Clinesmith And The Big Picture Conspiracy

Shipwreckedcrew has a terrific article today, the title of which won't really suggest to non-prosecutors the substance of what he discusses: Andrew Weissmann Wants Kevin Clinesmith to “Stop Snitchin”. What he's talking about is a topic near and dear to me, one that we've discussed here for a long time--the "big picture conspiracy." SWC goes into the way in which such a case is built.

While SWC largely leaves the focus of the Durham investigation as something for the reader to infer, that focus should become apparent very quickly. As I've maintained, the original Crossfire Hurricane (CH) investigation--CH before Team Mueller--is basically small potatoes as compared to the concerted effort of to force Trump from office by hook or by crook. That, of course, is what Team Mueller was all about. I'm not discounting the criminality of what took place beginning in the summer of 2016 up to Trump's inauguration, nor the Flynn setup, but Team Mueller marked the point at which all the resources of the FBI and DoJ could be openly marshalled against Trump. There was no longer a need to hide what was going on. The coup forces were protected from effective counterattack under the color of law. This is why Barr and Durham are so focused on Team Mueller, as I've long maintained.

Thus, SWC begins his article by basically pointing out that Weissmann's entire focus was on Trump. If there was a conspiracy--and there was--Trump was at the heart of it:

John Ratcliffe: Durham's Investigation Is About Predication

Maria Bartiromo had Director of National Intelligence (DNI) on her show this morning for a fairly wide ranging interview. All the topics were of interest, but one that especially caught my attention was the segment dealing with the John Durham investigation. We've been hearing rumors about Durham nearing, if not the end of his whole investigation, then the end of a certain phase of it. The Clinesmith guilty plea has whet our appetites for more information, but it's been slow in coming--despite promises that we'll be hearing more before the end of the summer. Before we get into that, however, a few remarks.

As we know, as a Congressman, Ratcliffe was a key part of the investigation into the Russia Hoax--as an experienced former prosecutor he showed himself to be a skilled questioner who knew the value of careful preparation. Trump's decision to replace veteran Deep State operative and former senator Dan Coats with Ratcliffe as the head of the Intelligence Community was a shrewd pick. Coming at a time when the Barr/Durham investigation was picking up momentum, there was an obvious need for a DNI who could break through the bureaucratic logjams that Coats and others had constructed to protect the Deep State. The fact that Ratcliffe was an experienced former prosecutor who would understand what was involved in such a major investigation and, especially the legal issues involved in coordinating with a grand jury investigation was an important plus. When you add to that he years of experience in Congress investigating the Russia Hoax, his knowledge of the all the players both in Congress and the Deep State as they overlapped, it came as little surprise that the Deep State and GOP senators closed ranks against Ratcliffe. In the end, however, Trump (and probably Barr) persisted and won the day.

In the transcript of the relevant portion of the interview, note that Maria has focused on some key issues that we've been discussing in recent days. First, of course, she located the tape of then Congressman Ratcliffe clearly referring to disgraced former FBI lawyer Kevin Clinesmith's "changing evidence." Maria astutely relates the Clinesmith guilty plea to the entire three year investigation--and Ratcliffe picks up on that.

Note that Ratcliffe relates what Clinesmith did--"changing evidence"--not just to the final FISA application but to the origination of the entire Crossfire Hurricane investigation. As he puts it, what Clinesmith did had to do with continuing the entire investigation. What's left unsaid, however, is that the continued focus of Durham--and Ratcliffe!--on the predication for Crossfire Hurricane also relates directly to the predication for Team Mueller witchhunt--the two are one and the same. Further, at the heart of his is Joe Pientka, who was the supervisor for the Crossfire Hurricane team and who wrote the EC recommending its closing. Also note that Ratcliffe, without being prompted, brings up the topic of the Intelligence Community Assessment--that can't be a coincidence.

Place Pientka into this context when you read about the ongoing coordination between Ratcliffe and Durham. The willingness of Durham to allow Ratcliffe to declassify some of the Pientka related documents and to allow Pientka to talk to Senate investigators in a tightly controlled setting suggests that Durham is still very much focused on the big picture conspiracy. Things appear to be coming to a head.

The Crossfire Hurricane Opening EC--Predication And The Way Forward

Late yesterday a redacted version of the Crossfire Hurricane Opening EC was released to Judicial Watch. Hopefully a cleaner version will be out in the not too distant future. I understand that AG Barr is playing all of this close to the vest as John Durham prepares his case, but the redaction of information that We The People really should have access to is offensive. After all, we all know what the redactions are about: The identity of foreign governments and their operatives--and some of our own operatives--who colluded in a coup attempt against the established government of the United States. Democracy dies in darkness, as the WaPo has taken to saying, and the identities of all governments and operatives who conspired against our constitutional order need to be made known.

That said, the Opening EC--a Peter Strzok production--is as absurd as expected. Here's the gist of it, actually a very lightly edited paraphrase. It really is as threadbare in terms of predication as this summary indicates:

The [Redacted - but presumed to be Australian] government had been seeking prominent members of the Donald Trump campaign in which to engage to prepare for potential post-election relations should Trump be elected U.S. President. One of the people identified was George Papadopoulos. Mr. Papdopoulos was located in [Redacted - presumed London] so the [Redacted - presumed to be Alexander Downer] met with him on several occasions, with [Redacted] attending at least one of the meetings.

Note what's being said there. Against all odds, this Australian/US operative who claimed to be seeking "prominent members of the Trump campaign" came up with George Papadopoulos. (It tells you something about our Embassy/CIA staff that they were unable to identify the correct spelling of such a common Greek name.) We're supposed to believe that after active consideration of the possible candidates in the Trump campaign one of the top Australian diplomats decide to spend his time cultivating the likes of George Papadopoulos. Not only that, but it's clear from a quick read between the lines that Papadopoulos was not a target of opportunity--he had to be "located". IOW, Downer, or his US handlers, went looking for Papadopoulos, a sort of Quest for the Ideal Fallguy.

More On Predication And The ICA

The "ICA", of course, is the Intelligence Community Assessment--a John Brennan production that was published on January 7, 2017, just short of two weeks before Donald Trump was inaugurated as President of the United States. The ICA proclaimed with "high confidence" in its Key Judgments that Russia and, specifically, Russian President Putin had sought to influence the 2016 US Presidential Election in order to harm Hillary Clinton's chances of being elected. Putin was claimed to have had a clear preference for Trump, so the logical corrolary was that Trump's election was tainted by Russian interference in our election. Trump was, arguably, an illegitimate president, attaining office through the efforts of a hostile foreign power to whom Trump would be beholden:

Russian efforts to influence the 2016 US presidential election represent the most recent expression of Moscow’s longstanding desire to undermine the US-led liberal democratic order, but these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.

We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the US presidential election. Russia’s goals were to undermine public faith in the US democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump. We have high confidence in these judgments.

Recently I cited the statements of a 25 year national security specialist, Fred Fleitz:

Due Process And The Flynn Case

According to the Due Process clause of the United States Constitution appears in two places of that document. Both instances are in Amendments to the text itself. The first is in the "Bill of Rights"--the first Ten Amendments that were added within a year of ratification of the Constitution. It's a measure of the importance of the principles enshrined in those first ten amendments that there was enough concern about the failure of the Constitution to expressly affirm these principles that James Madison himself took the leading role in amending the Constitution. And so, in the Fifth Amendment we read:

No person shall ... be deprived of life, liberty, or property, without due process of law.

Likewise, in the wake of the Civil War, protection of civil liberties was regarded as so fundamental for the the union of states that is the United States that it was regarded as necessary to explicitly extend that same principle to the states, in the Fourteenth Amendment:

... nor shall any State deprive any person of life, liberty, or property, without due process of law.

Typically, in a law school course on what's termed "criminal procedure", the idea of due process of law is traced back to the beginning of actions that include some infringement on individual liberty or privacy--a search, seizure of property or person, arrest, etc.

With regard to the Flynn case we often hear the complaint that Flynn was given no warnings that he was under investigation, that his answers to the agents' questions might be used against him, etc. Sometimes the famous Miranda warnings are even cited. The idea behind these complaints is that in the governments handling of the Flynn investigation there was a lack of what legal scholars refer to as "fundamental fairness."

The fly in this ointment is that for "due process" and "fundamental fairness" to apply, there is a threshhold issue: these concepts normally only arise when there is some government process in motion that would deprive a person of "life, liberty, or property." The process may be judicial, administrative, or executive, but some process or proceeding is normally required before a court will consider fundamental fairness. Thus, obtaining a search or seizure warrant (seizure of property or person) is typically the beginning of a due process examination.

The reason Flynn was not provided with any warnings was because the Miranda rules only apply when the person being questioned is either already in custody--has been deprived of liberty to that extent--or the law enforcement questioners intend to take that person into custody upon completion of their questioning. Neither of those conditions applied to Flynn. Flynn was free to show the agents the door at any time during the interview, or to have refused to be interviewed at all. He wasn't in custody of any sort. Nor was Flynn about to be taken into custody. Even had Flynn confessed to being a Russian agent the agents would not have handcuffed Flynn and led him out of the White House. I guarantee you that. Therefore, the agents were under no legal obligation to inform Flynn that they intended--if possible, and subject to the opinion of DoJ prosecutors--to use any statements Flynn made against him. That understanding of due process and fundamental fairness is, to this day, settled law. You may think that that situation offended fundamental fairness, but the courts have the last word and they disagree with you. Or have up to this point.

Predication, Lying, And The Flynn Case, Part 1

Yesterday I did a long post in which I demonstrated that the FBI never, ever, had a reason to investigate Michael Flynn. Or, to hedge just a tiny bit, if they did have a reason to investigate Flynn they certainly never articulated that reason--Opening And Closing The Flynn Case. The reason Peter Strzok wanted to be sure, on 1/4/17, that the FBI's Washington Field Office (WFO) still had a case open on Flynn--despite the lack of any reason for opening that case to begin with--was to cover the Bureau's behind when they went to interview Flynn. The FBI and DoJ knew they had no reason to interview Flynn, but they could cover their behinds by claiming that it was the conclusion of the WFO investigation (for which there never was a reason). They knew the Logan Act ploy would never fly.

Think of all this in terms of what AG Bill Barr told Laura Ingraham with regard to the entire Russia Hoax: "there was no basis." In other words, more legalese type words, NO PREDICATION for any investigation. In our constitutional order the government is not supposed to simply investigate random persons. The government is supposed to have a reason--predication--for doing that. It is against the law to misuse government powers and conduct a pretext of an investigation--one lacking predication--for the simple purpose of destroying someone you dislike or disagree with. Ask Scooter Libby about that. Or read Sidney Powell's Licensed To Lie. The title of Powell's book is sadly accurate in the real world. Is it true, you ask, that becoming a prosecutor or investigator gives you a license to lie. Well, those words don't actually appear on their official credentials, but just ask yourself: When was the last time a prosecutor or FBI agent was prosecuted for lying in the conduct of their official business? You don't think they do lie? Please.

However, to return to the point. The FBI had--literally--no business opening a case on Flynn, and so they also had no business interviewing him. To try to make this perfectly clear, I'm going to paste in most of a post I ran back in December, 2018, when Flynn made his plea deal. And after that we can get back to what a bad idea the current license to prosecute "false statements" under 18 USC 1001 is.

The Horowitz Dossier And Predication

John Durham and his team are pretty much leaking nothing. Which makes for a slow news cycle. So, to kill the time while we await the big developments come May/June, as per AG Bill Barr's assurances in his most recent interview, I've started reading the Horowitz Dossier, aka, "The FISA Report." Finally! Of course I've read lots about it, and excerpts from it, but now I'm doing the whole thing in a systematic way. I've started at the beginning and plan to work my way through to the end, and I'm almost a quarter of the way through already.

My initial impression is that I can see why the Durham investigation is taking so long. What happened from 2015 (at least) through to 2019 (at least) was immensely complex and involved an awful lot of people, all offering excuses and justifications for their commissions and omissions. And to complicate matters, some of the main actors are scattered around the globe, are subjects of foreign powers, even operatives of foreign "allied" or "friendly" intel services. At least one key player is all of the above and, as far as you or I can tell, has disappeared. Putting this beast of an investigation into prosecutive form is bound to be a gargantuan job.

Another initial impression is that it's been a long time since I've read so much officially sanctioned BS. In particular, the justifications for starting Crossfire Hurricane, for starting the various sub-investigations off that main file, for not attempting a defensive briefing of the Trump campaign, for accepting the word of Fusion GPS, Chris Steele, the DNC, Crowdstrike, and all the other unsavory anti-Trump actors--it's all well beyond laughable. If you ever had any doubt that John Brennan's January, 2017, Intel Community Assessment was anything other than an after the fact justification--i.e., a coverup--all doubts will be dispelled by reading Horowitz's report. But this is the subterfuge that Durham has to expose--in prosecutable detail. It's a big job, and he's up against experienced bureaucratic operators.

You may recall that when Horowitz first came out with his report, both Barr and Durham took vocal and public exception to Horowitz's claim that Crossfire Hurricane was properly predicated. Rather than go into that issue again, I want to briefly point out something I noticed and which took me very much by surprise. That something is Horowitz's view of the authority of DoJ and the FBI to conduct investigations and, specifically, his ideas on the whole concept of predication. This topic is raised on page 19/51 (the first number is the numbered page, the second is the overall page number in the pdf file). Here's what Horowitz says (all extra formatting is mine):

Sidney Powell On Lack Of Predication In Flynn Case

Today, Michael Flynn's lead attorney, Sidney Powell filed

MR. FLYNN’S REPLY IN SUPPORT OF HIS MOTION TODISMISS FOR EGREGIOUS GOVERNMENT MISCONDUCT

I think we've all heard enough about government misconduct in this case, so what I'm going to do is paste in the first part, Section A, of the Reply. In Section A Powell stresses the total lack of predication for any investigation of Flynn at all. I'd dearly love to see this issue addressed forthrightly, because to me it's a fundamental due process issue. Most likely, if any ruling goes in Flynn's favor, this issue will be glossed over. I'm not aware of any precedent by which lack of predication itself could lead to dismissal, but in these political prosecutions the time has come. The opportunity for abuse is just too great and the standard that the government uses is just too vague. Read Section A and see what you think. I'd love to see Barr act on this, because he has addressed this problem in the past. No doubt he's trying to go step by step, but to me the government misconduct in even opening a case is very clear. I've inserted "SSA Joe Pientka" in place of "SSA 1.'

The part on predication doesn't begin until the end of Page 7. In the leadup to that, though, Powell makes an excellent point regarding the failure of the government to turn over information about the attendance of Pientka at a security briefing for Trump and Flynn. In the context, that fact was clearly Brady material--i.e., it was information that added force to the reported view of the interviewing agents that Flynn was being truthful and lacked an intention to lie. The whole point of Pientka's attendance at the meeting was to develop a familiarity with Flynn's personality for the purpose of later assessing his truthfulness.

Finally, I've included the entirety of this section because of the outrageousness that it documents.

MULTIPLE UPDATES: Judge Rejects Flynn Motions

The memorandum opinion of Judge Sullivan is 99 pages long, so obviously I can't have read it. We'll soon see what others think.

What I noticed first was that Sullivan takes a shot at Flynn's attorney, Sidney Powell, suggesting that she has engaged in "professional misconduct" for plagiarization, by "merely provid[ing] a hyperlink" to a brief she quotes rather than a direct citation (p. 17):

A. Ethical Concerns with Mr. Flynn’s Brief

The Court notes that Mr. Flynn’s brief in support of his first Brady motion lifted verbatim portions from a source without attribution. Compare Def.’s Br., ECF No. 109 at 11-12,15-16, 15 n.21, with Brief of the New York Council of Defense Lawyers et al. as Amici Curiae Supporting Petitioner, Brown v.United States, 566 U.S. 970 (2012) (No. 11-783), 2012 WL 242906at *5-6, *8, *12-13, *12 n.6. In a footnote, Mr. Flynn’s brief merely provides a hyperlink to the “excellent briefing by Amicus [sic] in support of the Petition for Writ of Certiorari in Brown v. United States.” Def.’s Br., ECF No. 109 at 16 n.22. 

The District of Columbia Rules of Professional Conduct apply to the proceedings in this Court. See LCrR 57.26. Rule8.4(c) provides that “[i]t is professional misconduct for a lawyer to . . . [e]ngage in conduct involving dishonesty, fraud,deceit, or misrepresentation.” D.C. Rules of Prof’l Conduct R.8.4(c); see In re Ayeni, 822 A.2d 420, 421 (D.C. 2003) (per curiam) (lawyer’s plagiarized brief violated Rule 8.4(c)). “[C]itation to authority is absolutely required when language is borrowed.” United States v. Bowen, 194 F. App’x 393, 402 n.3(6th Cir. 2006); accord LCrR 47(a). “The [C]ourt expects counsel to fully comply with this [C]ourt’s rules and submit work product befitting of pleadings [and briefs] in a federal court.” Kilburn v. Republic of Iran, 441 F. Supp. 2d 74, 77 n.2 (D.D.C.2006).

I dunno. Sullivan's language strikes me as a bit over the top, a bit of a cheap shot, in that Powell was hiding nothing (any more than Flynn hid anything from the FBI)--what she did doesn't appear to be "dishonesty, fraud, deceit, or misrepresentation”, even if it wasn't in full compliance with the rules.

I have to admit that I'm unable to follow the Judge's reasoning as to the merits. Let me break up the paragraphs here into major points, beginning on p. 49:

Predication Is For Losers

At approximately 8 PM on Sunday, February 18, 2001, there was a knock on my front door.

At the time I was a Special Agent (SA) with the FBI, so imagine my shock when I opened the door and found the two top officials in the Division on my doorstep. I knew this couldn't possibly be good news, but they quickly sought to reassure me.

"Everything is alright, but Bob Hanssen has been arrested."

Alright? Bob Hanssen was my brother in law, and a longtime counterintelligence (CI) official at FBIHQ, privy to a vast range of sensitive intelligence information. A "high Bureau official," as field agents jokingly referred to anyone at HQ.

"Arrested? For what?"

"Espionage," they said.

I searched for something to say: "For the Russians?"

"Yes."

"I think you'd better come in," I said.

There was a small room right just off my front door that I used as a library. I led them in, got them seated, and then said, a bit shakily:

"I suppose this goes back to what I related all those years ago," I ventured, referring to events that occurred in 1990.

That statement was met with blank stares. And so I found myself backtracking to 1990. I explained that at that time I had approached the supervisor of the Russian CI squad to explain why I thought the Bureau should open an espionage investigation on Bob Hanssen. I had discussed it all with my wife the night before and had organized my thoughts around three salient points--I wanted to be sure to present a coherent and strictly legally oriented case. Those three points were as follows:

Some Former FBI Officials Get It

Kevin Brock--see below for career specs--has a clever article at The Hill, but it's more than just clever. He hits on the important points about predication that Barr and Durham have been making. Here are some brief excerpts from a really good presentation--Misfired 'Hurricane': Comey's team abused Carter Page and the FBI. It's far more interesting than the title might suggest:

Imagine the Department of Justice inspector general (IG) conducting a review of the Jeffrey Epstein case. It might read something like this: “While it is clear that Mr. Epstein abused minor girls, there is no documentary or testimonial evidence that he was motivated by a deviant sexual interest in those young girls.” 

...  

The report by IG Michael Horowitz is one long expose of a confluence of actors at the top of the FBI who, by their own words, despised Donald Trump and came together to open and run an investigation into his 2016 presidential campaign, falsifying documents, withholding evidence and using a confidential source who had stated clearly that his goal was to prevent a Trump presidency.   

Despite these flashing lights, the IG essentially stated that since no one admitted to being motivated by their personal biases, he could not reach that conclusion. Thanks for that, but most Americans unencumbered by a law degree can detect the obvious without a lot of effort.  

MULTIPLE UPDATES: Breaking: Barr Disagrees With Horowitz

Specifically, what Barr is reported as maintaining is that the FBI lacked a justification for opening its Crossfire Hurricane investigation. In legalese, he's saying that the predication for the investigation was inadequate as measured by the requirements of the AG Guidelines for National Security Investigations. That's what the WaPo is reporting tonight: Barr disputes key inspector general finding about FBI’s Russia investigation.


Recall that disgraced former FBI Director James Comey testified to Congress that Crossfire Hurricane was "a full enterprise counterintelligence (CI) investigation." What that boils down to--plugging the specifics of the Crossfire Hurricane into the conceptual framework of the AG Guidelines--is this:

The FBI possessed specific and articulable facts that gave reason to believe that 1) "four Americans" - Carter Page, Michael Flynn, George Papadopoulos, and Paul Manafort - constituted an "enterprise" or "group in fact" within the Trump campaign, and 2) that "enterprise" was engaged in activities that were a threat to the national security of the United States on behalf of Russia.

Nothing I have seen over the past three years supports that claim. Everything I have seen indicates that the FBI's sole reliance on source information that could not be verified--and in many cases was speculation of the rankest sort--fell well short of a reason for the FBI to believe that it possessed the required factual basis.

Assuming the accuracy of the WaPo's reporting, I'll surprise no one by saying that I agree with Barr. As it stands, I'd say that Horowitz's report will soon be shown to be essentially a whitewash because it will have failed to forthrightly address the clear lack of predication for the FBI's actions. As I've stated endlessly over the last three years, that is the fundamental issue--little else truly matters. By stating that the FBI's investigation had sufficient predication the door will be left wide open for a repeat of this fiasco. In a practical sense, it will mean that the FBI's decisions will not be second guessed. That will mean that no substantive reform of the FBI will occur unless John Durham's investigation lives up to its promise and the Deep State will be able to breathe more easily.

Here are excerpts from the article:

McCarthy: About The "Premise" Of That Investigation ...

Commenter Cassander's prodding reminded me to read Andy McCarthy's latest article--The First Glimpse into Horowitz’s FISA-Abuse Report. I haven't got far into it, but right near the beginning McCarthy really hits the nail right on the head, skewering some of the spin that some of us have been fretting over. McCarthy addresses the business about the "premise" (or "predication") for the FBI investigation that served as the basis for the Carter Page FISA that is the main focus of the OIG FISA report--due out December 9th.

I discussed this at some length earlier today, but McCarthy gets right to the heart of the CNN spin very elegantly and pithily. It's a useful reminder of how we need to focus on key issues in order to separate the wheat from the chaff. After briefly recounting the news, the revelations about disgraced former FBI lawyer Kevin Clinesmith's bad behavior with other people's emails, McCarthy writes:

The Daily Kos On Bill Barr's Path Forward

I feel a bit like Bill Barr, myself, today: I'm trying to "get my arms around" a lot of stuff. But I'm taking a break to share an excerpt from the indispensable Don Surber's Democrats prepare indictment spin.

Surber is talking about Dem fears that their absurd Impeachment Theater is about to get squashed by Reality--yes, the capital "R" is intended. According to the Daily Kos, Barr is preparing a comprehensive All-Conspiracies-Report--a report that will gather all "Trump conspiracy theories into one package. The Daily Kos is preparing the spin: It's all just to divert attention from Orange Man Bad! So here's Surber's conclusion:

Daily Kos, citing no sources, reported,

     "Barr and his associates have been racing to complete this report so that it can be dropped on the impeachment inquiry before the holidays. Major parts of the report apparently remain unwritten, but the fact that the publicity campaign is getting underway in advance of the report’s completion is not exactly a sign that this is going to be a contrite nothing major found report. And Barr has been at the center of forwarding Trump’s conspiracy theories and supporting attacks on the intelligence community. He’s already said, 'I think spying on a political campaign is a big deal. I think spying did occur, but the question is whether it was adequately predicated and I’m not suggesting it wasn’t adequately predicated, but I need to explore that.' 

     "The report coming back could declare no evidence to support Trump’s conspiracy theories and say that Barr found that spying to be adequately predicated. Don’t count on it. And don’t count on there not being indictments."

Democrats are afraid because they know there is no such thing as adequately predicating political spying. This is Obama's Watergate. 

Whether Barr is up to the task remains to be seen. I doubt it, in part because I think he wants to live. 

Chuck Schumer said the intelligence community can get back at you six ways to Sunday. We have only seen three of their ways.

Actually, of course, there could be adequate predication for spying on a political campaign. The problem for the Dems, in the case of the Trump campaign, is to persuade a doubting public that the Steele "dossier" was "adequate predication." Yes, go ahead and laugh.

Outstanding: A Prosecutor's Insights

Sean Davis spoke with Rep. John Ratcliffe today. The result is a must read article that's pretty much in the nature of a monologue by Ratcliffe: Adam Schiff’s Problem Isn’t That He’s Biased, It’s That He’s Running A Corrupt Process. I've called this post "A Prosecutor's Insights" because what Ratcliffe, a former prosecutor, presents are the insights that jump out at a professional prosecutor but might not occur to others.

The importance I see in Ratcliffe's presentation has to do with what could happen when, presumably, this hoax impeachment reaches the Senate. What Ratcliffe presents constitutes powerful grounds for dismissing any articles based on the fact that the House has deprived President Trump of Due Process--inflicting harm upon him without regard to fundamental fairness under our Constitution.

In a very real sense the issue of predication arises as part of this lack of due process--exactly how and on what basis was this "inquiry" instituted? No wrongdoing or offense has actually been alleged that would fall under the Constitutional standard of "High Crimes and Misdemeanors." Moreover, there are strong grounds to suspect that President Trump has been for his entire presidency the target of groundless investigation and even illegal leaks of classified information derived from organized spying. In other words, the entire operation was so lacking in predication--may actually involve fabricated "evidence"--as to constitute a concerted conspiracy precisely designed to deprive President Trump of due process and of his Constitutional rights as President and head of the Executive Branch.

With those considerations in mind, read what Ratcliffe had to say to The Federalist. He contends that Schiff's problem goes far beyond his well known bias against Trump and extends to real corruption that strikes at the validity of the inquiry. In other words, Ratcliffe is questioning not only the process that has been followed, but the character of its leader, who has compared himself to a prosecutor leading a grand jury.

Why Predication Matters So Much

I hate to sound like a broken record, but ...

I've been saying for months that the Team Mueller Witchhunt was based on the same bogus predication as the Crossfire Hurricane investigation. The Flynn case is similar. If an investigation is fraudulently started--in other words, based on invented predication, predication that's known to be untrue--then there is a strong case for suppressing all information that is gathered from the ensuing investigation. This is all the more true when  the investigation fails to turn up any wrongdoing or when the wrongdoing is strictly of a "process" type.

With that in mind, consider the ruling of Obama judge Beryl Howell. You can get the details at CTH: Federal Judge Beryl Howell Grants House Judiciary Committee Access to Mueller Grand Jury Material. Sundance makes the point that the whole point of Mueller's Grand Jury investigation was to gather evidence for impeachment, to hand over to Jerry Nadler. They found nothing on "Russian collusion." And Barr said, look, firing Comey was not illegal, so you can't claim that that firing obstructed the collusion investigation. And nothing else that Trump did amounted to obstruction.

Well, shouldn't that Grand Jury material remain secret? I think it should, and the ruling will surely be appealed.

But there's another angle to this, and it's one that comes to the fore now with the revelations in the Flynn case of egregious misconduct in the Team Mueller prosecution of Flynn. And then there's Powell's contention that I cited as "key": That the FBI had no basis in the first place to investigate Flynn at all.

We also know that "predication"--or, more specifically, the lack thereof--is at the heart of Barr's investigation. He's said so himself. That means he's questioning whether there was any basis for opening Crossfire Hurricane, and that must also mean that he questions the predication for its continuation: The Team Mueller Witchhunt.

If that's true, and if Barr has evidence at this point to make that argument, then he has a very strong argument to ultimately overturn Judge Howell's politically motivated ruling. Because the Grand Jury material produced by Mueller's witchhunt was based on a fraudulent investigation. Remember: Lead investigator Peter Strzok said just before the Witchhunt started up, we know there's "no there there." It was illegal, and the GJ material should be the fruit of a poisonous tree--and should be suppressed. Even destroyed.

This is why predication is so important.

Homerun McCarthy!

Readers will know by now the mantra we've been mumbling for, well, since February, 2018, as it turns out. It goes along these lines:

FISA, probable cause, criminal predicate, Preliminary Investigation, reasonable suspicion, Full Investigation, enterprise counterintelligence investigation, specific and articulable facts, predication, predication, predication.

And variations on the theme with seemingly no end.

Andy McCarthy today, Politics is front and center for Russiagate probe -- and the farce has reached new heights, lays it out for everyone in easily digestible bite size chunks, but what he's talking about is what Bill Barr keeps talking about whenever he's asked: Predication. And that's the by far most likely reason that Robert Mueller doesn't want to talk to Congress and Congress doesn't want to talk to Robert Mueller--despite all the political theater going on.

McCarthy:

The bottom line is that the special counsel not only found no collusion between Trump’s campaign and Russia. 

It appears that the FBI’s investigation was opened on false pretenses: [= no valid predication] namely, the fiction that low-level Trump campaign advisor George Papadopoulos was dealing with a Russian agent (he wasn’t), who told him Russia possessed emails damaging to Hillary Clinton (he probably didn’t), which information Papadopoulos passed on to an Australian diplomat – wrong again: Papadopoulos said nothing to the diplomat about emails; rather, after WikiLeaks published hacked DNC emails, the diplomat, in consultation with the Obama State Department, suddenly decided Papadopoulos’s reference to damaging information about Clinton must have been about the hacked DNC emails (it wasn’t).