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:

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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.

Briefly Noted: The Flynn FD-302; Levin And York

CTH has an excellent piece today regarding the Deep State jihad against Michael Flynn: Second Scope Memo – Rosenstein Authorizes Mueller to Target Michael Flynn Jr… I won't attempt to summarize all that's in the lengthy piece. Here my goal is relatively modest--to focus on the issues surrounding the FBI FD-302 that summarized the interview with Flynn, and served as the basis for his eventual guilty plea.

I'm sure everyone has heard a lot about FBI "302s", but it may be worthwhile to go over the basics.

Often you'll find it said that a 302 is an agent's "interview notes". That's both true and not true--or, not entirely true. When an agent conducts an interview--i.e, potentially, simply speaks to someone--but depending on circumstances, he may take written notes. Those notes will be retained as evidence in what used to be called a 1A envelope. Those notes serve as backup for and confirmation of the contents of the actual 302, which is formalized summary of the interview/contact/investigation when it is anticipated that it could become the subject of testimony at a trial. So, since it's a summary it's true to say that these are "notes," but they can be much more extensive than the handwritten notes.

If you're saying to yourself, wait a minute, that means a 302 is classic hearsay--you're right. But the 302 is nevertheless a powerful tool for the prosecution. Why that's so is explained at this very informative and readable blog: What is an FBI 302? The Problematic Nature of FBI Agents’ Interview Memos (note that the author correctly refers to the 302 as a "memo" rather than as "notes"). I'll summarize it a bit.

Was The FBI Connected To The Trump Tower Ruse?

In the penultimate post--Papadopoulos And The Enterprise--I made a few references to suspicions I've long held regarding a possible role of the FBI in the famous Trump Tower meeting between the Russian lawyer Veselnitskaya (and companions) and Manafort, Don Jr., and Jared Kushner:

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Techno Fog has a tweet that plays right into some of my obsessions. In this post I mention that evidence that this whole Russia Hoax was planned months before the first steps were taken. I've also repeatedly stated that I suspect FBI involvment somewhere in connection with the Trump Tower meeting, that was nominally run by Fusion GPS. Now read Techno Fog:

Techno Fog
‏
@Techno_Fog

Isn't it curious that Fusion GPS and former FBI informant Steele would look into Trump/Russia after the FBI/IC started that same inquiry?

What are the odds?

Are the basic assumptions all wrong- was Fusion not retained for campaign research, but to bolster the FBI investigation?

4:40 PM - 20 Apr 2019

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In private correspondence a friend suggested to me that the FBI may have used Fusion GPS to undertake this approach because there was something about it that they didn't want to be involved in. I think this avenue of speculation has great merit.

If we apply my usual approach--look to administrative guidelines to supply a context within which to understand official actions--we can make sense of this. As I've maintained for the past two years, it is a virtual certainty that before Crossfire Hurricane was opened the FBI had some sort of Preliminary Investigation opened on Page, Papadopoulos, and possibly others (Manafort may already have been the subject of a Full Investigation, but ...). However, there's no reason to believe that there was any open case on Don Jr. or Jared Kushner. That means that the FBI could not officially make this kind of undercover approach to those two, and especially not because there was the possibility that The Donald himself could be drawn in. That type of investigation could only be undertaken with an open case. That leaves open the possibility that Techno Fog suggests, that the FBI and Fusion GPS ... "colluded" on this project. That would still be borderline legal/illegal, but deniable.

Papadopoulos And The Enterprise

One aspect of the Russia Hoax that may appear puzzling at first glance is the amount of effort the FBI put into framing George Papadopoulos--overseas travel, cooperation with foreign intel services, possibly borrowing assets for use in the entrapment schemes that were designed to ensnare Papadopoulos in the Russia Hoax narrative. By comparison, Carter Page seems to have fallen right into their laps--which is exactly the case.

I think this will make more sense if viewed from the perspective of what the FBI was attempting to accomplish within their administrative framework--into which everything had to fit.

It appears that a decision was made early on that trying to label a single person--or even two more or less unconnected persons--associated with the Trump campaign as a Russian spy would not be sufficient. If that had been tried, the failure to warn and brief Trump would have been utterly implausible. What was needed was to present a plausible case that the supposed Russian connection to the Trump campaign was systemic. For that what was needed was a network of individuals that was active in a key part of the campaign--the foreign policy shop. If such a de facto network of Russian agents working within the Trump campaign could be plausibly claimed, then the FBI could do what it actually did do with Crossfire Hurricane--open an "enterprise counterintelligence investigation," with the de facto network being the targeted "enterprise."

As I explained in Mueller's Enterprise Witchhunt, an "enterprise investigation" is defined in the FBI's guidelines (DIOG) as follows:

Enterprise defined: An enterprise is a group of persons associated together for a common purpose of engaging in a course of conduct. The term “enterprise” includes any partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact, although not a legal entity.

Associated in fact defined : The term "associated in fact" means the persons have an ongoing organization, formal or informal, and that the persons function together as a continuing unit. (DIOG 8.2)

The problem for the FBI, then, was to establish such an "enterprise", an informal group of persons functioning as a unit in fact, although not a legal entity. Who would be the members?

Now They Tell Us ...

But did they ever tell the FISA Court (FISC)?

Anonymous sources, including one in DoJ, are now telling us that the FBI "had doubts" about the Russian source for Christopher Steele's "dossier." The NYT reports:

By January 2017, F.B.I. agents had tracked down and interviewed one of Mr. Steele’s main sources, a Russian speaker from a former Soviet republic who had spent time in the West, according to a Justice Department document and three people familiar with the events, who spoke on the condition of anonymity. After questioning him about where he’d gotten his information, they suspected he might have added his own interpretations to reports passed on by his sources, one of the people said. For the F.B.I., that made it harder to decide what to trust.

Agents did not believe that either the source or Mr. Steele was deliberately inventing things, according to the former official. How the dossier ended up loaded with dubious or exaggerated details remains uncertain, but the document may be the result of a high-stakes game of telephone, in which rumors and hearsay were passed from source to source. 

Another possibility — one that Mr. Steele has not ruled out — could be Russian disinformation. 

Let's go step by step.

By January, 2017, FBI agents had "tracked down" one of Steele's "main sources." Really? Tracked down ... how? Pardon my skepticism, but I think a proper translation of this narrative would run something like this ...

By January, 2017, the FBI had finally persuaded Steele to allow them to speak to someone whom he claimed was a source of information for his dossier. In other words, by that point in time Steele had worked out a story with a Russian he knew, had rehearsed it, and thought it might work for purposes of an interview. And who was this dynamite source, who could pass on what Westerners were meeting with which Putin insiders? "A Russian speaker from a former Soviet republic who had spent time in the West." That's not very impressive as sources go, even allowing for protection of the "source's" identity.

But then they drop a real bombshell--this source, this "Russian speaker from a former Soviet republic who had spent time in the West," turns out to have been passing on tittle tattle from other "sources." And of course neither the FBI nor Steele would, even accepting that this was true, have access to those sources--who may or may not have ever existed. Obviously Steele must be a big John le Carre fan, since this reads exactly like the "source Merlin" setup in Tinker, Tailor, Soldier, Spy--with Steele, appropriately enough, playing Bill Haydon, the Russian "mole."

The Mueller Inquisition Is Over--All Clear Yet For Mifsud?

Joseph Mifsud, George Papadopoulos' "professor" and a somewhat promiscuous asset for Western intel agencies (he seems to work for just about everyone), has long been a key figure in the Russia Hoax. We detailed that on November 14, 2018, in Call For The Dead. As we reported back then, although Mifsud had been reported "missing" and presumed dead, investigative reporters, including Lee Smith, believe he had been given a new identity by MI6 and told to "lay low." Well, Papadopoulos was strong armed into a guilty plea back in October and Team Mueller has been shut down by Bill Barr. Maybe it's OK for Mifsud to come out of hiding?

As if on cue, the Italian newspaper Il Foglio is reporting that Mifsud has been hiding in more or less plain site, living in an apartment near the Links University--an intel related institution--in Rome. Chuck Ross has the story, introduced by these bullet points:

• The special counsel’s report alleged Joseph Mifsud made false statements to the FBI regarding his interactions with George Papadopoulos.
• Mifsud was also reported to have lived for months at an apartment owned by Link Campus, a Roman university that has ties to Western intelligence.
• Papadopoulos pleaded guilty in the Mueller probe to lying to the FBI about his contacts with Mifsud, who has not faced charges.

Ross also notes:

The [Mueller] report does not discuss whether charges were considered against the Maltese mystery man. But his treatment is in contrast with how the Mueller team handled Papadopoulos. 

Indeed. As James Comey might say: "So many questions."

UPDATED: Nunes: The Only Thing Of Relevance In The Report ...

In a Fox News interview with Sean Hannity yesterday, Devin Nunes honed in on what he called, with reason, "the only thing of relevance that was in today's 450-page report." As quoted by the Washington Times, Nunes stated:

"When you look at what happened today, remember we talked a lot about the scope memo. What were the directions given to the special counsel? Well, we now know hidden on page 11, very thinly, still veiled, but we now know they used the Steele dossier, the Clinton dirt, the Clinton-paid-for dirt as part of the memo for the special counsel that directed the special counsel what to do," Nunes told host Sean Hannity.

"On Carter Page and Paul Manafort, that information came from political opponents, the Clinton campaign fed right into the FBI, directed to the special counsel to go investigate what was in the infamous Steele dossier," Nunes said.

"That is the only thing of relevance that was in today's 450-page report," he emphasized.

"Rosenstein then directed them to use that dirt, that dossier, which I think makes up the bulk of what is in the scope memo, that we have still yet to be able to see," Nunes told Hannity.

Nunes is right, although he appears to have failed to take his point all the way back to what Barr calls the "genesis" of the Special Counsel inquisition--the opening EC for the Crossfire Hurrican investigation. Let's take it step by step.

UPDATED: Shoddy Legal Analysis, Or ...?

Life's too short to read hundreds of pages of "we didn't find anything." However, one thing is fairly clear--when Bill Barr wrote his famous 19 page memo trashing the Special Counsel office's (i.e., Weissmann's) obstruction theory, he was basically spot on. Yes, Rod Rosenstein claimed Barr didn't know all the facts. Of course he didn't, but he saw where things were heading and he was basically right. Rosenstein might argue that he never would have allowed Mueller to claim obstruction for a perfectly legal act by the President, but if that were really the case why allow the charade to continue? And why subject the country to the continuing hoax?

Perhaps Rosenstein had real doubts about the Weissmann obstruction theory--any honest attorney would!--and that might explain the abusive unlimited time that was allowed to try to coerce Flynn and others into claiming something that somehow seemed like "collusion." Something, anything, to hang a hat on, even if that hat was only: We can't prove "collusion" so we're not charging it, but we still suspect it. And so we think Trump was obstructing. But as of February 14, 2019, they had still come up with nothing.

And that's the point at which Barr stepped into the picture and shut the little game down.

Will Chamberlain puts it nicely:

Will Chamberlain‏

@willchamberlain

This shoddy legal analysis kept the investigation going for 18 months Into acts that were clearly not criminal. The damage Weissmann and Mueller have done by entertaining this garbage is incalculable.

8:45 AM - 18 Apr 2019 from Washington, DC

Of course, the real question is: Was it "shoddy legal analysis" motivated by a willingness to to act outside the law to "get Trump"?

I'd love to have been privy to the conversations Barr had with Rosenstein and Mueller.

UPDATE 1: Sean Davis sees it that way, too, re "collusion":

Sean Davis
‏
Verified account

@seanmdav

The breathless tone of the collusion section of the report and the blatant omission of material facts pertaining to actual Russian collusion by the Clinton campaign makes clear that Mueller and his lawyers were desperate to find collusion by Trump. And yet they still found none.

9:08 AM - 18 Apr 2019

UPDATE 2: Here's my bottom line. If you read the report you'll drive yourself crazy because--if you know anything about the actual events--you're going to quickly realize that it's a tissue of misrepresentations. At best. People on Twitter are knocking themselves out even now pointing out one misrepresentation--whether by commission or omission--after another.

This is why Giuliani is coming out with his rebuttal report.

The fun will start there, and will continue when Mueller is dragged before the House by Nadler. A foolish move by Nadler, because the GOPers want nothing better than to get a chance to grill Mueller over his misrepresentations in court filings and failures to disclose exculpatory evidence. Not to mention his clear conflicts and his hiring of a radically biased staff.

UPDATED: Mueller On Obstruction

Via Will Chamberain:

As we've become used to, Barr kicks the liberals to the curb.

Mueller didn't prove obstruction on his own theory, but

That theory was nonsense to begin with.

It was all Andrew Weissmann trying to somehow make the president look bad.

Good luck with that.

And I absolutely loved Barr's terse explanation why his friend "Bob" wasn't there--he's not the Attorney General.

UPDATE 1: via Breitbart--more classic Barr:

Attorney General William Barr on Thursday corrected a reporter’s assertion that special counsel Robert Mueller’s report was “his,” reminding him that Mueller authored the report on behalf of the Justice Department. 

“There’s a lot of public interest in the absence of the special counsel and members of this team. Was he invited to join you up on the podium? Why is he not here?” asked the New York Times’ Eric Lipton. “This is his report, obviously that you’re talking about today.” 

“No it’s not,” Barr shot back. “It’s a report he did for me as the attorney general. He is required under the regulation to provide me with a confidential report. I’m here to discuss my response to that report and my decision to — entirely discretionary to me — to make it public since these reports are not supposed to be made public.”

UPDATE 2: Sidney Powell, who literally wrote the book on Andrew Weissmann, makes the important point:

Sidney Powell‏

@SidneyPowell1

The #obstruction statute DOES NOT EVEN APPLY to an #FBI investigation!

The only two courts that have addressed this issue have decided squarely AGAINST #Weissmann's bogus theory.

The point she's making is that Weissmann relies on 18 USC §1512 (c). Problem: That statute pertains to "officials proceedings." The two courts Powell refers to held that an FBI investigation isn't an "official proceeding" for purposes of the statute.

The title of Powell's book is Licensed To Lie. Appropriate when it was first written and still appropriate now.

UPDATE 3: From the report via this excellent post by law prof Glenn Reynolds--and this must really hurt the lunatic left. At the same time Team Mueller tries to smear Trump they have to admit to ... exemplary behavior on his part. Exemplary. Let that sink in Lefties and NeverTrumpkins:

... as the Special Counsel's report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks. Nonetheless, the White House fully cooperated with the Special Counsel's investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims. And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation."

Reynolds continues:

... normal people should be pleased and relieved that there was no collusion, even as they should be angry that a huge chunk of our political class seriously maintained that the President of the United States was a Russian puppet. That claim, based more on a desire to undo the 2016 election than on any actual evidence, was a poisonous corruption of our political discourse, and those involved should be -- but won't be -- ashamed.

UPDATE 4: Will Chamberlain has a theory on how and why Barr became AG--it's all about obstruction:

UPDATED w/ SOLOMON: DiGenova To Hannity: Obama Knew From Day One

Brennan and Clapper got the go ahead from Obama. DiGenova added that Barr will soon empanel several Grand Juries and start draining the Swamp.

I can't think of any time DiGenova has been wrong on this Russia Hoax. I'm sure he has excellent sources. Very encouraging.

UPDATE: John Solomon is saying the same, but with more detail: The Russia Hoax began in January, 2016, and it began inside the White House. He's saying: "I interviewed all the people that are working in the IG probe, the Senate Judiciary probe, around Attorney General Barr, and I tried to come up with the ten seminal questions." And the title of the video piece is: Ten Post-Mueller Questions That Could Turn The Tables On The Russia Collusion Investigators.

John Solomon: Obama Administration Spying on Trump Began in January 2016 -- Evidence Is Coming [Next Week]

Ten post-Mueller questions that could turn the tables on Russia collusion investigators

What those ten questions show is that Barr's intent is to get some indictments, and then put the squeeze on those people.

Excerpt:

Soon, the dust will settle from special counsel Robert Mueller’s report, and Americans will have a fuller understanding of why prosecutors concluded there wasn’t evidence to establish that Donald Trump and Russia colluded to hijack the 2016 election. 

...

But a very important second phase of this drama is about to begin, as Attorney General William Barr, Department of Justice (DOJ) Inspector General Michael Horowitz and Senate Judiciary Committee Chairman Lindsey Graham (R-S.C.) put the Russia collusion investigators under investigation. 

... 

The process of meting out accountability has begun. 

Horowitz, my sources tell me, has interviewed between 50 and 100 witnesses in his exhaustive probe. Graham and his predecessor as Judiciary chairman, Sen. Chuck Grassley (R-Iowa), laid out the most important investigative issues they saw in a letter last year. This month, former House Intelligence Committee Chairman Devin Nunes (R-Calif.) sent a letter to DOJ identifying eight potential criminal referrals. His committee last year also released a memo on abuses of the Foreign Intelligence Surveillance Act (FISA) that may have occurred during the Russia probe. 

And President Trump reportedly is readying an order to declassify five key buckets of documents on alleged FBI abuses.

Briefly Noted: The Devin Nunes Interview With Laura Ingraham

Yesterday Devin Nunes was interviewed by Laura Ingraham. As summarized at CTH, Nunes began by listing three areas of particular concern (my comments follow each numbered item:

(1) The targeting/framing of Michael Flynn ...

That Flynn was targeted and framed by holdover Obama operatives, including Sally Yates at DoJ and James Comey and Andrew McCabe at the FBI is clear enough. Apparently Flynn's guilty plea was motivated by family concerns, especially the threatened prosecution of his son. However, there have been persistent credible reports that McCabe persuaded the two agents who interviewed Flynn--Peter Strzok and Joe Pientka--to change their 302 report to make it more damaging to Flynn. While Team Mueller was still operative they were able to keep Strzok and Pientka insulated from inquiries by IG Horowitz, but now Pientka is being interviewed by Horowitz's investigators. Flynn's sentencing has been repeatedly delayed, but these new developments could impact even the guilty plea itself. Stay tuned.

(2) The use of Joseph Mifsud as an asset by the CIA/FBI running a counterintelligence operation against the Trump campaign.

In the interview, Nunes is adamant about the need to learn more about Mifsud--which has proven exceptionally difficult because a Western intelligence service is reported to have given him a new identity and is hiding him from official investigators. Amusingly, Nunes reports that Team Mueller--in the face of all evidence--continues to maintain that Mifsud was a Russian agent. This as well as the whole Steele issue is an area that is ripe for the application of some serious diplomatic pressure to gain access to these two intel operatives.

UPDATED: Has McCarthy Set The Bar(r)?

Andy McCarthy did a fine interview yesterday on WMAL. The whole interview is worth a listen, but in the course of it McCarthy did something notable. Over three quarters of the way through he spoke the truth. That alone might not seem notable, but what caught my attention was that he spoke the truth in an utterly unnuanced, the emperor-has-no-clothes, way. And there was just enough legalese in his remarks that they should have sent shivers up certain people's spines--if that hasn't happened already. In doing this I believe McCarthy has set the bar for success in defending our constitutional order.

Here's what McCarthy said (you can find the audio here or here at about the 6:25 mark):

Look, two years, the Justice Department, the FBI, the Special Counsel, put the country through an investigation of the President of the United States, on no factual predicate, that he was in a conspiracy with Russia, under circumstances where if you read the Special Counsel's indictments it has to have been pretty clear to him, since at least the end of 2017, that there was no Trump - Russia conspiracy, right?

I and others have been saying essentially the same thing for a long time, but McCarthy's rendition has the virtue of cutting to the very heart of the matter with admirable economy of words. McCarthy understands that, technically, James Comey was speaking truthfully when he told President Trump three times that he wasn't the subject of the Russia Hoax investigation (I explain the technicalities here: Mueller's "Enterprise" Witchhunt), but McCarthy also understands the reality of what was going on: it was Trump who was the real target.

So, let's rephrase McCarthy's statement of the facts: For two years the Special Counsel, conducted an investigation of the President which had no factual predicate--and for most of that time he was fully aware of what he was doing but kept doing it.

What are we talking about here, when we speak of "an investigation"? We're not talking about just any ordinary investigation. The enormity of Mueller's Inquisition is simply staggering. Here's what Barr said in his report of the main conclusions of Mueller's inquisition: