SWC Re The Whitmer Case

Shipwreckedcrew has a lengthy series of tweets on the Whitmer kidnapping case--or whatever it was. I'll select a few of his tweets, because he has a particular axe to grind, but you can read the entire unrolled thread here.

One of SWC's major points is that the entire case was what he calls a "confederacy of dunces". I certainly won't dispute that. What he focuses on in that respect is that the indictment is significantly flawed in an important respect: 

The indictment lists 16 overt acts to further the kidnapping conspiracy, between June 6 and October 7. However, the FBI's main informant has stated that there was no agreement on what crime to commit before August 9. The point is this: six of the overt acts alleged in the indictment to be in furtherance of the kidnapping conspiracy occurred before August 9. That means those six acts--supposedly in furtherance of a conspiracy--occurred before there was any conspiracy! How can anyone act in furtherance of a conspiracy before there's a conspiracy?

I'll accept SWC's contention that that's a problem, and that it probably points to bigger problems down the road. All that is fine. However, SWC's major target is this--he wants to argue that, because the case was a trainwreck from a legal standpoint, there cannot be any connection between the Michigan case and the January 6 Event. My contention is not that there ever was such a connection--we can't know that at this point, despite suggestive connections of some of the players. Rather, I contend that the fact that the case was a trainwreck doesn't mean there wasn't any connection between the two cases. By the same token that we don't have the facts to actually prove a connection, neither do we have the facts that would disprove the connection. Why is it so hard for SWC to simply admit that?

So, he writes:

Briefly Noted: Covid Meds, Zhou's DoJ, Taxes By State

Here are a few quick links to get started today.

Last week Merck publicized the effectiveness of its experimental anti-viral drug, molnupiravir, against Covid: Merck says study shows COVID-19 drug causes quick reduction in virus. The trials are set to be completed in May, at which time this at-home treatment could be put on the market.

Today Eli Lilly is reporting excellent success with its own "drug combo" treatment: Eli Lilly COVID-19 drug combo cuts risk of hospitalizations, deaths by 87%. It's also reported to be effective against the dread The Variants:

Dr. Daniel Skovronsky, Lilly's chief scientific officer and president of Lilly Research Laboratories, said in a news release posted Wednesday. "These compelling data ... give healthcare providers additional information regarding the use of bamlanivimab and etesevimab together as a potentially life-saving treatment to help those most at risk for severe complications of COVID-19."

Skovronsky added that the results show the drugs remain effective despite the recent concerning variants, "particularly" those coursing throughout the U.S.

IMO, this is what we need--not vaxxing.

Very Briefly Noted: Who Will Run DoJ?

I haven't paid all that much attention to the Garland hearings because I've assumed that Garland will not really be the one running DoJ. Rather, policy will be made by those running the Zhou Baiden regime--the Obama cabal--and will be implemented by the DoJ appointees below the AG level. Garland basically admitted in his testimony that he had no say at all in who his chief deputies would be. That's a clue that he's not in charge.

For those who are interested, it looks rather grim, unless Obama has overreached. Paul Mirengoff explains who those deputies are slated to be--unless they're too radical even for a handful of Dem senators: WHOM TO BELIEVE, MERRICK GARLAND OR OUR EYES?

The two nominees whom Mirengoff singles out for special attention are Vanita Gupta and Kristen Clarke. Both are on record as holding views that can only be interpreted as indicating that they will conduct a legal jihad to marginalize any but the those who hold the most intransigently left wing positions. Mirengoff uses the questioning of Garland by Senator Mike Lee to illustrate.

Gupta, the nominee for Associate AG, is on record as stating that:

Individuals who advocate for the rights of unborn human beings are rendered unfit for public office by virtue of having engaged in such advocacy;

Efforts to purge voter rolls of individuals who have either died or have left the state in question or to require voter identification are racially discriminatory and an assault on voting rights;

Republicans in the United States are determined to leave our communities to the mercy of people and institutions driven by hate, bigotry and fear of any threat to the status quo.

These are views that put Gupta in opposition with the majority of Americans. In any ordinary administration, those views should disqualify her from holding such an influential position. That should tell you all you need to know about equal justice under the Zhou Baiden regime. For an early indicator, look no further: Feds Offer Plea Deal to Brooklyn Lawyers Charged in NYPD Molotov Attack. Compare their treatment with that being meted out to people who simply sauntered into the Capitol on January 6.

UPDATE: Did The US "Raid" Scytl And Seize The Election Server

UPDATE: No official confirmation to this point, although the three principle members of Trump's legal team have commented in one way or another. Rudy Giuliani declined to confirm whether or not he's had discussions with US intel officials. Sidney Powell and Lin Wood both appear to believe that there has been a seizure of election related servers at the Scytl facility in Frankfurt Germany. All we can do at this point is wait for confirmation.

To reaffirm what I say below and what I mentioned in an exchange with commenter Mike Sylwester, for the US to take possession of these servers the US agencies involved--which would ultimately, as I understand this to be a criminal investigation, would be DoJ/FBI--would need to satisfy German law. Alternatively, there could be some bi-lateral agreement between the two countries that the two countries would honor representations made by the other. The point is, the US would have to assert a justification for the seizure under either/both US and German law that would be equivalent to what we call "probable cause". German law could be easier or more difficult to satisfy as regards the evidentiary standard to be satisfied.

As a practical matter, DoJ would have had to examine allegations of fraud after the election and decide whether they were met a standard on which a criminal investigation could be predicated. That evaluation would need to be done specifically with regard to these servers in order to apply for a search/seizure warrant. 'Garden variety' voter fraud would not suffice--it would need to pertain to activity on the servers. At that point DoJ--and possibly DoS--could enter discussions with their German counterparts and, if all requirements were satisfied, arrange for the transfer/seizure of the servers into US custody.

The importance of this is that if, indeed, a seizure has been made, a prior evidentiary determination has been made--ultimately by Barr accepting it. That determination would not be dispositive of whether or not a crime occurred, but would be considered probable cause sufficient to get a search/seizure warrant--not a small thing.

As you know by know, Scytl is the company headquartered in Frankfurt, Germany, that has the servers that control and store the Dominion generated election data. (I probably haven't described that with 100% accuracy, but you'll get the picture.) We've all seen the highly improbable voting data for several swing states that strongly suggest computer driven manipulation, but without the data on the servers at Scytl proof--one way or another--may be lacking.

Earlier today there were reports that the US military had raided Scytl's facility in Frankfurt and seized the servers there. It was very difficult to track down the source of those reports, although Sidney Powell and Lin Wood--both on Trump's legal team--seemed to hint that those reports were true--I covered these early reports in I Can't Actually Confirm This.

Tonight there are additional reports confirming that the servers were seized by the US. Details remain sketchy and likely unreliable in some details, especially from a strictly legal standpoint. I offered my caveats on the other thread--that I believed DoJ (and probably the FBI, via its Legat Office in Germany) would need to be involved and would be required to go through some legal process before Germany would allow them to take custody of property that was on German soil. TGP offers what seems to me the most plausible explanation, if these reports are accurate, and confirms what I said on the other thread:

From our source: The US government, once they determined that this Dominion server was involved in switching votes, then the intelligence community began a search for the server and discovered that the server was in Germany. In order to get access to that server and have it available for use in a legal manner they had to have the State Department work in tandem with the Department of Justice. They had to request that the government of Germany cooperate in allowing this seizure of this server.

The appropriate documents required to affect that kind of seizure were put in place, signed off on, and it appears there was also US military support in this operation. The US military was not in the lead. But this helps explain why Esper was fired and Miller and Kash Patel were put in place — so that the military would not interfere with the operation in any way.

By getting ahold of the server they now are going to have the direct evidence of when they were instructed to stop counting. They will also discover who gave the direction to stop counting and who initiated the algorithm that started switching votes. The CIA was completely excluded from this operation.

Some observations--again with the caveat: If these reports are accurate.

First: "The CIA was completely excluded from this operation." This is a legal operation or, more precisely, it appears to be a criminal investigative operation, a search and seizure, and has to do with criminal violations of election laws in the US. The CIA has no role to play in such matters. Because this is a criminal investigation, that means--as TGP indicates--that this is being driven by DoJ, with FBI involved as well. State Department would be facilitating liaison between the Justice components of the two governments. It's not surprising that it's taken over a week to get this done, since each government had to jump through their own legal hoops.

Second: We read in the last paragraph the use of the pronoun "they". In my opinion, this must refer to DoJ, per what I just wrote. So, DoJ now has the evidence they will need for their investigation--the forensics being handled by the FBI or by others working at the direction of the FBI. DoJ and the FBI will be the ones finding out what happened.

Third: If anyone wants to substitute "AG Bill Barr" for "DoJ" in what I've just written--go ahead. Barr is surely the person who has been driving this process. Once he understood what was needed and what role DoJ could play, he wasted no time doing it. DoJ's role is to conduct a  criminal investigation. Acquiring this server is the type of thing that DoJ can do quickly and efficiently. That would not be the case with trying to track down every instance of voter fraud across several states in the Midwest. The ins and out of election law will need to be handled by Trump's legal team.

Fourth: Note again that Powell and Wood, while hinting at these developments, are not fully in the know. That's because they are Trump's personal lawyers. DoJ is conducting this investigation on behalf of the US Government, not strictly speaking for Citizen Trump--although, depending on results, this could be of immense importance to Trump. Barr knows all that, knows what the stakes are for the government, knows all the deadlines, and will not dawdle. He also has the discretion to make what he learns public. He will also take every precaution to maintain the proper legal distinctions between the DoJ and Trump's personal legal team, which has no role to play in the criminal investigation--beyond offering information to DoJ/FBI.

 Finally: It's not surprising that this operation has been conducted in the strictest secrecy.

RICO

For reasons that I don't fully understand--some sort of mystique, I guess--many conservative commenters on  the internet are convinced that RICO (Racketeer Influenced and Corrupt Organizations Act) can be applied to all sorts of political corruption. This conviction is often accompanied by a conviction that a failure on the part of DoJ to charge under RICO is itself evidence of corruption in DoJ. This is simply not the case. 

Unfortunately, a number of commenters here seem to believe that the Biden Crime Family can be prosecuted under RICO. I have to take some responsibility for this, since I adopted Rudy Giuliani's colorful name, "the Biden Crime Family." Let me be clear. I am not now saying that a RICO prosecution of the Bidens and their associates is not possible. The possible criminal violations may, in fact, fulfill the technical requirements of the RICO statute. Nor do I claim any expertise in RICO matters.

However, I believe that longstanding DoJ guidelines make it unlikely that RICO would be applied to any of those persons who have committed crimes either--as with former officials of the FBI, DoJ, or the Obama White House--in the course of opposing the presidency of Donald Trump or simply committed crimes by enriching themselves by trading on their public positions of trust in the US government.

Here's why. Longstanding DoJ guidelines (DoJ Justice Manual) militate against any expansive use of RICO when the interests of justice can be served by prosecuting the underlying crimes. Here are some selections from the Justice Manual. As you will see, there is--in essence--a presumption against using RICO when there is no "special RICO purpose," which usually refers to "gang" type organizations in a traditional sense. You can disagree with DoJ's policy in this regard, but it is what it is. The DoJ view is that RICO was never intended to replace traditional conspiracy prosecutions. Please read these guidelines carefully:

UPDATED: On Career Prosecutors

Yesterday commenter Cassander recounted his personal experiences in law school, basically at the same time I was in law school--the mid seventies, for those of you who can remember those heady post-Watergate days. The comment is too long to reproduce in its entirety, but Cassander recounts the views a famous Constitutional Law professor sought to inculcate (I think that's the right word) in his students:

And so he exhorted us credulous students…don’t mind that stupid legislature…The U.S. Congress…elected by small-minded farmers, union members, rednecks, businessmen, and little people…disproportionately empowered by the federal system. In effect, never mind what the Framers’ wrote…Our legislative process…the rightness of our civilization… is paralyzed by democracy…but don’t fear! You…the elite, the up and coming elite…the best of the best…you lawyers…you Columbia lawyers…can make needed change which otherwise would not occur using the power of your intelligence.  

He went on: You can use the court system and sympathetic judges and a malleable Constitution to achieve what we cannot achieve in the legislature. I’m sure a large number of my classmates sitting in the room thirstily drank the kool-aid he was serving. How empowering! Certainly Ruth Bader Ginsburg (on the faculty at the time) did. In all likelihood my classmate Eric Holder was in the room. In all likelihood my classmate Scooter Libby was in the room.  

Wechsler told us in no uncertain terms that the smart people (as measured, I guess by grades and board scores sufficiently high to be admitted to Columbia Law School and its peer schools) should rule the country because we know better. It seemed all innocent and idealistic then. 

 I responded:

Another part of making the necessary changes is removing the people who disagree with the really smart people from positions of influence. That's where creative prosecutors come into play. In league with compliant LE.

 Those of you who have read Lee Smith's The Plot Against the President will be aware that in Chapter 15, Dirty Cops, Smith was kind enough to quote my views at some length, especially regarding the process by which the FBI over the past few decades was to a significant degree co-opted by leftist political activists--not in all its daily activities, but in politically sensitive cases. This co-optation was accomplished by greatly expanding the role of just those types of lawyers that Cassander describes in their student days. We see the results in the Lisa Pages, Comeys, Bakers, Trisha Andersons, and all the rest we're now familiar with from the Russia Hoax.

Today at PJ Media J. Christian Adams has an informative article along similar lines, on how our two tier "justice" or "just for us" system works, especially in DC. To give you some idea on where Adams is coming from, how he knows what he's talking about, this is his brief bio:

J. Christian Adams is an election lawyer who served in the Voting Rights Section at the U.S. Department of Justice. His New York Times bestselling book is Injustice: Exposing the Racial Agenda of the Obama Justice Department (Regnery).  His website is www.electionlawcenter.com. Follow him on Twitter @electionlawctr.

And here are some excerpts to give you a taste for the rest of the article:

Is Rosenstein Throwing Comey Under The Bus?

I've speculated recently that Rod Rosenstein may still be at the DoJ because he's assisting the department in its inquiries about "what's been going on" with the FBI and DoJ. Among the remarks that Rosenstein offered at the Armenian Bar Association’s Public Servants Dinner in New York City last night were these:

At my confirmation hearing in March 2017, a Republican Senator asked me to make a commitment. He said: “You’re going to be in charge of this [Russia] investigation. I want you to look me in the eye and tell me that you’ll do it right, that you’ll take it to its conclusion and you’ll report [your results] to the American people.” 

I did pledge to do it right and take it to the appropriate conclusion. I did not promise to report all results to the public, because grand jury investigations are ex parte proceedings. It is not our job to render conclusive factual findings. We just decide whether it is appropriate to file criminal charges. 

Some critical decisions about the Russia investigation were made before I got there. The previous Administration chose not to publicize the full story about Russian computer hackers and social media trolls, and how they relate to a broader strategy to undermine America. The FBI disclosed classified evidence about the investigation to ranking legislators and their staffers. Someone selectively leaked details to the news media. The FBI Director announced at a congressional hearing that there was a counterintelligence investigation that might result in criminal charges. Then the former FBI Director alleged that the President pressured him to close the investigation, and the President denied that the conversation occurred. 

So that happened.

It sounds to me like Rosenstein is offering a justification for the Team Mueller mess of the last two years, suggesting that he had no alternative than to act as he did, take the course of action that he did. That he really meant to do the right thing all along, but, well, stuff happens.

While I don't buy those excuses for a moment, it's about what you'd expect at this point from a guy who finds himself more or less in the same boat with the FBI and Team Mueller after a 2-3 year deep dive into all things Trump has come up absolutely empty--and a new sheriff is in town and promising a real investigation. Hey, it wasn't me! It was that guy Comey that I trusted! How was I to know that Mueller would run totally amok with Hillary partisans as his sidekicks? How was I to rein it in once it got started? Sure I pledged to do it right, but, but, ... I didn't count on this amount of SHTF!

I just hope his cooperation will be worth any deal that he gets.

Deconstruct The Mueller FBI

Regular readers will be familiar with my explanation of how the FBI got to be the way it manifestly has become. Of course there are larger social dynamics at work in what took place, but I have always focused on the more visible mechanisms by which the transformation was effected. The mechanism I have identified, and regularly pointed to, was the the rotation of DoJ lawyers through top positions in the FBI, a process which subordinated the FBI's investigative function to the often politicized agenda of DoJ's prosecutive role. That agenda, of course, was normally far more liberal than the traditional approach of the FBI, and during the Obama administration became overtly leftist, with a goal of implementing through lawfare Obama's stated goal of "fundamentally transforming the United States of America.”

This process by which the FBI was brought under the thumb of DoJ's political agenda was greatly advanced by Robert Mueller, and was continued by his protege James Comey, during their years at the head of the FBI. No better example can be given than the career of another Mueller protege, Andrew Weissmann, who moved back and forth between DoJ, the FBI, and private practice--serving for years as the top lawyer in the Mueller/Comey FBI. This is utterly antithetical to the traditional career ethos and organizational loyalty that prevailed at the FBI pre-Mueller. As I wrote in Why Andrew Weissmann:

---------------------------

What Weissmann's contribution to the Russia hoax might have been is suggested by his previous career.

Weissmann is best known as a hard charging prosecutor, but one with a reputation for being willing to take ethical shortcuts to make the big case. This led, in 2005, to the US Supreme Court unanimously overturning the conviction in his biggest case: the Enron Case. The criticism of Weissmann's "intimidating" "scorched earth" tactics that arose from the Enron Case made Weissmann a hot potato in the legal world, but fortunately for him he landed on his feet--as Special Counsel to a friend and former colleague, FBI Director Robert Mueller.
This was Weissmann's first gig at the FBI, and lasted probably less than a full year while he looked for a more lucrative position--by the end of 2005 Weissmann went into private practice at Jenner and Block in New York. But in 2011 Weissmann returned to the FBI and his mentor Mueller, serving as General Counsel under Mueller until the end of Mueller's term in September, 2013. He continued at the FBI under James Comey until January, 2015, when he returned to DoJ as head of the Criminal Fraud Section. His final career move, to date, was his reunion with Mueller, joining Mueller's Special Counsel team in June, 2017.