Washington’s Growing Product Line: Confected Felonies

This week my news-clipping file is overflowing. There’s the hilarious Oval Office meeting between the President and Nancy Pelosi and Chuck Schumer for laughs -- as Pelosi begs for no transparency and Schumer bows his head knowing that the dynamic duo has just been trumped. They thought they were clever in holding up the military appropriations to stop the wall and in the process provided Trump with ammunition: “I am proud to shut down the government for border security, Chuck,” Trump told Schumer. “I will take the mantle. I will be the one to shut it down. I’m not going to blame you for it.”

So, nonessential federal employees (mostly Democrats) will be out of work because the Democrats choose illegal immigration over national security. Since voters overwhelmingly want a check on illegal immigration and aren’t enamored of an overreaching, often utterly incompetent and often corrupt federal labor force, how do you imagine this will play out?

A large amount of domestic coverage this week involves the ongoing Mueller fiasco, in which it appears that the legal theories under which he is operating have been concocted by nitwits, and the processes he’s employed are nothing short of Beria-like (“show me the man, and I’ll show you the crime”) stuff. Space constraints allow me to discuss but a few of the matters in which politics posing as law enforcement captured this week’s news.

Michael Flynn caught a break when his case was assigned to Judge Emmet G. Sullivan, who was monstrously played by a corrupt band of DoJ criminal attorneys and FBI agents in the case of former Senator Ted Stevens. After Stevens was convicted, the Senate Republicans lost their ability to filibuster and made it possible for the Democrats to ram through ObamaCare on a single-party vote. Subsequent to Steven’s death, their perfidy became known. Sullivan threw out the conviction.

The judge then commissioned a 525-page report that presented withering evidence of DoJ misconduct. Irrefutable evidence of prosecutorial misconduct prompted the DoJ to assign Terrence Berg, an attorney in the DoJ’s Professional Misconduct Review Unit, to recommend a penalty for two trial attorneys (James Goeke and Joseph Bottini.)

Berg was the bureaucracy’s first of two interventions on behalf of railroading prosecutors. Berg stalled for several months while he “studied” the evidence and finally concluded that the prosecutors had done nothing wrong. The agency then assigned the matter to the unit chief, who concluded that a 45-day suspension would be warranted.

If you were a partisan DoJ attorney bent on meddling in future elections, would the risk of a 45-day suspension be enough to deter you? The attorneys appealed the 45-day suspensions, arguing they should be entitled to the benefit of Berg’s early assessment that they did nothing wrong. Then the bureaucracy intervened again to save the railroading prosecutors.

The Merit Systems Protection Board granted their appeal, ruling that even though both prosecutors might be guilty of the misconduct as-charged, that they had the right to Berg’s original assessment. And that’s how two DoJ prosecutors got away with railroading Stevens and swinging an election for the U.S. Senate. 

As for the FBI miscreant who played the largest role in this miscarriage of justice, she too got off Scott free: The poster nicknamed “Daddy” reminds us:

FBI  Agent Mary Beth Kepner, who in the Ted Stevens case pencil whipped 302's [agent’s notes of interviews which are to be prepared within 5 days of such interviews] two whole years after the fact and lied to other FBI Investigators under oath that the 302's were contemporaneous, was "severely disciplined" [by then Director James Comey] got a cautionary letter of warning in her official FBI jacket!!!” 

She remained the top FBI agent in Anchorage, so you know how “severe” was the discipline she got for perjuring herself, handing the Obama administration its most cherished legislation -- ObamaCare. 

Certainly there was more, per then Director Comey: 

‘"On top of that, we pushed out refresher training to the entire workforce, especially about our discovery obligations and how we expect them to conduct themselves during those investigations. So, both broad remedial work was done, and individual discipline was imposed for the agent involved," he said.’

The Flynn case shows how ineffective was that “refresher training” And how seriously suspicious Judge Sullivan is of the Mueller team after that experience. 

U.S. District Judge Emmet G. Sullivan ordered Special Counsel Robert Mueller’s office Wednesday night to turn over all the government’s documents by mid-day Friday. The exculpatory documents requested by Sullivan include any memorandums regarding Flynn’s case because of the extraordinary circumstances of the information, according to Sullivan’s request. Further, Sullivan is also requesting any documentation regarding the first interviews conducted by former anti-Trump agent Peter Strzok and FBI Agent Joe Pientka -- known by the FBI as 302s -- which were found to be dated more than seven months after the interviews were conducted on Jan. 24, 2017, a violation of FBI policy, say current and former FBI officials familiar with the process. According to information contained in Flynn’s memorandum, the interviews were dated Aug. 22, 2017.

FBI Supervisory Special Agent Jeff Danik told SaraACarter.com that Sullivan must also request all the communications between the two agents, as well as their supervisors around the August 2017 time-frame in order to get a complete and accurate picture of what transpired. Danik, who is an expert in FBI policy, says it is imperative that Sullivan also request “the workflow chart, which would show one-hundred percent, when the 302s were created when they were sent to a supervisor and who approved them.”

“The bureau policy -- the absolute FBI policy -- is that the notes must be placed in the system in a 1-A file within five days of the interview,” said Danik, who added that handwritten notes get placed into the FBI Sentinel System, which is the FBI’s main record keeping system. “Anything beyond five business days is a problem, eight months is a disaster.”

Given the fact that the infamous Peter Strzok, since removed from the Mueller investigation for demonstrated anti-Trump bias, conducted the interrogation, there’s every reason beyond the departure from the regulations to question whether the accounts are accurate. Indeed, even Comey testified to Congress that the interviewing agents did not think Flynn had deliberately lied to them. But there is even more.

Andrew McCabe, now also fired, recommended to the pair that they were not to offer Flynn a right to counsel nor a Miranda warning that whatever he said might be used against him. He wanted Flynn “relaxed,” which is one way of saying off guard. And he was, thinking it was essentially a courtesy call.

It is clear to me that Flynn’s pleading guilty was a defensive measure to protect his family, which was roughly $3 million in legal debt as he fought against a team with unlimited resources and unlimited partisan fervor (as was the situation in the Stevens case). 

The federal crime of which he is accused is Title 18 United States Code, Section 10001, which I deem (like the overbroad federal laws concerning obstruction and conspiracy) a tool for unscrupulous prosecutors like these. Justice Ruth Bader Ginsburg shares my view of this provision as the NY Sun writing about Martha Stewart’s case observed:

Ruth Bader Ginsburg, who, in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of "the sweeping generality" of Section 1001's language.

Justice Ginsburg wrote: "The prospect remains that an overzealous prosecutor or investigator -- aware that a person has committed some suspicious acts, but unable to make a criminal case -- will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."

It was a remarkably sagacious warning, as that scenario that Justice Ginsburg warns of bears a certain resemblance to the one in which Ms. Stewart finds herself, with the federal prosecutors unable to make a criminal case against her for insider trading, but nonetheless finding something to charge her with.

In many cases, prosecutors will use their discretion to avoid filing such charges. It's certainly hard to think of another case in which a person has been prosecuted for violating this section alone, without also being prosecuted for an underlying criminal act. The closest thing people seem to be able to remember is the matter of President Clinton's secretary of housing and urban development, Henry Cisneros, who paid a $10,000 fine and pleaded guilty to lying to the FBI about the duration and amount of payments he made to a former mistress.

Justice Ginsburg wrote, "the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators." For Ms. Stewart, whose celebrity may have made her a tempting target for prosecutors to overcome their traditional reluctance, it is already too late.

It should come as no surprise that the prosecutor in that case was James Comey. Speaking of bad pennies showing up again, this week the Department of Justice Inspector General reported that 19,000 (that’s right -- must have been a message a minute) text messages between Peter Strzok and former FBI attorney Lisa Page had not been properly preserved and created an investigative “gap”. 

“The Department of Justice Office of the Inspector General initiated this investigation upon being notified of a gap in text message data collection during the period December 15, 2016 through May 17, 2017, from Federal Bureau of Investigation mobile devices assigned to FBI employees Peter Strzok and Lisa Page relevant to a matter being investigated by the OIG’s Oversight and Review Division. Specifically, the OIG’s Cyber Investigations Office was asked to attempt recovery of these missing text message for the referenced period from FBI issued mobile devices issued to Strzok and Page,” the report states. “In view of the content of many of the text messages between Strzok and Page, the OIG also asked the Special Counsel’s Office to provide the OIG the DOJ issues iPhones that had been assigned to Strzok and Page during their respective assignments to the SCO.”

After a number of steps by the OIG, “was the recovery of thousands of text messages within the period of the missing text messages, December 15, 2016 through May 17, 2017, as well as hundreds of other text messages outside the gap period that had not been produced by the FBI due to technical problems with its text message collection tool.”

In that same report we learned that the phones issued to Page and Strzok when they were on the Special Counsel’s staff -- a critical period of time -- had been erased by that office and likely those messages are lost. Purportedly the phones were returned to factory settings to be used by others but never were reassigned. 

Since the circumstances under which these two had been removed from the Special Counsel’s office related to biased text messages before this assignment, the explanation for why the phones were “wiped” can be believed only by the terminally credulous.

On Friday afternoon the Special Counsel responded to Judge Sullivan's  order and filed a response (some of which still is redacted). Here are the key points

1. Although Flynn was charged with lying to the FBI investigators, they did not believe at the time he was intentionally lying to them;

"The documents include then-FBI Deputy Director Andrew McCabe’s notes after talking with Flynn to arrange his interview with the FBI. It also includes a so-called "302" report documenting what Flynn told anti-Trump agent Peter Strzok and one other agent during their conversation at the White House. That July 2017 report [the interview had taken place in January], though, specifically came from an interview with Strzok in which the Flynn encounter was discussed -- and not the original Flynn interview.

The 302 report stated that Strzok and the other agent “both had the impression at the time that Flynn was not lying or did not think he was lying.”

2.Then Acting Attorney-General Sally Yates was not happy with Comey's decision to interview Flynn.

And then there’s Michael Cohen’s pleas, only one of which relates to the presidential campaign, a plea of guilt to something which is not a crime, because paying off people who are threatening to make damaging statements about you, is not a campaign expense. 

Brad Smith, former head of the Federal Election Commission explains:

Not everything that is subjectively intended to influence an election is campaign expenditure. For example, if Trump (or any other businessman running for office) settled lawsuits against the business in order to get them off the table, so that they wouldn't become campaign issues, those settlements would not be campaign expenses, but would remain personal expenses, payable by Trump or the company sued. That is true even if the suits were deemed totally meritless by Trump's lawyers and paid solely as nuisance settlements to prevent bad campaign press… 

The obligations to Daniels or others (such as they were) were not created as a candidate. Moreover, even if Trump decided to pay the blackmail in part because he was running for president, in its implementing regulations, the FEC specifically rejected a mixed motive test, i.e. that something would count as a campaign expense if one of multiple motives was to help the campaign. It must exist solely because the candidate is running for office. But Daniels' blackmail threat exists whether or not Trump was running for office…

Secondly, the prosecutors want "for the purpose of influencing a campaign" to be a subjective test determined by the mindset of the actors. I believe that the test is intended as an objective test according to a reasonable observer, defining expenditures that one makes when running for office -- for example, hiring campaign staff, buying ads, purchasing phone service for the campaign, renting office space, printing bumper stickers, etc. I doubt any reasonable jury would deem "payments to mistress" a "campaign expenditure." If it were literally "anything" "for the purpose of influencing a campaign" than virtually every personal expenditure made by a person in public life might be deemed a campaign expenditure…

It is amusing to note that in this same week Congress, which paid out without disclosure over $17 million in sexual misconduct settlements between 1997 and 2017 to 250 persons out of tax revenues, passed a law requiring that Congress will have to pay such settlements out of their own funds in future and regularly report and publish such settlements. If Trump’s payment were deemed to influence a campaign, how would you describe those 250 congressional settlements? 

This week my news-clipping file is overflowing. There’s the hilarious Oval Office meeting between the President and Nancy Pelosi and Chuck Schumer for laughs -- as Pelosi begs for no transparency and Schumer bows his head knowing that the dynamic duo has just been trumped. They thought they were clever in holding up the military appropriations to stop the wall and in the process provided Trump with ammunition: “I am proud to shut down the government for border security, Chuck,” Trump told Schumer. “I will take the mantle. I will be the one to shut it down. I’m not going to blame you for it.”

So, nonessential federal employees (mostly Democrats) will be out of work because the Democrats choose illegal immigration over national security. Since voters overwhelmingly want a check on illegal immigration and aren’t enamored of an overreaching, often utterly incompetent and often corrupt federal labor force, how do you imagine this will play out?

A large amount of domestic coverage this week involves the ongoing Mueller fiasco, in which it appears that the legal theories under which he is operating have been concocted by nitwits, and the processes he’s employed are nothing short of Beria-like (“show me the man, and I’ll show you the crime”) stuff. Space constraints allow me to discuss but a few of the matters in which politics posing as law enforcement captured this week’s news.

Michael Flynn caught a break when his case was assigned to Judge Emmet G. Sullivan, who was monstrously played by a corrupt band of DoJ criminal attorneys and FBI agents in the case of former Senator Ted Stevens. After Stevens was convicted, the Senate Republicans lost their ability to filibuster and made it possible for the Democrats to ram through ObamaCare on a single-party vote. Subsequent to Steven’s death, their perfidy became known. Sullivan threw out the conviction.

The judge then commissioned a 525-page report that presented withering evidence of DoJ misconduct. Irrefutable evidence of prosecutorial misconduct prompted the DoJ to assign Terrence Berg, an attorney in the DoJ’s Professional Misconduct Review Unit, to recommend a penalty for two trial attorneys (James Goeke and Joseph Bottini.)

Berg was the bureaucracy’s first of two interventions on behalf of railroading prosecutors. Berg stalled for several months while he “studied” the evidence and finally concluded that the prosecutors had done nothing wrong. The agency then assigned the matter to the unit chief, who concluded that a 45-day suspension would be warranted.

If you were a partisan DoJ attorney bent on meddling in future elections, would the risk of a 45-day suspension be enough to deter you? The attorneys appealed the 45-day suspensions, arguing they should be entitled to the benefit of Berg’s early assessment that they did nothing wrong. Then the bureaucracy intervened again to save the railroading prosecutors.

The Merit Systems Protection Board granted their appeal, ruling that even though both prosecutors might be guilty of the misconduct as-charged, that they had the right to Berg’s original assessment. And that’s how two DoJ prosecutors got away with railroading Stevens and swinging an election for the U.S. Senate. 

As for the FBI miscreant who played the largest role in this miscarriage of justice, she too got off Scott free: The poster nicknamed “Daddy” reminds us:

FBI  Agent Mary Beth Kepner, who in the Ted Stevens case pencil whipped 302's [agent’s notes of interviews which are to be prepared within 5 days of such interviews] two whole years after the fact and lied to other FBI Investigators under oath that the 302's were contemporaneous, was "severely disciplined" [by then Director James Comey] got a cautionary letter of warning in her official FBI jacket!!!” 

She remained the top FBI agent in Anchorage, so you know how “severe” was the discipline she got for perjuring herself, handing the Obama administration its most cherished legislation -- ObamaCare. 

Certainly there was more, per then Director Comey: 

‘"On top of that, we pushed out refresher training to the entire workforce, especially about our discovery obligations and how we expect them to conduct themselves during those investigations. So, both broad remedial work was done, and individual discipline was imposed for the agent involved," he said.’

The Flynn case shows how ineffective was that “refresher training” And how seriously suspicious Judge Sullivan is of the Mueller team after that experience. 

U.S. District Judge Emmet G. Sullivan ordered Special Counsel Robert Mueller’s office Wednesday night to turn over all the government’s documents by mid-day Friday. The exculpatory documents requested by Sullivan include any memorandums regarding Flynn’s case because of the extraordinary circumstances of the information, according to Sullivan’s request. Further, Sullivan is also requesting any documentation regarding the first interviews conducted by former anti-Trump agent Peter Strzok and FBI Agent Joe Pientka -- known by the FBI as 302s -- which were found to be dated more than seven months after the interviews were conducted on Jan. 24, 2017, a violation of FBI policy, say current and former FBI officials familiar with the process. According to information contained in Flynn’s memorandum, the interviews were dated Aug. 22, 2017.

FBI Supervisory Special Agent Jeff Danik told SaraACarter.com that Sullivan must also request all the communications between the two agents, as well as their supervisors around the August 2017 time-frame in order to get a complete and accurate picture of what transpired. Danik, who is an expert in FBI policy, says it is imperative that Sullivan also request “the workflow chart, which would show one-hundred percent, when the 302s were created when they were sent to a supervisor and who approved them.”

“The bureau policy -- the absolute FBI policy -- is that the notes must be placed in the system in a 1-A file within five days of the interview,” said Danik, who added that handwritten notes get placed into the FBI Sentinel System, which is the FBI’s main record keeping system. “Anything beyond five business days is a problem, eight months is a disaster.”

Given the fact that the infamous Peter Strzok, since removed from the Mueller investigation for demonstrated anti-Trump bias, conducted the interrogation, there’s every reason beyond the departure from the regulations to question whether the accounts are accurate. Indeed, even Comey testified to Congress that the interviewing agents did not think Flynn had deliberately lied to them. But there is even more.

Andrew McCabe, now also fired, recommended to the pair that they were not to offer Flynn a right to counsel nor a Miranda warning that whatever he said might be used against him. He wanted Flynn “relaxed,” which is one way of saying off guard. And he was, thinking it was essentially a courtesy call.

It is clear to me that Flynn’s pleading guilty was a defensive measure to protect his family, which was roughly $3 million in legal debt as he fought against a team with unlimited resources and unlimited partisan fervor (as was the situation in the Stevens case). 

The federal crime of which he is accused is Title 18 United States Code, Section 10001, which I deem (like the overbroad federal laws concerning obstruction and conspiracy) a tool for unscrupulous prosecutors like these. Justice Ruth Bader Ginsburg shares my view of this provision as the NY Sun writing about Martha Stewart’s case observed:

Ruth Bader Ginsburg, who, in a concurring opinion in the 1996 Supreme Court case Brogan v. United States, warned of "the sweeping generality" of Section 1001's language.

Justice Ginsburg wrote: "The prospect remains that an overzealous prosecutor or investigator -- aware that a person has committed some suspicious acts, but unable to make a criminal case -- will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."

It was a remarkably sagacious warning, as that scenario that Justice Ginsburg warns of bears a certain resemblance to the one in which Ms. Stewart finds herself, with the federal prosecutors unable to make a criminal case against her for insider trading, but nonetheless finding something to charge her with.

In many cases, prosecutors will use their discretion to avoid filing such charges. It's certainly hard to think of another case in which a person has been prosecuted for violating this section alone, without also being prosecuted for an underlying criminal act. The closest thing people seem to be able to remember is the matter of President Clinton's secretary of housing and urban development, Henry Cisneros, who paid a $10,000 fine and pleaded guilty to lying to the FBI about the duration and amount of payments he made to a former mistress.

Justice Ginsburg wrote, "the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators." For Ms. Stewart, whose celebrity may have made her a tempting target for prosecutors to overcome their traditional reluctance, it is already too late.

It should come as no surprise that the prosecutor in that case was James Comey. Speaking of bad pennies showing up again, this week the Department of Justice Inspector General reported that 19,000 (that’s right -- must have been a message a minute) text messages between Peter Strzok and former FBI attorney Lisa Page had not been properly preserved and created an investigative “gap”. 

“The Department of Justice Office of the Inspector General initiated this investigation upon being notified of a gap in text message data collection during the period December 15, 2016 through May 17, 2017, from Federal Bureau of Investigation mobile devices assigned to FBI employees Peter Strzok and Lisa Page relevant to a matter being investigated by the OIG’s Oversight and Review Division. Specifically, the OIG’s Cyber Investigations Office was asked to attempt recovery of these missing text message for the referenced period from FBI issued mobile devices issued to Strzok and Page,” the report states. “In view of the content of many of the text messages between Strzok and Page, the OIG also asked the Special Counsel’s Office to provide the OIG the DOJ issues iPhones that had been assigned to Strzok and Page during their respective assignments to the SCO.”

After a number of steps by the OIG, “was the recovery of thousands of text messages within the period of the missing text messages, December 15, 2016 through May 17, 2017, as well as hundreds of other text messages outside the gap period that had not been produced by the FBI due to technical problems with its text message collection tool.”

In that same report we learned that the phones issued to Page and Strzok when they were on the Special Counsel’s staff -- a critical period of time -- had been erased by that office and likely those messages are lost. Purportedly the phones were returned to factory settings to be used by others but never were reassigned. 

Since the circumstances under which these two had been removed from the Special Counsel’s office related to biased text messages before this assignment, the explanation for why the phones were “wiped” can be believed only by the terminally credulous.

On Friday afternoon the Special Counsel responded to Judge Sullivan's  order and filed a response (some of which still is redacted). Here are the key points

1. Although Flynn was charged with lying to the FBI investigators, they did not believe at the time he was intentionally lying to them;

"The documents include then-FBI Deputy Director Andrew McCabe’s notes after talking with Flynn to arrange his interview with the FBI. It also includes a so-called "302" report documenting what Flynn told anti-Trump agent Peter Strzok and one other agent during their conversation at the White House. That July 2017 report [the interview had taken place in January], though, specifically came from an interview with Strzok in which the Flynn encounter was discussed -- and not the original Flynn interview.

The 302 report stated that Strzok and the other agent “both had the impression at the time that Flynn was not lying or did not think he was lying.”

2.Then Acting Attorney-General Sally Yates was not happy with Comey's decision to interview Flynn.

And then there’s Michael Cohen’s pleas, only one of which relates to the presidential campaign, a plea of guilt to something which is not a crime, because paying off people who are threatening to make damaging statements about you, is not a campaign expense. 

Brad Smith, former head of the Federal Election Commission explains:

Not everything that is subjectively intended to influence an election is campaign expenditure. For example, if Trump (or any other businessman running for office) settled lawsuits against the business in order to get them off the table, so that they wouldn't become campaign issues, those settlements would not be campaign expenses, but would remain personal expenses, payable by Trump or the company sued. That is true even if the suits were deemed totally meritless by Trump's lawyers and paid solely as nuisance settlements to prevent bad campaign press… 

The obligations to Daniels or others (such as they were) were not created as a candidate. Moreover, even if Trump decided to pay the blackmail in part because he was running for president, in its implementing regulations, the FEC specifically rejected a mixed motive test, i.e. that something would count as a campaign expense if one of multiple motives was to help the campaign. It must exist solely because the candidate is running for office. But Daniels' blackmail threat exists whether or not Trump was running for office…

Secondly, the prosecutors want "for the purpose of influencing a campaign" to be a subjective test determined by the mindset of the actors. I believe that the test is intended as an objective test according to a reasonable observer, defining expenditures that one makes when running for office -- for example, hiring campaign staff, buying ads, purchasing phone service for the campaign, renting office space, printing bumper stickers, etc. I doubt any reasonable jury would deem "payments to mistress" a "campaign expenditure." If it were literally "anything" "for the purpose of influencing a campaign" than virtually every personal expenditure made by a person in public life might be deemed a campaign expenditure…

It is amusing to note that in this same week Congress, which paid out without disclosure over $17 million in sexual misconduct settlements between 1997 and 2017 to 250 persons out of tax revenues, passed a law requiring that Congress will have to pay such settlements out of their own funds in future and regularly report and publish such settlements. If Trump’s payment were deemed to influence a campaign, how would you describe those 250 congressional settlements?