Mueller’s Cat: How The Special Counsel Left Obstruction On the Roof

Below is my column in BBC on the Mueller findings.

Here is the column:

Even after two years of preparation, many Americans were not prepared to hear that President Donald Trump would not only complete his term in office but might not even be charged with a single crime in the Russian investigation.

Mr Mueller himself seemed to sense the shock that would come with his findings.

After finding categorically that no crime of collusion occurred, he hedged on the question of obstruction by saying that while he did not conclude the president committed a crime, he also did “not exonerate him.”

Mr Mueller seemed to be following an old joke about a man who calls his brother who has been house sitting during a long trip. The brother immediately says “Fluffy is dead.”

The man yells at his brother that this is not how you tell someone their cat is dead – rather you build it up by first saying the cat is “stuck on the roof and then call back to say she fell”.

After the brother apologised, the man asked how their mom is doing, and the brother paused and replied: “Mom’s stuck on the roof…”

The slight roundabout way of clearing President Trump had about the same effect – it was little comfort.

People had invested Mr Mueller with their hopes for a premature termination of the Trump administration.

After Attorney General William Barr concluded that Mr Trump had not committed criminal obstruction, the inescapable fact was that he is likely to finish his term of office. There, I said it.

In reality, we never really needed the “roof” build-up.

1. Collusion

Let’s start with collusion. For two years, I have written that the theories of collusion crimes were factually and legally flawed. Nevertheless, people tuned into channels like CNN and MSNBC where they heard legal experts assure them that collusion was clear and criminal charges imminent.

This echo-chamber viewing actually convinced millions that Trump would be frog-walked to a federal penitentiary with his Russian handlers. It was all part of the collusion delusion.

The grand collusion conspiracy was never particularly convincing. It would have Trump or his family or aides helping to hack computer systems and then arrange for the leaking of the information through WikiLeaks.

Media captionMueller report: One summary, two interpretations

There was never any explanation on why Russian intelligence would take such a risk and place itself at the mercy of a serial social media user. Then there is the implausible meeting of this secret cell in Trump Tower with half of the world’s media downstairs.

The Russians in the meeting did not even know who would attend. It lasted roughly 15 minutes and focused virtually entirely on the ban on Russian adoptions (an issue that the Russian lawyer had long lobbied against). While evidence of criminal wrongdoing by Hillary Clinton was promised, nothing was disclosed.

Then there was the interest in Trump and people like Roger Stone in obtaining the WikiLeaks emails. The question is why such efforts were necessary for co-conspirators. Virtually every reporter and political operative in Washington was trying to get access to the same material.

Yet legal experts still proclaimed that crimes from collusion to conspiracy to treason were already established. None of that changed as Mueller filed numerous indictments and memorandums with courts that conspicuously omitted any evidence supporting collusion.

Collusion was the crime of hope over experience and a wide array of pundits and politicians kept hope alive until Mueller dispatched the theory in his report in roughly two dozen words: “[T]he investigation did not establish that members of the Trump campaign conspired or coordinated with the Russian government in its election interference activities.”

2. Obstruction

Obstruction was always a closer question. Some of us opposed the appointment of a special counsel before Mr Trump fired FBI Director James Comey.

When he took that self-defeating step, the situation changed – many of us called for a special counsel because now there was a possible crime of obstruction. It did not make it a strong claim and I questioned its viability, but it deserved to be investigated.

The problem was that Mr Trump never fired Mr Mueller. He was never accused of destroying evidence. He never forced the investigation to a premature end.

To be sure, he acted in a highly inappropriate and objectionable way. Indeed, he almost counterpunched his way into an obstruction case. Yet, despite his best efforts, he failed.

Obstruction is based on a state of mind. When Mr Mueller found that there was no evidence of collusion, it undermined such an obstruction case.

It could still occur but Mr Trump needed to intend to obstruct the investigation. The problem is that Mr Trump’s irresponsible and self-defeating tweets on the investigation were consistent with such statements in a myriad of other areas from immigration to North Korea. He maintained that the investigation was not only based on a false allegation but the result of a Deep State conspiracy.

Indeed, a federal appellate court in February just reaffirmed what many of us (including Barr himself) have been trying to point out – obstruction crimes are narrowly construed by the courts to establish a close “nexus” between the alleged misconduct and an official proceeding.

The Fourth Circuit was the latest court to throw out a conviction on that basis in United States v Young last month. Notably, the court cited the case of Arthur Andersen v United States, which two of Mr Mueller’s top aides lost before the Supreme Court by overextending such language.

The fact that Mr Trump refused to be interviewed on obstruction was not likely determinative. Most targets do not give testimony before a grand jury and prosecutors base their decision on the rest of the record.

If Mr Trump’s testimony was determinative, Mr Mueller could have sought to force it or he could have stated that the absence of such testimony was the reason why he could not reach a final decision.

However, even if Trump spoke with the investigators, he only needed to repeat that he fired Mr Comey because of his poor record. He has maintained that he attacked the investigation because it was launched in the absence of a crime (which Mr Mueller himself confirmed could not be established).

James Comey
Image captionThe firing of James Comey was scrutinised by Mueller

Ultimately, Mr Mueller punted on the obstruction question. Mr Barr explained that Mr Mueller did “not conclude that the president committed a crime, it also does not exonerate him.” However, both the attorney general and his deputy took just two days to say the obvious – there was no obstruction case to be made. In other words, the obstruction indictment was stuck on the roof.

In the end, everyone but the public came out ahead.

The president was not charged and used the investigation to rally his base. The Democrats used the investigation to help retake the House of Representatives. The media enjoyed massive ratings in pushing the collusion allegations.

Everyone had windfall benefits except the public, which was left feeling like chumps or victims or both.

Yes, Mr Trump will finish his term. But the distemper – and the investigations – will continue up to the 2020 elections.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and served as the last lead defence counsel in an impeachment in the US Senate

47 thoughts on “Mueller’s Cat: How The Special Counsel Left Obstruction On the Roof”

  1. Whether or not a Special Counsel was justified is a worthy area of investigation given the commingling of counterintelligence with criminal, the novel use of obstruction, the changing scope of the probe and the appointment of the Special Counsel at the hands of a DAG who may or may not have raised the possibility of wearing a wire and who may or may not have sought to unconstitutionally leverage the 25th Amendment to expunge a duly elected sitting POTUS. At this juncture, we still do not know the precise predication that was used to justify the Special Counsel nor do we have any dispositive insight into Mr. Rosenstein’s role in the events above.

    The issue of obstruction in this case is not being properly conveyed by the mainstream media in my view. This is not the established legal view of obstruction, such as witness tampering, destruction of evidence or subornation of perjury. Rather the obstruction in this case relies on a novel and unprecedented view of obstruction based on a broad and expansive interpretation of the applicable statutes (leveraging the “corruptly otherwise influences” clause). Specifically, this view posits that the otherwise lawful exercise of the President’s Art II authority (the “conduct” or actus reus) can be unlawful if it is based on corrupt intent (mens rea or “state of mind”). This is notably different that the established view of obstruction where the “conduct” is a crime in and of itself (for example, subornation of perjury) and the corrupt intent can be construed to be inherent in the “conduct” itself which is why you can be found not guilty of an underlying crime but still be found guilty of the crime of obstruction. However, if you buy into this expansive theory of obstruction (and Mueller has duly noted the “difficult” legal issues that arise from this interpretation), a great honus is placed on the ability to prove corrupt intent independently w/r/t Trump obstruction of justice or you simply have “conduct” which is lawful in and of itself and which would not be obstruction. Based on public facts, it was alleged that Trump attempted to obstruct the Russia investigation by firing Comey (the “Russia thing” via the Holt interview). The corrupt intent was thought to be that Trump must be covering up for some form of collusive behavior or illicit interactions that the investigation might expose. However, when Mueller found no such evidence, the corrupt intent component ceases to exist (barring other provable avenues of corrupt intent of which there is no public knowledge) and you are left with “conduct” which is simply the President exercising his Art II Constitutional powers. The same argumentation applies to other known examples of alleged obstruction. Thus, Trump being exonerated of collusion/conspiracy significantly undercuts (if not dispositively) the obstruction of justice allegations under the broad and expansive interpretation. That is the point Barr is making in his summary (not that you can’t have obstruction w/o an underlying crime) and, reading between the lines, almost assuredly a point of marked contention between Mueller and Barr.

    A few observations:

    1) The above likely means that you have a codependent correlation between collusion and obstruction–you either have both or you have none.

    2) Given the significance of proving corrupt intent independently under the Mueller theory of obstruction, how do you conclusively establish the Trump state of mind when you have no written or interview answers (if reporting is correct) to obstruction questions? I’ve long held that when Mueller declined to subpoena that the likelihood was that he didn’t have a strong evidentiary case. It’s possible that this lack of evidence re state of mind could be one of the reasons Mueller decided not to make a determination.

    3) Does the novel theory of obstruction make for good law, would it make for good legal precedent and what are the practical and political ramifications? A strong argument could be made that such a theory of obstruction if implemented could tie the Executive Branch into a Gordian knot where every otherwise lawful action would potentially require an assessment of intent. Would such an expansive view of the law make it more likely or less likely for the law to be potentially weaponized for partisan purposes?

  2. Nothing difficult about this. If one is innocent one is not guilty. End of Conversation. If anything the guilt lies with the investigator who investigated only Trump Collusion Russia Election.

    He refused to use the also granted broad wide ranging powers to go any further. One might say that Meuller obstructed his own investigation to what purpose we don’t know but can assume it may have to protecting someone else. To put it in terms the collective can understand.

    But anyway you slice it the investigation went on and the fact it ended showed one thing for sure. No charges, No grounds for conviction and No obstruction.

    How could there be when it both proceeded and concluded?

    Now if they had used to word Obstructed or better yet used the words Conspired instead of Collusion. Or used the words Candidates and Staffs instead of Trump, Or instead of Russian Government used the words Foreign or Domestic in the commission of a crime……….

    But it didn’t

    So? Hoisted on their own petard the left is left with nothing except the known facts of their activities and cannot claim innocent status? Why not. Not investigated, not charged, no evidence presented to exonerate….

    Tough said the Kitty but the milk’s still sweet and so is 2020

    If anyone has to face the music of no exoneration it is the socialist left. After all who else better to blame than the Russians own political partners?

  3. “If you can’t dazzle ’em with brilliance, baffle ’em with bull—-!”

    – Anonymous
    ___________

    A perpetrator cannot obstruct justice if there is no crime and no justice to be obtained.

    An investigation of nothing cannot be obstructed in pursuit of nothing – the hypothetical obstruction would be nothing.

    Incensed over the complete exoneration of President Donald J. Trump, hysterical and incoherent, radical extremist liberals want to conduct a show trial in a kangaroo court.

    Now just calm down, children.

  4. As a public service to this blog I am posting a list of Russian news errors the media made. It can be used by Anon and some others to check their facts before making untrue or libelous statements. I didn’t write it.

    “1. CNN Accuses Don Jr. Of Wikileaks Collusion

    Last December, CNN’s Manu Raju reported that Wikileaks emailed Donald Trump Jr. to give him access to stolen documents a full 10 days before they were released to the public.

    Unfortunately for CNN, it turns out their sources gave them the wrong date. Don Jr. actually received an email with access to the stolen docs on Sept. 14, 2016, after they had already been released publicly.

    2. ABC Tanks Stock Market With Fake Flynn News

    ABC was forced to suspend Brian Ross after he falsely reported that former national security adviser Michael Flynn was prepared to testify that then-candidate Donald Trump ordered him to make contact with the Russians.

    The stock market dropped a few hundred points at the news — but it turned out to be fake.

    ABC clarified that Flynn was actually prepared to testify that Trump asked him to contact Russia while the administration was transitioning into office. Pretty standard preparation for an incoming president.

    3. The Mooch Is NOT Under Investigation

    CNN earns another spot on this list for their shoddy reporting about former Trump adviser Anthony, “The Mooch,” Scaramucci. In June 2017, CNN relied on a single unnamed source to claim that Scaramucci was under investigation for a meeting he took with a Russian banker prior to Trump’s inauguration.

    The Mooch denied the story and CNN later gave him a much-deserved apology. Oh … and three CNN employees resigned over the botched piece.

    4. Bloomberg’s Dirty Deutsche Bank Scoop

    Bloomberg initially reported in December that special counsel Robert Mueller had “zeroed in” on Trump by subpoenaing Deutsche Bank records for the incoming president and his family.

    Bloomberg later admitted that Mueller was looking for records relating to “people affiliated” with Trump.

    5. Sessions Exonerated

    Last May, CNN was sure that Attorney General Jeff Sessions had botched protocol when he didn’t list meetings he had with the Russian ambassador on his security clearance forms. To CNN and other establishment media outlets, this was proof that Sessions was hiding something related to Russia.

    A little over six months later, CNN quietly walked back the scandal, explaining the FBI sent emails informing Sessions’ aide that he did not need to disclose the meetings on his forms because they were carried out in the course of his duties as a senator.

    6. Russians Aren’t Just Hacking The Election — They’re Hacking Our Power Grid

    The Washington Post claimed in January 2017 that Russians were hacking the U.S. power grid through a company in Vermont, only to change the story to say that only one laptop was infiltrated. It turns out that one laptop was never even connected to the power grid.

    7. Republicans Funded The Dossier!

    A number of news outlets have consistently claimed that Republicans initially paid for the anti-Trump Steele dossier, failing to note that Steele wasn’t even contracted by Fusion GPS until after the GOP donors pulled funding. The Republican donors say they paid Fusion for standard opposition research and that they have zero connection to the dossier.

    The media has perpetuated this falsehood so consistently that even former FBI director James Comey was confused, repeating the lie in an interview with Fox News’ Bret Baier.

    8. CNN Gets Comey Prediction Wildly Wrong

    Prior to former FBI director James Comey’s congressional testimony last June, CNN asserted that Comey was prepared to contradict a key claim by President Trump — that Comey told him he was not under investigation.

    Sadly for them, Comey’s prepared testimony was released with the line, “During our one-on-one meeting at Trump Tower … I offered that assurance [that he was not under investigation].”

    9. The ’17 Intel Agencies’ Lie

    The media perpetuated a false claim from presidential candidate Hillary Clinton for months, insisting that all 17 intelligence agencies agree that Russia interfered in the 2016 election. The New York Times, for example, rated that claim as true only to later say the exact opposite.

    Only four intelligence agencies ultimately deemed Russia responsible for meddling because the other 13 have no business making judgments on the claim. As The NYT succinctly explained, “The rest were doing other work.”

    10. Manafort Notes Are A Nothing Burger

    NBC botched its big scoop claiming that Paul Manafort’s notes from a meeting with a Russian lawyer included the word “donations” near a reference to the Republican National Committee.

    Turns out, not only did the word “donations” not appear in Manafort’s notes, but the word “donor” didn’t, either. POLITICO had to correct the NBC report, leaving the legacy network looking awfully embarrassed.

    11. NBC Issues Cohen Correction

    NBC issued a major correction in May on a story about wiretaps and Michael Cohen.

    NBC initially claimed that federal investigators were listening in on Cohen’s phone calls, but it turns out they had what’s called a “pen register warrant,” which means they could see who Cohen spoke to on the phone but could not hear what was said.(RELATED: MSNBC Issues HUGE Correction To Michael Cohen ‘Wiretap’ Story)

    12. Did Cohen Go To Prague?

    A McClatchy report stated that special counsel Robert Mueller had evidence that Michael Cohen visited Prague in the summer of 2016, which seemed to corroborate the portion of the Steele dossier claiming Cohen visited Prague at that time to meet with a Kremlin official.

    However, no other outlets ever confirmed the report and Cohen told Congress during an open hearing in February that he has never been to Prague. (RELATED: Here’s Why You Should Be Skeptical Of That Michael Cohen Prague Story)

    13. Busted BuzzFeed

    The special counsel’s office disputed a 2019 report by BuzzFeed claiming that Trump directed his lawyer to lie about a potential business deal in Moscow during the 2016 presidential campaign.

    The BuzzFeed report was used to float impeachment proceedings and obstruction of justice charges against the president, but Mueller’s team disputed the core premise of the reporting.

    “BuzzFeed’s description of specific statements to the Special Counsel’s Office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s Congressional testimony are not accurate,” spokesman Peter Carr said in a statement to The Daily Caller News Foundation.

    14. Lanny Davis Obliterates CNN’s Trump Tower Story

    CNN reported in July that former Trump attorney Michael Cohen was prepared to tell special counsel Robert Mueller that the president had knowledge in advance of a Trump Tower meeting between his son and Russians.

    But Cohen’s lawyer, Lanny Davis, said in August that CNN’s reporting got “mixed up” and that Cohen had no information related to the Trump Tower meeting. Cohen said the same to Congress on two separate occasions.

    CNN doubled, tripled, and quadrupled down on its reporting, despite a series of issues with the report.

    15. NPR Accuses Don Jr. Of Perjury

    NPR published a report in November insisting that Donald Trump Jr. lied to Congress about efforts to build a Trump Tower in Moscow because his statements conflicted with those of former Trump attorney Michael Cohen.

    However, NPR failed to realize that the piece of Trump Jr.’s testimony they quoted was about a different project.

    “Trump Jr.’s statements about work on a Trump Tower Moscow that ended in 2014 referred to negotiations with Aras Agalarov,” The Daily Caller News Foundation’s Chuck Ross explained. “Felix Sater, a businessman with links to Cohen and Russian officials, tried to make a Trump Tower Moscow happen in 2015.”

    16. Mic Claims Russian Spy Infiltrated The Oval

    Shortly after it was revealed that a Russian spy was attempting to infiltrate right-wing networks, Mic writer Emily Singer claimed that same Russian spy was present during an Oval Office meeting with Russian diplomat Sergey Lavrov.

    Singer claimed Russian spy Maria Butina was spotted in a photo of the meeting, citing the fact that she has red hair like the woman in the photo.

    The woman in the photo is actually NSC staffer Cari Lutkins.”

  5. mespo: When I read the article at 6am, the first thing I thought of was Schrödinger’s cat. But I didn’t think anyone here would know what I was referring to!

  6. Good summary.

    I liked the way Professor Turley early on provided a relavant joke and then later introduced it again “there was no obstruction case to be made. In other words, the obstruction indictment was stuck on the roof.”

    1. Even AG Barr concedes that Trump would obstruct justice if he offered pardons to suborn perjury and tamper with witnesses. The pardon power is an Article II power of the president. And yet Barr had previously written that “generally-worded statutes like 1512 [obstruction of justice] cannot be applied to the President’s exercise of his constitutional powers in the absence of a “clear statement” in the statute that such an application was intended. Barr’s theory of obstruction is inconsistent with Barr’s theory of obstruction.

      BTW, Trump has asserted executive privilege over presidential communications with Manafort, Flynn, Cohen and who knows who all else in which Trump most likely offered pardons to suborn perjury and tamper with witnesses. And that’s the most likely explanation for Mueller’s inability to establish a criminal conspiracy between the Trump campaign and the Russian government’s election interference activities.

      1. Diane, the investigation is over and no one cares what you think happened. We live under rule of law something you seem not to understand. No collusion or obstruction was found so the presumed innocence under our system is now a proven innocence. There is nothing to obstruct any longer so the President is free to use his pardon powers.

      2. learn to brush your teeth,. everytime you write something here I can just smell the turdlike stench wafting from your gaping maw

  7. It appears, Mueller kicked the can down the road, on obstruction by Trump; the can hit AG Barr’s foot and stopped.

  8. Excerpted from page 3 of AG Barr’s audition memo:

    As elaborated on below, Mueller?s theory should be rejected for the following reasons:

    First, the sweeping interpretation being proposed for 1512’s residual clause is contrary to the
    statute’s plain meaning and would directly contravene the Department’s longstanding and
    consistent position that generally-worded statutes like 1512 cannot be applied to the President’s
    exercise of his constitutional powers in the absence of a “clear statement” in the statute that such
    an application was intended.

    1. Excerpted from page 2 of Ag Barr’s audition memo:

      Because there were seemingly no relevant proceedings pending when the
      President allegedly engaged in the alleged obstruction, I believe that Mueller’s team is considering
      the “residual clause” in Section 1512 subsection as the potential basis for an obstruction
      case. Subsection reads:

      Whoever alters, destroys, mutilates, or
      conceals a record, document, or other object, or attempts to do so, with the
      intent to impair the object’s integrity or availability for use in an official
      proceeding; or (2) otherwise obstructs, influences, or impedes any official
      proceeding, or attempts to do so [is guilty of the crime of obstruction].

      1. Note; Barr was referring to the firing of Comey when Barr wrote, “[T]here were seemingly no relevant proceedings pending when the President allegedly engaged in the alleged obstruction . . . “

      2. “Whoever alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or (2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so [is guilty of the crime of obstruction].”

        # 1: Someone please tell me again why we focused on whether President Trump committed obstruction when H.C. and her minions unquestionably destroyed emails, documents, blackberries, computers, etc. after the documents/ emails had been subpoenaed?

        # 2: We know the entire investigation of President Trump was political, pushed by people whose political (democrats) or financial (media) interest trumped any spark of patriotism or even morality that might, at one time, have been in them. Watching the reactions of both groups to the Mueller report was sickening. They really don’t care about this country.

        # 3: Personally, I am tired of politicians and performers who shrink away into the shadows whenever one of the leftist bigots accuses them of daring to not be a leftist bigot. The fact that President Trump fights back is refreshing and since I was in kindergarten, I learned that bullies must be confronted (“I have a bigger button”) or they will continue to be a bully.

        1. If you want to arrange a prisoner swap, I’d gladly give you Hillary in exchange for Trump. However, I have no more arrest power with which to bring Hillary to the prisoner swap than have you to bring Trump to the exchange. Also, I will not commit the crime of kidnapping against anyone just to slake your thirst for frontier justice.

        2. 1. The FBI determined that Hillary did not purposefully delete emails in an effort to obstruct justice:

          “…hese emails did not have to be turned over to the State Department, which in the summer of 2014 requested all work-related emails that the former secretary of state had in her possession. (See “A Guide to Clinton’s Emails.”)

          The department’s policy allows its employees to determine which emails are work-related and must be preserved. “Messages that are not records may be deleted when no longer needed,” according to the State Department’s Foreign Affairs Manual (5 FAM 443.5). (See “Trump on the Stump.“)

          That means Clinton was within her right to delete these emails, so that’s the first thing to know.

          Now, Trump is right that these emails were deleted about three weeks after Clinton received a subpoena on March 4 from a Republican-controlled House committee investigating the 2012 deaths of four Americans in Benghazi. However, there is no evidence that she knew that the emails were deleted after the subpoena was issued.

          According to the FBI’s investigative notes, Cheryl Mills, Clinton’s former chief of staff, in December 2014 told Platte River Networks that Clinton had preserved her work-related emails and “no longer needed access to any of her e-mails older than 60 days.” At that time, Mills instructed a PRN employee “to modify the e-mail retention policy” on Clinton’s server “to reflect this change.” That would automatically delete the old emails. But the PRN employee told the FBI that “he had an ‘oh shit’ moment” after learning about the subpoena sometime between March 25 and March 31, 2015, which is when he deleted Clinton’s emails. Clinton told the FBI that she was not aware that PRN deleted her emails in late March 2015, and the FBI did not say when she learned that they were deleted. (See “The FBI Files on Clinton’s Emails.”)…”

          https://www.factcheck.org/2016/10/spinning-the-fbi-letter/

          2. If the investigation of Trump was political, why didn’t those investigating do the most damage possible by announcing publicly that his campaign was being investigated at the same time – 2 weeks before the vote – as the investigation of Hillary was made public. That makes no sense if it was political, right?

          3. Can’t help you on that, but perhaps you’ll reconsider your conclusions and accusations in light of your 1 & 2 being shown to be false.

          1. Anon writes: “However, there is no evidence that she knew that the emails were deleted after the subpoena was issued.”

            I guess that is why she bleached and hammered her hard drive to death. Some wish us to believe that bleaching and hammering wasn’t intentional.

            1. Fact Check said that and offers links and documentation. The email removing software is named “(something)bleach”.

                1. Hover the cursor of your mouse over the link that Anon provide to you and click the left mouse button once on that link. It will take you to the article in which the rational argument you seek is presented. That same article will debunk the false claims and distortions that Trump and Pence promulgated about the Clinton’s emails. They are the exact same false claims and distortions that you repeat on this blawg every last single time you falsely accuse Clinton of destroying evidence of a crime that was not a crime, you tiresome boor, you.

                  1. what’s tiresome is the abundance of cruddy posts you people fill this blog with day after day on the same old same old. think of something new eh?

                  2. Anon’s posting of citations in the past did not relate to the ongoing discussion. Not surprising. Therefore, it is a waste of time to do so. If he wishes he can post his opinion and relate that to a sentence or so from the link along with the link’s address. I’m not interested on someone elses argument in a larger body of work. I’m talking to him directly and to be an intelligent responder he needs to be able to reply directly to the question.

            2. “The department’s policy allows it’s employees to decide which emails are work- related and must be preserved”.
              I don’t think that department policy should impede a criminal investigation.
              If there were a “policy” that the White House could unilaterally determine which documents were campaign related, that would raise some serious questions about the how an “investigation” is conducted.
              That policy seems like an invitation to destroy or withhold evidence….. a “you decide what to turn over” approach/”policy” is not an ideal way to conduct an investigation.

              1. Maybe you can get Trump to issue a directive to all executive branches rescinding that policy and for now launch an investigation into their handling of emails. He’s a real reformer who believes in transparency. Be sure he sends it to Ivanka and Jared.

                1. Anon doesn’t know the difference between a policy and a regulation or law. Just because there is a policy doesn’t mean that one can bleach their hard drives and hammer them to make retrieval of data impossible.

                  The man says the policy is that I am permitted to carry a gun and I am going into that room. Anon shouts in glee and agrees with the man. The police officer states that man is accused of killing people and has sworn to kill the person behind the door. Anon says it doesn’t matter the policy says…

                  Fools never learn.

                2. I didn’t hear anything about The White House not compliing with Mueller Subpeonas.
                  I mention this because I thought aTrump would fight a subpoena if it was not related to the Trump-Russia imvestigation
                  And also because I think it’s likely that he will fight the House committees firing the Subpeona Cannons in all directions.
                  As far an any investigation of his family members mentioned by anon, I think some have already been investigated. I’m not sure what impact anon thinks that issuing an Executive Order changing the treatment of department emails would have.
                  I question whether it is every department’s policy or cabinet’s policy to leave it up to an individual under investigation to decide what will be turned over to investigators and what will be unilaterally labeled “non-work -related by the target of the investigation.
                  Investigators likely have the tools that they need already to obtain Subpeonaed material. Investigations can also rely on the honor system like they did with Hillary/Cheryl Mills, but I question the effectiveness of that if it’s a serious investigation.
                  A SWAT-style raid to seize subpeonaed material would probably be more effective, but aggressive tactics like that seem to be off limits in a whitewash of an investigation like the Hillary email investigation.
                  I anticipate the lame “whataboutism” dodge in an attempt to justify some people’s distaste for equal treatment under the law. That talking point has been a popular one for those who like double standards re application of the law; they won’t admit that they like those double standards, so they automatically screech “whataboutism” instead.

                  1. Tom, you criticized past SoS Dept policy on personal emails. I sarcastically suggested a solution which we all know will not happen under a president who treats the Presidency like his private business and resists accountability of any sort for himself and relatives. It has recently been revealed that Ivanka and Jared both use a personal email account for official business.

                    1. Paraphrase, “Russia, if you’re listening, could you help us find Ivanka and Jared’s What’sApp messages? I think if you do a certain radical transparency organization will greatly reward you.”

                      Also paraphreased, “The system is rigged. They never should’ve been granted security clearances. Crooked Javanka; Lock them up.”

          2. 1. The FBI determined that Hillary did not purposefully delete emails in an effort to obstruct justice:

            Yeah, the bleachbit and hammers wasn’t purposeful.

            1. Absurd,
              Hillary may have been going after Bill with a hammer the when cell phones and other mobile devices we’re “accidently” destroyed.
              Since Hillary and Cheryl Mills we’re were mentioned earlier, I wonder why one case Mills ( a key figure in the email investigation) was allowed to be jointly questioned with Hillary and also allowed to invoke attorney client privilege since she was now acting as Hillary’s “attorney”.
              To me, that’d be like questioning Trump and Michael Cohen jointly.
              And I don’t think that “attorney client privilege” was going to fly in Cohen’s case, even though he actually was one of Trump’s attorneys for years.
              Cheryl Mills role looked more like she put on the attorney privilege hat in response to the investigation; her relationship with Hillary was as Chief of Staff at the State Dept., not as Hillary’s attorney.

            2. Absurd is apparently limited to understanding only half of a sentence. ADD teen or alzheimer octogenarian?

              1. The hammers were used on 8 out of 13 cell phones. That is recommended practice for discarding old cell phones. The bleach is not literal bleach. It is a free software application known as BleachBit. Hillary did not use the BleachBit software. Platte River Something-Or-Other used the BleachBit on Hillary’s routers which were situated far, far away on The Platte River in some such State, as, say, Nebraska, for instance, just to name one, through which The Platte River runs. The alt.right media excel at grabling things. It is their particular genius, garbling everything is. Ingenious garbles from garbling geniuses, they are.

                Unfortunately, their typing fingers are not quite so as twisted into corkscrews as are their tongues and the brains.

  9. Excerpted from AG Barr’s 19 page audition memo:

    Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

    Excerpted from Ag Barr’s Senate testimony:

    Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

    Barr: No, that would be a crime.

    1. So the pardon power is an Article II power of the president. But Barr denies that the obstruction statute needs a clear statement of its application to the pardon power in order for the obstruction statute to be applied to the president’s Article II pardon power. Curious. No?

      1. Barr had previously stated that, “[G]enerally-worded statutes like 1512 cannot be applied to the President’s exercise of his constitutional powers in the absence of a “clear statement” in the statute that such an application was intended.”

  10. Excerpted from AG Barr’s testimony at his Senate confirmation hearing:

    Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

    Barr: [Pause] Yes. Any person who persuades another —

    Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

    Barr: Yes.

    Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

    Barr: Yes.

    Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

    Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

    Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

    Barr: Yes.

    Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

    Barr: Again, I’d have to know the specifics.

    Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

    Barr: Yes, under that, under an obstruction statute, yes.

    Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

    Barr: [nods]

    1. So, if the president promises to use the pardon power as a way to “coach witnesses” (a.k.a. witness tampering or subornation of perjury), then Barr denies that the obstruction statute needs a clear statement of it applicability to the president in order for the obstruction statute to be applied to the president. Intriguing. No?

      1. Barr has previously stated that, “[G]enerally-worded statutes like 1512 cannot be applied to the President’s exercise of his constitutional powers in the absence of a “clear statement” in the statute that such an application was intended.”

        Is the U.S. Constitution so much mere silly putty in Bill Barr’s hands?

  11. Turley wrote, “The grand collusion conspiracy was never particularly convincing. It would have Trump or his family or aides helping to hack computer systems and then arrange for the leaking of the information through WikiLeaks.”

    Demonstrably false. That’s Turley’s theory of conspiracy to hack and leak. The predominant legal theory of Conspiracy to Defraud the United States held that Mueller had to show sufficient evidence that members of the Trump campaign, Trump Organization, or other Trump associates, knowingly, willfully received, accepted, or solicited an illegal foreign campaign contribution from Russia in the form of the Russian hack and leak operation. Mueller came very close to making that case. Nonetheless, Mueller fell short of the mark primarily on the question of criminal intent–the knowingly, willfully standard for that element of the crime.

    Believe it or not, but it is possible to commit overt acts willfully without knowingly committing overt acts in the furtherance of a conspiracy. Conspirators have to know enough about what they’re doing to enter into an agreement to conceal their overt acts through deceptive or dishonest means in the furtherance of their conspiracy. The conspirators’ knowledge does not have to be complete and total knowledge of every last detail in the conspiracy. But the conspirators’ knowledge does have to be sufficient to distinguish a legal act from a act in the furtherance of a criminal conspiracy.

    Most likely Paul Manfort’s refusal to honor his plea agreement with Mueller by actually and fully cooperating is the main reason that Mueller came up shy of the mark on establishing the criminal intent of the Trump campaign’s Conspiracy to Defraud the United States. Manafort was likely the only conspirator other than Trump, himself, who knew how all of the puzzle pieces fit together to form the big picture. Gates, Cohen and Flynn probably only knew their own little piece of the puzzle. And that’s why Trump’s JDA omerta and assertions of presidential communication privilege over the dangling of pardons for Manafort, especially, but also for Flynn and Cohen and who knows who all else effectively stymied Mueller’s investigation of the conspiracy case.

    As for the obstruction case, AG Barr decided that the absence of an underlying crime involving a conspiracy between the Trump campaign and the Russian government in its election interference activities (the investigation of which Trump obstructed with his JDA pardon dangling executive privilege omerta) supposedly precludes an obstruction charge against Trump as well. That is not what AG Barr said in his confirmation hearing before The Senate. In fact, that’s not even what Ag Barr said in his 19 page audition memo. AG Barr is going to have some explaining to do. And the best way fro Ag Barr to explain himself is to release the Mueller report at least to Congress.

  12. Muellers’s cat? More like Schrödinger’s cat. When we flung open Mueller’s windowless box all we found was some poison labeled “Love, Hillary,” a lie detector and a cat-eyed little man with a bewildered look muttering “there’s nothing here.”

  13. When did it become “highly inappropriate and objectionable” for an innocent man to proclaim his innocence?

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