Patterico's Pontifications

12/8/2020

Judge Sullivan Grants Flynn Dismissal Based on Trump Pardon; Suggests He Otherwise Would Have Denied the Government’s Motion to Dismiss

Filed under: General — Patterico @ 7:45 pm



Good for him. He has no choice but to dismiss the charges, but his analysis of the Government’s original and nakedly corrupt motion to dismiss is excellent and suggests that he would have done the right thing if given the chance.

However, while not conclusory, many of the government’s reasons for why it has decided to reverse course and seek dismissal in this case appear pretextual, particularly in view of the surrounding circumstances. For example, Mr. Flynn was serving as an adviser to President Trump’s transition team during the events that gave rise to the conviction here, and, as this case has progressed, President Trump has not hidden the extent of his interest in this case. According to Mr. Gleeson, between March 2017 and June 2020, President Trump tweeted or retweeted about Mr. Flynn “at least 100 times.” Amicus Br., ECF No. 225 at 66. This commentary has “made clear that the President has been closely following the proceedings, is
personally invested in ensuring that [Mr.] Flynn’s prosecution ends, and has deep animosity toward those who investigated and prosecuted [Mr.] Flynn.” Id.

At the September 29, 2020 motion hearing, Mr. Flynn’s counsel, in response to the Court’s question, stated that she had, within weeks of the proceeding, provided the President with a brief update on the status of the litigation. Hr’g Tr., ECF No. 266 at 56:18-20. Counsel further stated that she requested that the President not issue a pardon. Id. at 56:23-24. However, the President has now pardoned Mr. Flynn for the actions that instigated this case, among other things. Ex. 1 to Consent Mot. Dismiss, ECF No. 308-1 at 1. And simultaneous to the President’s “running commentary,” many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President.” See, e.g., Amicus Br., ECF No. 225 at 67-68; id. at 68 (quoting Excerpts from Trump’s Interview with the Times, N.Y. Times (Dec. 28, 2017), https://www.nytimes.com/2017/12/28/us/politics/trump￾interview-excerpts.html) (reporting President Trump’s statement that he enjoys the “absolute right to do what I want to do with the Justice Department”).

Judge Sullivan demolishes the Government’s stated reasons for the dismissal, dismantling the claims of lack of materiality and inability to prove the case as meritless. You’ll have to read his opinion for the full analysis.

The demagogues are out in full force:

Being a humorless literalist who simply calls them as he sees them, I called Cotton a dangerous demagogue and left it at that. Popehat had the winning and far more humorous reaction:

What has become of the Republican party??

57 Responses to “Judge Sullivan Grants Flynn Dismissal Based on Trump Pardon; Suggests He Otherwise Would Have Denied the Government’s Motion to Dismiss”

  1. You’d think Cotton would at least find some love for the denial of Larry Tribe’s PHV admission.

    lurker (d8c5bc)

  2. Cotton knows better, but his political soul is kept in a jar in an East Wing closet.

    Paul Montagu (77c694)

  3. With the political campaign season over and watermelon seed spitting contests shut down all across Arkansas because of the coronavirus, Cotton is at loose ends, that’s all.

    nk (1d9030)

  4. many of the President’s remarks have also been viewed as suggesting a breakdown in the “traditional independence of the Justice Department from the President”.

    Oh please. It was a breakdown of independence that got Flynn interviewed and charged in the first place.

    beer ‘n pretzels (042d67)

  5. Yeah, why investigate a guy like Flynn at all. Poor little Flynn makes it so hard for me sometimes. Day after day Trump loses re-election again. Usually you only have that once every four years, but Trump loses another weird re-election bid every day now, with each courtroom embarassment or ministerial certification of the vote, forcing me to relive the moment Trump lost day after day. And every time I ask myself, who will protect the guys like Flynn?

    Very tired of all this winning.

    Dustin (4237e0)

  6. 4. On the weekend thread I asked you a question you didn’t answer. I’m not complaining. It was late Sunday. Maybe you didn’t see it. Anyway, I’ll restate it to the best of my recollection:

    Do you think it’s important to apply neutral principles to the behavior of people you agree with, irrespective of what you think of your opponents? If not, what standing do you have to criticize anyone else’s hypocrisy? If you do think it’s important, do you ever do it? If so, why don’t you ever do it here?

    lurker (d8c5bc)

  7. Yup. Here’s Flynn’s pardon. Labeled “Executive Act of Clemency”. It’s not on the grounds of actual innocence. Flynn’s guilty plea still stands. I will not venture whether it’s a judgment of guilty since he was not sentenced.

    nk (1d9030)

  8. @6:

    Of course.
    n/a.
    Without fail.
    Begging the question.

    beer ‘n pretzels (042d67)

  9. Welcome galactic federation! You will find trumpeters very tasty. Zontar spock wants to meet hope hicks and Ivanka.

    asset (f8fa30)

  10. 8. Thanks for the response. It’s illuminating. I’m happy to learn we seem to be on the same page philosophically. Our only real difference is that you apparently believe your critiques in these threads apply the same principles to people you agree with as to those you don’t, while I live on planet Earth.

    lurker (d8c5bc)

  11. @4 from your link in a previous thread

    Inspector General Michael Horowitz at the time found that the FBI was justified in investigating possible ties between the Trump campaign and Russia

    Time123 (ea2b98)

  12. Do any of the lawyers on the site want to explain what Judge Sullivan is doing by approving the amicus requests? I assume there’s some rule about not leaving requests hanging indefinitely, but since he ruled the issue moot there’s no point to them and i assume he’d deny them because of that. Since a US senator has brought up the issue I’d like to know more. Thank you in advance for the time if anyone feels like writing an explanation.

    Time123 (89dfb2)

  13. ETA; I tried google already and it didn’t show an explanation

    Time123 (af99e9)

  14. The $100? Christmas spirit? Local practice rule or general order that once amici have been solicited, they should be allowed if they are in proper form like what happens with other filings in court?

    nk (1d9030)

  15. A pardon on the grounds of clemency only makes the case moot. It does not expunge it, or nullify it retroactively. Due process keeps on duly processing.

    nk (1d9030)

  16. @10: As I rightly suspected.

    beer ‘n pretzels (042d67)

  17. NK, Thank you for your answer. Can I correctly re-phrase that as “He approved them because the established process dictates that he should do so?”

    Time123 (89dfb2)

  18. You’re welcome, and yes. Even if there is no specific rule or order that directly addresses this situation, judges have a continuing duty of courtesy and patience towards all who appear for them.

    nk (1d9030)

  19. for before them

    nk (1d9030)

  20. Meanwhile, Chinese spies are sleeping their way across America’s political landscape, China is attempting to lure and/or kidnap people away from America to serve time in Chinese prisons for thought crimes.

    But hey, the big companies and their political lackeys are lobbying against a forced labor bill.

    I would like to think the new administration would come down hard on China, but I’m sure we’ll hear about Russia 24/7.

    Hoi Polloi (7cefeb)

  21. What has become of the Republican party??

    For the love of Pete Patrick, I cannot fathom the amount of animus you and others have towards Flynn.

    Judge Sullivan most definitely did NOT dismantle the claims of lack of materiality nor did he explain WHY the case had merits. I wouldn’t be surprised if it was a Copy/Paste from the usual knuckleheads from the lawfareblog crowd.

    Humor me with this: If he was TRULY interested in that, then he should’ve accepted the guilty plea withdrawal and let both sides have their day in court.

    In before others retort with “but, he plead gulity twice… that’s enough for me”. If that’s enough, why was those Central Park 5 who plead guilty so problematic?

    whembly (c30c83)

  22. @11

    @4 from your link in a previous thread

    Inspector General Michael Horowitz at the time found that the FBI was justified in investigating possible ties between the Trump campaign and Russia

    Time123 (ea2b98) — 12/9/2020 @ 3:02 am

    That really isn’t the dispute though… opening a counter-intel investigation has an extremely low bar.

    The issue, is HOW the investigations continued. The political apparatchik in FBI/DOJ wanted to keep it going while numerous career-level investigators knew it was a bunch of crock.

    whembly (c30c83)

  23. @22, Wembley none of the independent investigations have concluded that investigation continued for political reasons. Horrowitz actually faulted the FBI for not keeping political leadership better informed. If that happened, they did it without leaving evidence. I think the correct conclusion is that the FBI thought the Trump campaign was dirty and was pushing because they were (incorrectly) convinced the evidence was out.

    What you attribute to partisan malice I think is more correctly explained by overzealous law prosecution.

    I know we disagree on this, but i respect your views and can see how you came to them. I think the solution is the same either way, better oversight of LEO and clear consequences for over zealous actions.

    Time123 (af99e9)

  24. @23 Yeah we completely disagree what had happen. There’s a line between overzealous law prosecution and persecution. I’m fully convinced the latter happened and I’m disappointed that folks on both sides can’t agree that at the very least, this should’ve gone to trial.

    One major red flag was that the investigation was essentially conducted at the leadership level, where there’s barely any oversight. Typically, investigations are done at the career-level where oversights are conducted BY the political offices of the department.

    whembly (c30c83)

  25. @24,
    There’s some evidence they tried and failed to indict McCabe. They openly said they didn’t have evidence to win a trail against Comey. The Durham investigation has so far produced very little and their public statements have indicated that they’re not investigating high level officials for criminal wrongdoing.

    If your theory is correct the evidence to support it hasn’t been produced.

    Time123 (af99e9)

  26. One major red flag was that the investigation was essentially conducted at the leadership level, where there’s barely any oversight. Typically, investigations are done at the career-level where oversights are conducted BY the political offices of the department.

    whembly (c30c83) — 12/9/2020 @ 7:29 am

    True. It is not often you see an SES-level manager like Sztrok opening an investigation, approving the investigation (which is against FBI policy), and then doing the investigating and interviewing.

    Where were the case agents? Could he not trust them? Why not?

    It was clear Sztrok had not been in an investigative role in a while, as seen when he had his lover edit his 302, even though she was not present at the interview.

    Hoi Polloi (7cefeb)

  27. I want to hear from the Syrian Kurds about Flynn’s dinner with Putin in Moscow and his payments from Erdogan. You know, the Syrian Kurds who were our boots on the ground in Northern Syria and Trump sold, those Syrian Kurds.

    nk (1d9030)

  28. And I’ll tell you something else, too, my good fellows. I think Paul Manafort got sent up for fraud and tax evasion the same way Al Capone got sent up for tax evasion. It was the low-hanging fruit. No matter what their purported mission was, the Mueller team did not want to deal with the can of worms about briefcases full of Russian money when Manafort was paying visits to GOP pezzonovantes before the Republican National Convention in 2016.

    nk (1d9030)

  29. One major red flag was that the investigation was essentially conducted at the leadership level, where there’s barely any oversight. Typically, investigations are done at the career-level where oversights are conducted BY the political offices of the department.

    whembly (c30c83) — 12/9/2020 @ 7:29 am

    If they have the evidence, why hasn’t Barr’s DOJ indicted?

    Time123 (af99e9)

  30. I want to hear from the Syrian Kurds about Flynn’s dinner with Putin in Moscow and his payments from Erdogan.

    If you’re willing to sacrifice American democracy and back a military coup for the greater glory of Donald J. Trump (and the Benjamins…don’t forget the Benjamins!), what are a few brown-skinned people from a sh*thole country who “didn’t help us with Normandy”?

    Dave (1bb933)

  31. nk @7. Flynn got pardoned for any known crimes, that could have been known by the special counsel, not unknown ones.

    The most broad part of it reads:

    and for any and all possible offenses arising out of facts and circumstances known to, identified by, or in any manner related to the investigation of the Special Counsel, including, but not limited to, any grand jury proceedings in the United States District Court for the District of Columbia or the United States District Court for the Eastern District of Virginia.

    Somebody probably was careful to write it that way, with the hope that that would satisfy Trump, and Trump didn’t examine it too closely.

    Sammy Finkelman (63d78b)

  32. @25 Time123, that’s a very black & white perspective.

    You can push boundaries, to the point of persecutions without breaking any penal laws. There isn’t a law that account for every single bad acts.

    The system is designed such that investigators CAN be wrong with their efforts…they have to have that “space” to conduct good-faith investigations, even if they end up being wrong. That’s why, in addition to Court room oversight, political oversight is important, so that there’s some level of accountability between the career officials wielding their awesome powers by the political offices (answering to voters). In this case, much of the investigation was conducted/directed *by* the political offices of the DOJ, who shielded it from their bosses, which was criticised by that same IG that you continually champion.

    The question here was always, should the investigation have continued… not could. The IG merely reiterated that they could, but had strong opinions about the rationale (or lack of) of the investigations.

    To wrap this up, bad faith investigations doesn’t need to break any laws/policies to be considered bad faith.

    We are all smart enough to know what happened here without coloring our perspectives with our own personal bias.

    whembly (c30c83)

  33. @29

    One major red flag was that the investigation was essentially conducted at the leadership level, where there’s barely any oversight. Typically, investigations are done at the career-level where oversights are conducted BY the political offices of the department.

    whembly (c30c83) — 12/9/2020 @ 7:29 am

    If they have the evidence, why hasn’t Barr’s DOJ indicted?

    Time123 (af99e9) — 12/9/2020 @ 8:12 am

    Again, what happened didn’t break any penal laws.

    Doesn’t mean everything was on the “up and up”.

    whembly (c30c83)

  34. @27

    I want to hear from the Syrian Kurds about Flynn’s dinner with Putin in Moscow and his payments from Erdogan. You know, the Syrian Kurds who were our boots on the ground in Northern Syria and Trump sold, those Syrian Kurds.

    nk (1d9030) — 12/9/2020 @ 7:55 am

    Still not seeing how this is germane to Flynn’s case.

    I get you don’t like the guy, but if we start throwing everyone who we don’t like in jail, we’re all going to have a rough time in this country.

    whembly (c30c83)

  35. @32, Whembly, Early you said it should at least have gone to trial. If you’re not asserting that I’ll withdraw my comment. If your point is that LEO needs to have their CI powers limited and have less immunity for their mistakes you’ll find me a wiling audience to your proposals. I haven’t seen much evidence that the Trump administration shares your priorities. I have read recently that Wray is making reforms to the FISA process for the FBI, and I think that’s good. But in general Trump and Barr have expanded federal LEO powers.

    When you say this, who do you mean specifically?

    In this case, much of the investigation was conducted/directed *by* the political offices of the DOJ, who shielded it from their bosses, which was criticised by that same IG that you continually champion.

    Time123 (af99e9)

  36. I want to hear from the Syrian Kurds about Flynn’s dinner with Putin in Moscow and his payments from Erdogan. You know, the Syrian Kurds who were our boots on the ground in Northern Syria and Trump sold, those Syrian Kurds.

    nk (1d9030) — 12/9/2020 @ 7:55 am

    They have to get in line; Libyans should be heard first. The ones that Obama left out to dry after deposing Qadaffi, and leaving to “we came, we saw, he died.” He spiked the political football and left. Since then, thousands of Libyans have been killed or displaced while warlords and ISIS run rampant.

    Hoi Polloi (7cefeb)

  37. @36, While the Libyans were never our allies in the way that the Kurds were it’s hard to refute the assertion that our impact on that region of the world has resulted in a lot of suffering.

    Time123 (af99e9)

  38. @28

    And I’ll tell you something else, too, my good fellows. I think Paul Manafort got sent up for fraud and tax evasion the same way Al Capone got sent up for tax evasion. It was the low-hanging fruit. No matter what their purported mission was, the Mueller team did not want to deal with the can of worms about briefcases full of Russian money when Manafort was paying visits to GOP pezzonovantes before the Republican National Convention in 2016.

    nk (1d9030) — 12/9/2020 @ 8:00 am

    My issue with the Manafort ordeal is this…

    The Obama administration declined to prosecute Manafort because it was a low hanging fruit…as, they thought it wasn’t worth it. While I disagree with it, it *is* a prosecutorial discretion afforded to the Executive Branch as there are finite resources, such that the executive branch sets the priority.

    The ONLY REASON why the SCO went after Manafort over the same allegations, was because of his connection to Trump and those prosecutors want dirt from Manafort to use against Trump. It was also a “scalp” that the SCO used to justify their existence, even though Manafort’s crimes had nothing to do with the alleged Russian Collusion.

    Likewise, the ONLY REASON why the SCO went after Flynn, was because of his connection to Trump and those prosecutors want dirt from Flynn against Trump. Keep in mind that by Trump’s inauguration and shortly afterwards, the FBI, including James Comey and Peter Strzok did NOT believe that Flynn lied to the FBI. Flash forward to the SCO, these prosecutors took those SAME evidence… meaning, there wasn’t anything NEW by the time the SCO was formed that would change the calculus as to whether or not Flynn lied to the FBI, the SCO went after Flynn hard. The prosecuting was also conducted in bad faith, by not disclosing the transcript, the 302s, ignoring the irrevocable conflicts of original attornies…etc.

    So, the common theme here wasn’t that Manafort or Flynn egregiously broke laws worthy of a Special Counsel… that theme was that they were connected to Trump, in a fevered belief to hamstring the incoming Trump administration to validate their #TheResistence movement.

    If that isn’t a political persecution… I don’t know what this is.

    My fear is that some GOP/Republican leaning officials would seek retribution in the same manner. I fear the Riposte™ is coming. Hence why I’m adamantly opposed to Barr’s designation of Durham to the Special Counsel. Biden should disband the Durham SCO on Jan 21, and rightly so.

    whembly (c30c83)

  39. While the Libyans were never our allies in the way that the Kurds were it’s hard to refute the assertion that our impact on that region of the world has resulted in a lot of suffering.

    It also ignores the fact that a bloody Libyan civil war was raging well before the first western bomb fell on the country; that the intervention was driven by the Europeans; and that subsequent chaos was the result of democratically elected representatives choosing factional conflict instead of reconciliation.

    Dave (1bb933)

  40. If that isn’t a political persecution… I don’t know what this is.

    Manafort was clearly guilty of the crimes he’s been convicted of.

    On their own the DOJ had decided to let that go. I guess to pursue higher priorities.

    But when they thought he had useful information they pushed those charges to pressure him to provide information pertinent to their investigation.

    If you assume, as you do, that the FBI was investigating the Trump campaign for political motives this seems corrupt.

    If you assume, as I do, that the FBI legitimately believed there was a valid issue to investigate this seems like another example of how we do things. In defense of my position they found a lot of criminal acts by Russia and documents them in 18 (I think) indictments. These were dismissed by Barr. His stated reason was that Russian was using their rights to discovery to learn details of how we do counter intelligence. This implies that Barr is endorsing those indictments as legitimate. So the argument that there was no legitimate crime for the SC to investigate seems weak to me.

    Time123 (af99e9)

  41. @35

    @32, Whembly, Early you said it should at least have gone to trial. If you’re not asserting that I’ll withdraw my comment.

    I’m asserting that if Judge Sullivan (and all the anti-Flynn crowd) really believed Flynn was guilty, then *they* should be willing/advocating for the trial to commence. But, much of the anti-Flynn crowd are taking the “no take backies” position when Flynn wanted to withdraw his guilty plea and absolutely ignoring the malfeasance by the original prosecution team. Which is an insipid position, when you have a defendant claiming innocence.

    If your point is that LEO needs to have their CI powers limited and have less immunity for their mistakes you’ll find me a wiling audience to your proposals.

    That wasn’t my point.

    Investigators have awesome powers, that negatively impacts the subjects of their investigations. As such, it is one of their superior’s job to ensure that their direct reports observe the rights afforded to the target. There’s a symbiosis here… in that the investigators ought to be zealous in their pursuits for justice, and while that’s true for their boss…it is also their boss’ job to ensure that their zealous direct reports aren’t trampling over the rights of the target (which can negatively impact their case in court too).

    The Crossfire Hurricane investigation was conducted by the leadership of the FBI, where there was very little oversight to catch an over-zealous investigation. The IG most definitely criticized the FBI and the leadership at the time for this. Again, this wasn’t necessarily illegal, but definitely not kosher.

    I haven’t seen much evidence that the Trump administration shares your priorities.

    Glad someone here acknowledges that. 😉

    I have read recently that Wray is making reforms to the FISA process for the FBI, and I think that’s good.

    Agreed. But, I think it need to be reformed further. Remove the courts from the process and put the full accountability onto the political offices in the DOJ. Congress has oversight powers to ensure a proper functioning FISA process.

    But in general Trump and Barr have expanded federal LEO powers.

    What do you mean by this? I’m not sure if there were any changes in this regard.

    When you say this, who do you mean specifically?

    In this case, much of the investigation was conducted/directed *by* the political offices of the DOJ, who shielded it from their bosses, which was criticised by that same IG that you continually champion.

    Time123 (af99e9) — 12/9/2020 @ 8:43 am

    The James Comey era… essentially the Obama holdover officials.

    whembly (c30c83)

  42. I view sending DHS and federal bureau of corrections officers to US cities as an expansion of federal power.

    I don’t think Comey’s behavior is consistent with those of a partisan democrat.

    Time123 (af99e9)

  43. I don’t think Comey’s behavior is consistent with those of a partisan democrat.

    In TrumpWorld, suspension of disbelief is occasionally necessary.

    Dave (1bb933)

  44. @40

    If that isn’t a political persecution… I don’t know what this is.

    Manafort was clearly guilty of the crimes he’s been convicted of.

    Please don’t confuse me on this… Manafort *was* guilty of those crimes.

    On their own the DOJ had decided to let that go. I guess to pursue higher priorities.

    Correct.

    But when they thought he had useful information they pushed those charges to pressure him to provide information pertinent to their investigation.

    …and they found nothing.

    If you assume, as you do, that the FBI was investigating the Trump campaign for political motives this seems corrupt.

    It was corrupt and the *only* accountability at this point has to be political.

    If you assume, as I do, that the FBI legitimately believed there was a valid issue to investigate this seems like another example of how we do things. In defense of my position they found a lot of criminal acts by Russia and documents them in 18 (I think) indictments. These were dismissed by Barr. His stated reason was that Russian was using their rights to discovery to learn details of how we do counter intelligence. This implies that Barr is endorsing those indictments as legitimate. So the argument that there was no legitimate crime for the SC to investigate seems weak to me.

    Time123 (af99e9) — 12/9/2020 @ 9:14 am

    I don’t think that’s much of a defense, if at all.

    The US government didn’t want to have to divulge in trade secrets that they would have to offer in a discovery phase.

    That doesn’t mean that had the government proceeded with that case, they would’ve prevailed. Which really highlight how asinine it was for the SCO to indict the Russians in open court, because they THOUGHT that the Russians wouldn’t engage with the indictment. It was a PR stunt by the SCO. But, when the defendant’s lawyers showed up, the SCO prosecutor panicked and asked for multiple delays until the case was finally dropped.

    whembly (c30c83)

  45. @42

    I view sending DHS and federal bureau of corrections officers to US cities as an expansion of federal power.

    That’s literally not an expansion. The power already existed.

    I don’t think Comey’s behavior is consistent with those of a partisan democrat.

    Time123 (af99e9) — 12/9/2020 @ 9:24 am

    I do. He was CYA’ing all over the place too.

    whembly (c30c83)

  46. I think the findings in Volume 1 of the special counsel report were valid and justified the endeavor, including trying to get information from Manafort.

    They could have chosen to simply report it, but instead proceeded with indictments. I don’t have an opinion about if that’s good or not.

    Time123 (89dfb2)

  47. @42
    I view sending DHS and federal bureau of corrections officers to US cities as an expansion of federal power.
    That’s literally not an expansion. The power already existed.

    I’m not aware of other examples where this has been done.

    Time123 (89dfb2)

  48. Which really highlight how asinine it was for the SCO to indict the Russians in open court, because they THOUGHT that the Russians wouldn’t engage with the indictment.

    This was a bromide of the smear campaign against Mueller, but I’m curious whether there’s any factual documentation of the decision-making here.

    The charges were not espionage-related, and my impression there is that law-enforcement and counter-intelligence activities have some institutional barriers between them by design. If the risks to tradecraft were only assessed by the IC stakeholders after the indictments were made, it may be that the system worked as it was intended to.

    Dave (1bb933)

  49. @48 Absolutely not a smear…
    https://www.nationalreview.com/2020/03/department-of-justice-dismisses-robert-mueller-charges-against-russian-businesses/

    The indictment was political theater never meant to be tried in court.

    More than an investigation, the Mueller probe was the wellspring of a political narrative. That becomes clearer as time goes by and more information ekes out . . . such as new confirmation that, months before Mueller was appointed in May 2017, it was already well understood in Justice Department circles that there was no case of criminal “collusion” between the Trump campaign and Russia.

    Never was that made more obvious than by the Justice Department’s quiet announcement late Monday, under the five-alarm noise of the coronavirus scare, that it has dropped the special counsel’s indictment of Russian companies — an outcome I predicted here at National Review nearly two years ago.

    A little refresher is in order.

    As detailed here many times, one of the biggest problems confronting those weaving the collusion tale was the inability to prove that Russia hacked the Democratic email accounts. As Ball of Collusion outlines, that’s not the only fundamental problem. There is also the fact that the Democratic emails, in which Hillary Clinton was not an active correspondent, did not actually hurt her campaign at all — certainly not the way her own email scandal did (a scandal for which there was no way to blame Moscow). There is also the dearth of evidence that the Trump campaign was even aware of, much less complicit in, Kremlin intelligence operations. Still, very basically, it would be impossible to prove that Trump had conspired in Russia’s hacking unless prosecutors could first establish that Russia had done the hacking.

    Let me repeat something else I said several times: This is not to say that Russia is innocent. Again, I accept the intelligence agencies’ conclusion on this point (though a number of others, including some former U.S. intelligence officials, do not). But the point is that Mueller could never have proved it beyond a reasonable doubt under courtroom due-process standards. Any competent defense lawyer would have had a field day with the Obama Justice Department’s failure to have the FBI take possession and conduct its own forensic examination of the servers that were hacked. And what fun defense counsel would have had with DOJ’s delegation of that rudimentary investigative task to a DNC contractor with close ties to the Clinton campaign. (Yes, the forensic conclusions blaming Russia were paid for by the same folks who brought you the famously dodgy Steele dossier.)

    Speaking of dodgy, recall that Team Mueller and the Justice Department dodged every case that would have called for proving Russia’s cyber theft. Even when they indicted WikiLeaks chief Julian Assange, the very Ground Zero of “collusion,” they resisted charging him with the Russian hacking scheme. Given that prosecutors and the FBI spent years investigating the president of the United States for this crime of the century, it should seem astonishing that they passed on charging the guy they’ve told us is the central conspirator with this crime. But you weren’t astonished if you were reading National Review . . . because you knew they were not going to charge any crime that called for proving Russia’s culpability in court. Their evidence is shaky and, if there were ever an acquittal, the Trump-Russia political narrative would be kaput, while the Putin regime celebrated a huge propaganda coup.

    Former Special Counsel Robert Mueller testifies before the House Judiciary Committee on Capitol Hill in Washington, D.C., July 24, 2019. (Jonathan Ernst/Reuters)
    The indictment was political theater never meant to be tried in court.

    More than an investigation, the Mueller probe was the wellspring of a political narrative. That becomes clearer as time goes by and more information ekes out . . . such as new confirmation that, months before Mueller was appointed in May 2017, it was already well understood in Justice Department circles that there was no case of criminal “collusion” between the Trump campaign and Russia.

    Never was that made more obvious than by the Justice Department’s quiet announcement late Monday, under the five-alarm noise of the coronavirus scare, that it has dropped the special counsel’s indictment of Russian companies — an outcome I predicted here at National Review nearly two years ago.

    A little refresher is in order.

    As detailed here many times, one of the biggest problems confronting those weaving the collusion tale was the inability to prove that Russia hacked the Democratic email accounts. As Ball of Collusion outlines, that’s not the only fundamental problem. There is also the fact that the Democratic emails, in which Hillary Clinton was not an active correspondent, did not actually hurt her campaign at all — certainly not the way her own email scandal did (a scandal for which there was no way to blame Moscow). There is also the dearth of evidence that the Trump campaign was even aware of, much less complicit in, Kremlin intelligence operations. Still, very basically, it would be impossible to prove that Trump had conspired in Russia’s hacking unless prosecutors could first establish that Russia had done the hacking.

    Let me repeat something else I said several times: This is not to say that Russia is innocent. Again, I accept the intelligence agencies’ conclusion on this point (though a number of others, including some former U.S. intelligence officials, do not). But the point is that Mueller could never have proved it beyond a reasonable doubt under courtroom due-process standards. Any competent defense lawyer would have had a field day with the Obama Justice Department’s failure to have the FBI take possession and conduct its own forensic examination of the servers that were hacked. And what fun defense counsel would have had with DOJ’s delegation of that rudimentary investigative task to a DNC contractor with close ties to the Clinton campaign. (Yes, the forensic conclusions blaming Russia were paid for by the same folks who brought you the famously dodgy Steele dossier.)

    Speaking of dodgy, recall that Team Mueller and the Justice Department dodged every case that would have called for proving Russia’s cyber theft. Even when they indicted WikiLeaks chief Julian Assange, the very Ground Zero of “collusion,” they resisted charging him with the Russian hacking scheme. Given that prosecutors and the FBI spent years investigating the president of the United States for this crime of the century, it should seem astonishing that they passed on charging the guy they’ve told us is the central conspirator with this crime. But you weren’t astonished if you were reading National Review . . . because you knew they were not going to charge any crime that called for proving Russia’s culpability in court. Their evidence is shaky and, if there were ever an acquittal, the Trump-Russia political narrative would be kaput, while the Putin regime celebrated a huge propaganda coup.

    So why did Team Mueller publicly file an indictment against Russians?

    Because they figured it was a freebie. The prosecutors assumed that they would never have to . . . you know . . . prove the case. The Russian defendants were in Russia. There was no way Putin would ever extradite them for an American criminal trial. The prosecutors knew that. What they wrote was not meant to be a real indictment. It was meant to be a press release. It was meant to be what Team Mueller was best at: the spinning of a narrative. I explained it this way at the time:

    When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia. Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument. To the extent there are questions about whether Russia truly meddled in the election, the special counsel wants to end that discussion.

    It all seemed so well choreographed. The indictment was, of course, reported as gospel-truth by the anti-Trump media — the same folks who tell you, whenever a Democrat is charged with a crime, that an indictment is merely an allegation, that nothing is proven until it’s proven in court.

    Alas, Team Mueller made a mistake. A reckless bet, the kind made by people under the misimpression that they are playing with the house’s money. To quote from my column nearly two years ago:

    The indictment was political theater never meant to be tried in court.

    More than an investigation, the Mueller probe was the wellspring of a political narrative. That becomes clearer as time goes by and more information ekes out . . . such as new confirmation that, months before Mueller was appointed in May 2017, it was already well understood in Justice Department circles that there was no case of criminal “collusion” between the Trump campaign and Russia.

    Never was that made more obvious than by the Justice Department’s quiet announcement late Monday, under the five-alarm noise of the coronavirus scare, that it has dropped the special counsel’s indictment of Russian companies — an outcome I predicted here at National Review nearly two years ago.

    A little refresher is in order.

    As detailed here many times, one of the biggest problems confronting those weaving the collusion tale was the inability to prove that Russia hacked the Democratic email accounts. As Ball of Collusion outlines, that’s not the only fundamental problem. There is also the fact that the Democratic emails, in which Hillary Clinton was not an active correspondent, did not actually hurt her campaign at all — certainly not the way her own email scandal did (a scandal for which there was no way to blame Moscow). There is also the dearth of evidence that the Trump campaign was even aware of, much less complicit in, Kremlin intelligence operations. Still, very basically, it would be impossible to prove that Trump had conspired in Russia’s hacking unless prosecutors could first establish that Russia had done the hacking.

    Let me repeat something else I said several times: This is not to say that Russia is innocent. Again, I accept the intelligence agencies’ conclusion on this point (though a number of others, including some former U.S. intelligence officials, do not). But the point is that Mueller could never have proved it beyond a reasonable doubt under courtroom due-process standards. Any competent defense lawyer would have had a field day with the Obama Justice Department’s failure to have the FBI take possession and conduct its own forensic examination of the servers that were hacked. And what fun defense counsel would have had with DOJ’s delegation of that rudimentary investigative task to a DNC contractor with close ties to the Clinton campaign. (Yes, the forensic conclusions blaming Russia were paid for by the same folks who brought you the famously dodgy Steele dossier.)

    Speaking of dodgy, recall that Team Mueller and the Justice Department dodged every case that would have called for proving Russia’s cyber theft. Even when they indicted WikiLeaks chief Julian Assange, the very Ground Zero of “collusion,” they resisted charging him with the Russian hacking scheme. Given that prosecutors and the FBI spent years investigating the president of the United States for this crime of the century, it should seem astonishing that they passed on charging the guy they’ve told us is the central conspirator with this crime. But you weren’t astonished if you were reading National Review . . . because you knew they were not going to charge any crime that called for proving Russia’s culpability in court. Their evidence is shaky and, if there were ever an acquittal, the Trump-Russia political narrative would be kaput, while the Putin regime celebrated a huge propaganda coup.

    So why did Team Mueller publicly file an indictment against Russians?

    Because they figured it was a freebie. The prosecutors assumed that they would never have to . . . you know . . . prove the case. The Russian defendants were in Russia. There was no way Putin would ever extradite them for an American criminal trial. The prosecutors knew that. What they wrote was not meant to be a real indictment. It was meant to be a press release. It was meant to be what Team Mueller was best at: the spinning of a narrative. I explained it this way at the time:

    When prosecutors are serious about nabbing law-breakers who are at large, they do not file an indictment publicly. That would just induce the offenders to flee to or remain in their safe havens. Instead, prosecutors file their indictment under seal, ask the court to issue arrest warrants, and quietly go about the business of locating and apprehending the defendants charged. In the Russia case, however, the indictment was filed publicly even though the defendants are at large. That is because the Justice Department and the special counsel know the Russians will stay safely in Russia. Mueller’s allegations will never be tested in court. That makes his indictment more a political statement than a charging instrument. To the extent there are questions about whether Russia truly meddled in the election, the special counsel wants to end that discussion.

    It all seemed so well choreographed. The indictment was, of course, reported as gospel-truth by the anti-Trump media — the same folks who tell you, whenever a Democrat is charged with a crime, that an indictment is merely an allegation, that nothing is proven until it’s proven in court.

    Alas, Team Mueller made a mistake. A reckless bet, the kind made by people under the misimpression that they are playing with the house’s money. To quote from my column nearly two years ago:

    [Team Mueller] charged not only Russian individuals but three Russian businesses. A business doesn’t have the same risks as a person. A business can’t be thrown in jail. And while members of Mueller’s prosecutorial stable have a history of putting real businesses out of business, a business that is run by a Putin crony and serves as a front for Kremlin operations is not too worried about that either.

    Since they had no concerns about being imprisoned or bankrupted by prosecution and fines, there was nothing to discourage these businesses from doing what Team Mueller blithely assumed no Russian defendant would ever do: retaining lawyers to show up in federal court, demanding the trial to which American law entitled the companies, and demanding all the discovery to which American due process guaranteed them access.

    It was a debacle.

    First, the prosecutors tried to get the case and all pretrial discovery postponed on the ground that the businesses in question, Concord Management and Concord Consulting (each controlled by Yevgeny Prigozhin, a food-supply oligarch said to be a Putin crony), had not been properly served with the indictment. This was absurd. Service of process is the way you get a business to come to court; these businesses were already in court, demanding to proceed with the prosecution that Team Mueller had chosen to start.

    The businesses then pressed the government to provide them with all the evidence and other discovery the law requires prosecutors to disclose. Team Mueller countered that they couldn’t do that because it would harm national security. That’s ridiculous. Imagine if I were prosecuting a mafia hitman and refused to make discovery, reasoning that the mafia might find out what’s in my files. The judge would hold me in contempt, or dismiss the case — or both. As a prosecutor, if you’re worried that the security implications of disclosure are too great a risk, you don’t charge the case. But if you file charges, there is no getting around disclosure obligations.

    Being forced to make disclosure did not go well for Team Mueller and his Justice Department successors. As they had to concede, there was no evidence that the Russians who carried out the troll farm scheme were directed by the Russian government. Stopping short of such an allegation, the indictment claimed the defendants were backed by Prigozhin — which was quite the comedown from the Justice Department’s drum-beating about Russia’s “information warfare.”

    Moreover, as the trial judge groused, the troll-farm indictment was “difficult to follow.” Team Mueller’s evidence was not even strong enough to allege that the defendants were actual Russian agents. Prosecutors thus crafted, shall we say, a creative theory: The defendants had “defrauded the United States” by failing to disclose their Russian identities and affiliations, which purportedly undermined the ability of U.S. bureaucracies to maintain a registry of foreign agents and enforce the campaign-finance laws. Except . . . it was unclear that the defendants had a legal duty to report information in the first place. How do you establish the criminality of concealment if there is no requirement to disclose?

    Finally, despite all the huffing and puffing about Russia’s purportedly massive effort to influence the election through social-media ads, the grudgingly surrendered discovery indicated that many of the ads violated no American laws and cost pennies. Assuming for argument’s sake that at least some of the candidate ads and rallies fell under Federal Election Commission reporting requirements, the defense contended that total expenditures for such activities amounted to less than $5,000.

    With the judge trying to push the case to trial this spring, the possibility of humiliation loomed. This past Monday, when no one was watching, the Justice Department finally — inevitably — pulled the plug. The cases against the companies were dropped. The sympathetic New York Times reported the prosecutors’ fig leaf: The defense was “weaponizing” the case “to gain access to delicate information.” It’s the kind of claim the Times would ridicule were the paper not so invested in the Trump-Russia narrative. In point of fact, the defendants were demanding the legal right to discovery that Mueller’s prosecutors automatically (if unwittingly) triggered when they decided to file an indictment.

    Not to say, “I told you so” (of course not!), this is exactly what these columns said would happen. From nearly two years ago:

    The surest way to put an end to this unwelcome turn of events would be to dismiss the indictment — or at least drop the charges against the three businesses so Prigozhin and the Kremlin can’t use them to force Mueller’s hand [i.e., to compel discovery]. Of course, that would be very embarrassing. But as all prosecutors are taught from their first day on the job: Never indict a case unless you are prepared to try the case.

    There is no exception for “indictments” that are really meant to be political theater.

    Word.

    whembly (c30c83)

  50. You’ve proven my point, in triplicate.

    The polemic of a shameless Trump shill like Andrew McCarthy is the opposite of evidence.

    Dave (1bb933)

  51. @49-
    At least you can’t accuse me of overquoting an article. 🙂

    Rip Murdock (d2a2a8)

  52. Russian Media Wants Moscow to Grant Asylum to Trump
    ……
    Co-host of Russian state TV news talk show 60 Minutes Olga Skabeeva brought up the possibility that President Trump would end up seeking asylum in Russia to escape any prosecutions in the United States following the conclusion of his sole presidential term. Skabeeva emphasized that this was by no means a joking matter: “It’s all very serious,” she said, as she pondered out loud about the nature of criminal charges Trump might soon be facing.

    Experts in the studio enthusiastically discussed the likelihood of Trump being charged with a bevy of offenses from tax evasion to fraud and sexual assault. They concurred that Trump’s presidential pardon would not help him in state cases, unlike the recently advanced constitutional amendment in Russia that secured lifetime immunity from criminal prosecution for the country’s former presidents…….
    ……
    Notorious politician Vladimir Zhirinovsky, who previously suggested that Putin should milk Trump like a cow before he is forced to leave office, enumerated actions he hoped Trump would undertake prior to his departure: recognize Russia’s annexation of Crimea, leave NATO, withdraw U.S. troops from every place they’re stationed worldwide, arrest disloyal U.S. state governors, refuse to recognize the outcome of the elections, force all states to conduct mandatory recounts, and induce Attorney General Bill Barr to pursue any actions that would benefit Trump.
    …….
    The Kremlin is in no hurry to congratulate Joe Biden with his return to the White House as president. Appearing on Russia’s state TV show The Evening with Vladimir Soloviev, the deputy dean of World Politics at Moscow State University, Andrey Sidorov, predicted that the Biden presidency would spell out the consolidation of the entire Western world against Russia. Experts and lawmakers in Russian state media concurred that Moscow should anticipate additional sanctions in the near future.

    “Biden is telling us that America is back. What does that mean for us?” asked 60 Minutes host Evgeny Popov, noting Russia’s inability to adequately retaliate against U.S. sanctions. Deputy Speaker of the Russian State Duma (lower chamber of parliament) Pyotr Tolstoy responded with an ominous threat: “We’re going to use their computers to make sure that people like Biden and his entire team will never again imagine that they have the right to world domination. We will unquestionably demonstrate it to them in years to come. Just wait and see.”

    Rip Murdock (d2a2a8)

  53. whembly,

    If I want to read an entire Andy McCarthy article — and I do not — I will go to NRO and read it there.

    Patterico (115b1f)

  54. @50

    You’ve proven my point, in triplicate.

    I don’t see how.

    The polemic of a shameless Trump shill like Andrew McCarthy is the opposite of evidence.

    Dave (1bb933) — 12/9/2020 @ 10:22 am

    You’re ignoring the entire evolution of McCarthy’s journey regarding the Russian Collusion. But, instead of refusing to engage on the merits, how ’bout you comment on it instead rather than deflecting?

    whembly (62ebef)

  55. @53 Sorry Pat. Will refrain from posting the whole thing.

    whembly (62ebef)

  56. The indictment was political theater never meant to be tried in court.

    Something I said at the time and I still stand by. Knowing that the defendants would never show up in any US court made this a a posturing photo-op. The dismissal isn’t much better.

    Kevin M (ab1c11)

  57. Russian Media Wants Moscow to Grant Asylum to Trump

    Heh. Once he gets his federal pardon, Florida can do the same, and it’s warmer.

    Kevin M (ab1c11)


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