January 5, 2017: A Day that Should Live in Infamy

This week saw two major legal developments: The government withdrew its prosecution of General Michael Flynn and the transcripts of the 2017-2018 secret basement depositions by the House Committee on Intelligence were finally made public. Altogether they show a scandalous miscarriage of justice and media malpractice, which continues to this day, instigated by Barack Obama.

1.  The Flynn Case

This week the Department of Justice announced that it was withdrawing its prosecution case against General Flynn. Former President Obama leaked his talking points to the ever-compliant press flacks and former officials, claiming that there was no precedent for such a dismissal, a claim that was false, to which he added another falsehood -- that Flynn had been charged with perjury.

Having the new script in hand, this nonsense was repeated ad nauseam on TV, some press, and the new media.

Law Professor Jonathan Turley swatted it back. (I urge you to clip and save this because this echo chamber may well have convinced those with whom you are related or converse with and it will come in handy.):

Jonathan Turley

President Obama is being quoted on Flynn, saying, "There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free." It is a curious statement. First and foremost, Flynn was not charged with perjury...

Second, we now know Obama discussed charging Flynn under the Logan Act which has never been used successfully to convict anyone and is flagrantly unconstitutional. Third, this reaffirms reports that Obama was personally invested in this effort. Finally, there is precedent.

There is a specific rule allowing for this motion under Federal Rule of Criminal Procedure 48(a). There are specific Supreme Court cases like Rinaldi v. United States addressing the standard for such dismissals....

The Justice Department has dismissed cases in the past including the Stevens case. That was requested by President Obama's own Attorney General Eric Holder for the same reason: misconduct by prosecutors. It was done before the same judge, Judge Sullivan. How is that for precedent?

Once again, Obama makes a statement about law which is demonstrably false. In fact, not once to my recalling has he ever made a statement about the law that is correct.

As to the facts, you simply cannot count on media reports, so I will link for you the Government’s Motion to withdraw the case.

As you read it you will see that once specially appointed U.S. Attorney Jeff Jensen finally found the documents long hidden from the defense and court in the bowels of the FBI and DoJ, the government had little choice but to withdraw the case.

A number of analyses -- by people who do know enough not to simply rewrite Obama press dictation -- provide an accurate and chilling account of the persecution of Flynn. The Wall Street Journal’s Kimberley Strassel and the Federalist’s Margot Cleveland certainly provided the most accurate and readable of the accounts. 

Strassel reminds us that the scandal had two parts. The “indefensible probe of the Trump campaign,” and Robert Mueller’s coverup of the Bureau’s wrongdoing. I urge you to read the entire article. Here are the highlights, which are well documented.

1.  “According to Justice department Inspector General Michael Horowitz, the FBI knew by January 2017 that the dossier’s primary Russian source had disavowed the allegations and the FBI has failed to validate a single claim.”

2.  The government earlier this year admitted to the Foreign Intelligence Surveillance Court that applications “which spanned Mr. Mueller’s appointment and the [Rosenstein] scoping memo” lacked probable cause and should never have been made. The Mueller tasking memo gave him authority to investigate “abuses of ancient or rarely enforced laws” and “potential crimes” never or rarely enforced.

3.  Former FBI director James Comey leaked his memo of conversations with the president specifically to force the appointment of a special counsel to hide his own “egregious errors.” “The Mueller probe -- led by the very people who had made those errors -- then spent two years ‘investigating’ bogus or derivative claims, keeping secrets, and giving the escapade a fiction of legitimacy.”

Margot Cleveland provides a clear timeline of the events in the Flynn case. It shows, among other things, how the Obama administration played the media to achieve its goals of getting Flynn and Attorney General Jeff Sessions out of their way to carry out their coup attempt. Among her key points are these:

Documents recently (and very tardily) turned over by the government support Flynn’s claim that his guilty plea had been coerced by threats to prosecute his son. The evidence demonstrates that the FBI agents who interviewed him did not believe Flynn had lied to them about a conversation with the Russian ambassador, which in any case was a perfectly legal transition team communication. But had he, in any event, done so, the relevant statute requires that the lie, to be prosecutable, had to be material. It was not and could not have possibly influenced the conversation. Unsealed documents also reveal that there was no basis whatsoever for the interview. As Cleveland says, “There was no legitimate ongoing investigation at the time of the interview.” It was, in fact, what is known as a “perjury trap,” a trap that the documents reveal was at the direction of the top officials of the FBI (“the 7th floor”).

She explains what a “perjury trap” is: “the government’s use of its investigatory powers to secure a perjury indictment on materials which are neither material nor germane to a legitimate ongoing investigation.” (As an example, if the  FBI is investigating a car stolen last night and you are asked where you spent Christmas in 2015 and you lie about that, it really isn’t material to the car theft case.) Sometimes this may be difficult to establish, but it isn’t here because it was in the Director of the FBI Counterintelligence Division Bill Priestap’s own handwriting.

Professor Cleveland details, as well, the special counsel and prosecutors’ repeated violations of Judge Emmet Sullivan’s order to timely provide all exculpatory material to the defendant. These materials were provided only after the attorney general’s designee Jensen found them.

Not least of the government’s problems with pursuing this case is the obvious failure to turn over the 302 summary, the notes of the agents who interviewed Flynn. (302s are an archaic method of retaining interview notes and should be replaced with video recordings, as they are always ripe for mischief and inaccurate reporting.) In this case, they weren’t turned over because Lisa Page and Peter Strzok substantially revised them, “changing the content and context of Flynn’s statements and making it appear than Flynn had lied when he had not.”

And now to January 5, 2017. Mollie Hemingway at the Federalist ties the Flynn case dismissal to the Obama White House meeting on January 5, 2017.   

“It was at this meeting,” she writes, “that Obama gave guidance to key officials who would be tasked with protecting his administration’s utilization of secretly funded Clinton campaign research, which alleged Trump was involved in a treasonous plot to collude with Russia, from being discovered or stopped by the incoming administration.”

To advance this goal, her timeline reveals that on January 5 Deputy Attorney General Sally Yates, FBI head James Comey, CIA Director John Brennan, Director of National Intelligence James Clapper, Joe Biden, and Susan Rice met with Obama in the Oval Office. Afterwards, Yates and Comey were asked to stay and Obama “gave his guidance about how to perpetuate the Russian collusion theory investigations,” mentioning Flynn’s conversations with the Russian ambassador. In so doing, it’s clear that he had independently surveilled those telephonic communications. Clapper, Comey, and Yates all denied briefing him about those. (It’s clear there was another source of his information -- likely British intelligence illegally looped into the spying on Trump operation.)

On January 6, Comey gave a misleading briefing to the incoming president on “Russian interference,” telling him he was doing so “because CNN was looking for any reason it could find to publish a story about Russia having compromising information on him, and he wanted to warn him about it.”

Four days later CNN published the Russia claims “after a high-level Obama intelligence officer leaked” the fact of the Comey briefing. It was their handle, “credulously accepted by CNN reporters Evan Perez, Jim Sciutto, Jake Tapper, and Carl Bernstein.” A trick to legitimize the fake dossier and promote a lie that Russia was blackmailing Trump.

Days later, someone else leaked to David Ignatius (Washington Post) that Flynn was being investigated for a Logan Act violation, and he gobbled at the same rancid kind of bait that CNN had.

Leaks to the similarly credulous Ellen Nakashima and Greg Miller (Washington Post) were used to mislead Flynn into believing he was no longer being targeted, as Comey manipulated Flynn the next day into a perjury trap interview.  The plotters were still unable to achieve their goal of getting Flynn out of their way. This conducting of selective leaks to an adoring, credulous press continued until Flynn had been fired. By mid-May Sessions had recused himself from oversight after Comey was fired -- also with press assistance.  That evolved into Mueller’s special counsel role, a role incompetently performed by a seemingly cognitively impaired but tall, well-coiffed man whom they apparently thought would add a touch of legitimacy to a monstrously corrupt enterprise. 

In sum, the January 5 plot was a success. “[T]here was no longer any chance of Trump loyalists discovering what Obama holdovers at the FBI were doing to get Trump thrown out of office.” 

If you still cling to the slightest notion of Russian collusion, this week, despite Congressman Adam Schiff’s bottling up the transcripts of the basement secret depositions taken long ago, they were finally released.

Schiff lied about the information gleaned in these depositions for over two years. So did other official confederates of the Obama administration and their media buddies. You can see for yourself. Under oath, every one of them swore they had no credible evidence of any “Russian collusion” with the Trump campaign.

Wuhan Virus

Neil Ferguson, who formulated the most alarming model of the Wuhan virus (as he had of prior diseases), predicting up to 2.2 million U.S. deaths, resigned from his position on the UK’s Scientific Advisory Group on Emergencies after it was revealed that, contrary to his admonition that everybody stay home, his married lover twice visited him at his home, even though she had told others at the time that she suspected that her husband had contracted the virus. 

It’s part of an international trend of those telling us what to do ignoring their advice themselves, like Michelle Obama’s robocalls to D.C. residents telling them to stay inside at the very time her husband was out golfing. Or Mayor De Blasio and his wife hiking in a park distant from their residence. 

Genomic studies of the virus indicate most of the detected virus samples are linked to New York. The only outlier is the Pacific Northwest. 

Rebellions against the stringent gubernatorial flu orders are growing and spreading from state to state. This week’s heroine was Shelley Luther, a Dallas, Texas hairdresser who reopened her shop following the CDC guidelines. After her arrest, Judge Eric Moyé accused her of selfishness and demanded she apologize and shutter the salon. She explained that she was not being selfish, that she had to reopen so she could feed her kids and her staff could feed theirs. The judge, who seems to have studied at the feet of Anatole France (“In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”) gave her a stiff fine and jail sentence. Texas’s attorney general and governor said she should be released, and the Texas Supreme Court so ordered. In a telling mark of how sick we all are of this nonsense, the last time I saw it, a Go Fund Me site set up for her raised within days $500,000 for her defense. Ted Cruz made a point of heading there to get his hair trimmed. (By the way, why does Dr. Fauci’s hair always look so neatly trimmed when all the barbershops in the D.C. metro area are legally shuttered?)

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