The Strange Case of General Flynn

“Lying” to the FBI is a crime in the United States. It is a crime which requires intent.

As Andrew McCarthy over at NRO points out, Flynn has pled guilty to making false statements to the FBI and that, in itself, closes the door on claims that he is innocent of the charge.

However, that assumes that the charge was proper in the first place. And there, even McCarthy admits, things get murky. Murky enough that Judge Emmet G. Sullivan has demanded that the Special Counsel turn over all its records of what went on with Flynn. Special Counsel turned over documents on Friday. There were two documents of note: first a 302 (the FBI’s record of interviews) for Peter Strzok’s interview seven months after the Flynn interview, second, notes made by Andrew McCabe at the time of the Flynn interview. Notably absent in the Special Counsel’s document pile was the 302 which actually recorded the Flynn interview.

Canada’s own Stephen McIntyre of Climate Audit fame, takes a long Twitter look at the circumstances of Flynn’s plea deal and the actual requirements for even the least formal FBI interview. McIntyre notes that, at the time of the interview, Flynn had legal representation on other matters which, in turn, made him a “represented person” for FBI/DOJ purposes.  (There is also the rather good argument that any senior White House staffer is automatically “represented” by White House counsel in any matter involving the DOJ. A fact acknowledged in an MSNBC interview by former FBI Director Comey:

“Describing how it is usually done, Comey said, “If the FBI wanted to send agents into the White House itself to interview a senior official, you would work through the White House counsel, and there would be discussions and approvals and who would be there.”

Recalling his decision to bypass those steps, Comey said, “I thought: ‘It’s early enough, let’s just send a couple guys over.’”)

Taking advantage of the early days of an administration to sandbag a senior official goes some distance towards tainting the investigation itself. However, ignoring DOJ/FBI policy with respect to represented persons is likely more significant.

At this point virtually all commentators agree that General Flynn will not be going to jail. But would still leave him with the taint of a felony conviction.

Judge Sullivan is in a position to vacate the plea agreement altogether if he sees evidence of prosecutorial misconduct.

Sending agents on a fishing expedition, telling the fish not to bother with legal counsel (when the fish is already represented), either failing to record or losing the contemporaneous record of the interview, substituting an interview with one of the interviewing agents for the contemporaneous record, and indicating – on such records as you do submit that the agents did not think Flynn was lying or intending to mislead the agents, all add up to more than ample grounds for Judge Sullivan to vacate.

However, given Judge Sullivan’s record, he may not stop at simply vacating the plea agreement. He is perfectly capable of going after the actual investigators and prosecutors who so badly abused the process to indict Flynn in the first place. (cf. Ted Stevens)

There is a pretty good argument that losing the Flynn plea deal to a Judge’s findings of prosecutorial misconduct would be the end of the line for the Mueller “investigation”. It is very clear that Mueller has not found much – if anything – in the way of evidence of direct Trump/Russia collusion. The ancillary crimes of Cohen and Manafort have nothing to do with Russia and little to do with Trump. Writing up a report for the incoming Democrat-controlled House of Representatives along the lines of “Orange Man Bad” is really all Mueller has left to do.

However, with Mueller gone, it will be time to start digging on exactly how the DOJ/FBI behaved on various files. Were it up to me I would start with the FISA application for the surveillance of Carter Page who Mark Styen likes to refer to as “the most innocent man in America”. Competent counsel can work outwards from there, charging as they go. Apparently, it is illegal to mislead the FISA court in sworn documents.

Should be interesting as there is a lot more “there” there, than there has been in the Mueller fishing trip.

Update: Well worth reading Mark Wauck Mueller’s ‘Enterprise’ Witch Hunt

Update #2: Margot Cleveland over at The Federalist takes a look at the dockets and suggests that the original 302 may have been filed under seal. There is a very good chance she’s right simply because Special Counsel would be nuts to refuse to submit documents in its possession at the order of the Judge. Especially this Judge.

 

High farce, shenanigans and treason

The breathless revelations that Michael “not a consigliere” Cohen recorded his phone call(s) to Trump to discuss buying the rights to a Playmate’s tell all about the Donald were trumped by the rumour that Mueller was going to subpoena testimony from a famous New York Madame who was tied up in the Elliot Spitzer scandal and once worked for the very creepy Roger Stone. Special Counsel Mueller, unable to find any connection between Trump and Russians, has opted for the endless delights of exposing the seamy underbelly of the Big Apple. He’ll be busy for years with the “gotcha” just around another New York City corner. Some curmudgeons are complaining about the cost of Mueller’s Special Counsel sitcom. Not this one, I think the American People are getting great value for money. Entire television series have had less plot and fewer doubtful characters than the Mueller show and I, for one, am very grateful.

The serious minded, front of the room, kids do have a point that Mueller is serving as a distraction from the investigation of the previous administration’s abuse of the Intelligence Community, the DOJ and the FBI in the small matter of the assorted FISA Court applications for surveillance on minor Trump operatives. Which is true; but it is also largely irrelevant. Unlike the “Trump colluded with the Russians” farce, there are facts of the matter in the FISA case and general abuse of process by the last administration and those facts have been committed to paper. That exposing those facts is taking a very long time is frustrating but it is not fatal to the enterprise of exposing who did what. The FISA application and renewals were on paper and signed by identifiable people. The White House and UN Ambassador “unmaskings” of US persons left a paper trail. The use of the Steele dossier (and its very interesting manner of compilation) to obtain the FISA warrants are all ripe for exposure. The critical fact being that Trump, as the head of the Executive Branch, can declassify all of these documents. Why he has not done so until now is a bit of a mystery but, on a bet, I would say he is keeping his powder dry as the Mueller farce plays out.

But now we roll around to treason. The lengthy report of the DOJ Inspector General confirmed – as if confirmation were needed – that the “investigation” into Hillary Clinton’s illegal use of a personal server for government business was pro forma at best and a politically motivated whitewash at worst. The FBI’s finest reduced themselves to Keystone Kops in their zeal to protect Hilly (and her henchpeople) from the consequences of her choice to run her own, private, communications setup. It ignored the fact that this server and the classified information which went through it, was almost certainly compromised by multiple enemies and potential enemies of the American State.

There is simply no room for doubt left: Clinton, for her own purposes, created a private communications network which was then compromised by foreign state actors. Now, was this treason per the US Constitution. Probably not.

“Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.”

Treason requires that an individual actively give support to America’s enemies and while Clinton and her people were grossly negligent, it appears that they were simply too stupid to think through the consequences of the Secretary of State running an insecure server. (Or, as seems more likely, too arrogant to care about those consequences.)

However, despite the learned “Judge” Comely rewriting the standard of proof for the Espionage Act, no requirement of intent to give aid and comfort to America’s enemies is to be found in that Act. In fact, no intent at all is required for an action to attract the effects of that Act. Simply being careless with classified information is enough to attract charges.

If the FBI, at the conclusion of a good faith investigation had recommended charges against Clinton and her staffers, it would have discharged its duty and left the decision to prosecute where it belonged, at the DOJ. Instead, Comely and a number of other FBI staffers conducted a sloppy, irregular investigation and then Comely arrogated the charging authority from the DOJ on the basis of then AG Lynch’s ill advised tarmac meeting with Hilly’s husband Bill. This was entirely improper. The charging decision is the DOJ’s not the FBI’s and if Lynch believed herself compromised, she could easily have recused herself and allowed a deputy to make the call.

It might have gone the same way, but the DOJ exercises a supervisory role with respect to the FBI and an honest DOJ official would have wanted to review the investigation before reaching the odd legal conclusion that the Act required “intent” when it expressly does not.

The farce, shenanigans and near treason all go back to a common origin story: the cack-handed decision to let Hillary walk away from her actions in creating an illegal, private, communications network when she was Secretary of State. Once that decision was made the Intelligence Community, the FBI, the DOJ and the White House had to pray that Hillary would win the election and that these decisions would stay safely swept under the carpet. Some members of those communities did more than pray leading to the FISA applications, the Steele dossier, the unmaskings and the questionable surveillance of the Trump campaign.

It was the mainspring of what FBI man Peter Stzrok described as an “insurance policy”, a means of defeating Trump even if he actually managed to win the election. Because the IC, FBI, DOJ and ex-Obama Whitehouse operatives knew that if Trump won, they all were in huge jeopardy of prosecution for their roles in exonerating Hilly and spying on Trump.

Can’t wait.

What the US needs right now

Mark Steyn is soooooo mean. He is pointing out that the “independent counsel” and his minions are not independent at all.

“My sweetly naïve understanding of an “independent counsel” is that he should be “independent”. For example, even in the presently desiccated condition of the Commonwealth, it’s generally understood that, when you’ve got a problem and you want someone independent to investigate it, “independent” means outsider.” mark steyn (go read the whole thing, tons of fun)

The Daily Caller is just one of the outlets bringing out the fact that the Mueller investigation is very deep in the swamp:

“A series of new revelations about the FBI under James Comey has provided more evidence that partisan agents may have abused their agency positions for political purposes during the Hillary Clinton email investigation and 2016 presidential campaign.

Top FBI agent Peter Strzok, the public now knows, was removed from the Mueller investigation after a Department of Justice Office of Inspector General (IG) investigation revealed damning text messages between Strzok and FBI lawyer Lisa Page.” daily caller

The American mess is deep and sordid and, frankly, needs to be cleaned up. But by who?

The fact is that virtually any special counsel appointed by the DOJ will be tainted one way or another. And so, apparently, will investigators drawn from the FBI. It is a mess but it also needs to be resolved.

So, a friendly suggestion from Canada.

Our deeply respected, longest serving, Chief Justice of the Supreme Court of Canada is retiring at the end of the year. Beverly McLaughlin, while I disagree with some of her opinions, is tough, fair-minded and very, very, smart. By the nature of her position, she is “read in” on intelligence and security cleared.  She’ll be bombarded with job offers but, if asked nicely, might be willing to lead an investigation into the whole ball of wax which the 2016 American election created. Russians, Hilly’s server and how it was dealt with by the FBI, Lynch on the tarmac with Bill, Mueller, Comely: the whole thing.

But Bev is not enough. Sending a small detachment of the RCMP – white collar and intelligence – with her, with really serious investigative powers, would get the whole mess cleared up in six months. (The scarlet tunics would be optional but would make great tv as they raided offices and homes of the swamp creatures.) McLaughlin would not proffer charges, rather she would write a report and recommend such charges as arise.

Better still, the Chief Justice and the Horsemen would be paid for – independently – by the Canadian government with a bill to be presented to our American cousins at the end of the investigation.

Sometimes the mess is so big you need an independent professional to clean it up. This is one of those times.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Mighty Flynn

Ex-National Security Advisor Michael Flynn is pleading guilty to a single count of misleading the FBI about conversations which he legally had with the Russian Ambassador to the US.

As various people have pointed out, the take away from this is never to talk to the FBI. Ever. No matter what.

Andy McCarthy and David French have excellent analysis over at the National Review.

There is much speculation about what Flynn will testify to and why all he was charged with is a rather bogus process crime. The more you hate Trump the more you are inclined to see this guilty plea as the modern equivalent of jailing Al Capone for tax evasion. But there was a reason Capone went to the Big House for tax; the prosecutors could not get him for anything else.

As French and McCarthy point out, there is nothing illegal about the National Security Director-designate having discussions with Russians nor is there anything illegal about directing him to have such discussions. It is, in fact, what reasonable people expect National Security Director designates to do as the new Administration is formed.

What it is not is any evidence of collusion with the Russians with respect to the actual election – which is what Mueller is supposed to be investigating.

Added to today’s excitement was the very real possibility that Jared Kushner asked/told Flynn to make the call to the Russians to try and postpone a vote on an Israeli matter. Oh Dear. The horror. The Trump son ion law asks/tells the National Security Adviser designate to reach out to the Russians on a matter of policy. To make a perfectly legal call with a perfectly legal request. Yikes.

Let’s hope Jared either a) didn’t speak to the FBI, b) was smart enough, to tell the truth if he did.

This is all pretty low-level stuff. And if it is the best Mueller can come up with it is well past time for him to wrap up his investigation because it is increasingly obvious that there has been no actual crime committed.

No there there

The mighty Mueller and his gunsels have rooted and dug and investigated and produced indictments: for doubtful business dealings predating Manafort’s involvement with the Trump campaign.

The dummy brigade is going nuts with our own Warren “Lying Jackal” Kinsella announcing, “And there can be no doubt, now, that Trump’s campaign was effectively run out of the Kremlin.”

As there is nothing at all in the indictment of Manafort and Gates which relates to the Trump campaign Warren and his ilk are forced to rely on the boiler plate “Conspiracy Against the United States of America”. As it is this “United States of America” which is proffering the charges and this same entity in its guise of the Department of Justice and Department of the Treasury whom Manafort is alleged to have defrauded, it is difficult to imagine how else Mueller would have framed the charges.

But, dummy chorus aside, is there anything in the indictment which puts the finger on Trump? On a quick reading I would say there isn’t. It may not have been the smartest thing in the world to hire a guy with Manafort’s connections to doubtful dictators and assorted oligarchs; but against that is balanced the fact that as Trump became aware of those links he first demoted and then fired Manafort.

Maybe these charges are part of a clever leverage scheme to get Manafort, facing an eternity in Federal Prison and the forfeiture of any assets the Feds can trace, to sing. Right out of G-man 101. That is, at best, a maybe. The fact the charges were brought at all suggests that whatever Manafort knew was not enough to avoid liability for his alleged sins. He has, after all, been interviewed by the Special Prosecutors’ office on several occasions and that would have been the time to cut a deal. That these charges have been proffered suggests no deal was done. Now there is, of course, still time for “all of this to go away” if Manafort has something interesting on Trump. But why would he have held it back? I doubt he thought Mueller was just joking around in those earlier meetings.

All of which leads me to suspect that Manafort does not, in fact, have “it” where “it” is the smoking gun of Trump/Russia collusion. And I also suspect that Manafort has a pretty good defence worked out. (And he may be backstopped by the promise of a pardon but I would doubt it; no reason for Trump to pardon a guy on stuff he did a decade ago unless that guy had the real, live, smoking gun.)

Trump, correctly in my view, is taking the position that nothing in the Manafort/Gates indictment has anything to do with Trump or his campaign.Which leaves the partisan ankle biters at CNN with nothing much more than the guilty plea of a campaign volunteer named Papadopoulos. What was he guilty of? Lying to the FBI regarding dates upon which he, apparently on his own initiative,  had conversations with various Russians. Not a great moment for the Trump world but also a very long way from proving collusion. And, with the guilty plea in place, assuming that Papadopoulos had anything to tell, chances are pretty good he’s told it.

Mueller has been on the job for months. He has a team of prosecutors and agents who have looked at every element of the Trump campaign. They have come up with some pretty routine alleged tax evasion and a guy lying to the FBI about the dates of meetings and conversations with Russians. Is Mueller saving “the good stuff” for Christmas? Is he hoping that Trump will suddenly begin to conspire to “cover up” and render himself vunerable? Hard to say but, at a guess, this wimpy set of charges about business activities predating Manafort’s involvement with the Trump campaign are pretty much the best Mueller has. That could change, but he will have to do much better than this to provide impeachment ammunition. Much better.

A Plenary Power

A conversation:

Aide: They are charging Mr. X with obstruction of justice.

The President: What did he do?

Aide: He had a conversation with a Russian. Then he lied about it to a guy who turned out to be your Veep.

The President: The dirty dog. Tell him to plead guilty and I’ll pardon him that day.

Aide: But you can’t do that.

The President: Just watch me.

Aide: But that might be obstruction of justice right there.

The President: Counsel, what’s a plenary power?

White House Counsel (shaking slightly): It is an absolute, unqualified, power.

The President: And is that the Pardon Power I have per ” Article II, Section 2 of the United States Constitution which states that the President “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment“. I looked it up on Wiki.

White House Counsel: Well, in a manner of speaking, Sir.

The President: Good to know. And Counsel, would you tell Mueller that any more chickenshit charges are going to be pardoned. And do that with a public letter. He’s going to have to do way better than this to get something to stick. And how are you coming on the “dirty” dossier to the FISA Court and the FBI dropping the Uranium One investigation about Bill and Hilly. I don’t want to waste my time dealing with chickenshit when there are real crimes to look into.

Aide: Thank you Mr. President.