Listen To diGenova--And Also McCarthy

Joe diGenova gave his usual informative and entertaining interview this morning on WMAL. I was pleased that he touched on the very real "precedent" of the Obama pardon of General Cartwright. He also offered some incisive comments on Obama's central role in the whole conspiracy. In that regard he pointed out that Obama personally urged his Intel chiefs to withhold classified information purporting to concern Russia's interference in our elections from the incoming President. DiGenova characterized that as "sedition."

My supposition is that he was referring to 18 USC 2384, Seditious Conspiracy, which reads as follows--and I've bolded the portion that could arguably apply to this factual situation:

If two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States, conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, they shall each be fined under this title or imprisoned not more than twenty years, or both.

I think diGenova's argument is that Obama and the Intel Community were part of a conspiracy to "overthrow" the Government of the United States.

Obviously that argument has to address the meaning of "overthrow." My counter argument would be that the context appears to require that any seditious conspiracy must be a conspiracy to use physical force or--at a minimum--a credible threat to use physical force in some real sense. I believe the history of the use of our sedition laws bears out my interpretation.

Nevertheless, it seems to me that Obama was treading an exceedingly fine line. It's not much of a step from urging the violation of key intel officials' oaths of office by withholding national security information from the Commander in Chief regarding the purported actions of a hostile foreign power to the possibility of advocating mutiny in the armed forces. And that definitely would be a seditious conspiracy.

Ball Of Collusion: It's About Hubris

Commenter Unknown could have done much worse than to present the Andy McCarthy "theory of the case," the big picture narrative, this morning. According to this version of events, the Ball of Collusion tied both the Hillary pay to play scheme--a witches' brew of connections between the Clinton Foundation and Hillary's gig as Secretary of State, facilitated and concealed by a private communications network--to the War on Trump. The Mueller Inquisition was the attempt to cover up when the Russia Hoax failed to prevent Trump from becoming President.

There's a lot to recommend this theory. I won't argue against it in detail, although I'm skeptical, except to note that the Patrick Byrne story works against it. It seems to me that the use of Byrne to target Rubio and Cruz as well as Trump would always have been a long shot in terms of "Russian collusion," although perhaps useful for gathering political intelligence. It certainly played no discernable role in the Russia Hoax before Trump's election. I still incline toward the view that Trump himself was an existential threat to the Washington Establishment in ways that Rubio and Cruz were not, and that the over-the-top lawlessness of the Russia Hoax was therefore more than just an attempt to protect and continue the Clinton pay-to-play scheme. Any GOP administration would have been a potential threat to Hillary's operation, but Trump was something way out of the ordinary and so all the stops were pulled out to destroy him. Whatever. You can call my view "weak linkage" and McCarthy's "strong linkage."

For your reading pleasure this morning I've excerpted some of John Kass' review of "Ball of Collusion", in which that theory is presented: Andrew McCarthy’s book ‘Ball of Collusion’ thoughtfully connects the dots on Clinton and Obama. Even if you don't fully agree, it's worth the read:

"Step By Step, Day By Day, Throughout The Fall"

Tonight Hannity had Andy McCarthy on, along with Sara Carter. Quite frankly, McCarthy shocked me. I never thought that Andy would get this far out in front of the news. But he "went there." Here's the partial transcript--Andrew McCarthy: Counter Intelligence Investigations Are Done for the President -- Obama KNEW:

Sean Hannity: Does that mean Obama had to know? 

Andrew McCarthy: Sean, what I’m saying is not that the president sits there and directs that there be counter-intelligence investigations. What I’m saying is that, unlike criminal investigations, counter intelligence investigations are done for the president. The only reason to do them is to inform the president with the information he needs to protect the United States from foreign threats. They’re not like criminal investigations in that regard. So, in principle, the information from a counterintelligence investigation is for the president. And here we know at various junctures, we have actual factual information, that this investigation was well known to president Obama. 

Sean Hannity: So, if he knew, and this is all happening, he had to know about it from the get-go. Doesn’t that also imply that he would have been updated on this? If he’s the one that needs it for national security decision making? 

Andrew McCarthy: Sean, if things were working properly the president should have been alerted about it and informed. It was a very important investigation. If they actually believed what they were telling the court that it was a possibility that Donald Trump was actually a plant of the Kremlin, it would have been derelict on their part not to keep the president informed.

 After Sara agrees that Obama had to have known, the colloquy continues:

UPDATED: The Meaning Of The Roger Stone Indictment

There's really not all that much to say about the Roger Stone indictment that hasn't already been said--that wasn't said many months ago.

If you want the details of the seven counts in the indictment, you can read Byron York's summary. York feels compelled to indulge in a bit of virtue signalling at Stone's expense, but his summary is accurate.

As for the virtue signalling, while the factual circumstances in Stone's case can be distinguished from the Flynn case, some of the same issues are present and were addressed in Setting False Statement Traps Is Not Official FBI Business. The main point regarding factually untrue statements made under oath to the Government really comes down to this. People make untrue statements all the time. All investigators and prosecutors know this. Sometimes these untrue statements are made in good faith, i.e., the person actually believes or has persuaded themselves that the statements are true. And then there are untrue statements that are untrue to varying degrees and are made for various, sometimes complicated and all too human, reasons: shame, defensiveness, malice--whatever. The traditional approach to these situations was basically to let false--or inaccurate--statements slide, unless: unless the statements significantly hindered the Government from getting at the actual facts, and the matter involved was serious. This traditional approach was motivated by simple human decency and understanding as well as by a concern that justice should be done--the justice system should not be turned into a game of "gotcha."

So, for example, the Flynn case would have been a perfect example of investigative and prosecutorial overreach and abuse under the traditional approach. Flynn's inaccurate statements (assuming they were inaccurate) did not hinder the FBI in arriving at the truth because the FBI already knew the truth; further, the subject of the interview was arguably not even within the legitimate bounds of an FBI inquiry, so it could hardly be regarded as serious.

That traditional approach changed with a lowlight from the late Justice Scalia's generally distinguished career. Here I'll quote Justice Ginsburg's (!) concurring opinion, which I quoted in the link, above:

UPDATED: The Central Scandal of the Russia Hoax--and Our Constitutional Crisis

Scott Johnson at Powerline, The Biggest Scandal, offers some comments regarding two recent articles by Andy McCarthy. I certainly am in total agreement with Johnson's assessment that this whole Russia Hoax constitutes "the biggest scandal in American political history." Part of the scandal beyond the actions of the Obama Administration and officials at the DoJ/FBI/CIA/State--and including not only political appointees but also career professionals--is the complicity of the press and its continued silence. That complicity extends beyond biased reporting to complicity in the FISA process itself through the FBI's leak process and then reuse of the leaked material, laundered through the press, as "probable cause" for the FISA against Carter Page.

What I'd like to do here is to expand a bit on a point that McCarthy makes in the first article, "Reading the FISA Redactions." The entire article is well worth a careful study for anyone who wants to understand what's going on with all the talk about the FISA application and, especially, the renewal applications. I have to say, I take my hat off to McCarthy--he goes through the applications step by step, demonstrating that, for all the redacting that was done, the bottom line is readily apparent: The FBI had precious little in the way of "probable cause" to offer the FISA Court (FISC), and yet their warrant was approved--and thrice renewed! This never fails to amaze me every time the subject comes up.

McCarthy gets to the heart of the matter--the first of many important points he makes--right up front:

Page has never been charged with any crime, much less with espionage. That is a salient fact because to get a FISA warrant on an American citizen, the FBI is required to show that the citizen’s activities on behalf of a foreign power violate federal criminal law. The FBI and Justice Department went to the FISA court four times over nine months, from October 2016 through June 2017, claiming to have grounds that Page was involved in heinous clandestine activity. Why isn’t he in handcuffs?

I believe it is because they never had a case. All they appear to have had were the 2013 attempt by Russian spies to recruit Page as an asset, and the Steele dossier.

Now here's what I want to make clear. The original FISA order, when the target is a US Person (USPER) such as Carter Page, lasts for 90 days. A FISA order can be renewed, but the renewal is NOT granted on an "if at first you don't succeed, try try again" basis. To get an extension on a FISA--and let me say here that I completely agree with McCarthy that the initial FISA was pure BS--the FBI has to either:

1) make a reasonable showing that it is making progress in its investigation as a result of its use of FISA, i.e., it is moving forward with additional evidence gained through FISA that tends to confirm the presentation of the case that was made in the initial application, or

2) in the absence of such progress, the FBI must make a reasonable showing that the extension is likely to produce progress.

What The Carter Page Case Tells Us About The Flaws In FISA

Since the release this past Saturday of the (highly redacted) FISA application that targeted Carter Page, with the subsequent three renewal applications, there has been no lack of analysis of the unredacted details (Mark Penn's analysis is, for my money, one of the most cogent). In what follows I intend to take more of a "big picture" approach, as well as focusing on issues that haven't received a great deal of attention but may in the future.

One aspect of the application that came as no surprise to all who have followed this FISAGATE affair is that the role of the "dossier"--the collaborative effort produced by the British ex-spook Christopher Steele, Fusion GPS (Glenn Simpson, Nellie Ohr, and possibly others), and the Hillary campaign--is everywhere apparent. While the central role of the dossier comes as no surprise--after all, Andrew McCabe, the FBI's disgraced former Deputy Director and (during the Comey - Wray interregnum) Acting Director testified to the House that the dossier was "crucial" to the FISA--the overall audacity exhibited in the application is breathtaking.

The dossier itself is in the nature of a Big Lie--sensational, lacking in documented sourcing, utterly unverified and unverifiable. To present the contents of such a document (really a collection of memos) to any court as fact is audacious enough in itself. However, the authors of the application took two remarkable steps to support the Big Lie of the dossier.