cases that have been prosecuted:

    * Manafort

    * Concord Management

    * Papadopoulos

    * Flynn

    I cannot imagine how the latter two grand juries might be useful to Shiff's inquiry.

    Since Manafort worked so much in Ukraine, his grand-jury materials might contain some details that could be twisted to implicate Trump in Ukrainian business.

    The Concord Management case is extremely puzzling. It seems that the prosecutors have been arguing that all data that ever has been on the Internet is relevant evidence. In response to the defense's discovery requests, the prosecution has provided something like a gazillion Internet files. Maybe Schiff imagines he can find some incriminating information in all those files.

    1. Re your first point there's an important caveat:

      "It’s important to note Judge Howell granted access to only that grand jury material that was used in the Mueller Report, not a blanket authority to gain all witness testimony or grand jury material writ large."

  2. I suppose that Schiff intends to search the Manafort grand-jury materials for clues that Trump ever was involved in any business in Ukraine. If Trump ever considered building a hotel or a golf course in Ukraine, then that will prove Trump's financial self-interest in his Presidential dealings with Ukraine.


    Now that I think about this some more, perhaps Schiff imagines possibilities also in Flynn's grand-jury materials and even in Papadopoulos's grand-jury materials. Those grand-jury materials might have become potentially relevant -- in Schiff's imagination -- because of President Trump's recent controversial decision to allow Turkey to occupy parts of northern Syria.

    Schiff will be looking for any details that he can twist into insinuations that President Trump's decisions about the Middle East were based on Trump's financial self-interest.

  3. The legal disputes about the grand-jury materials will cause long delays in the impeachment process. The matter will go up to the US Supreme Court, which will decide the matter after the November 2020 election.


    I think there was a secret agreement between Pelosi and McConnell that the House would impeach Trump before Thanksgiving, and then the Senate would acquit Trump before Christmas. A win-win solution for both Pelosi and McConnell.

    However, this impeachment process will extend far into 2020.

    Pelosi and McConnell face a similar problem in each chamber.

    * In the House, a small but decisive number of Democrats will resist Pelosi's plan to ram the impeachment through to a quick vote. Those Democrats will insist on a process that is deliberative and somewhat fair before the vote.

    * In the Senate, a small but decisive number of Republicans likewise will resist McConnell's plan to conduct a short, sham trial. Those Republicans will insist on a thorough examination and debate of the evidence.

    Those few trouble-makers in each chamber will prevent the process from being completed before Christmas. As a consequence, the process will drag on into January, February, March and further.

    The Republican Convention is scheduled for August 2020. As the Senate's "trial" approaches August and as Trump obviously will be re-nominated, practically no Republican Senators will dare to vote to convict him.

    Furthermore, Trump will use the Senate's majority-vote acquittal of himself as an exoneration.

    Furthermore, some Democrat Senators might vote against convicting Trump -- even more reason for him to say that he was exonerated.

    1. Useful speculation. Yes, I would expect Barr to litigate this all the way up--for him, it would be not merely good tactics but also a matter of principle.

      While I don't dispute the possibility in general of a McConnell/Pelosi deal, I question it in this case simply because I don't see what would be in it for McConnell. I can see him doing such a deal, but only if he got something significant in return. But I have not inside knowledge.

  4. Tangentially of interest:

    Are we entering a: "no holds barred" territory?

    1. That certainly appears to be what's going on in the House. However, Barr's goal is to restore rule of law.

  5. A frequent criticism of President Trump in the Ukraine matter is that he should not have conducted foreign policy through Rudy Giuliani. Rather, Trump was supposed to conduct foreign policy only through the State Department, Defense Department and other US Government entities.

    However, the continuing exposure of the Deep State demonstrates to the public why President Trump's occasional reliance on non-Government individual such as Giuliani was reasonable.

    The public will increasingly recognize that Trump had to work around the Deep State, which was trecherous, seditious and obstructionist.

    The US State Department never was going to do anything at all to advance any investigation of the Bidens' corruption. Never ever.

    People will recognize that reality more and more, as the Deep State is exposed more and more.

    1. Using non-government actors in foreign policy and/or foreign investigations is a tried and true US President prerogative.

      With Trump, when many people in the Executive feel it is their duty to oppose Trump, then utilizing Giulliani is sound judgement.

    2. I must be imagining private citizen Armand Hammer doing diplomatic work in Moscow for President Ronald Reagan.
      I'm also imagining private citizens Jesse Jackson and Bill Richardson traveling the world for President Bill Clinton.

    3. The claim is that Trump used his official position to leverage his private interest. This is why they have to take the statements out of context, because the context proves otherwise.

  6. In regard to predication, there has not been any argument that the suspicions of Trump-Kremlin collusion was based on any communications intercepted by NSA.

    Schiff, Nadler and their ilk have not been even hinting that there is any such evidence.

    At the end of 2016 there was an idea that secret electronic communications between Trump Tower and some Russian bank had been detected. That idea lasted maybe only a few weeks into 2017.

    Instead of COMINT, there is only HUMINT. In particular, there are only two HUMINT sources:

    * Christopher Steele, formerly a British spy

    * Oleg Smolenkov, formerly a Russian spy

    Supposedly, Estonia had recruited a secret agent in the Kremlin. If Estonia ever did have such an agent, then he certainly was Smolenkov.

    Schiff is demanding grand-jury materials. He is not demanding NSA materials.

    Schiff is not using his SCIF to examine COMINT. Rather, he is using his SCIF as a place to question Trump-hating government officials who claim to know only second-hand gossip.


    Based on its FISA warrants, the FBI must have collected and studied many communications of Trump's relatives, associates and supporters. Apparently, none of those communications implicated Trump in anything.

    1. It's pretty remarkable that Trump seems to be as clean as a whistle after all that scrutiny.

  7. On the politics, I wouldn't fight to stop the grand jury material release. If there was anything in it that was more damaging that what was in the Mueller Report, you can be assured Weissmann would have included it in the unredacted document.

    Of course, on principle, Barr does have to fight this.

  8. What we are experiencing is from decades of work spsnning multiple presidents of both parties.

    This endeavor began in earnest under Bill Clinton, got it's legs under George W Bush via Patriot act, and became mature under Obama.

    1. Yes. It actually can be traced back to the Progressive Era in the late 19th and early 20th centuries.

  9. I'm going to argue that the predication issue, although accurate, is not fundamental to actually getting to the root problem and then fixing it.

    Either incompetence or malfeasance in predication is only germane if the DOJ/FBI is/was fundamentally acting as a law enforcement institution with probity and integrity. Such is the notional presumption for most of our nation's history.

    But what if these institutions were corrupted to the core by political influence and then morphed into an actual criminal enterprise masquerading as a law enforcement institution? Would the presumption of probity/integrity/legitimacy still be valid?

    In other words, in light of the minimum 3 years of ongoing coup against a duly elected president, can the fundamental problem be fixed by a few rule/policy/personnel changes? Or is the problem so deep and pervasive and extreme that a bottom-up overhaul of the entire institution is needed in order to truly remedy the problems and prevent future recurrences?

    If the issue is viewed as just a predication anomaly, then the fix might be too tightly focused and the underlying cancer ignored. Conversely, if Barr diagnoses cancer, then strong medicine will follow and there is hope of a cure.

  10. Definition of "anomaly" is something that deviates from what is standard, normal, or expected. Presumably, the FBI has historically established predication as a precursor to investigation and the Flynn case is the exception (or anomaly). But to clarify my comment, the FBI (under Comey, perhaps as far back as Mueller) suffers from a cancerous culture of political manipulation which is far more serious than just the individual case of malfeasance against Flynn. You cannot remedy this cancer solely by addressing the Flynn predication issue, which is a symptom of the underlying cancer.

  11. "Presumably, the FBI has historically established predication as a precursor to investigation"


  12. Historically, standard practice at the FBI is to initiate an investigation only after adequate predication has first been established. In other words, the FBI is not in the practice of conducting random fishing expeditions for potential criminal behavior. The Flynn case is presumably the exception to this policy and not the norm. Flynn was targeted by the FBI as a political vendetta, not as official business. If Barr should view the Flynn case malfeasance as a one-off exception, he will miss seeing the systemic corruption, which is the more important problem to fix. I don't understand why this is confusing to you.

  13. "Historically, standard practice at the FBI"

    Look, you don't know what you're talking about, so just stop it. Predication has to do with fundamental constitutional and Anglo-American legal principles.

  14. "With that in mind, consider the ruling of Obama judge Beryl Howell."

    "Obama Judge Beryl Howell"? Keep in mind that no less an eminent scholar than Chief Justice John Roberts has declared that there are no Obama or Trump judges.

    There are only judges. Just saying.

  15. Sundance seems to finally believe that Barr is the real deal. He hasn't shown the bagpipes picture in a while.