Thursday, September 17, 2020

A Shipwrecked Theory Of Russia Hoax Prosecutions?

Today is all Bill Barr--and rightly so, after Barr's fine Hillsdale college address Former federal prosecutor Shipwreckedcrew has come away from Barr's address with a theory of what types of prosecutions we should expect to see as a result of John Durham's Russia Hoax investigation. SWC's theorizing comes at an opportune time, since some of us were discussing this very issue earlier today--but based on Senate actions with regard to their own investigations of the Russia Hoax.

Obviously, it's misguided to expect the results we hope for from Congress. Congress serves many governmental purposes, but prosecution isn't one of them. One hears--and reads in comments--that, for example, "McCabe will walk" because he hasn't been subpoenaed and hasn't agreed to testify voluntarily. I won't belabor the obvious--this type of thinking, even if it were to hit on correct results at times, is simply misguided. And especially so when dealing with a highly principled AG like Bill Barr.

Now, SWC has developed a theory of what to expect that runs basically like this. Barr will make the big decisions. Barr will not go for what I've called a "big picture conspiracy" prosecution but will instead opt for what might be called nickel-dime "false statement" type prosecutions.

SWC bases this theory on a brief passage from Barr's address. I will say this--as one who hopes for that big picture conspiracy prosecution. SWC may turn out to be right. If he is, I'll be disappointed because in my view it would do the country no service to pretend that something that actually did happen didn't. Here's SWC's reasoning:



A "calibrating" comment in AG Barr's speech yesterday at Hillsdale College:

"We need to recognize that and must take to heart the Supreme Court’s recent, unanimous admonition that “not every corrupt act by state or local officials is a federal crime.”

I read this to mean that "decisions" by senior Obama officials are not going to be criminalized.  But the corruption will be revealed.  Actions taken by individuals will be the subject of criminal indictments.

It also means that the ultimate decision about who is included and who is not included in any criminal charges is going to be Barr's, not Durham's.

And I think Barr will go full-on and talk/testify about who was not charged -- but why they acted corruptly.

The left will scream that it violates DOJ policy to comment on people not charged, but that's not true.  There are provisions that allow public comment when it is in the public interest to know what DOJ is doing/not doing, AND because many of the actors worked for DOJ.

The problem I see here is that it's a big jump from questioning whether all corrupt acts by state or local officials are corrupt to the question of whether to use broadly based federal conspiracy statutes to prosecute actual federal crimes. I don't say there's no connection, no analogy, but the two are fundamentally different--and I think an examination of the extended passage shows that it may not be legitimate to stretch Barr's words that far. Here is that extended passage:

Taking a capacious approach to criminal law is not only unfair to criminal defendants and bad for the Justice Department’s track record at the Supreme Court, it is corrosive to our political system. If criminal statutes are endlessly manipulable, then everything becomes a potential crime. Rather than watch policy experts debate the merits or demerits of a particular policy choice, we are nowadays treated to ad naseum speculation by legal pundits — often former prosecutors themselves — that some action by the President, a senior official, or a member of congress constitutes a federal felony under this or that vague federal criminal statute. 

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless.  Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct.  Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it. 

As long as I am Attorney General, we will not.

Our job is to prosecute people who commit clear crimes. It is not to use vague criminal statutes to police the mores of politics or general conduct of the citizenry.  Indulging fanciful legal theories may seem right in a particular case under particular circumstances with a particularly unsavory defendant—but the systemic cost to our justice system is too much to bear. 

We need to recognize that and must take to heart the Supreme Court’s recent, unanimous admonition that “not every corrupt act by state or local officials is a federal crime.” 

If we do not, more lives will be unfairly ruined. And more unanimous admonitions from the Supreme Court will come.

Some comments.

What I've spoken of--repeatedly--is the prosecution as a conspiracy under federal law of a series of criminal acts that share common actors and a common purpose. This conspiracy abused the federal authority which had been entrusted to the perpetrators in order to advance the goals of their conspiracy as well as to conceal their criminal acts.

That, in my considered view, is very far from Barr's view of "a capacious approach to criminal law [that regards] criminal statutes [as] endlessly manipulable." It is simply to recognize the true nature of what occurred. This is not a case of over stretching a "vague federal criminal statute."

Barr advocates reserving the criminal law for "the most egregious misconduct." Again, Barr's remarks on what occurred in the course of the Russia Hoax leave little doubt that he regards this episode as one of the most egregious in our nation's history. It's true that he has stated that he doesn't expect Obama and/or Biden to be prosecuted. That, I believe, has a lot to do with Barr's views on the Presidency as a constitutionally unique institution--his view of the unitary executive as centered in the very person of the President. 

But that leaves all Executive Branch subordinates fair game--as long as prosecutions of their actions are prosecutions of "clear crimes" rather than the product of DoJ "insert[ing itself]  into the political process based on the flimsiest of legal theories." I'm quite sure that Barr does not believe that's what his investigation of the Russia Hoax is. And I'm also quite sure that an Attorney General who is able to consider prosecuting of the mayor of a major city for sedition--for allowing the erection of a so-called "autonomous zone"--is also fully up to prosecuting DoJ officials, the heads of intelligence and law enforcement agencies, and White House officials for a very real conspiracy against the Executive Branch that he clearly reveres and is determined to defend.

It is only after coming that distance that Barr drops the remark about "local or state" officials and the possible application to them of federal law.

I may yet be wrong in my hopes and, yes, expectations, but at this point and based on Barr's public statements at Hillsdale College, I believe our former federal prosecutor's theory is a shipwreck.


  1. Following SWCs reading -- if Barr does take the virtuous approach of not being a third world country who prosecutes their rivals you can bet your last dollar that the far left communists won't care one bit. I'm pretty certain President Trump will be dogged until the day he (or Hillary) dies. Hillary as shown much scorn and I don't expect that to stop. I mean, look at Flynn.

    So since I do not expect any dem President/AG to be as upstanding as Barr we're pretty much at that point now in our country. May as well fire the first shot.

    1. "May as well fire the first shot"

      The first shot was fired a long time ago, and after that came many successive shots, over and over.

      Should be thinking about firing the final shot.

  2. Whatever outcomes arise from the prosecution (or non prosecution) of the coup conspirators, the follow-on act of pissing and moaning about it won't change this country for the better. Screaming outrage is a great way to vent, but it does solve any real problems. If the DOJ disgraces itself by letting the perps skate (and thereby codifying the DC double-standard), then an appropriate and civil response should include a widespread and grassroots movement to cast the DOJ/FBI as corrupt institutions deserving of scorn, suspicion, a presumption of evil. No one should ever cooperate with any federal agent for any purpose ever, and this wisdom should be taught to young children as a critically necessary warning. And if Barr chooses to make that his legacy, so be it. That's on him.

  3. I'll bet that you meant "Barr does not believe that's what his investigation of the Russia Hoax IS."

    "scream that it violates DOJ policy to comment on people not charged".
    Like Comey did about Hillary?

    "in the public interest to know what DOJ is doing/not doing, AND because many of the actors *worked* for DOJ."
    Which Hillary didn't.

    Finally, I'm with you, that Barr's stuff on "DoJ insert[ing itself] into the political process based on the *flimsiest* of legal theories", does *not* imply a ducking of prosecution of one of the most *egregious* plots in our nation's history.
    It shouldn't be that hard, for literate people to see such a sharp distinction.

    1. It shouldn't be that hard, but it seemed to be hard for Breem's Legal Eagle team last nite, with John Yoo fussing about how any of Barr's Sedition busts would be compariable with placeHolder's years ago.

  4. I think Barr would and will stay silent and run deep on Durham's work up until it becomes public, and I think Barr's been bit hard by the bug of straight-shooting and calling it like he sees it, so I wouldn't read tea leaves to interpret a speech such as this. In this speech, Barr seems intent on establishing a 'relationship' in DOJ among US attorneys, and trying to establish accountability at the same time, by saying he's accountable, and they're not. I'll just wait and see what happens with the Durham investigation.

  5. There's another way to interpret Barr's remarks: it's not so much an indication that he won't bring a broad conspiracy case against those who did this, but rather that he's laying the ground work so that IF Durham brings conspiracy indictments against any of the "Big Fish," you'll know it isn't DOJ "criminalizing politics," but rather true criminal conspiracy to commit very real crimes.

    OTOH, if a case is iffy, Barr will probably tell Durham not to bother.

    One more possibility: on Big Fish, for whom the evidence just isn't sufficient to prove their role in a conspiracy, instead of prosecuting them, DOJ (or the Senate!) could immunize them, and force them to testify against the rest of the scoundrels, and about their own role, truthfully, or face perjury charges if they lie, or face contempt if they refuse.

    I almost wonder if these upcoming Senate hearings are all about doing just that with some key Big Fish players in the conspiracy to commit coup; the moment one of them tries to invoke the 5th Amendment, Senate votes to immunize them, and force them to testify truthfully.

    Done strategically, with the right players, it could be devastating.

    One can hardly accuse Barr of "criminalizing politics" if he (or the Senate) hands out immunity to get the truth out.

  6. What's that old saying? Oh, yes: You only get one bite at the apple. AG Barr would do well to remember this sage advice. If Biden wins, he may well end up being charged as an enemy of the state. And that is where we are today in this country founded on individual liberty and freedom...


    1. If Kamala Biden decides to make Barr an enemy of the state, there won't be much of the state left to prosecute.

  7. Everything Mark’s post said. Times ten.

    A shipwreck of a theory, indeed.

    1. Brad, in fairness, in SWC's latest article, which I link in my update to the Barr/Sedition post, he pretty much lays out all the reasons why no one should expect Barr to back down if he sees the way forward to prosecute a conspiracy:

    2. Thanks, Mark. That was fun to read. And I didn't mean to sound like I was dumping on SWC, just that, like you, I took Barr's words a lot differently than he did. I heard Barr talking more about the wrongdoing already done & "let's not let it happen again" than I did "and we're going to set an example for the future by not charging conspiracy and letting all these seditious rat bastards off the hook."

  8. A lot of ordinary people are rightly outraged by numerous Soros-funded local DAs that routinely release arsonists and looters that have been arrested during the hundreds of riots manufactured across the country. And Barr is pushing his AUSAs to consider sedition-based charges stemming from the organized origins of much of this activity. OK, that's how the Feds will de facto treat criminals in the general population.

    So how will it all look to average Americans if DOJ grants a pass to the DC-based insiders who were up to their eyeballs in an actual serious long term coup attempt against a duly elected president?

    That level of hypocrisy and double-standard is sufficient to warrant real insurrection for cause. No different really that the revolution of 1776.

  9. The whole thing is “iffy.” It was done under counter intel which, as far as I can tell, the Constitution is void.

    Funny thing is, the Constitution makes no distinction between counter intelligence or plain criminal law. That is a function of judges.

    - TexasDude

  10. Mark, I'm wondering if the word "capacious" was not the word Barr actually used. I think "capricious" fits what I see as his meaning better.

    His sentence, as transcribed: "Taking a capacious approach to criminal law is not only unfair to criminal defendants and bad for the Justice Department’s track record at the Supreme Court, it is corrosive to our political system."

    Capricious: Characterized by, arising from, or subject to caprice; impulsive or unpredictable.
    Characterized by caprice; apt to change opinions suddenly, or to deviate from one's purpose; unsteady; changeable; fickle; subject to change or irregularity: as, a man of a capricious temper.

    1. capacious - Capable of containing a large quantity; spacious or roomy.

      I thought that too but on reflection decided it was intentional usage. What he's saying is that if Rule of Law becomes so all encompassing by the National gov't that every tit and tattle is considered worthy of prosecution then you essentially negate the Rule of Law and enter into the realm of Rule by Prosecution, that is the very definition of tyranny.

      Rule of Law is a tricky proposition that has two sides. One side says, "Every offensive thing, down to and including everyday minutia of life, should not be policed by the State, so bless it and let it go, sometimes allowing miscreants to slip away." The other side says, "Rule with an iron fist and treat every error as an offense against the State. Prosecute without mercy or regret, let no act escape judgement."

  11. A small request: Are the Anonymous posters all one poster (except for DJL and TexasDude who thoughtfully include initials and username in the body of their comments)? It is hard to figure out who is talking and who is responding when there is a whole string of posters calling themselves simply Anonymous.

  12. Re “capacious”, if you read what came before it in his speech - in the section “ Advocate Just and Reasonable Legal Positions” - his use of capacious is the correct word. He knew exactly what he wanted to say.

  13. Just when you wonder what they’ll come up with next:

    Senate Democrats, Including Kamala Harris, Call For Investigation Into Durham Probe

    1. This is what happens when the predators (and friends) realize -- too late -- they are now the prey ...

  14. Mistakenly posted this on wrong thread. Follow-on to Daily Caller comment:

    Feeling comfortable about indictments not coming down before election, the Dems are now nervous about the possibility of a report:

    Committee Democrats also expressed concern about the release of any report from the Durham inquiry.

    “It remains unclear what rules and authority permit the public release of a ‘report’ by U.S. Attorney Durham, raising additional concerns about the legitimacy of his appointment and work,” they wrote in the letter to Horowitz.

    Barr has suggested that Durham may release a report of the investigation, but he has said that a report is not the goal of the probe.

    “We therefore request that your office investigate whether the Durham investigation has operated consistent with Department rules governing the appointment of U.S. Attorneys and the Department’s rules on public statements concerning pending investigations, taking action that may impact an upcoming election, and White House-Department communications concerning pending criminal investigations.”

    Biden and Harris, the vice presidential candidate, have not said whether they will allow Durham to continue his investigation if they win in November.

    1. Mark wrote many moths ago that Durham was appointed as a prosecutor, not to write a report. Once indictments start to come down any discussion of "pending/criminal investigations" becomes moot.