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.

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.

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.

The Mueller Probe Ends As It Began: No Facts, No Evidence, No Case

There is perverse pleasure in the sentence, "I told you so"

When Robert Mueller was first appointed special counsel, back in May of 2017, I pointed out that special counsel are abysmal failures. Even before then, I documented how the entire "Russia Hacking" narrative was a colossal hoax. When the much-discredited Intelligence Community Assessment regarding Russian "meddling" was released in January of 2017, I pointed out its fundamental lack of substance.

Last summer I pointed out that, after over a year of non-stop investigation, Mueller had produced zero evidence against President Trump.

I documented the fact-free nature of the "Trump-Russia" conspiracy theory. Not just once, but twice.

I charted how Mueller's indictments and guilty pleas failed to build ANY case against President Trump.

I have documented here Mueller's outrageous  and unethical (if not criminal) treatment of Lt. General Michael Flynn.

Now Mueller has closed his investigation, turned in his report, and we are told no more indictments are forthcoming. After 22 months and tens of millions of dollars, the indictments and guilty pleas we have--the same indictments and guilty pleas that fail to make any case against the President or his inner circle--are all we will have.

This should come as no surprise. The reality has always been that "Trump-Russia" was a hoax, a crude, artless, and ultimately ineffective lie intended to destroy a sitting US President. In these blog posts I have documented this reality, more or less as it occurred. Others have done likewise--in blogs, in videos, in countless social media posts on every platform there is.  Now these commentaries stand as stark criticism of the largest, the most expansive, and the least productive special counsel investigation in American history.

Nor is it merely a criticism of the Mueller probe itself.  The legacy media has been fully complicit in perpetrating this hoax.  The legacy media has ignored facts, has contrived facts, has pretended facts meant something other than what they signified on their face--which I have also documented.

Now these posts--by me here and by others elsewhere--take on the important role of bearing witness to the history of the Mueller probe.  The legacy media will spin their narratives to cover and conceal their embarrassing mis-steps in this entire debacle. 

Already, MSNBC's Joy Reid has suggested Mueller is involved in a "coverup" (her word). Chris Matthews has asked the asinine question "How could they let Trump off the hook?"--unwilling to concede the errancy of his prediction last December that President Trump would resign to avoid prosecution.

The media would like to forget how much they lionized Mueller, and how convinced they were that the former FBI Director would be the one to take down President Donald Trump.  Even more, they would like you to forget--forget that Mueller was ever their "straight arrow" prosecutor, an untouchable cast in the mold of Elliot Ness against Donald Trump's Al Capone. In true propagandist fashion, they have already begun to rewrite history, to conceal their malevolence and their mendacity with true Orwellian revisionism.

The legacy media will not, however, rewrite this blog.  Nor, I dare say, will they rewrite other blogs, nor any of the other commentary that has charted their participation in this unholy mix of paranoid witch hunt and failed coup d'etat.

I ask you to remember, then, that the Mueller probe has ended, and that it has ended as it began: with no facts, no evidence, no case of any kind. Remember that, despite millions of dollars and the full resources of the government at his command, Mueller could not even manufacture evidence to bring against the President. 

Remember the truth, and let that truth constantly condemn the lies that have been told, and will yet be told. Remember the truth--that on 22 March 2019, Robert Mueller finally conceded that he had been investigating the Great Russia Hacking Hoax.

With Flynn, Mueller Has Exchanged Prosecution For Persecution

Flynn has been persecuted,
not prosecuted

There is a steady drip-drip-drip of scandal emanating from Robert Mueller's Special Counsel investigation into all things Trump and Russia. Unfortunately, the scandal is about Robert Mueller, not Donald Trump. Nowhere is this more evident then in Mueller's pursuit of Michael Flynn, retired US Army Lieutenant General and briefly Donald Trump's National Security Advisor.

From its outset, investigations by the FBI and the Department of Justice into Flynn's activities during the transition period between Donald Trump's 2016 election victory and his January 2017 inauguration have been a study in controversy. 

After a scant 24 days as President Trump's National Security Advisor, Flynn resigned amid allegations that he lied to Vice President Pence about the nature of telephone conversations he had had with the Russian Ambassador, Sergey Kislyak. That scandal arose because un-named government officials leaked the contents of surveillance recordings of Kislyak's phone calls to the media, which dutifully began questioning why an incoming National Security Advisor would have conversations with the Russian Ambassador. At the time of Flynn's resignation, The Washington Post threw more fuel on the fire by speculating that Flynn's conversations were part of a larger scheme within the incoming Trump Administration to advantage Russia.

Lost in the hysteria was the inconvenient fact that the leaks driving the scandal were themselves a serious crime, under 18 USC §798, a crime that has never been either investigated or prosecuted.

When Robert Mueller was appointed Special Counsel by Deputy Attorney General Rod Rosenstein, he quickly revisited Flynn's phone conversations and presumed false statements surrounding them. On December 1 of 2017, Mueller persuaded (or coerced, depending on one's perspective) Flynn to plead guilty to one count of lying to the FBI when interviewed about those conversations in January of that year.

Lost in the furor surrounding that guilty plea was another inconvenient fact: The FBI agents who actually interviewed Flynn--one of whom was the now infamous Peter Strzok--did not think Flynn lied to them. Even former FBI Director James Comey, before his firing by Donald Trump, testified before Congress that the agents did not think Flynn lied

Mueller had Flynn pleading guilty to a crime that, according to the FBI, never happened.

Despite having pled guilty in December of 2017, Flynn has only recently come before a federal judge for sentencing, Mueller having postponed it multiple times, prompting Judge Emmett Sullivan to inquire as to why so many delays.

When Mueller finally presented filed his sentencing memorandum with the court, one supporting document was noticeable by its absence: Peter Strzok's original Form 302 interview summary of the January 2017 interview with Michael Flynn. The 302 summary that was filed was an exit interview summary of Peter Strzok, shortly before he was fired from Mueller's investigation team for having exchanged a considerable number of politically biased text messages with his then mistress Lisa Page. That interview summary was dated August 22, 2017, seven months after Strzok's interview of Flynn, and only makes reference to Strzok's original interview summary. That original 302 has yet to be produced.

To summarize: Robert Mueller pressured and finally persuaded Michael Flynn to plead guilty to a crime the FBI has said under oath before Congress did not happen, and, a year after obtaining that guilty plea, has failed to present the FBI's actual evidence on the matter.

Not only does Mueller not have evidence of the crime, but the main witness for Flynn's defense would be the FBI itself, the very agency to whom Flynn is accused of having lied.

In Judge Sullivan's courtroom, the cloud of suspicion hangs over not Michael Flynn but Robert Mueller. Mueller coerced the guilty plea from Flynn not with evidence but a threat that Flynn's son would be indicted for various non-crimes. Arguably, the criminal is not Flynn but Mueller, who would stand in violation of 18 USC §§241 and 242, both of which make it a crime for any government official to deprive someone of their constitutional rights, and especially the right of due process.

Can any investigation, by any government official in or out of law enforcement, prevail when its own credibility has been so thoroughly shredded in this fashion? Can any conclusion Mueller might reach--about President Trump, about Russia, about any electoral improprieties that may or may not have occurred in 2016--be taken seriously as the fruits of a serious investigation and not as the result of a political witch hunt, an extended (and taxpayer-funded) exercise in lies, corruption, and serial violations of basic civil liberties?

To call Mueller's pursuit of Flynn a prosecution is to make a mockery of the rule of law. It is turning a blind eye to Mueller's total contempt for the principle of due process, for the presumption of innocence, and for the rights of the accused. This has been no prosecution, but a persecution. Mueller targeted Michael Flynn, intentionally bankrupted him with the expense of defending himself against allegations of a crime that never happened, threatened his family, all for the sole purpose of gaining Flynn's cooperation in the Russia probe--a probe that, after two years, has utterly failed to establish even the existence of conspiracy or "collusion" between the Trump campaign and the Russian government in 2016.

Instead of sentencing Michael Flynn, Judge Emmett Sullivan should reject his guilty plea, toss the entirety of Mueller's "investigation" of Flynn out the window, and appoint new investigators to probe the length and breadth of Mueller's outrageous assault on the Constitutional order.  This is not Stalinist Russia; our tradition is the presumption of innocence, not the cavalier "show me the man and I'll find you the crime" arrogance of Lavrontiv Beria.  Mueller seems to be unaware of this, despite his legal and law enforcement bona fides.

There is indeed conspiracy and collusion afoot in Washington D.C., but it is against the Trump Administration, not by the Trump Administration. That is the one thing Mueller has proven beyond any and all doubt.

More Convictions, More Guilty Pleas, Still No Evidence Against Donald Trump

Last month--July, 2018--I observed that, despite nearly two years of investigation, there was as yet no credible case of wrongdoing to be made against President Trump.

At the time, Paul Manafort's trial had not concluded, and Michael Cohen had not entered any guilty pleas. Now, Paul Manafort has been convicted on 8 counts of tax evasion and bank fraud, and Michael Cohen has pleaded guilty to tax evasion, lying to investigators, and, intriguingly, two counts of campaign finance violations.

Does this mean the "beginning of the end" for President Trump?  On the facts, Trump's demise seems as remote now as it did last month.

Manafort's offenses took place years before he became involved in the Trump campaign--his convictions, while of some comfort no doubt to Mueller, do not advance in any way a case against the President.  They do not bolster claims of "collusion" or of conspiracy, nor do they build a case of obstruction of justice. As big a headline as Manafort's conviction is, in the ongoing effort to unseat Donald Trump his conviction is simply not relevant.

Arguably, Michael Cohen's plea deal does create a legal issue for Donald Trump, but while Cohen is now alleging Donald Trump violated campaign finance laws, the best witness against Michael Cohen is none other than....Michael Cohen.

Previously, prosecutors have alleged that Cohen made payments to two women in order to buy their silence about alleged extramarital affairs with Donald Trump many years ago, and that he was repaid by the Trump campaign through a set of "sham" invoices submitted by Cohen for legal work. Cohen himself recorded a conversation with Donald Trump where they discussed one of the payments.  Yet that recording--quite unlike the recordings that doomed Richard Nixon during Watergate--have shown to have exactly zero traction as proof of malfeasance by Donald Trump.

Further, Michael Cohen has made numerous public statements denying the very thing he is now alleging.  We must therefore ask the question "was he lying then, or is he lying now?" With federal prosecutors threatening him with decades of jail time, the notion that he might, in the vernacular popularized by Alan Dershowitz, "not merely sing, but compose" is not at all unreasonable--a possibility that is strengthened by the fact that one of the offenses to which Cohen has pled guilty is lying to investigators; it is hard to fathom how a witness who is an admitted liar can enjoy much credibility at trial.

Finally, there is the reality of Michael Cohen being a lawyer and Trump's "fixer". As a lawyer, one of Cohen's ethical obligations to his client is to advise him of when a particular course of action is against the law, and to guide him so as to avoid violating the law. The crux of the prosecution's allegations of campaign finance violation is that Cohen was repaid by the Trump Campaign, as opposed to the Trump Organization--which would have not been subject to the same scrutiny regarding campaign finance law.  In other words, it is not the payments themselves that were illegal, but that they were paid out via a political campaign entity and not a private business.

Thus we have the conundrum that if Cohen knew or had reason to believe the campaign paying off the two women was an illegal activity, why did he a) not advise Trump to take a different tack on the matter, or b) bill the Trump Organization or even Donald Trump personally for reimbursement? By the same token, if a member of the bar submitted invoices to the Trump Campaign for reimbursement of expenditures in this fashion, is it unreasonable to impute from those invoices the likelihood that Cohen did not consider the modality of payments to be illegal?  

That Donald Trump largely self-funded his campaign only makes the legal case against him even murkier--ultimately, the argument that Cohen might simply have been repaid from the wrong checking account cannot be dismissed. Impeachment over what amounts to a bookkeeping error is too absurd even for the most rabid of Never Trumpers.

As for the payments and the extramarital affairs, the legal assessment of both, as well as their potential for supporting impeachment, can be summed up as "so what?" For all society's railings against adultery, it is not a crime. Buying silence--especially when the payments were solicited by the women involved, as is the case here--is also not intrinsically criminal.  In neither case did Donald Trump suborn perjury or encourage anyone to make false statements to law enforcement.

Moreover, President Obama received the largest FEC fine in history for improprieties in how his 2008 campaign handled contributions, and no one--not even the most strident of Obama critics--mentioned impeachment over the matter.

As a practical matter, when evidence is murky and unclear, that becomes "reasonable doubt" to a jury. Despite the fulminations and jeremiads against Trump coming on the heels of Cohen's guilty plea, the reality of Cohen's latest statements is that they are murky and unclear, and easily challenged by Cohen's previous testimony (some of which may have been under oath before Congress, raising the specter of perjury charges). Cohen himself is a damaged witness of dubious credibility.

Unless more damaging material comes to light, either in regards to Cohen's allegations or to any other matter under scrutiny by the Mueller investigation, we still do not have clear evidence of any crime committed by Donald Trump.