No Finality For Flynn: Judicial Chaos Is Justice Denied

The case United States v Michael T. Flynn has become a neverending saga of chicanery, controversy, and arguably corruption. Even though by all outward appearances, the case should have ended on May 7 with the Department of Justice filing a motion to dismiss the case with prejudice, Judge Emmet Sullivan seems determined not to let the case go gently into that good night. 

On May 12, Judge Sullivan delayed his final ruling on the motion by opening the proceedings up for potential filings by amicus curiae wishing to opine on the propriety or impropriety of the motion. On May 13, Judge Sullivan fueled controversy even further by issuing an order appointing retired judge John Gleeson as amicus and directing him to present arguments against the DoJ's motion. Judge Gleeson is further ordered to present arguments regarding a possible contempt charge against General Flynn for his efforts to withdraw his guilty plea. Both orders represent a significant departure from normal trial procedure within the Federal courts.

In many ways, the Flynn case has become a disturbing political Rorschach test across American society, with perceptions of Lieutenant General Flynn's ultimate guilt or innocence, as well as the severity of his alleged offense, colored primarily by whether one supports or opposes President Donald Trump. One need only briefly consider Congressman Jerry Nadler's Twitter meltdown over the motion to dismiss to apprehend the passion and the illogic governing peoples' view of the Flynn case.

We must be mindful, however, that within the American legal system criminal trials are not to be governed by political considerations, but solely by relevant facts and applicable law. The facts especially in Flynn's case are not friendly to Judge Sullivan's actions, and suggest that Sullivan, far from keeping political animus away from the proceedings, has made it the essence of the case.

Follow The Data -- The Facts Are Out There

What are the facts? Again and again and again – what are the facts? Shun wishful thinking, ignore divine revelation, forget what “the stars foretell,” avoid opinion, care not what the neighbors think, never mind the unguessable “verdict of history” – what are the facts, and to how many decimal places? You pilot always into an unknown future; facts are your single clue. Get the facts!

Robert A. Heinlein

The foundation of any reasoned argument, the basis of all rational debate must be facts and evidence. Whether the topic is "collusion" between Donald Trump's 2016 Presidential campaign staff and elements of the Russian government, the legal case (or lack thereof) against Lieutenant General Michael Flynn, or  the origin of the CCPVirus, reasoned discourse begins and ends with the facts, with what we can prove is so.

Thankfully, the real world abounds with facts.

Finality For Flynn: Justice Delayed But Not Wholly Denied

Today the Department Of Justice filed a motion with the US District Court for the District of Columbia to dismiss with prejudice the entirety of its case against Lieutenant General Michael Flynn, who previously had pleaded guilty to one count of lying to the FBI, and has in recent months been seeking to withdraw that guilty plea.

This one motion marks an abrupt and final end to one of the more notorious legal controversies in recent memory. The Department of Justice' rationale for the dismissial was fittingly blunt.

The Government has determined, pursuant to the Principles of Federal Prosecution and based on an extensive review and careful consideration of the circumstances, that continued prosecution of this case would not serve the interests of justice.

The DoJ moved to dismiss because it admitted it had no case, which it acknowledged in the body of the motion.

FISA: The Absolute Corruption Of Power

The release of Department of Justice Inspector General Michael Horowitz' report on the FISA (Foreign Intelligence Surveillance Act) applications related to the FBI's Operation Crossfire Hurricane investigation into possible Russian interference and/or coordination with Donald Trump's 2016 Presidential Campaign has succeeded in producing more questions than answers. To say that Crossfire Hurricane became a fiasco would be the acme of understatement.

The report established that there were multiple errors in the FISA applications made seeking surveillance warrants of Trump Campaign associate Carter Page.

We identified at least 17 significant errors or omissions in the Carter Page FISA applications, and many additional errors in the Woods Procedures. These errors and omissions resulted from case agents providing wrong or incomplete information to OI and failing to flag important issues for discussion.

At the same time, the report failed to establish any clear willful misconduct, although Horowitz quite pointedly declined to rule it out (emphasis added).

While we did not find documentary or testimonial evidence of intentional misconduct on the part of the case agents who assisted OI in preparing the applications, or the agents and supervisors who performed the Woods Procedures, we also did not receive satisfactory explanations for the errors or problems we identified. 

Attorney General William Barr articulated additional problems with Operation Crossfire Hurricane uncovered by the OIG. Most disturbingly, the investigation was never terminated despite consistent revelations of exculpatory information:

It is also clear that, from its inception, the evidence produced by the investigation was consistently exculpatory.  Nevertheless, the investigation and surveillance was pushed forward for the duration of the campaign and deep into President Trump’s administration.

Mueller's Testimony Puts Democrats In A Very Dangerous Position

When Robert Mueller, former special counsel charged with investigating alleged Russian efforts to interfere with the 2016 election (and in reality charged with bringing down President Trump), testified before the House Judiciary and House Intelligence Committees, few expected there would be much drama or new revelations.

No one expected Mueller would completely discredit his own investigation, as well as the entire foundation for the allegations of Russian interference. Yet that is exactly what happened. Matt Drudge's headline on The Drudge Report was brutal, succinct, and accurate: "Dazed And Confused".

There was very little of Mueller's testimony that was anything short of shocking. He was completely confused by Congressman Matt Gaetz' blistering attack on his failure to investigate the Christopher Steele dossier that is at the foundation of the entire Russian Collusion narrative. He was unfamiliar with key sections of the report that bears his name. At one point he even contradicted his own report. In all, Mueller failed completely to either illuminate and amplify the report or to defend the integrity of his investigation.

I am no physician, and no competent diagnosis could be made merely from watching Mueller's testimony, so speculations as to why Mueller's performance on Capitol Hill was so bizarre are neither upright nor useful. But what is not speculation is recognizing that Mueller's odd turn at testifying does not simply end Democrats' hope of impeaching President Trump, it also creates a particularly thorny problem for the Democrats, and for the committee chairmen Jerry Nadler and Adam Schiff in particular.

The Democrats' difficulties begin with Mueller's complete failure to defend his own report. While it would be intuitively obvious that Mueller would not have compiled the very lengthy report all by himself, he presumably had a hand in its creation, oversaw its compilation, and therefore should have had at least a  working familiarity with its contents.  He did not, indicating that he did not have a hand in its creation and did not oversee its compilation.

The Mueller Report, it seems, was put together by someone not named Mueller.

Another major failure occurred when Mueller proved unable to defend the integrity of his staff, in particular the infamous Peter Strzok. It beggars belief that, during the process of hiring staff and selecting FBI agents to assist in the investigation, Mueller would not have interviewed people and made an effort to determine at least their perception of allegations that President Trump, while still just Candidate Trump, cozied up to Russia and helped to coordinate their disinformation campaigns. Yet Mueller's own testimony indicated he did not. Nor was he aware of several instances of potential conflict of interest, such as Jeannie Rhee having represented the Clintons during Hillary Clinton's email server scandal.

The Mueller Team, it seems, was put together by someone not named Mueller.

Mueller's unfamiliarity with the work of his own staff, and the details of his own investigation, puts one curious detail about the indictments he obtained against various Russian citizens for presumed interference in the 2016 election in a new light: At neither press conference did Mueller announce the indictments he himself presumably obtained. In both the February, 2018 and July, 2018 press conferences, the announcement of the indictments was made by Deputy Attorney General Rod Rosenstein. Robert Mueller was nowhere to be found. By comparison, when alleged serial sexual predator Jeffrey Epstein was indicted in New York earlier this month, the press conference was conducted by Geoffrey Berman, US Attorney for the Southern District of New York, the person in roughly a comparable position to that of Robert Mueller as special counsel. 

Why did Mueller not announce his own indictments? Why were none of his staff present during Rod Rosenstein's press briefings regarding indictments obtained by Mueller and his staff?

The Mueller Investigation, it seems, was conducted by someone not named Mueller.

This conclusion was shared by more than a few observers and commentators during the hearings. As radio talk show host Mark Levin tweeted:

Hearing is a disaster for the Democrats and raises very serious questions about the special counsel office's operation and who was in charge of what … No doubt, Andrew Weissmann was a driving force behind this entire enterprise.https://t.co/WGIjBs5yn3

— Mark R. Levin (@marklevinshow) July 24, 2019

While it is not unfathomable for Mueller to have been a "hands off" manager of his team who delegated most of the day-to-day operations of the probe, even "hands off" managers still receive at least periodic briefings from their staff, and are kept current on what people are doing. The clear implication from Mueller's testimony before Congress is that even that did not happen, and that Mueller was in fact merely a figurehead, a person with no real involvement or even say in how the Russian Collusion investigation proceeded. Indeed, as Mark Levin subsequently tweeted:

...The most important revelation is that the special counsel was not competent to lead this or any major investigation. He is largely unfamiliar with his own report. And he was obviously a puppet of the radical partisans he hired and relied on in his office...

— Mark R. Levin (@marklevinshow) July 24, 2019

If Robert Mueller truly lacks the capacity to head up a major investigation, did he possess the capacity to authorize various actions made by his team during the investigation? Did Mueller sign his name to requests for subpoenas and search warrants at a time when he lacked the capacity to understand fully what he was signing? To be sure, this is pure speculation, and we should be very careful not to jump to any conclusions about when Mueller's incapacity presented itself, given Mueller's bizarre behavior during his testimony, but, given the rambling and unfocused reading of his May 29 statement announcing the formal closing of the Office of Special Counsel, given that Rod Rosenstein and not Mueller himself announced the Russian indictments in 2018, the question itself is not out of bounds.

Did Andrew Weissmann, Rod Rosenstein, and perhaps others perpetrate a fraud by keeping Mueller in place as a figurehead when he should have stepped down due to incapacity? Did they have an ethical obligation to bring Mueller's seeming difficulties to the attention of at a minimum the leadership of the Department of Justice? Did they, by not having done so, engage in prosecutorial misconduct?

These are not idle questions, and just the asking of them taints very part of the Mueller Report, and taints all of the evidences contained in the report. It takes no stretch of the imagination to believe that, were all this happening in a courtroom during a criminal proceeding instead, defense counsel would be arguing most strenuously for the exclusion of those evidences. If Weissmann and Rosenstein did perpetrate a fraud they surely have opened themselves up to ethical sanctions by their respective bar associations. Taken to the extreme, if Weissmann and Rosenstein did perpetrate a fraud by concealing Mueller's seeming incapacity, they themselves committed crimes. 

If Jerry Nadler, Andrew Schiff, as well as Democratic Speaker of the House Nancy Pelosi, knew of this fraud, and in fact sought to benefit from this fraud, arguably they are complicit in the fraud and guilty of conspiracy in facilitating and perpetuating the fraud.

If Democrats in Congress knew of Mueller's challenges and covered them up they may have committed crimes to do so.

This is where Mueller's disastrous testimony leads: the very real possibility that the Mueller probe was not merely a partisan witch hunt intended to build a case for impeaching Donald Trump and removing him from office, but was in fact an illegally conducted investigation, and one Democrats knew full well to be an illegally conducted investigation. Even if one concedes a legal basis for the investigation (which is already dubious, given Rosenstein's odd and some have said deficient construction of Mueller's appointment memorandum), no prosecutor has a legal basis for violating the law. No prosecutor has a legal basis for engaging in misconduct, and convictions obtained as a result of misconduct are open to reversal by an appeals court.

This is where Mueller's testimony leaves the Democrats. Far from having at least achieved the Democrat holy grail of a "Watergate 2.0", Mueller's testimony has created a potential "reverse Watergate", and now of leading Democrats we must now seriously question what did they know and when did they know it?

The Mueller Report itself was damning enough. As I pointed out when Mueller announced the end of the investigation, the investigation has produced zero evidence against Donald Trump. Even before Mueller's disastrous testimony, the conduct of the investigation was problematic, something I argued last year in regards to the shameful handling of the case against Lieutenant General Michael Flynn, a case that itself should result in criminal charges being laid against members of the Mueller team. Even before Mueller was appointed, I quite correctly called the Russia narrative a hoax, and the Mueller Report proved it.

Now Mueller has damned his own report. Any credible evidentiary claim that might have been made of the report has now been destroyed. Every assertion it makes must be questioned, and every claim of fact re-evaluated. Mueller damned the report simply by failing to be someone capable of either assembling the report or running the investigation which produced the report. Mueller was the appointed head of the investigation--if he was a mere figurehead the entire investigation was conducted under false pretenses, and so we are compelled to look askance at everything the investigation produced. Even if Mueller's testimony was contrived, and he is not so lacking in capacity, such deception on his part still leaves us with the same crisis of credibility, for if Mueller lacks confidence in his own investigation We The People can have no confidence in it at all.

Mueller turned the Mueller Report into the Mueller Lie, the Mueller Deception, the Mueller Ruse. He called into question every aspect of his investigation and the conduct of his investigators. He implicates Democrats in Congress as having facilitated and even participated in an outrageous deception, a fraud upon the United States without equal.

Before Robert Mueller appeared before Congress, cries of "investigate the investigators" had the disquieting appearance of political payback. Now those cries have the even more disturbing demeanor of legal necessity.

I doubt this was the outcome Jerry Nadler, Adam Schiff, and the "get Trump" Democrats anticipated Mueller would provide.

When The Rule Of Lawyers Replaces The Rule Of Law, You Get The Mueller Report

Robert Mueller's investigation into alleged Russian meddling in the 2016 election was supposed to be the definitive, objective, non-partisan word on the matter.

Now we are learning that it was neither objective nor non-partisan, and its findings are proving to be anything but definitive.

The latest crucial failing of the Mueller Report comes courtesy of Jon Solomon, writing in The Hill about the reports deliberate and egregiously inaccurate mischaracterization of Ukranian businessman and Paul Manafort associate Konstantin Kilimnik as a Russian intelligence asset, when the truth was that Mr. Kilimnik has been an American intelligence asset--and an extremely valuable one at that:

In a key finding of the Mueller report, Ukrainian businessman Konstantin Kilimnik, who worked for Trump campaign chairman Paul Manafort, is tied to Russian intelligence.

But hundreds of pages of government documents — which special counsel Robert Mueller possessed since 2018 — describe Kilimnik as a “sensitive” intelligence source for the U.S. State Department who informed on Ukrainian and Russian matters.

How sensitive an asset was Kilimnik? Sensitive enough to meet several times a week with the chief political officer in the US Embassy in Kiev.  Sensitive enough to meet with top level State Department officials. Sensitive enough to present a peace plan for the conflict between the Ukraine and Russia to the Obama administration in 2016.  

In other words, pretty sensitive.

How did Mueller characterize Konstantin Kilimnik? Judge for your self--from Page 6 of the Mueller Report (emphasis added):

Separately, on August 2, 2016, Trump campaign chairman Paul Manafort met in New York City with his long-time business associate Konstantin Kilimnik, who the FBI assesses to have ties to Russian intelligence. Kilimnik requested the meeting to deliver in person a  peace plan for Ukraine that Manafort acknowledged to the Special Counsel's Office was a "backdoor" way for Russia to control part of eastern Ukraine; both men believed the plan would require candidate Trump's assent to succeed (were he to be elected President). They also discussed the status of the Trump Campaign and Manafort's strategy for winning Democratic votes in Midwestern states. Months before that meeting, Manafort had caused internal polling data to be shared with Kilimnik, and the sharing continued for some period of time after their August meeting. 

Keep in mind that this is coming from a report that found no evidence of any "collusion" between the Trump Campaign and Russian intelligence. 

Keep in mind also that this comes after an earlier disclosure that the report altered the transcript of a voicemail left by Trump lawyer John Dowd to Lt. General Michael Flynn's attorney, as well as substantial allegations the Mueller team mischaracterized another interaction, between Trump attorney Michael Cohen and one Giorgi Rtskhiladze, going so far as to splice multiple recorded conversations together to form a telephone discussion that, according to Rtskhiladze's lawyers, is simply false. Keep in mind also that, despite Mueller's public statement that Department of Justice policy precluded even thinking about indicting Donald Trump, Attorney General William Barr flatly rejected this contention, or that Mueller could have been operating under such a presumption.

"I personally felt he could've reached a decision," he told CBS News chief legal correspondent Jan Crawford during an exclusive interview in Anchorage, Alaska, on Thursday.  

"The opinion says you cannot indict a president while he is in office, but he could've reached a decision as to whether it was criminal activity," Barr added. "But he had his reasons for not doing it, which he explained and I am not going to, you know, argue about those reasons."

For those keeping score, mischaracterizing Kilimnik's relationship to Russian vs US intelligence agencies is the third such revelation of factual inaccuracy within the report. Include Mueller's public statement about the report and the role of the DoJ guidance on indicting a sitting President and you have four not-insignificant challenges of fact within the report.

These factual errors combine with the strong criticism (and in some cases, outright condemnation) of Mueller's statements claiming the report does not "exonerate" the President. Alan Dershowitz called Mueller's statements "shameful." Andrew McCarthy considered the non-exoneration a diversion from the report's substantive legal flaws. It cannot be said often enough that prosecutors must prove guilt, as innocence is presumed, yet Mueller felt compelled to say repeatedly, in the report and in public, that he could not prove President Trump's innocence.

How did such a well respected legal figure such as Robert Mueller, armed with presumably an A-list roster of legal talent to conduct his investigation, create such a hot mess of an investigative report? My personal theory is that it is because Mueller and his team are all lawyers.

In American jurisprudence, much is made of the term "the rule of law".  Our courts call particular attention to the phrase and its meaning:

Rule of law is a principle under which all persons, institutions, and entities are accountable to laws that are:

• Publicly promulgated
• Equally enforced
• Independently adjudicated
• And consistent with international human rights principles.

In Chief Justice John Marshall's historic ruling Marbury v Madison (5 US 137) made the concept a simple yet powerful declarative: "It is emphatically the duty of the Judicial Department to say what the law is." 

The "rule of law" is a fixed and permanent legal guide; it is our legal system's due north compass heading, against which all legal theories, interpretations, and advocacies may be coherently oriented. The rule of law is not a whimsy of lawyerly invention; it is not the result of legal caprice.

Mueller, however, has paid but scant lip service to this ideal. Instead, through 448 pages of legal introspection, he and his investigation team sought ways to capriciously and inventively sidestep this bedrock principle. Where the law did not serve their purposes, they proposed alternate theories of the law that would bend the law until it did serve their purposes. Shaking off Marshall's long-standing dictum, Mueller, not satisified with what the law is, attempts to dictate what the law should be.

Nor is Mueller alone in his ignominy.  His tortuous statements regarding the non-exoneration of President Trump are an uncomfortable bookend to former FBI Director James Comey's July 2016 press briefing, where he outlined all the ways in which Hillary Clinton broke the law, and then said the Department of Justice would not be indicting her.

What Mueller and Comey represent is a dark and ultimately dysfunctional legal mindset, one that views the law as an infinitely malleable means to whatever ends are desired. It is a view that stands in direct opposition to the stated ideals of American courts. It is a view that is rejected outright throughout the United States Constitution, where due process and the rights of the accused are explicitly made paramount. It is a view that is more in keeping with Lavrentiy Beria's cavalier concept of law, "show me the man and I'll find you the crime." It renders law as autocratic authoritarianism rather than the best defense of liberty.

With this in mind, the political, biased quality of the Mueller Report comes as no surprise. When the "rule of lawyers" displaces the "rule of law", an hodgepodge of political poses and pontifications becomes not only likely, but inevitable. The Mueller Report is the result of lawyers presuming the law exists to serve them, to further their agenda, and eschewing the ideal that lawyers serve the law and, through the law, serve the public.

Given the history of American jurisprudence, the Mueller/Comey ideation of lawyers can not stand--it must not stand.  It cannot stand because even the Preamble to the Constitution, beginning as it does with "We the People....", rejects the notion that anyone can or should bend the law to their own ends. The Constitution is the supreme law of the United States, and from the very beginning it cast as one law, one rule of law, for the whole of the United States. As Ronald Reagan said in his farewell address:

Ours was the first revolution in the history of mankind that truly reversed the course of government, and with three little words: "We the People." "We the People" tell the government what to do; it doesn't tell us. "We the People" are the driver; the government is the car, and we decide where it should go, and by what route, and how fast. Almost all the world's constitutions are documents in which governments tell the people what their privileges are. Our Constitution is a document in which "We the People" tell the government what it is allowed to do. "We the People" are free.

Mueller and Comey would reverse this. Mueller, Comey, and all lawyers of their ilk (names such as Strzok, McCabe, Weissman, and Rosenstein come to mind) by their actions seek to elevate their knowledge of the mechanics of the law into a diktat in lieu of the law. In the Mueller/Comey theory of law, "We the People" are only as free as they decide to allow for the moment, and only in this moment.

Thus apprehended, the Mueller Report perversely becomes, if not an exoneration of Donald Trump, certainly an explanation for Donald Trump. The single great political sin of Donald Trump has been his rejection and at times cavalier dismissal of the "norms" that have defined American politics for the better part of at least the last century. Where the Mueller Report crouches behind dense legalese, Donald Trump tweets in almost pedestrian vernacular.  Where the Mueller Report relies on complex convolutions and analyses, Donald Trump states his principles, his goals, his agenda simply and forthrightly ("A nation without borders is not a nation"). Mueller and Comey, longtime denizens of the permanent Administrative State apparatus within Washington, often derided as "the Swamp", are in every regard the antithesis of the free-wheeling Donald Trump Administration. The Mueller Report is how the permanent Administrative State view the law and how it applies to the average American; its publication allows the average American to gauge that view against their own notions of what the law should be.

That is, perhaps, the one clear political good to arise from the Mueller Report--the opportunity for the average American to decide for himself the merits and demerits of the permanent Administrative State, of an unelected bureaucracy that imposes its own notions of law and justice on a subservient public. Once more, thanks to Robert Mueller, we are presented with a time--and a chance--for choosing. 

Do we want lawyers deciding whimsically and capriciously who is innocent and who is guilty? Do we want lawyers reinventing law to further their ends, without regard to facts or evidence?

Or do we want laws, conceived, articulated, debated, and voted by those whom we elect, by those we charge to craft good and just laws in order to build the more perfect Union our Constitution seeks? 

Shall "We the People" remain free, with government bound to our will?

"Rule of law" vs "Rule of lawyers". In the Mueller Report, we get to clearly see the difference.

Mueller Made One Thing Clear: Democrats Must Impeach

When (now former) Special Counsel Robert Mueller went before the cameras to issue what he hopes will be his only statement on his report to Attorney General William Barr, he summarized his investigation into Russian "collusion" thus:

We conducted an independent criminal investigation and reported the results to the Attorney General — as required by Department regulations.

As Mueller further stated, that was all he ever intended to do, based on the presumption that Department of Justice policy precludes indicting a sitting US President:

It explains that under long-standing Department policy, a President cannot be charged with a federal crime while he is in office. That is unconstitutional. Even if the charge is kept under seal and hidden from public view — that too is prohibited.

The Special Counsel’s Office is part of the Department of Justice and, by regulation, it was bound by that Department policy. Charging the President with a crime was therefore not an option we could consider.

Mueller investigated as he was asked to do. Mueller reported as he was required to do. And Mueller's position now is that his report is everything he has to say about his investigation.

The report is my testimony. I would not provide information beyond that which is already public in any appearance before Congress.

Whether Mueller truly has no information to provide beyond the report is problematic. As I have noted before, Mueller's handling of the case against Lt. General Michael Flynn is riddled with controversy and questions not only of legality but of basic fairness. Nor has Mueller provided any information or insight into whatever appraisal he made of the FBI activities that preceded his appointment as Special Counsel, and which formed the basis for his investigation, activities that raise their own questions of legality and propriety.

Yet while Mueller's statement was curiously short of clarity on these important points both of fact and law, his statement does make one thing absolutely clear: The Democrats must now formally impeach President Donald Trump.

Yes, I am saying the Democrats now have a duty to impeach the President.

To understand why I say this, let us remember the Constitution, in Article 1, Section 2, Clause 5, explicitly gives the House of Representatives "sole power of Impeachment". Only the House of Representatives may impeach. That is the Constitutional order.

Moreover, impeachment is what Mueller meant when he said "...the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing." The Constitution actually does more than just require such a process, it spells out what that process is: The House impeaches, the Senate conducts the impeachment trial (Article 1, Section 3, Clauses 6 and 7), and the impeachment of the President shall be for "...Treason, Bribery, or other high Crimes and Misdemeanors" (Article 2 Section 4).

Mueller, however, pointed out a crucial aspect of our system of justice: "It would be unfair to potentially accuse somebody of a crime when there can be no court resolution of an actual charge."

The Democrats have done exactly that: Speaker of the House Nancy Pelosi has done so publicly (emphasis added):

We do believe that it is important to follow the facts, we believe that no one is above the law, including the president of the United States, and we believe the president of the United States is engaged in a cover-up, in a cover-up.

If Democrats believe this to be true, then they have a duty both to the Constitution and to the American people to begin impeachment proceedings. If the Democrats believe the Mueller Report contains evidences the President obstructed Justice, they have both the legal and moral duty to make their case formally, by voting articles of impeachment and having the Senate adjudicate them in an impeachment trial. They have the legal and moral obligation to follow through on their accusations, and to do so in a forum where President Trump may defend himself against those accusations, and where there may be an actual resolution of those accusations.

Unlike Mueller, I can be clear on one point: Having read his report, I do not see a case for either collusion or obstruction against President Trump. As I stated when Mueller submitted his report to the Attorney General, Mueller's investigation ended as it began: no facts, no evidence, no case. That has been my admittedly layman's opinion, and that opinion has not changed.

Still, I also agree with Mueller's expert opinion on the matter of fairness. If the Democrats are going to accuse the President, the President deserves a chance to defend himself and he deserves an opportunity to have the accusations properly adjudicated. If the Democrats believe Donald Trump has committed high crimes and misdemeanors, the Constitution and simple justice demand they impeach him. If the Democrats are unwilling to impeach, simple justice demands they speak no more of Russian collusion or obstruction, and turn their attentions at last to the business of governing the country.

Impeach. Or move on. Do. Or do not. There is no third choice for the Democrats. That is the one thing Mueller's statement has made abundantly clear.

The Mueller Report: Twin Triumphs of Fake News and Conspiracy Theory

After many months, many subpoenas, many interviews, and endless bloviation, hyperventilation, and fabrication by both the legacy media and portions of the alternative media, the much-anticipated Mueller Report has finally been released to the public. Aside from redactions (which are disturbing to some, a non-issue to others), we may now see what Robert Mueller has seen, we will now know what Robert Mueller has known.

The actual report itself is some 400 pages in length, but we already know how Attorney General Bill Barr has summarized its conclusions:

• "After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes."
• "After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I [Attorney General Barr] concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense."

As readers of this blog will recall, when Mueller was appointed Special Counsel I pointed out the history of Special Counsel investigations was one largely of failure. Mueller's investigation has held true to that form--no indictments for any conspiratorial collusion with Russia (or anyone else), only peripheral players charge with any form of obstruction (chiefly lying to the FBI). Two years and $30 million worth of investigation, and we have very little to show for it.

Can I get my money back?

To be sure, Democrats are outraged that Mueller failed to crucify Donald Trump, and even more outraged that Attorney General Barr failed to spin Mueller's report into a crucifixion of Donald Trump. During and after Barr's morning press conference, several took to Twitter to pontificate and bloviate some more:

AG Barr has disgracefully weaponized the Mueller Report for apparent political gain. AG Barr's actions are a betrayal of his oath of office, our Constitution, & the American people.

— Richard Blumenthal (@SenBlumenthal) April 18, 2019

The Special Counsel’s report paints a damning portrait of an unethical President. My full statement on the report here: https://t.co/LN4nopY4EL #MuellerReport pic.twitter.com/xmX77Monyw

— Joaquin Castro (@JoaquinCastrotx) April 18, 2019

This is a disgrace. The American people deserve answers—and Special Counsel Robert Mueller should testify publicly before Congress. #ReleaseTheFullReport pic.twitter.com/ROG0Bt6JVq

— Elizabeth Warren (@ewarren) April 18, 2019

Above all else, the Special Counsel’s report makes clear that when our democracy was attacked by a foreign adversary, the President asked our justice system to stand down.

— Rep. Joe Kennedy III (@RepJoeKennedy) April 18, 2019

Other commentators and members of the chattering class strove not to be outdone by Democrats:

The final report by the special counsel Robert Mueller is devastating for the president. https://t.co/2QLXoqPCtu

— Citizens for Ethics (@CREWcrew) April 18, 2019

President Trump immediately recognized the threat of Robert Mueller's investigation. When he learned of the special counsel's appointment, he cursed. “Oh my God. This is terrible. This is the end of my presidency." https://t.co/911pYDRzKm

— The New York Times (@nytimes) April 18, 2019

Bill Barr’s decision to share an advance copy of the special counsel's report with the White House differed sharply from that of independent counsel Ken Starr in 1998.https://t.co/YaLzTt5i02

— Kyle Griffin (@kylegriffin1) April 18, 2019

Special counsel Robert Mueller says President Trump’s public comments can be considered as obstruction efforts because of his power https://t.co/fJhlW9X8IW pic.twitter.com/cBk2ZzOPBm

— CNN Politics (@CNNPolitics) April 18, 2019

#MuellerReport bottom line.

Trump obstructed the probe and there's no denying it.

Time for @HouseJudiciary to take up the matter as the Special Counsel intended. pic.twitter.com/8gCKIpFRl4

— Grant [REDACTED] (@grantstern) April 18, 2019

Not wanting to be left out, numerous conservative commentators felt compelled to tweet out the insanity and inanity of the left over Mueller's finding of no collusion:

#The evidence developed by the special counsel is not sufficient to establish that the president committed and obstruction of justice offense##TDS is in full view!

The guilty know the numerous criminal referrals are coming #TicToc pic.twitter.com/t2uNpgIEg0

— 🐄 Molly Wants A Wall ❤️⭐️⭐️⭐️ (@mollyday15) April 18, 2019

#DrainTheSwamp - @pnjaban: Radical Dimms have called for more of a witch hunt. This isn’t good for America. It’s not just @realDonaldTrump who has been cheated, but it’s the American people who have also been cheated out of their government for the last two years. #MAGA #Dobbs pic.twitter.com/rePRanjJhx

— Lou Dobbs (@LouDobbs) April 18, 2019

What none of them have done is make the case for their particular position. What we are seeing is not a sober and serious discussion of the report, and of the many troubling questions arising from its contents, but merely an endless echoing and retweeting of one of two basic narratives: 1) For the Democrats, "orange man bad/Russia!"; and 2) for the Republicans, "witch hunt!" and "Russia Collusion Hoax".

None of these commentators are speaking to the substance of the Mueller Report. On both sides of the political aisle, people are reducing the report to the most expensive MacGuffin of all time--a prop merely to push their chosen narrative forward, facts be damned.

None of these commentators are willing to confront the disturbing dimensions of the Mueller Report:

• How and when is it appropriate for the FBI and the country's intelligence apparatus to conduct secret surveillance of a political campaign? When is it okay for the government to spy on other Americans?
• What are we to make of the careerist leadership of both the FBI and the Department of Justice that both were willing to believe the worst of Donald Trump on the flimsiest of evidence?
• Why did the media persist in advancing an increasingly debunked "collusion" narrative, ignoring all evidence to the country?
• What are we to make of President Trump's often incendiary tweets? Should we demand a different standard of conduct from the President?
• What did Russia do to upset the electoral applecart in 2016? 

These are the questions that should be discussed, not just in Congress or by the legacy media, by by all Americans. The one undeniable truth of Mueller's report and the investigation that preceded it is that there has been a significant assault on our Constitutional system of governance. That assault is the one point of truly bipartisan consensus in this entire sordid drama.

That our system of government was assaulted is undeniable: we have 400 pages of Mueller Report to substantiate that, even if there is debate over whom is doing the assaulting (Trump, the Democrats, the "Deep State", or Russia). Who is asking what shall we do about that? How can We The People protect the Constitution from similar predations in the future? How do We The People protect and defend our Constitution from all enemies, foreign and domestic?

Neither side wants to have that discussion. Both sides wish to promote their preferred conspiracy theories, arguing not fact but feelings. As the sampling of Tweets above demonstrates, both sides have no interest in engaging with others to arrive a some fact-based, logically-derived articulation of the truth in these matters.

Today is a sad day for The Republic. In the Mueller Report the twin evils of Fake News and Conspiracy Theory have won the day. Time will tell if those demons win the day tomorrow as well.

What DID Russia Actually Do?

Andrew McCarthy, writing in the National Review about the recent indictment of Julian Assange in relation to then-Bradley/now-Chelsea Manning's 2010 theft and dissemination of classified military secrets, asks a salient question: Why was Assange not also charged in relation to Robert Mueller's indictments of various Russian citizens and presumptive government agents for "meddling" in the 2016 Presidential election?

This is a relevant question. Presumably, Assange is one of the un-named (and unindicted) co-conspirators referenced in Mueller's 13 July 2018 indictment of several Russian intelligence operatives for hacking into the Democratic  National Committee's computers and stealing several gigabytes worth of material. It necessarily follows that any evidence against the Russians must also be evidence against Assange.  Yet Assange was not indicted last year and he is not indicted now for anything in connection to the presumptive hack of the DNC systems.

As McCarthy puts so succinctly, "what is going on here?"

I invite people to read his full column delving into that very question. It highlights several legal and factual deficiencies of the recent Assange indictment, as well as the fundamental weakness of Mueller's Russia indictments.  Indictments that do not withstand even passing scrutiny are surely among the worst prosecutorial abuses; even the imputation that either the Assange indictment or Mueller's Russia indictments are little more than a thin tissue of legal fantasy is a damning criticism of the ethics and probity of the Department of Justice.

However, behind McCarthy's perceptive inquiry lies a broader, and in some ways more frightening question: What did Russia actually do? Did Russia even interfere with the 2016 election?

I have asked this question before--right after Mueller released his second round of Russia indictments. A claim of Russian interference in American elections is a serious claim, a troubling claim, but it must be a claim of fact to be worthy of any consideration at all.  Yet, as a claim of fact, the "Russia meddled" claim is largely fact free. To reiterate:

• The Facebook ads presumably purchased by the Russian troll farm The Internet Research Agency were, upon closer inspection, contradictory and confusing, attacking Hillary Clinton, her 2016 primary rival Bernie Sanders, and even Donald Trump. A large portion of them appear to have been in Russian, further questioning their utility as campaign material.
• Mueller's indictment of Russian operatives advances a theory of the DNC hacking case that is the polar opposite of conclusions reached by the FBI and by cybersecurity firm Crowdstrike. In particular, the online persona Guccifer 2.0 is central to Mueller's theory of the hacking case while dismissed as tangential or even irrelevant in the Crowdstrike and FBI analyses (and Guccifer was the person presumably with whom Assange communicated to encourage further hackings and disclosures of Hillary Clinton-related material).
• One of Mueller's initial Russia indictments was of a company that quite literally did not exist at the time the presumed offenses were committed.

What was true in July of 2018 remains true today: we have no facts before us to sustain the charge that Russia meddled in the 2016 election.  This has always been the reality of the "Russia Collusion"/"Russia Hacking" narrative -- we do not have any actual facts to support the narrative.

We should also remember that we have never had any presentation of facts to support the narrative. Even the 2017 Intelligence Community Assessment was remarkable for its complete lack of any evidentiary support or even logical cohesion.  In the aftermath of Mueller closing down his two-year investigation with precisely zero indictments for any form of collusion or conspiracy with Russia by any Trump campaign staff or affiliates, the "Russia Collusion" narrative has been well and truly debunked and discredited; it is the epitome of "Fake News."

If the ICA was "Fake News", if the "Russia Collusion" narrative is "Fake News", on what basis can we know that Russia did anything improper in the 2016 election?

Putin's Russia is a thuggish autocratic kleptocracy. It is no leap of faith to state that Russia is certainly capable of seeking to upend the liberal democratic order within Western democracies.  Russia certainly could interfere in elections, and may very well be highly motivated to do so.

But the belief that they could interfere is not proof that they did--and after three years of investigations by both Congress and the FBI, we do not have any evidence that they did. Without evidence, any narrative of Russia interfering in US elections is just another conspiracy theory. Without evidence, that narrative is not a serious political discussion on any level.

Without evidence, the breathless charges by the legacy media that President Trump is threatening the nation's security by not blithely believing the intelligence community about foreign affairs are vacuous and vapid political panderings. No one's asserted expertise in any field counts as evidence for or against any proposition. Expertise allows one to offer insights into evidence, but it cannot take the place of evidence and it cannot create evidence where none exists.

Where there is no evidence, we cannot logically make any conclusions, and all that is left is seductive speculation. In the case of Russia and the 2016 election, we still have no evidence, we still have no answers, we only have more questions, combining and coalescing into a seductive speculation.

What did Russia actually do during the 2016 election? Quite simply--and disturbingly--we do not actually know.

What Shall It Be -- Press Or Propaganda?

Whatever vestigial notions that a free press remained within the legacy media died this past week, as two seemingly unrelated stories combined to demonstrate the extent to which the legacy media is not free, and does not wish to be free.

The week began with Attorney General William Barr's much-heralded appearances before two Congressional committees, during which he uttered a simple sentence that has the legacy media positively epileptic and apoplectic: "I think spying did occur."

The "spying" to which he refers, of course, is the government surveillance of President Trump's 2016 campaign for office. Virtually the whole of the legacy media immediately and roundly excoriated Attorney General Barr for making a supposedly outlandish and unsubstantiated claim.

The second story of note occurred when Julian Assange, founder of the now famous (or infamous) disclosure web site WikiLeaks, was arrested in the Ecuadoran Embassy in London, and now faces possible extradition to the United States, accused in relation to then-Bradley/now-Chelsea Manning's 2010 theft and disclosure of US military secrets.

Where these seemingly disconnected stories coincide is in the fertile fields of press freedom and press objectivity, and the degree to which these are inextricably intertwined.  

The consensus of the legacy media on Attorney General Barr's assessment that the US government spied on a political campaign during an election cycle is that Barr advanced a noxious "conspiracy theory". Chuck Todd of NBC News asserted there was "zero factual basis" for the claim. MSNBC's Nick Ackerman accused Bar of participating in a "White House coverup" of Special Counsel Robert Mueller's report to the Attorney General regarding possible collusion between then-Candidate Donald Trump's election campaign and the Russian government. Over at CNN, Anderson Cooper pontificated that Barr's comments were "an insult to the men and women" of the Department of Justice.

Democrats in Congress quickly jumped on  the noveaux conspiracy theory bandwagon. Representative Jerry Nadler, chairman of the House Judiciary Committee, insisted on Twitter that Barr was directly contradicting earlier DOJ testimonies:

These comments directly contradict what DOJ previously told us. I’ve asked DOJ to brief us immediately. In the meantime, the AG still owes us the full Mueller report. #ReleaseTheReport https://t.co/DFOP5igcnO

— (((Rep. Nadler))) (@RepJerryNadler) April 10, 2019

Senator Mark Warner called Barr "irresponsible":

Mr. Barr knows how counter-intel investigations work. He knows there was ample evidence of Russian attempts to infiltrate the Trump campaign and that the FBI took lawful action to stop it. Giving a wink and a nod to this long-debunked “spying” conspiracy theory is irresponsible.

— Mark Warner (@MarkWarner) April 10, 2019

Senator Chuck Schumer panned Barr's comments "beneath the office of the Attorney General:

AG Barr admitted he had no evidence to support his claim that spying on the Trump campaign “did occur.”

AG Barr must retract his statement immediately or produce specific evidence to back it up.

Perpetuating conspiracy theories is beneath the office of the Attorney General.

— Chuck Schumer (@SenSchumer) April 10, 2019

What both the legacy media and the Democrats overlook is the reality of government actions taken with regard to President Trump's 2016 campaign:

• The FBI sought and received a warrant to conduct surveillance on one-time Trump campaign staffer Carter Page in October 2016.  That warrant is publicly available--its existence is a fact not open to dispute.
• British-based academic Stephen Halper was recruited by elements of the FBI to gather information on both Carter Page and fellow campaign staffer George Papadapolous.
• The infamous and much-derided "Steele Dossier" was compiled by a former British intelligence agent who was also an informant for the FBI.
• None of these actions were known to the Trump campaign while they were ongoing.

None of these facts are in dispute.  Nor can anyone dispute the dictionary definition of the word "spy": 

to watch secretly usually for hostile purposes

The United States government conducted secret surveillance on President Donald Trump.  There is no denying this. 

There is also no denying the fundamentally hostile intent of that surveillance. Any effort to find evidence of malfeasance by an individual is intrinsically hostile to that individual. The Fourth, Fifth, and Sixth Amendments to the Constitution are constant reminders of the individual's need and right to defend himself or herself against the intrinsic hostility of any government investigation or accusation.

Yet the legacy media is denying both realities, with no hint of either irony or self-reflection.  To call Attorney General Barr's statement "conspiracy theory" is to completely ignore established empirical, factual, unimpeachable evidence of what the FBI did and when they did it. To call that statement a "cover-up" is to advance a narrative that is fundamentally and irreparably at odds with reality, so much so that words such as "delusional" are fitting descriptors of media behavior.

The United States government spied on Donald Trump. Arguing otherwise is an unconvincing exercise in pure propaganda.

It is against this backdrop of a lunatic legacy media peddling propaganda that we must now consider the arrest of WikiLeaks founder Julian Assange immediately after having his asylum in the Ecuadoran embassy in London revoked.

Assange's immediate arrest was in relation to a 2012 sexual assault charge against him in Sweden. He took refuge in the Ecuadoran embassy in 2012 to avoid extradition from the UK to Sweden to stand trial for that offense.

However, the United States government has also long wanted to prosecute Assange for his role in publishing the reams of classified documents stolen by then-Bradley/now-Chelsea Manning in 2010--military secrets which some claim exposed intelligence gathering sources and methods, the disclosure of which arguably put lives directly at risk.  Following Assange's arrest by the London police, the United States revealed indictments against him charging conspiracy with Manning in the 2010 data breach and publication.  Assange, the US government has argued, in equally complicit and equally guilty as Manning is regarding the latter's demonstrable criminal activity.

As with Barr's "spying" comments, there are certain empirical factual realities attached to Assange's arrest:

• Manning was convicted by court martial for espionage and theft for stealing classified military documents 
• Manning has acknowledged transmitting them to WikiLeaks, which published much of the material, which is still online, and for which WikiLeaks has established custom searches to facilitate browsing of certain subsets of the material, such as the Afghan War Diaries.
• The DOJ has alleged in its indictment that Julian Assange and WikiLeaks assisted Manning by cracking certain encrypted passwords. 
• The DOJ also alleges that Assange encouraged Manning to obtain more classified materials for publication.  It is worth noting that Manning's statements regarding his submissions to WikiLeaks do not provide any direct confirmation of these allegations.

The American Civil Liberties Union has condemned Assange's arrest, stating "..prosecuting a foreign publisher for violating U.S. secrecy laws would set an especially dangerous precedent...." Indeed, the central point of opposition to Assange's indictment is that WikiLeaks is a publisher, and that their disclosures of government secrets is, arguably, a form of journalism.

No less a legal authority than Harvard Law Professor-Emeritus Alan Dershowitz has argued that WikiLeaks is a publishing organization no different from the New York Times and the Washington Post. These newspapers published the archive of classified military secrets known as "The Pentagon Papers" in 1971--not only were they never charged with a crime, they won a Pulitzer Prize for their efforts. 

The New York Times in 2016 also published excerpts of Donald Trump's tax returns for 1995. Tax returns are privileged and confidential, and whomever provided the documents to the Times unquestionably obtained them illegally.  The New York Times was not charged with a crime in that incident either, and at least one legal scholar argued that its publication of illegally obtained tax records could not be prosecuted under the First Amendment.

The DOJ case is further convoluted by the fact that the standard federal statute of limitations is 5 years, and this indictment is presented well outside of that time frame. According to Andrew McCarthy, writing in the National Review, the government appears to be relying on an exemption to the five-year rule for terrorists and terrorist sympathizers, which extends the statute to eight years--which in turn requires making a solid legal case that Julian Assange is, in fact, a terrorist and not a journalist, and that WikiLeaks is, in fact, a terrorist organization and not a publisher.

The legacy media has been quite content to indulge the government in advancing this argument, and to give preferential audience to those public figures willing to champion this argument.  Some even found Assange's arrest an occasion for sarcasm and levity.  The consensus of the legacy media, with few exceptions outside of Fox News' Tucker Carlson, is that Julian Assange is getting his comeuppance.

Yet what makes WikiLeaks a publisher (and Assange therefore a journalist) is the inescapable reality that it publishes information--just like the New York Times, and just like the Washington Post. Just as the New York Times was not prosecuted for the Pentagon Papers, WikiLeaks should not be prosecuted for Manning's stolen files. To consider otherwise is to grant the government a license that is not specified within the Constitution or any amendment--the power to effectively license media outlets. To consider otherwise is to eliminate the First Amendment protections upon which freedom of the press depends.

WikiLeaks is a news publisher, and its contributors are journalists. No government gets to say otherwise. No government should say otherwise.

This much is certain: government-sanctioned press is not free press.  Media outlets that must seek the approval of the State cannot possibly hold that State to any form of account. It requires no deep training in the law to understand this reality, and to understand the dangers it poses to the freedom and liberty that are this nation's bequest to future generations.

So it is that we close this second week of April, 2019, with one of the most cherished of American institutions--a free and unfettered press, able to hold government to account and not be held accountable to government--under existential threat from within and without.  In denying the simple reality that government agencies can and have spied on US citizens, the legacy media, long the embodiment of the free and unfettered press, has abandoned that position entirely. In denying the simple reality that WikiLeaks is a publisher of information, legacy media has declared there shall be no more free press, but only government sanctioned press.

So it is that we, as a society, must look ever more critically at all the media, both the legacy entities and the upstart alternative outlets, and decide which ones will be the path for journalism in this country in the future.  Will we have a free and unfettered press, powered by a disruptive coterie of independent media sources, or will we have a corporatized and compromised press, residing within the legacy media, content to promote only such narratives as find favor with the blessed few? Will we have rich sources of useful information, or will we have pathetic purveyors of pabulum and propaganda? 

What shall it be: press or propaganda? Sadly, the answer is not at the moment certain.