Briefly Noted: No Collusion, More Winning

No Collusion

We wrote earlier about Judge Dabney Friedrich's ruling against Mueller (and Barr) in the Concord Management case in New York, and what it means. From Consortium News via Zerogate we have another nice summary of that. It's not news to you, but it's a a great commentary. Excerpts:

Concord Management And The End Of Russiagate?

Don’t look now, but a federal judge in Washington, D.C., has just shut down half of Robert Mueller’s Russian-interference case.

In February 2018, the special prosecutor indicted a St. Petersburg troll farm called the Internet Research Agency along with two other companies, their owner, Yevgeniy Prigozhin, and 12 employees.  The charge: fraud, traveling to the United States under false pretenses, and using social media platforms such as Facebook and Twitter to “sow discord” and “interfere in US political and electoral processes without detection of their Russian affiliation.”

... 

Judge Dabney Friedrich has ordered Mueller to stop pushing such stories [about people with "ties" to Putin] because they’re unfair to Concord Management and Consulting, another Prigozhin company, which astonished the legal world in May 2018 by hiring an expensive Washington law firm and demanding its day in court.  

... 

It’s a case of trial by press clip that should have been laughed out of court – and now, more or less, it is.  Without the IRA, the only argument left in Mueller’s brief is that Russia stole some 28,000 emails and other electronic documents from Democratic National Committee computers and then passed them along to WikiLeaks, which published them to great fanfare in July 2016.  

... 

Bottom line: Russiagate is going up in smoke.  The claim that Russian military intelligence fed thousands of emails to WikiLeaks doesn’t stand up to scrutiny while Mueller is not only unable to a prove a connection between the Internet Research Agency and the Kremlin but is barred from even discussing it, according to Friedrich’s ruling, without risking a charge of contempt.  After 22 months of investigating the ins and outs of Russian interference, Mueller seems to have finally come up dry.

Should be lots of great material here for questioning Mueller.

James Baker Enunciates His Obstruction Theory

Day Two of former FBI top lawyer James Baker's House testimony, now available, contains some fascinating moments. By far the major portion of the testimony was devoted to the question of obstruction of justice, and Baker was quite forthcoming with regard to his own views as well as the obstruction discussions that took place within the FBI. Before turning to that, however, I'd like to address some other matters that tie into recent blog posts here.

CONSENSUAL MONITORING

In discussing the various levels of FBI investigations yesterday (James Baker: Light On Informants And The "Russia" Investigation) I mentioned once again what I refer to as "consensual monitoring" -- I'm not sure what the current terminology is. This term simply refers to recordings, whether in person or over a phone, made with the consent of one of the parties. Obviously the consenting party is either an FBI agent or a cooperating witness/informant. Unlike FISA, a special court order is not required to conduct consensual monitoring, although specific approval is required. Nor is it necessary, as with FISA, to have a Full Investigation in place (Crossfire Hurricane). Nothing, to my mind, would be less surprising than to learn that this technique was deployed against Trump associates, such as Carter Page, George Papadopoulos, and others--whether before the opening of Crossfire Hurricane or after. Rep. Mark Meadows seemed to be under the impression that this technique is "extraordinary," but such is not the case. Here's a portion of Meadow's exchange on this subject with Baker (I've removed interjections by the FBI's lawyer):

Mr. Meadows: Was George Papadopoulos surveilled by extraordinary measures?
...

Mr. Meadows: So, in any event, you're instructed not to answer it. Would it surprise you to know that there is credible evidence that Mr. Papadopoulos was surveilled in a manner with either tapes or some kind of recording device? Would that surprise you?
... 

Mr. Meadows: So, Mr. Baker, then, let me ask it in more of a generic sense. Is it common practice for the FBI to actually surveil individuals without their knowledge, U.S. citizens, and tape them for investigative purposes with confidential human sources?
Mr. Baker: So, as a general matter, it is an approved investigative technique under Attorney General guidelines and internal FBI policy to allow that to occur with appropriate predication and appropriate approvals. (pp. 101-102)

Now, the context in which the possibility of such consensual monitoring becomes particularly important relates to George Papadopoulos (who, unlike Carter Page, was prosecuted and pled guilty). The question would be, did Stefan Halper--for example--record any of his conversations with Papadopoulos? Did those recordings contain exculpatory statements by Papadopoulos (as he claims), and were those recordings made available to Papadopoulos' lawyers--as they should have been?

UPDATED: Bill Barr's Summary Of Team Mueller: Short And Sweet

As expected, Barr delivered a summary report to Congress. Four pages. He summarized the Team Mueller effort as it bears on Trump and the Trump campaign under two headings: "Collusion" and "Obstruction".

Collusion

There wasn't any. Not by the Trump campaign and not by anyone associated with it. This confirms, by its wording, what I said yesterday: Mueller's mandate was to continue the investigation of the four Americans who were the subject of Crossfire Hurricane. Trump was never a subject. There is no reference to Donald J. Trump in the collusion section. That's it.

Just to make this totally clear. The Crossfire Hurricane investigation was about "four Americans," none of whom were Trump. Rosenstein told Mueller: Complete the investigation. That means that to reach Trump on "collusion" Mueller needed to go throught the "four Americans": Page, Papadopoulos, Manafort, and Flynn. Four dry holes. Mueller never laid a glove on Trump.

Obstruction

This section is all about Donald J. Trump, and has nothing whatsoever to do with James Comey and his firing. Mueller thinks that there are "difficult issues" of law and fact concerning whether Trump obstructed his (Team Mueller's) investigation. Mueller doesn't "conclude that the president committed a crime," but "doesn't exonerate him." Because of the "difficult issues" Mueller decided against ... any decision at all, leaving it to Barr to decide.

In making his decision Barr says two things. The first aspect requires a bit of reading between the lines. Barr states that many of the president's actions that bothered Mueller were conducted "in public view." I take it from that that, basically, Mueller didn't like being criticized by Trump. That in his (Mueller's) view, subjects of a witchhunt are supposed to shut up, to grin and bear it. Barr--and Rosenstein--after consulting with top DoJ officials had a very different view and simply state: the evidence is insufficient to support such a charge and, specifically, that decision has nothing to do with the constitutional status of the president. However, beyond that, Barr (and Rosenstein, presumably) then go on to state that they reviewed the actions that Mueller objected to and conclude that "the report identifies no actions that, in our judgment, constitute obstructive conduct." In other words, they basically reject Mueller's theory of obstruction out of hand.

Here are two key sections re obstruction (all emphases mine):

The First Manafort Sentence

Short story: Mueller recommended what was probably the max: 19 - 24 years. Judge Ellis gave Manafort just under 4 years (minus time served of 9 months, so ~ 3 years), probably about the minimum possible. Along with a pointed statement about how none of this had anything to do with "collusion."

This is unquestionably Judge Ellis' way of showing his utter disrespect for Team Mueller, everyone behind Team Mueller, and everything they stand for--especially their degradation of the criminal justice system. He had no choice but to sentence Manafort but he did it in a way that would be a rebuke to the prosecution. And in a way that will reflect as poorly as possible on Judge Amy Jackson Berman. I hope Judge Sullivan (who will be sentencing General Flynn shortly) pays attention to this.

There's a lot swirling around this and I may well be updating this initial post. For example, Undercover Huber is reminding us that, in response to Manafort's Brady request (Brady disclosure rules require the prosecution to produce exculpatory or impeaching evidence to the defense), Team Mueller admitted that it had NO "surveillance intercepts" of Manafort--"surveillance intercepts" means electronic surveillance or, if you prefer, FISA intercepts. IOW, the US counterintelligence efforts--read: the FBI--never picked Manafort up talking to Russians. This despite "leaks" to the media, like this one to the NYT: Trump Campaign Aides Had Repeated Contacts With Russian Intelligence. Here's how it begins:

WASHINGTON — Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election, according to four current and former American officials.

American law enforcement and intelligence agencies intercepted the communications around the same time they were discovering evidence that Russia was trying to disrupt the presidential election by hacking into the Democratic National Committee, three of the officials said. The intelligence agencies then sought to learn whether the Trump campaign was colluding with the Russians on the hacking or other efforts to influence the election.

This was a lie, a total fabrication.

You Want Collusion? I'll Give You Collusion!

Yesterday in a comment I linked to the excellent Michael Smerconish interview with law prof Jonathan Turley. Now, Smerconish and Turley are both liberals, but they did chapter and verse on "collusion" and they both came to the same end point: Ain't no collusion. Turley said the obligatory nice things about what a straight arrow Mueller is, but he also went down the line on IG Michael Horowitz and AG Bill Barr. He couldn't praise those two guys highly enough. And then he pointed out something interesting: If you want to find collusion, look no further than Ukrainian involvement in the 2016 election. As Turley says, what Mueller has done a great job on has been exposing collusion with Ukrainians, but we're not hearing much about that. Watch the whole interview here--it's not long.

Of course, if you really want to find out about Ukrainian collusion, just read The Mechanics of Deception and you'll get enough detail on that to choke a horse. It's all out there--it's been out there for a long time--but some people don't want you to hear about that.

So, this morning at Powerline, Scott Johnson had a nice blog on A redaction mystery solved. It seems that Mueller's sentencing memorandum on Paul Manafort has redacted publicly available information. Why would he do that? Aren't redactions for, like, secret stuff? Ah, well, there's a bit of a story to that, but it's not long and it's not terribly complicated.