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Partisan Political Origin of the Mueller Probe
It has been stated (notably, on the latest Commentary podcast) “There’s nothing illegitimate about the Special Counsel’s probe.” Is that really so? Consider the following:
1. It was begun as a counter-intelligence investigation (carrying on the previously existing counter-intelligence investigation of arguably partisan origins). The Special Counsel statute does not permit authorization of a counter-intelligence investigation. It must be a criminal investigation with the exact criminal events to be investigated explicitly spelled out (and there are limits as to what can be investigated based on evidence uncovered that is not pertinent to those crimes). The original authorization declared no such possible crimes.
2. Two months later, Rosenstein attempted to correct the error in point 1 by naming a specific crime, namely, Paul Manafort’s Ukrainian work (whether he properly registered as a foreign agent and whether he properly reported his earnings for tax purposes). However, this matter is unrelated to the 2016 election. Attorney General Sessions recused himself on matters related to the 2016 election only. If a Special Counsel needed to be appointed to pursue a matter unrelated to the 2016 election, the Special Counsel statute empowers the Attorney General (not his assistant) to appoint one and designate the specific matter to be investigated. Rosenstein may have exceeded the authority that fell to him by Sessions’ recusal.
3. The counterintelligence probe was begun based on sketchy, uncorroborated “evidence” provided by Christopher Steele. We are in a bad way as a country if someone is able to whisper fictitious rumors about someone to the most powerful investigative body in the world (in history) and that body declines to corroborate the rumors but proceeds to invade the privacy of an organization that just happens, not by coincidence, to have a good prospect of unseating the political party empowering the probe and whose political goals widely diverge from the incumbent President’s and his party’s nominee.
4. The provenance and funding of the sketchy, uncorroborated “evidence” implicating the opposing political party’s campaign turns out to have been the presidential campaign whose nominee was a former employee of the sitting President and belongs to his political party and was likely to keep in her employ many of the high-ranking officials who started the investigation in the first place. They had a blatant conflict of interest running from the lower-ranking investigators (Strzok and Page – whose texts belie their disgust with and opposition to Trump and his campaign to the extent that they explicitly declare a motive of hindering the campaign) to the high-ranking investigators who have since explicitly declared their virulent opposition to Trump in no uncertain terms or who had received secret private audience with Hillary Clinton’s husband during the campaign or whose spouse had received sizeable sums of money to run a campaign for office (under the organization of the President’s political party).
5. Rather than declare and disclaim the partisan conflicts of interest so that they could be fairly examined by the supervising judiciary (i.e., FISA court) and legislative bodies charged with oversight (i.e., Gang of Eight), not to mention the people of the United States (nearly 67 million of whom voted for Trump), they kept this information hidden and did their best to obscure the discovery of these conflicts as well as the provenance of the sketchy evidence against the Trump campaign.
6. And after Trump was duly elected by the people of the United States and certified by the Electoral College as the next President, the investigators plotted to hide from Trump that his campaign was under investigation. We know this because Susan Rice memorialized a meeting between high-ranking investigators and then-President Obama the subject of which was the extent to which knowledge of the investigation could be kept from Trump.
7. The investigators (Comey, Brennan, Clapper) have subsequently lied about various aspects of the initial investigation (sometimes under oath). Explanations of the timeline and focus of the initial investigation have shifted over time, from Page in Sept 2016 to Papadopoulos on July 31, 2016, to the launching of a confidential informant at various Trump campaign members in “late Spring” 2016. Each version of events betrayed an earlier beginning and eventually predated the Steele Dossier that contained the bulk of the uncorroborated “evidence” against Trump’s campaign. It is a matter of law that false exculpatory statements can be considered evidence of guilt. In this case, misleading statements used to justify the investigation based on tissue-thin hearsay (as well as material that would have to climb Everest to get to the level of hearsay) can be used to impeach the legitimacy of the investigation.
Yeah, but other than that, there is nothing illegitimate about it.
Published in Politics
It is unlikely that anyone can credibly deny any of what you say.
Which raises the question – How can this go on and on without any checks and balances?
Where are our representatives, and have they no shame? When the train is out of control, are there no systems to slow it, no engineers to limit it? Apparently not. Those tasked with keeping things within legal limits have abandoned their roles, and allow this to snowball endlessly.
I doubt that it ever could have reached this point under any establishment politician of either party. This is only possible against an outsider. There is complicity among both parties. Or, to coin a phrase, collusion?
Great points and timeline. Behind a WSJ paywall, Kim Strassel has a great article today which makes several additional and complementary points. A brief summary of those:
Kimberley ends with the best question … “Which leads us back to what did inspire the FBI to act, and when? The Papadopoulos pretext is getting thinner.”
Anyone who supports the legitimacy of the probe and does not address #1 (at the very least) is on shaky ground. It’s usually just a point that’s ignored.
Well done!
Oddly enough, the person on the Commentary podcast who refuses to rush to judgement is the guy who despises the President’s character the most.
You hit all the key points regarding Mueller, and yet, the probe continues and the obfuscation spreads. But equally important is the parallel Justice/FBI snow job regarding Hillary’s private server scandal and the related ongoing Clinton Foundation corruption/international shakedown.
Try poking around for names associated with the phrase “Republicans for the Rule of Law.” While your question clearly answers itself, conversations like this are good to offer up opportunities to yet again vent on that pathetic herd of crap weasels.
In all fairness, I stopped listening to the podcast at that point as I was too flabbergasted not to pen a response. However, I owe it to him to listen to the rest of the podcast.
I believe that Mueller still has something up his sleeve (not necessarily something that leads to Trump). If that’s the case and it turns out to be meaningful, we should probably be aware that concerns over the origins of the probe will be washed away. No, I’m not endorsing that perspective, but, given the media, it’s likely to be the reality.
Milk,
To sum up, this investigation departed from its proper scope long ago and that’s assuming it was legitimately conceived in the first place. In short, this investigation is pure garbage and needs to be shut down immediately.
Nothing more need be said.
Regards,
Jim
The November election will settle the issue either way. Democrats win back the House , impeachment circus. Republicans win, Mueller goes away.
Overly optimistic, I fear.
October surprise?
Mueller will only go away when Republicans decide to stop allowing it. I don’t think it will matter if Republicans retain the house, because I don’t believe they want it to end.
Exhibit A is Trey Gowdy. There is no explanation for his recent lame statements defending the FBI on this.
Other than secret FBI files that were taken by the Clinton’s during BJ’s terms and held at the Clinton Foundation?
Not really a legal matter; just politics. I wonder what back-channel activity is going on and what kind of bargaining is on (under?) the table. The ‘investigation’ will go on as long as parties see the political consequences of ending it as greater than the political benefits. Or vice-versa, of course.
Milkchaser: Very impressive legal and factual research in this extremely well-written piece. Highest compliments to your writing skills and your construction of a powerful legal argument.
At the end, Mueller has to be able to say…
* This is the sequence of events
* These are the actions of the key players
* These are the crimes
I don’t know how much time it will take.
Unless it is judged by both sides that ending it would be worse (politically) than letting it continue ; then, he need say nothing.
It’s hard for me to conceive of a scenario where the Democrats would consider it politically advantageous to end things as they presently exist. They need a scalp; Mueller needs a scalp. If and when one appears, there may be room for negotiations. The question is whose head is under the scalp.
I agree that they would not want to end it as it is at present, but if the ongoing investigation yields political advantage, there is no reason for them to want to end it at all. The mid-term elections may bring clarity to the political calculations on both sides.
Something else that bothers me:
Case 1: A 4th-level Trump aide repeated a rumor one time to one person in private in the vaguest of terms about Russia having damaging material about Hillary.
Conclusion: Trump might be colluding with Russia
Case 2: A spy indirectly contracted and paid by the Hillary campaign compiles an entire collection of uncorroborated material, said to be sourced by several unnamed Russian sources, shopped around to a variety of agencies (FBI and State Dept and Sen John McCain), claiming as a fact that Russia had damaging material about Trump.
Conclusion: Trump might be colluding with Russia.
Why didn’t the FBI investigate the Hillary campaign in the same way? Might it be because those who initiated the Trump spying had an interest in hindering his campaign and helping Hillary? We now have Brennan, Clapper, Comey, McCabe, Strzok and Lisa Page on record opposing Trump. Gosh! Is it just a coincidence that they decided to surveil his campaign?
Uh oh! Another long Unsk Post.
Sometime Ricochet poster D.C. Mc Allister has a very long and detailed post at PJ Media” The Real Reason why the FBI had a Spy in the Trump Campaign”. I not sure if DC really tells us why there was a spy other than the Obama Administration desperately needed someone to dig up some credible “collusion” dirt to smear Trump someway because legal methods couldn’t get the job done, but she does do a humdinger of a job of describing how the so-called “counterintelligence probe” seemingly violated all legal standards of how such probes are to proceed. In short, the ballyhooed “counterintelligence” probe was illegal from beginning to end, and no “collusion” is not a sufficient predicate for such a probe. And so sorry for all you out there hoping against hope that there is something really big and gigantically treasonous that Trump did to justify such a probe, because there just plain ain’t , plain and simple. Not by a long shot. As DC noted, both Brennan and Clapper told Congress in testimony before Congress they had no “evidence of collusion”. Oops! If there was evidence to warrant such a probe, both Clapper and Brennan have again lied before Congress by not divulging it and could be prosecuted. Nope, all evidence pretty much says this probe was just horrendously illegal as hell.
Some Nuggets:
“As stated by FBI Director James Comey, the investigation into Russian interference and any links with the Trump campaign was not a regular criminal investigation but a “counterintelligence” investigation. A national security operation of this sort comprises three stages: threat assessment, preliminary investigation, and full investigation. The FBI Domestic Investigations and Operations Guidel (DIOG) has established specific requirements at each stage.
“Assessing a Threat”
The threat assessment stage begins when a concern is raised. It doesn’t take much, but it does require an “authorized purpose.” According to the DIOG, “The basis of an assessment cannot be arbitrary or groundless speculation.”
“The purpose of an assessment is to find information on and possibly prevent “federal crimes or threats to the national security.” These include “international terrorism; espionage and other intelligence activities, sabotage, and assassination, conducted by, for, or on behalf of foreign powers, organizations, or persons; foreign computer intrusion, and other matters determined by the Attorney General, consistent with Executive order 12333” (on powers and responsibilities of intelligence agencies).
At the assessment stage, investigators want to discover whether there’s any credible information that someone is an agent of a foreign power who is committing or about to commit a crime that puts national security at risk”
“As an agent of a foreign power, individuals “knowingly engage in clandestine intelligence gathering activities, sabotage, international terrorism, or taking on a fraudulent identity for or on behalf of a foreign power, which may involve criminal-law violations”—or anyone who knowingly conspires with the foreign agent.”
to be continued
More form DC Mc Allister:
“The threat assessment stage of the FBI’s investigation in 2016 likely occurred sometime in late winter/early spring because former Attorney General Loretta Lynch testified that she met with Comey about the intelligence “matter” during this period. At this early stage, she and Comey decided not to tell the Trump campaign about possible national security threats regarding his campaign. When the topic was revisited in late spring, they again decided to say nothing.
“This choice to remain silent was a deviation from established guidelines. Investigators are tasked with “detecting and interrupting criminal activities at their early stages, and preventing crimes from occurring in the first place,” which is much more preferable than “allowing criminal plots to come to fruition.”
“According to the DIOG, assessments and investigations should be proactive to stop crimes or “national security-threatening activities.” In other words, law enforcement can’t just sit back and eat popcorn while they watch subjects weave their way toward a crime, so they can catch them in the act. The purpose of law enforcement is to actively stop danger in its tracks, not urge it on with passive observation.”
“Considering that the sanctity of a national election was at stake, investigators should have immediately informed the campaigns of the potential threat. Both CIA Director John Brennan and DNI James Clapper admitted to Congress that they had “concerns” about collusion, but they didn’t see any “evidence of collusion.” These concerns should have translated into warnings to the campaign. Instead, the Obama administration “stood down” and watched these “activities” unravel. At worst, they possibly played a hand in creating circumstances to push the investigation forward into more serious stages that allowed for more intrusive techniques, such as spying.”
First Big Problem according to DC: they ( Brennan and Clapper) were not “proactive to stop crimes” or trying to “actively stop danger” but were urging it on with “passive observation”. There was no attempt to warn the Trump campaign as protocol demands.
“On the Use of Spies”
“During the low-level assessment stage, there can be no use of a human source or undercover agent. It’s strictly forbidden. Only public records, information from other departments, voluntary interviews, etc., can be used at this stage. When the investigation transitions into the preliminary stage, the FBI can use “intrusive” undercover operations—a “spy” or an informant. The difference between a confidential human source and an undercover agent (or spy) is inconsequential regarding their intrusiveness because they’re both secretly gathering information.”
Next huge problem: “”During the low-level assessment stage, there can be no use of a human source or undercover agent. It’s strictly forbidden. ” But that’s exactly what Brennan and Clapper did in the Assessment State, use human sources and/or undercover agents, spies, whatever you want to call them. Again to repeat at this stage it’s “strictly forbidden”.
More from DC:
“There are, however, differences that are significant. As a counterintelligence expert explained to me, an undercover agent is certified and trained by law enforcement. This makes him reliable in the field and credible in a court, which is why investigators prefer to use them. A CHS, on the other hand, is not trained. He can be anyone, from shady individuals with criminal records of their own to “concerned citizens” who live up the street. “We want to get the CHS out of the field as soon as possible and get in an undercover agent, because we always have an eye to a court case coming in the future and we don’t want to risk compromising it,” my source said.”
“Instead of using a qualified undercover agent, the FBI used Halper. This would have been understandable if the probe had merely been a low-level investigation without international implications. But, using Halper was tricky, not only because it was in the middle of a political campaign involving spying on an opposing campaign, but because sending an informant into the international arena to gather information is risky.”
“Halper reportedly made his first contact with campaign foreign policy adviser Carter Page on July 11, 2016, at a Cambridge symposium in England. Later, in September, Halper also met with campaign adviser George Papadopoulos in England, fishing for information about hacked emails.”
“Using a CHS on an international stage is less than optimal because they are not trained as undercover agents. The last thing the FBI or the U.S. government wants is an international incident if the CHS slips up while he’s trying to dig up information on Russia. Due to the risk, approval for this action must be obtained high up the chain of command, including the CIA. John Brennan, the anti-Trump and highly politicized CIA director, would have been integral in that approval process.”
“Why did Brennan send a CIA crony with a shady past abroad to spy on a political campaign adviser? Could it be that Halper’s purpose wasn’t to discover information, but to twist it, to manipulate his targets to bend to the Trump-Russia collusion narrative, something a qualified undercover agent wouldn’t do? Was he looking to set someone up as a foreign agent instead of merely gathering information?
To begin a preliminary investigation, there must be “information or allegation” that someone was acting as an agent of a foreign power and a threat to national security. According to my source, this isn’t a very high bar to reach, but it can’t be just any allegation. There must be “articulable information” that would stand up in court. “Remember,” the expert said, “we eventually have to make the case to a jury, and we want to have legitimate reasons for what we did every step of the way.”
Where was the “articulable information” to begin a preliminary investigation? There appears to be none, only a political axe to grind.
I read the DC article as well. You know what struck me the most?
It was a straight forward recitation of facts in a chronological order.
When was the last time anyone not named McCarthy wrote a piece like this? Usually almost always every Mueller probe article is a cross between special pleading, wish casting and I’m not a lawyer but play one on the internet.
Most Mueller probe stories leave me feeling like they subtract from the sum total of human knowledge.
I recommend expanding that thought to news stories in general and start calling it the MSNBC effect.
This, along with the points from the OP and the synopsis of D.C. McAllister’s article, shows that the Mueller probe is illegitimate in its form and origin, so should be ended. How? Can someone offer an approach that does not trigger a component of the paralysis we are experiencing?
More from DC:
Pushing the Investigation Forward
“What moved the threat assessment to the preliminary investigation in the spring of 2016? It couldn’t have been the hiring of Paul Manafort by the Trump campaign. There were no dots connected to a threat to national security, terrorism, sabotage, or any crime that would put national security at risk. Manafort was under suspicion of financial wrongdoing and was already being looked at by the FBI, but he had nothing to do with Russian interference in the election—a point supported by the fact that he has not been indicted for any crimes related to collusion.”
“It wasn’t the hiring of Carter Page. Regardless of his business interactions with Russians in the past—none of which has led to indictments against him—there was no information related to Page working as a foreign agent to threaten national security. There might have been whisperings of wrongdoing, but again, the dots needed to connect. There weren’t any.”
“The only event in the spring that created a legitimate reason to push the investigation forward was the hacking of the DNC computers. The FBI never examined the servers and DHS never examined the servers—only a private company with connections to the DNC and the Obama administration examined the servers. CrowdStrike, Inc. alone determined that the Russians were responsible.”
“This information would, no doubt, give the FBI reason to initiate a preliminary investigation into Russian interference.” Whatever you believe about the identity of the hacking culprits after nearly two years of reports, we know the Russians meddled in the election to sow chaos. “The opening of a preliminary investigation regarding this prong of inquiry was the right thing to do.”
“The second prong of the investigation, however, is the rub—links to the Trump campaign. While it is certainly in keeping with the DOIG to question people of all sorts in an investigation, even if they are not suspects themselves, there still must be a valid reason to use an intrusive method to obtain intel.”
“What information would have been known in late spring/early summer to justify these methods? Was it George Papadopoulos’s meeting with Joseph Mifsud and his promise of emails on Clinton and contacts with Russian government officials to discuss foreign policy? The FBI said it didn’t know about that meeting until late July when the Australians supposedly told them about it.”
“A criminal investigation into financial interactions between Trump Tower computers and Russian banks was happening, but this was reportedly in the preliminary stage and dropped when no evidence of a crime could be found. Still, this provides no dots between the DNC hacking by the Russians and the Trump campaign.”
Let’s recap what DC is saying: Despite the hiring of Paul Manafort, and Carter Page, the entrapment of George Papadopoulos, and the Trump Financial Investigation, there were no “valid reason to use an intrusive method to obtain intel”. Again the CIA/FBI were out of bounds.
More from DC:
“There was no articulable information of the Trump collusion prong of the counterintelligence investigation in late spring/early summer. A Russian lawyer with links to the same company that hired Steele for the DNC met with Donald Trump Jr. in early June, but no information was exchanged. Where was the threat to national security?”
“Collusion in an election doesn’t rise to that level. The counterintelligence expert I spoke with said, in his decades as an FBI agent, he never heard of political collusion amounting to a national security threat—political corruption maybe, but not anything requiring a counterintelligence investigation that involved spying on an administration’s political opponent.”
“It seems the FBI head honchos knew this to be the case. They didn’t have a reason that would stand up in court to justify sending an untrained CHS to England to spy on Trump advisers. Yet, the CIA director and others up the chain of command allowed it.”
“They allowed it despite the DIOG repeatedly saying that an investigation should use the least intrusive methods to gather information—this is true at the threat assessment stage through the full investigation stage. If the threat is remote, and individual’s involvement is speculative, and the probability of obtaining probative information is low, intrusive methods may not be justified, i.e., they may do more harm than good.” Using a human source is an intrusive method and uncalled for in a sensitive environment such as a political campaign.”
“Pushing hard to advance the investigation in this way was inappropriate. Instead, the FBI should have approached the individuals and admonished them, told them their suspicions and stopped them in their tracks. A little confrontation goes a long way in preventing wrongdoing, my source said. This is in keeping with DIOG directives to de-escalate instead of escalate, prevent rather than promote, and protect privacy rather than use intrusive measures that are unnecessary.”
to be continued
More from DC:
“The First FISA Request”
“In the midst of concerns about the election, the FBI was already investigating financial interactions between Trump Tower computers and Russian banks. The criminal investigation, however, went nowhere. They couldn’t push the preliminary investigation into a full-blown investigation. There wasn’t enough evidence, so it was dropped. Inexplicably, the FBI converted the criminal investigation into a counterintelligence investigation.”
“Using the national security arm of the government to root out criminal violations without evidence of a crime is a misuse of powers. Yet this is what happened. With no crime to pursue wiretaps, the FBI changed the rules of the game. They would now be looking for agents of a foreign power—an inquiry more in keeping with its goal to prove collusion between the Trump campaign and Russia.”
“In June, as part of the newly packaged counterintelligence, the FBI sought a FISA warrant to electronically surveil members of the Trump campaign and maybe even Trump himself, since he was named in the application. The court soundly rejected the request—something that rarely happens due to the somewhat rubber-stamping nature of the FISA court. Given the lack of probable cause to electronically surveil American citizens, the FISA court made the right decision.”
“The fact is, the FBI should never have sought a FISA warrant, not only because the criminal investigation failed, but because the counterintelligence investigation was in a preliminary stage. According to the DIOG, the FBI can use all methods of investigation at this stage “except mail opening, physical search requiring a Federal rules of criminal procedure Rule 41 search warrant or a FISA order, electronic surveillance requiring a judicial order or warrant.” The FBI sought a FISA warrant before it initiated a full investigation.”
“The outset of the investigation in 2016 was fraught with violations of guidelines, failure to intervene and prevent further damage, and the appearance of political decision-making at the highest levels of law enforcement. In the midst of a preliminary investigation into Russian interference, the FBI converted a criminal investigation into a counterintelligence investigation to seek a FISA warrant in violation of federal guidelines. When that effort failed, they sent a human source instead of a trained undercover agent overseas to spy on an American citizen, violating federal guidelines to use nonintrusive measures in the process.”
““Investigations are supposed to prevent harm. The FBI failed (or succeeded, depending on how you want to look at it). Harm has certainly been the result—harm to the credibility of the justice system, the sanctity of our electoral process, the viability of the presidency, and the stability of the civil society. This is nothing less than scandalous.”
What DC has done, in an almost mind numbing detailed examination of the probe, is to illuminate the horrendous multitude of investigative abuses the CIA/FBI used to pursue a political witch hunt of Trump. But even after all that the FBI could not find a legal predicate for this investigation.