Wednesday, June 10, 2020

Barely Enough Russiagate to Go Around

Really not a lot, but if we read thoroughly it could take all morning.

Charles Lipsom at Spectator USA details Rod Rosenstein’s devastating admissions
What did Rosenstein tell us, and why was it so devastating?
  • Knowing what he knows now, Rosenstein says would not have signed the FISA application to spy on Carter Page
  • Rosenstein cannot explain the basis for Mueller’s investigation of Trump-Russia collusion since, by the time Mueller was appointed in summer 2017, the FBI had already cleared the key people named as possible collaborators
  • Rosenstein set out very broad terms for the Mueller investigation. His ‘scope memos’ were widened, not narrowed, after no Trump-Russian collaboration was found
  • Although Rosenstein was responsible for supervising the Special Counsel, he testified that he exercised little hands-on oversight. He made no effort to rein in excesses
  • Rosenstein flatly denies he tried to remove President Trump, using the 25th Amendment, or wear a wire into the White House to record his conversations with the President
  • Though Rosenstein acknowledges serious mistakes, he blames them on the FBI’s ‘lack of candor’. His testimony portends a serious clash between DoJ and FBI officials. This blame game will soon include the CIA, State Department, and Obama White House
Each admission is important in its own right. Together, they are devastating. Let’s consider each one in more detail. . . .
Sundance at CTH,  AG Bill Barr: “For the First Time in American History, Police and National Security Investigations Were Used to Spy on a Political Campaign”…

As I've said before, this scandal is worse than Watergate because it actually involves government agencies acting on behalf of the Clinton campaign and the subsequent Democrat "resistance."

From "Shipwreckedcrew" at Red State, two long, lawyerly essays on the legal issues in play in the ongoing Flynn trial saga. First, Oral Arguments in Gen. Flynn Case on Friday — An Introduction to What’s Ahead
The first observation I have about the DOJ Brief is that its noteworthy that the Brief is the product of the Solicitor General’s Office, and not the U.S. Attorney for the District of Columbia.  It is filed under the names of both but the work-product is clearly that of the SG’s Office, which as a general matter handles only briefing and oral argument before the Supreme Court.  For appellate work on behalf of the United States, the Solicitor General’s Office is where the “best and brightest” hang out.

The Separation of Powers claims are right in the “wheelhouse” of the SG, as this is the kind of argument that often creates and resolves issues before the Supreme Court as they involve competing “visions” and tensions among the three branches of government about how they go about working with one another.

The Brief first addresses the question as to why there is “urgency” to cutoff Judge Sullivan from pursuing his intended course of conduct.  Why not allow this matter to be dealt with in the ordinary course – allowing Judge Sullivan to conduct proceedings he deems necessary, issue a ruling based on his findings, and then allow any party who disagrees with his ruling to challenge that ruling in the normal appeals process.

The Brief responds to this question by advancing the idea that moving expeditiously by way of a Writ avoids “an unwarranted impairment” by Judge Sullivan of the Executive Branch’s “performance of its constitutional duties.”

At its core what this argument advances is the idea that when the Executive Branch, while executing its constitutional duties to see that that the laws are faithfully executed and enforced, comes across information establishing that an ongoing enforcement action is mistaken or amounts to an injustice, the Executive must move with all due haste to bring the enforcement action to an end.

The Justice Department has taken a position in a legal filing with the Judicial branch that it is no longer convinced that Gen. Flynn committed a crime, and it is certain that it would not be able to prove any such crime beyond a reasonable doubt if it attempted to do so in a trial.

Yet based on Justice Department conduct up to the date of that determination, Gen. Flynn remains a defendant in a criminal case pending in United States District Court.  As such, the Justice Department has an ethical obligation – and an obligation under its own internal policies (explained later) – to move without delay to bring an end to that pending matter.

What Judge Sullivan proposes to do is an “unwarranted impairment” of the Executive Branch’s effort to fulfill its constitutional obligations to Gen. Flynn.   The Justice Department has filed a motion that is within the scope of its authority.  Where the contents of that motion address the necessary legal standards that the Justice Department must follow in taking the action contemplated by the motion, there is no basis for the Judicial branch to “look behind” the motion for some ulterior motivation.

The course of action proposed by Judge Sullivan is unwarranted in terms of the substance, that the process he proposes to follow is an interference with Executive branch functions in violation of the Separation of Powers doctrine.
Second, Part 2 Of My Review Of The DOJ Brief And Preview of Flynn Case Oral Argument
One area where Supreme Court decisions are clear is with respect to “charging authority” in criminal cases, as the Supreme Court has consistently held that nearly absolute discretion on that issue rests with the Executive branch. The DOJ brief refers to the language in Fokker Services that the exercise of discretion by the Executive regarding criminal charging decisions are entitled to a “presumption of regularity.” This means that when DOJ does what it did here — filing a motion supported by documents from the government’s files, witness statements, and other material information as a basis to take action — the district court is obligated to accept those representations as legitimate since they come from a co-equal branch of government on a subject over which that co-equal branch is granted exclusive authority by the Constitution.

It is not the role of the court — in fact it is beyond the authority of the court — to conduct some wide-ranging inquiry into the propriety or legitimacy of the reasons presented in the motion. The role of the court begins and ends with a determination that the motion sets forth a factual and legally adequate basis to support the requested action — dismissal of the case. It’s is not the role of the court to validate or invalidate the basis set forth via some involved inquiry such as that proposed by Judge Sullivan.

Finally, the DOJ Brief points out that even if the approach by Judge Sullivan was supported in the case law, there are practical limits that make the procedure he proposes to pursue a fruitless exercise. If he were to deny the motion to dismiss, what he would be left with is the pending motion by Gen. Flynn to withdraw his guilty plea, and a pending criminal case where the only charging document is a criminal Information.

If he denied Gen. Flynn’s motion to withdraw his plea, he would be faced with the prospect of proceeding to sentencing Gen. Flynn without the participation of the Government, and then on appeal the record would reflect that the Executive Branch called into question whether any crime was even committed, and whether Executive branch officials acted unethically or illegally in pursuing the investigation.

If, on the other hand, Judge Sullivan granted Gen. Flynn’s motion to withdraw his guilty plea, then he would have a pending criminal case without a filed indictment, and the constitution requires that a defendant in a criminal case be charged only by way of indictment. Since the Justice Department works with grand juries in seeking the return of indictments, Judge Sullivan’s proposed course of action would again seem to be at a dead end as there would be no one to present evidence to the grand jury and seek an indictment of Gen. Flynn.
I look forward to part 3.

Not really Russiagate, but pertaining to the general embeded "Deep State" shadow government, from Fox, State Department accuses fired IG of obtaining official documents, accessing office after dismissal. They think they own the government, and it owes them:
A top State Department official has accused Steve Linick, the department’s fired inspector general, of contacting a former colleague, obtaining official documents and returning to his former office -- all in violation of the terms of his administrative leave, Fox News has learned.

In a letter to Linick's attorney, obtained by Fox News, the State Department Under Secretary for Management Brian Bulatao says “in the days before his Congressional testimony, he sent a text message to the Deputy Inspector General, Diana Shaw, requesting a copy of the DOD IG report on the origins of a leak of a draft State OIG report to the media last fall. Without informing her own chain of command, we understand that Ms. Shaw then contacted the DOD Office of Inspector General to request a copy of the report on Mr. Linick’s behalf.”

Bulatao also wrote that “it is not clear what Mr. Linick’s motivation was, but it was inappropriate for him to seek the DOD IG report through the State OIG, given that he was, at the time, on administrative leave pursuant to a decision by the President with a new Acting Inspector General in place." The official added: "His apparent urgency is all the more unusual given that Mr. Linick had repeatedly refused to share the DOD IG report with anyone in the State Department itself.”

Bulatao also claims Linick “repeatedly returned to his former office without seeking authorization from his Department reporting chain, also contrary to the clear instructions he received.”

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