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.

Joe diGenova Sketches The Conspiracy Case

Today I have another transcript of a Mornings on the Mall interview with Joe diGenova (hosted by Mary Walter and Vince Coglianese).

There's a lot of interest in the interview, much of it going over the ground I covered earlier in Bill Barr: "Without Any Basis", but with diGenova's own characteristically strong take on it. So, from my point of view, it's worth looking at his words in print to absorb the full import, to get an idea where the Durham investigation is headed. DiGenova is on the same page that we've been on at this blog: We can expect a major conspiracy prosecution, and I want readers to understand ahead of time what that involves, what facts are important for shaping that type of prosecution. This interview will help.

The first thing you may notice as the interview gets started--and I really appreciated this--is that while the hosts start out all eager to discuss the now famous Footnote 350 in the Horowitz FISA report, diGenova is far more eager to move on and talk about the Barr interview with Laura Ingraham--and rightly so, in my view. However, as we'll see, diGenova has a very different take on what's behind that footnote--emphasizing, as I and a few others like sundance have, that it leads to the foreign government angle, and especially to  the importance of the UK's involvement. So, here we go:

DiGenova: Sammy The Whistleblower Worked With Fusion GPS, And More

Joe diGenova appeared with Rudy Giuliani on Laura Ingraham's show. There was a variety of interesting chit chat, but the most interesting part was what diGenova said "Everybody knows." I'll just paraphrase here, but it's as close to literal as doesn't really matter. This topic arose in the context of Byron York's disclosure yesterday that Sammy had a professional relationship with one of the 2020 Dem candidates. So,

Everybody knows that Sammy

1) Worked with Fusion GPS, and

2) Worked with a former FBI agent.

Everybody also knows that Sammy didn't write the complaint and that the complaint was actually written by political consultants connected with the DNC.

Lawyers also know that IG Michael Atkinson "is a moron. He got slapped down so bad by the Office of Legal Counsel."

Laura says that even a liberal outfit like Axios defended Byron York's reporting on the 2020 candidate connection which means, she says, "We're gonna learn a lot more." To which diGenova responds, with a very broad smile, "It's gonna get a lot worse."

Giuliani also points out that the "whistleblower" law firm was offering bribes to get people to "come forward", i.e., to make up stories. The bribes were in the form of help with mortgages, etc.

DiGenova gets in a great line re Adam Schiff's nonsensical notions of "obstruction": "If it weren't for double standards Democrats wouldn't have any standards at all."

Amid general laughter at Schiff, Giuliani adds, "It'd be really funny if they weren't trashing our Constitution, and that has repercussions."

Laura closes with the simple factual assertion that the Dems are "trying to paralyze the country." It's the only way they can come up with to try to stop Trump from doing the job he was elected to do.

She then turns to diGenova and asks: "Joe, how confident are you that in the next couple weeks we're gonna know a lot more, from Horowitz, Durham, and the rest?"

DiGenova, with an ear to ear grin, responds: "This is gonna be a bang-bang couple of weeks," and then breaks into laughter.

Buckle up!

Briefly Noted: DiGenova And Toensing Worked With Giuliani On Ukraine

So that must mean we should pay attention when they talk about Ukraine, since they likely know a lot about it all. And probably not just what was going on within Ukraine but also Ukraine connected activities within the US. As reported by Chris Wallace:

Rudy Giuliani was not the only attorney trying to get damaging information on Joe Biden from Ukrainian officials, and President Trump’s decision to withhold aid from Ukraine this summer was made in spite of several federal agencies supporting the aid, Fox News’ Chris Wallace revealed on “Fox News Sunday.”

In addition to Giuliani, Washington, D.C., lawyers Joe DiGenova and his wife Victoria Toensing worked alongside the former New York City mayor. According to a top U.S. official, the three attorneys were working "off the books" -- not within the Trump administration -- and only the president knows the details of their work.

Bill Barr Deserves A Medal

I can't embed this video of Joe diGenova and Alan Dershowitz speaking with Laura Ingraham, so I'll link it: Joe diGenova: Comey Right In The Middle Of "Grand Conspiracy" That John Durham Is Investigating. IMO, it's a very important video to watch--the whole thing--and absorb. 

JOE DIGENOVA: Accountability is what matters now after the disgrace that we've had where it is very obvious the DOJ and FBI under Obama -- Sally Yates, James Comey, Andy McCabe, all of these people tried to basically frame Donald Trump, to defrock him, to remove him from office, to prevent him from taking office. 

What we need now is accountability through disclosure, accountability, transparency, public reports, the Horowitz report, if there are serious crimes like let's say a group of people got together and said even though we know Carter Page is innocent, we are going to lie to the FISA court so we can listen in and see if we can get stuff on the Trump people. If that happened, I'm for prosecuting that... 

This is a big mistake for the Democrats to move toward impeachment. If they do that, they're going to lose the House but that's a political judgment. What I care about is the law. What we need to do is recalibrate the prosecution function.

What Bill Barr is doing is brilliant. This is a great man. This is a Robert Jackson back in the Justice Department. He says you know what, you have all the power in the world, you don't have to act like a thug, act like a professional.

Dershowitz and Ingraham also make important points. Among them is that much of the fault for the legal morass we find ourselves in--and I mean the morass that the legal profession finds itself in--is the fault of the judiciary. It's the judiciary that has failed to enforce ethical standards. I would also argue that it is the fault of the judiciary for adopting legal philosophies that contravene our common law tradition that has led to this.

UPDATED: Are diGenova And Huber On The Same Page?

It occurs to me that it might be worthwhile to compare Joe diGenova's remarks last night with what we're hearing about USA John Huber's views re prosecution of James Comey, the disgraced former Director FBI, for mishandling classified documents. If you recall, last night I included in Joe DiGenova: John Durham’s 'Lightning' Fast Investigation--And A Case Theory! diGenova's response to Lou Dobbs regarding the connection between the Hillary email case and the overall Russia Hoax conspiracy. diGenova expressed the view that Comey's handling of the two are connected and that that connection should be dealt with in any report. As it happens, the IG is coming out with a report devoted to that--one that recommends prosecution to USA Huber. Huber, on the other hand, is said to take the view that, in the broader context of Barr's investigation, it might be wiser to pass on prosecution--in this instance.

Here's diGenova and Dobbs:

diGenova: Yes, yes, and by the way--by any traditional standard this thing is moving with lightening speed. In a very short period of time John Durham has interviewed, I understand, DOZENS of potential witnesses and has moved to setting up a grand jury. So it’s going to happen. I will say this. I think people need to be reasonable in the expectation of potential criminal charges. This is a very difficult area of the law, to bring criminal charges where government officials are claiming that they acted in good faith. We may see some initial cases which are not brought, but eventually Durham is focused on a very large criminal conspiracy involving defrauding the United States government of the faithful service of these agencies. I think ultimately he will get to the point of bringing charges. It isn’t going to happen quickly. And there are going to be some instances where he isn’t going to have enough evidence to charge even some pretty big people initially. But some of these players will be involved in more than one series of criminal investigations. So if they get a pass in one instance, they may not get it in another. It's gonna be rough, it's gonna be difficult, but believe me--Bill Barr is not going to pass up the opportunity to do the right thing.

Dobbs: Yeah. I can't even imagine making the comparison between Mueller's enterprise and that of John Durham or Bill Barr. But I do wanna ask you this, as we wrap it up. Is there any reason for us to expect an explanation, and a clear explanation, and a clear accounting for why Hillary Clinton could be exonerated by the FBI, and by the Special Counsel as well, even as we are watching evidence disappear and be disappeared, immunity given away like hotcakes to the staff of Hillary Clinton ...

Toensing: I predict that Hillary will be by the wayside and focus will be on what happened with the FISA authorization and the investigation of the Trump campaign. ...

diGenova: I have no idea if they're gonna give any further explanation of what happened to Hillary. I don't know how the IG could NOT do that, given the centrality of Comey's decision making to everything that followed. I think as a result of investigating all of this CIA, FBI, coverup stuff and the effort to frame President Trump I think they must explain how the Hillary exoneration fit in to that broad conspiracy to frame Donald Trump. So I think there will be an explanation of how the Hillary exoneration fed into a bigger conspiracy.

Toensing: But I think Lou still wants Hillary punished, right?

diGenova: That's never gonna happen. They're not gonna go back and try to indict her.

Now here's Lindsey Graham addressing the likely non-pros decision:

 "The worst thing you can do is over-charge somebody," he said. "It'll begin to fall apart, then it taints the thing that really is strong. 

"There's two ways to do this: Throw everything, the kitchen sink, at the accused and hope he pleads to something -- or, make sure that when you charge them it will not be undermined because you over-charged.

So it appears to me that diGenova and Huber may, in principle, agree and Huber's decision doesn't exclude the possibility that the report as a whole could be quite hard hitting. All I can say is that we'll find out soon enough.

UPDATE 1: It's worth reviewing John Solomon's account of exactly what's at issue in the IG report of Comey's mishandling of classified docs and his lack of candor:

The lack of prosecution is certain to demoralize some conservatives, who long have called for Comey’s head. But the IG report, set to be released within the next few weeks, likely will provide significant condemnations of Comey’s conduct, sources tell me.  

While they cautioned that the IG’s final report won’t be complete until it gets feedback from Comey’s lawyers in the next few days, it is expected to conclude that the former FBI director improperly took with him memos that were FBI property when he was fired, transmitted classified information via an insecure email account, and shared some of the memos with his private lawyers. Some of the Comey memos were classified up to the “secret” level, but the FBI has not disclosed whether those were shared with his lawyers like the classified confidential memo was. 

The memos, which mostly recount Comey’s interactions with Trump in the Russia case and include information about foreign leaders, were sensitive enough to require government officials to send a professional “scrub team” to a Comey lawyer’s office to ensure all classified information was deleted, sources previously told me. 

In addition, the IG is likely to find that Comey engaged in a lack of candor when FBI agents came to retrieve the classified memos in his possession, failing to tell the interviewing agent that he had forwarded some of the sensitive memos by email, according to sources familiar with the probe.

From my perspective, I can understand that this isn't the stuff that you want to lead with, when you believe you've got far more consequential violations to go after. OTOH, the report might allow these document handling violations to be introduced in evidence to prove things like intent in a trial on those more consequential violations. There are a lot of considerations involved, and I think everyone needs to take a deep breath for now.

UPDATE 2: I've certainly been critical of sundance lately, but it appears someone has talked him off the ledge. He's making a shrew suggestion regarding possible reasons for why DoJ might decline prosecution on these classified doc matters. Remember--IG Horowitz is simply doing his job. He examines the data and makes a recommendation. In this case he apparently decided that prosecution was warranted on the facts as he determined them. But that doesn't mean that DoJ has to adopt that recommendation, since Horowitz's recommendation is essentially an abstraction--it doesn't take into account difficulties that prosecution at this point might present for the larger case.

I offered one reason for declining prosecution at this stage, but that was a seat of the pants surmise. Sundance offers another, and there may be others still that we're not aware of. Thus, sundance points out:

The DOJ has reportedly declined prosecution on the referral; however, there may be extrajudicial reasons why that declination has taken place. [ex. if the DOJ wants to declassify and release the memos, as part of a larger investigative release.] 

Now, it’s important to remember…. No-one knows the number of memos that James Comey has written.  [We may get that answer in the IG report.]  There are nine memos written by James Comey surrounding contact and conversations with President-elect and then President Trump (2016/2017). 

However, based on the court declarations by Mueller’s former lead FBI investigator David Archey, it sounds like there are many more memos than anyone currently understands; including memos about the investigation of candidate Trump, that were written during the “Crossfire Hurricane” investigation 2016 and 2017, that describe investigative details, sources, operations and code-names of intelligence assets used in the investigation. 

It is also worth remembering that James Comey leaked his memos to Daniel Richman so that Richman could act as a go-between to pass the information along to the New York Times.  Richman was not only Comey’s friend, it was later discovered that Richman was an unpaid FBI employee given special access by James Comey. 

Joe diGenova: The Declass Dam Breaks On Wednesday

In his regular appearance on WMAL radio this morning, former DC USA Joe diGenova said that the dam on declass--maintained by outgoing DNI Coats and, unfortunately, current Director FBI Chris Wray is about to break. diGenova says he's told that AG Bill Barr will be releasing declassed documents starting Wednesday--publicly:

diGenova: The reason Barr was given declassification authority was because Coats was in the way--as was Chris Wray, the FBI Director. They were fighting tooth and nail--phony coverups, allegedly to protect sources and methods, when Chris Wray was simply trying to protect the FBI from just HUGELY embarrassing details that are gonna come out now. By the way, the declassification process will start this week. There are going to be documents released, I think by Wednesday. The Attorney General, as I understand it, is in the process of getting those ready to come out. There are gonna be some of the Devin Nunes documents that he requested and then a series of other releases will come after that, because Durham is progressing VERY, very quickly in his criminal investigation. This is not a "review," quote unquote, of what went on. This is a criminal investigation of senior DoJ and FBI officials from the Obama administration and Intelligence Community people--including John Brennan. This is a Federal Grand Jury. This is not a review, this is not an IG audit, this is not some Congressional Research Service look at history. This is a criminal investigation of a bunch of people who tried to seditiously overthrow the President of the United States. So, the stuff is gonna start coming out this week.

One thing I'd like to point out--diGenova, a very highly regarded and experienced lawyer and former US Attorney for DC, used the word "seditiously." Coming from someone of his background I would expect that to be a direct reference to the Smith Act. As I've said before, in the United States prosecutions under the Smith Act require incitement to physical violence--check out the link to Wikipedia and read up on the case law.

On the other hand, it's possible that he was using, for emphasis, the general meaning of the word. Here's how Wikipedia defines it:

TOTAL MUST WATCH--diGenova And Toensing

LOU DOBBS WITH diGENOVA AND TOENSING

The whole ten minutes are totally worthwhile, but I'm going to transcribe the last few minutes. Dobbs says how frustrated he is that the IG report still isn't out. Here's what transpires:

DOBBS: Let me conclude as we have the last several discussions. We're approaching August and still no Inspector General report. I'm beginning to believe in almost nothing that emanates from the Inspector General's office. This is pathetic--the time it's taken. It's not the most complex of cases I can imagine in the world. What in the world IS the problem with the Inspector General in getting that report out? 

TOENSING: Forget the IG. 

diGENOVA: Here's what's happening. 

DOBBS: Don't tell me to forget the IG! We've been talking about the IG for a year! 

TOENSING: He's not worth squat! Joe's gonna tell ya. 

diGENOVA: Here's what's happening. As a result of the appointment of Durham people are flocking back to Horowitz to, quote, "correct their testimony." To let him know that they've remembered new things. That they've found out stuff that they didn't know about. People are worried, and they should be, because it's now beginning to become very clear that Durham is moving forward WITH SPEED, and people are going to Horowitz and asking to be re-interviewed. This includes FBI officials and others, and as a result of that I am delighted he's delaying. 

TOENSING: And you're gonna see that Mifsud was a Western agent, not a Russian agent. 

diGENOVA: And it's gonna make Mueller look even worse when Dr. Mifsud gets to have his say. He's already been interviewed by both Horowitz and Durham.

The point about Mifsud is important for a number of reasons. It's important because of his centrality to the beginnings of the Russia Hoax. It's also important because, from what I've heard, he has long wanted to come forward and be interviewed and escape from the prison of his "new identity." The reason he hasn't is because Western Intel agencies have been pressuring him to stay hidden because he can reveal their collusion in the coup attempt. That's over now.

Fake News, Real News, Hot News

On the Fake News front we have some depressing real news--or, as real as polling gets:

John Hinderaker at Powerline, in The Ultimate Fake News, digs down into a poll run by The Economist/YouGov during the first week of November. The poll asked: Did Russia “tamper with vote tallies in order to get Donald Trump elected President?” Hinderaker points out what every sentient human person now knows for fact:

There is no evidence–I repeat, none–that Russia “tampered with vote tallies.” To my knowledge, no one has claimed that Russia tampered with vote tallies. I am not aware of any plausible theory on which a foreign power could tamper with vote tallies. To say that Russia tampered with vote tallies is as credible as asserting that the moon is made of green cheese.

Nevertheless.

The poll reveals, paraphrasing Hinderaker's summary, that