Tragedy Tomorrow, Comedy Tonight

That’s the title of a great song in A Funny Thing Happened on the Way to the Forum, and that, it occurs to me, is an appropriate song for the media and the Democrats. For two years they vigorously promoted -- for their amusement and political benefit -- a fake Russian collusion story and now must watch it unravel and boomerang on them, their allies and the miscreants who created it. They had their fun, and the denouement has begun. 

This Week’s Hearings

There were two hearings on the Mueller report this week, one before the Senate Judiciary Committee and another before the House Judiciary Committee. The Senate hearings were marked by such silly questions and vituperative charges, often by senators who are seeking the party’s nomination and want publicity, that I was tempted to simply repeat some of them for laughs. Other developments, which I will explain, preempted that plan, but I cannot resist this exchange between the fabulist Senator Richard Blumenthal, who faked his war record, and the attorney general: 

“Did you or anyone, either you, or anyone on your staff memorialize your conversation with Robert Mueller?” Blumenthal asked Barr.

“Yes,” replied Barr.

“There were notes taken of the call,” Barr said in response to Blumenthal asking who took the memos.

“May we have those notes?” Blumenthal asked.

“No,” Barr promptly replied.

“Why not?” Blumenthal shot back.

“Why should you have them?” Barr replied.

Not since Secretary of Defense Donald Rumsfeld have I seen such terse, justifiable dismissal of blather and not since Edwin Meese have a seen a Republican attorney general who wasn’t a timid wretch.

As for the House hearing, the chairman set so many conditions for his appearance that Barr refused to attend and the takeaway of the hearing was Democratic Congressman Steve Cohen munching on fried chicken.

Factual Errors in the Mueller Report

I think there are a number of factual errors in the Mueller report which, if he ever testifies, might be more edifying than watching Cohen eat chicken. Here are just two. I still cannot understand how, when no government agency examined the DNC servers, he could possibly conclude the leaks from it were the result of Russian hacking as opposed to a download by someone with internal access to it.

More significant is the very basis for the investigation itself. Purportedly the investigation was triggered by George Papadopoulos’ conversations, not just the now thoroughly discredited Steele Dossier. At the Senate hearing the attorney general disclosed that Alexander Downer, a former Australian diplomat, was the source of the information, which, we are told, was the trigger for the investigation.  While this had been reported earlier, this is the first time the government has publicly acknowledged Downer’s role. As for the information from Downer, it seems to me the conversation was thrown in to buttress the predicate for the entire witch-hunt, the Dossier clearly being an inadequate basis. Barr seems to agree:

Barr suggested in his testimony that he has concerns with the FBI’s rationale for opening the investigation based on the Aussie tip.

“I would have to see exactly what the report was from Downer, the Australian Downer, and exactly what he quoted Papadopoulos as saying,” Barr told Durbin.

“But from what you just read, I’m not sure what the correlation was between the Russians having dirt and jumping to the conclusion that that suggested foreknowledge of the hacking.”

Legal Poppycock in Part 2 of the Mueller Report 

Not only do the factual recitations in the Mueller report appear sloppy and unable to pass scrutiny, the legal arguments in the Second Section, presumably the reason why the investigation continued long past the point where the collusion contentions were proven unsustainable, are thin gruel as well. We now know that Barr himself brought this to the attention of Rod Rosenstein before he was named attorney general. It’s a certainty to me that Barr’s thorough legal argument and then his assumption of office led to the conclusion of the Mueller probe six weeks after he assumed office.

There’s a really fine analysis by Will Chamberlin of the “legal chess match” which Barr won. It involves the reading of 18 U.S.C. Sec. 1512 (c)(2), a section of the statute which Mueller’s team was exploiting to keep their game alive and the President hamstrung.  As Chamberlin says, “Mueller adopted an expansive, acontextual, and constitutionally questionable interpretation [of the section] and used it to justify an extensive investigation into potential obstruction of justice by President Trump.”

It was clear from the direction of the Special Counsel’s investigation that this was the game. Barr went over Mueller’s head on June 8 of last year with a detailed 19-page memorandum to Rod Rosenstein in which he noted the President lacked the requisite intent of that provision but has also made clear that he disagreed with Mueller’s legal theories. 

(The goofy theory concerning obstruction reminds me of the goofy theory the prosecutors used to destroy the fine accounting firm Arthur Andersen in a case which the Supreme Court unanimously overruled. It’s no coincidence that the prosecutor in that case was on the Mueller team and certainly the architect of the notion that prosecutors ought to determine if perfectly legitimate conduct can be made the basis of a criminal proceeding if the prosecutor thinks the conduct somehow impedes his ability to convict on an actual crime.)

Professor Alan Dershowitz agrees with Barr’s determination:

In the absence of a contrary precedent, the general obstruction of justice statute should not be deemed applicable to the commission of an act by a president authorized by the Constitution, even if it was self-serving. This conclusion applies not only to the firing of Comey, but to all actions taken by President Trump pursuant to constitutional authority under Article II. [snip]

The real controversy is whether President Trump’s actions, authorized by the Constitution, could constitute the crime of obstruction of justice. Barr is right in concluding it couldn’t. Mueller is wrong in concluding it could. 

In plain language, it would be a travesty if, like Spanish inquisitors, prosecutors could charge officials with wrongdoing when they were clearly acting within their legally authorized roles simply because the prosecutors disagreed with the decisions and had confected some cockamamie theory on how it could have impeded their investigation of a nonexistent crime.

The Hillary Clinton Investigation

If you will recall, it was James Comey, not Attorney General Loretta Lynch, who announced Hillary would not be charged for mishandling classified information on her private server. Eric Felten suggests that she was set up by Bill Clinton to force her to turn the decision on whether to prosecute to her staff, headed by Comey. He bases his argument on a transcript of her closed-door testimony before the House Committee on Oversight and Reform on December 19 of last year. Her testimony is far different than the description she’d earlier given reporters. In her congressional testimony this was anything but a chance meeting, but a deliberate intrusion by Bill Clinton who she could not get to leave and who prattled on for 8-10 minutes.

James Comey was FBI director at the time of the tarmac meeting. Much later -- just two days before Lynch’s closed door testimony on Capitol Hill -- Comey gave his own private congressional interview. He claimed to have been so troubled by the Lynch/Clinton get-together that he considered calling for a special counsel to investigate. But, he decided a special counsel wasn’t necessary. Which left him in the position to usurp from Lynch, with his July 5, 2016 press conference, the decision of whether or not to prosecute Hillary.

Let’s assume for the sake of argument that Lynch was not lying to Congress. If so, it seems to have dawned on her rather late that Clinton had compromised her, had put her in a jam. What if that’s exactly what he set out to do? It would explain the ex-president’s otherwise inexplicable behavior -- how one of the great glad-handers of all time leapt onto a plane in order to bore everyone to death. He was anything but clueless; he was demonstrating to the attorney general that he could cause her real trouble, and could do so with cheerful impunity. He didn’t have to make heavy-handed threats or otherwise put himself at risk of an obstruction of justice charge. No, all he had to do was darken the airplane doorway and prattle on with seeming obliviousness about grandkids, travel plans, coal mining, golf, and Brexit.

In the wake of that bravura performance, Lynch had to convene working groups to determine whether she needed to recuse herself from the Hillary probe. She would ultimately decide against recusal, but said she would accept the decision of career staff and the FBI on whether to prosecute.

What a mess. And what a splendidly innocent way of causing mayhem and conveying menace. Give Bill Clinton his due -- the man is no amateur. 

Upcoming Events

Former House Intelligence Committee chair Devin Nunes Has some fact questions about Joseph Mifsud, often described as a Maltese professor. He was the man who told Papadopoulos that the Russians had email “dirt” on Hillary that could harm her campaign. The Mueller report indicates he was working for the Russians and was a counterintelligence threat. Devin Nunes says the Mueller report “omits any mention of a wide range of contacts Mifsud had with Western political institutions and individuals.” It was this offer from Mifsud that Papadopoulos purportedly mentioned to Downer and Downer somehow conveyed to the FBI and per Comey was a significant inspiration for the collusion investigation.

Nunes also is seeking information about the FBI’s contacts with Mifsud -- asking how the bureau knew to question Papadopoulos specifically about Clinton’s emails if it hadn’t already spoken to Mifsud. The congressman said, “it’s still a mystery how the FBI knew to ask Papadopoulos specifically about Hillary Clinton’s emails…”

Nunes’ letter is addressed to Secretary of State Mike Pompeo, Central Intelligence Agency director Gina Haspel, National Security Agency Director Paul Nakasone and FBI Director Chris Wray. It asks them to hand over all information they have on Mifsud by May 10.

In his letter, Nunes presents photographic evidence of Mifsud in close proximity to influential Western political and government officials.

“If Mifsud has extensive, suspicious contacts among Russian officials as portrayed in the special counsel’s report, then an incredibly wide range of Western institutions and individuals may have been compromised by him, including our own State Department,” Nunes wrote.

Mifsud vanished from public view and has been unavailable for comment or questioning. Il Foglio reports that Link Campus, an Italian college, had been sheltering him. On January 13, 2018 “Mifsud said that ‘the head of the Italian secret services contacted the president of Link Campus, Vincenzo Scotti, and recommended that the Professor shall disappear for some time in a safe location.’” Il Foglio reports that Link has “more to do with secret services than academia.”

Well, we now have Downer and Mifsud (Australia and Italy) involved in the effort to kick over the traces of this scandal. More evidence of spying both by U.S. and foreign intelligence operatives is coming.

Jonathan Moffa, deputy assistant director of the FBI, section chief of counterintelligence analysis, testified in another closed-door congressional hearing that the FBI from the earliest days of the collusion investigation enlisted not only Confidential Human Sources “but also the aid of outside intelligence agencies, U.S. foreign or both.” 

Christopher Steele was an official informant expecting to be paid by the FBI for his dossier information. Moffa also confirmed that Steele’s status as a CHS had eventually been revoked. Moffa had been at a meeting where “closing” Steele as a Confidential Human Source was discussed, but Moffa declined to answer questions about what Steele did to lose his CHS status.

Steele was hardly the only CHS used in the FBI’s investigation. It has been widely reported that a retired Cambridge professor, Stefan Halper, was a CHS -- we’ve all been lectured not to use the word “spy” in describing him.

And now the New York Times has put in print what was long suspected, that the woman [Stefan] Halper presented to George Papadopoulos as his “assistant” was actually something else altogether. “Azra Turk” was an FBI asset sent across the Atlantic with a mission to get incriminating information out of Papadopoulos. It’s not clear whether she counted as a CHS herself, or whether she was an “investigator” with some other official status at the bureau.

It’s not clear which U.S. agency Halper works for. The last information I was able to obtain indicated he was on the Department of Defense payroll as late as September 2016.

There was a whole lot of spying going on.

Why Many in Washington Have a Lot to Worry About

At the Senate hearing, Barr made it clear that he intended to have a wide-ranging investigation of the origins of the collusion probe and justifications for “secret surveillance warrants against Trump team members” going back months before the fall 2016 justifications. He specified the opposition-concocted “Steele Dossier,” which he believes may have been Russian disinformation. He also is investigating leaks of classified information about the Mueller investigation. Kimberley Strassel accurately describes the mood here in Washington circles (if you couldn’t already guess from Cohen’s chicken-eating stunt and the hostile Senate questioning of the attorney general). 

Do not underestimate how many powerful people in Washington have something to lose from Mr. Barr’s probe. Among them: Former and current leaders of the law-enforcement and intelligence communities. The Democratic Party pooh-bahs who paid a foreign national (Mr. Steele) to collect information from Russians and deliver it to the FBI. The government officials who misused their positions to target a presidential campaign. The leakers. The media. More than reputations are at risk. Revelations could lead to lawsuits, formal disciplinary actions, lost jobs, even criminal prosecution.

The attacks on Mr. Barr are first and foremost an effort to force him out, to prevent this information from coming to light until Democrats can retake the White House in 2020. As a fallback, the coordinated campaign works as a pre-emptive smear, diminishing the credibility of his ultimate findings by priming the public to view him as a partisan.

That’s why Mr. Barr isn’t alone in getting slimed. Natasha Bertrand at Politico last month penned a hit piece on the respected Mr. Horowitz. It’s clear the inspector general is asking the right questions. The Politico article acknowledges he’s homing in on Mr. Steele’s “credibility” and the dossier’s “veracity”—then goes on to provide a defense of Mr. Steele and his dossier, while quoting unnamed sources who deride the “quality” of the Horowitz probe, and (hilariously) claim the long-tenured inspector general is not “well-versed” in core Justice Department functions.

“We have to stop using the criminal-justice process as a political weapon,” Mr. Barr said Wednesday. The line didn’t get much notice, but that worthy goal increasingly looks to be a reason Mr. Barr accepted this unpleasant job. 

Many unsavory practices and unlawful acts are going to be revealed. I believe this utterly. Attorney General Barr is about to join the handful of patriot heroes in this long-running sleazy saga.

If you experience technical problems, please write to