Category Archives: Law

The Definition of Stonewalling

Even I am surprised at how neglected this story has been by the main-street press.
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WSJ 12/11/2017

Christopher Wray was supposed to bring a new candor and credibility to the FBI after the James Comey debacle, but the country is still waiting. The director’s testimony Thursday to the House Judiciary Committee suggests he has joined the Justice Department effort to stop the public from learning about the bureau’s role in the 2016 election.

Judiciary Chairman Bob Goodlatte invited Mr. Wray to answer the multiplying questions about the bureau’s 2016 political interference. This includes the role that the Steele dossier—opposition research financed by the Clinton campaign—played in the FBI’s decision to investigate the Trump presidential campaign. The committee also wants answers about reports that special counsel Robert Mueller demoted Peter Strzok, a lead FBI investigator in both the Trump and Hillary Clinton email investigations, after Mr. Strzok exchanged anti-Trump texts with his mistress, who also works at the FBI.

Mr. Wray spent five hours stonewalling. The director ducked every question about the FBI’s behavior by noting that the Justice Department Inspector General is investigating last year’s events.

Is Mr. Wray concerned that Mr. Strzok edited the FBI’s judgment of Mrs. Clinton’s handling of her emails to “extremely careless” from “grossly negligent” in a previous draft? The grossly negligent phrase might have put Mrs. Clinton in legal jeopardy, but Mr. Wray said he couldn’t answer because that is subject to the “outside, independent investigation.

Is Mr. Wray taking steps to ensure his top ranks are free of political “taint”? He couldn’t say because of the “outside, independent” investigation.

Ohio Republican Jim Jordan noted that the only way for Congress to know if the FBI used the Steele dossier to obtain a warrant to spy on the Trump campaign is for the FBI to provide its application to the Foreign Intelligence Surveillance Court. “Is there anything prohibiting you from showing this committee [that application]?” Mr. Jordan asked.

Mr. Wray’s answer was dismissive. “I do not believe that I can legally and appropriately share a FISA court submission with this committee,” said Mr. Wray. “When I sign FISA applications, which I have to do almost every day of the week, they are all covered with a ‘classified information’ cover.”

This is an excuse, not a serious reason. The IG is a watchdog created by Congress to investigate executive misbehavior. It was never intended to supplant congressional oversight, much less be an excuse for executive officials to protect their decisions from scrutiny.

As for hiding behind “classified information,” the House Intelligence Committee that is investigating Russian campaign meddling has appropriate clearances. Mr. Goodlatte reminded Mr. Wray that the Judiciary Committee also has primary jurisdiction over the FISA court.

The FISA application is central to the issue of Russian meddling and whether the FBI used disinformation to trigger a counterintelligence investigation of a U.S. presidential candidate. Congress and the U.S. need to know not only if Trump officials were colluding with Russians but also if Russia and the Clinton campaign used false information to dupe the FBI into intervening in a U.S. election. Yet the FBI and Justice have been stonewalling House Intelligence for months.

The lack of cooperation has become more troubling amid reports that senior career Justice officials have a partisan motivation. Judicial Watch last week released emails showing that Mr. Mueller’s top lieutenant, Andrew Weissmann, praised Obama holdover and acting Attorney General Sally Yates in January for defying Mr. Trump on his travel ban.

Justice also confirmed a Fox News report last week that one of its top lawyers, Bruce Ohr, was in contact with Christopher Steele (the dossier author) before the election, and after the election with Glenn Simpson, the founder of Fusion GPS, the opposition-research firm that hired Mr. Steele. Mr. Ohr was demoted, which suggests his contacts were unauthorized.

By the way, the chief law enforcement officer of the United States is the President. This means he has the legal authority through his deputies at the White House and Justice to see the FISA application. AG Jeff Sessions is recused from the Russia probe, which complicates his access because we don’t know the extent of his recusal. But Deputy AG Rod Rosenstein supervises the FBI when Mr. Sessions does not.

Mr. Rosenstein can and should order the FBI to meet Congress’s document requests including the FISA application. If he refuses, then Mr. Trump through White House counsel Donald McGahn can order him to do so. Mr. Rosenstein could choose to resign rather than comply, but he will not have the law on his side.

The easy way to solve this standoff is for executive officials, including the FBI, to do their duty and cooperate with the duly elected Members of Congress. If they don’t, sterner measures like a finding of contempt of Congress will be needed.

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Obstruction of Justice? – WSJ

No one should be surprised that ‘they’ are not giving up easily.
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WSJ 12/8/2017 K A Strassel

Obstruction of Congress

The media echo chamber spent the week speculating about whether Special Counsel Robert Mueller can or will nab President Trump on obstruction- ofjustice charges. All the while it continues to ignore Washington’s most obvious obstruction— the coordinated effort to thwart congressional probes of the role law enforcement played in the 2016 election.

The news that senior FBI agent Peter Strzok exchanged anti-Trump, pro-Hillary text messages with another FBI official matters—though we’ve yet to see the content. The bigger scandal is that the Justice Department, the Federal Bureau of Investigation and Mr. Mueller have known about those texts for months and deliberately kept their existence from Congress. The House Intelligence Committee sent document subpoenas and demanded an interview with Mr. Strzok. The Justice Department dodged, and then leaked.

The department also withheld from Congress that another top official, Associate Deputy Attorney General Bruce Ohr, was in contact with ex-spook Christopher Steele and the opposition-research firm Fusion GPS. It has refused to say what role the Steele dossier—Clinton-commissioned oppo research— played in its Trump investigation. It won’t turn over files about its wiretapping.

And Mr. Mueller—who is well aware the House is probing all this, and considered the Strzok texts relevant enough to earn the agent a demotion—nonetheless did not inform Congress about the matter. Why? Perhaps Mr. Mueller feels he’s above being bothered with any other investigation. Or perhaps his team is covering for the FBI and the Justice Department.

When Deputy Attorney General Rod Rosenstein appointed Mr. Mueller, he stressed that he wanted a probe with “independence from the normal chain of command.” Yet the Mueller team is made up of the same commanders who were previously running the Trump show at the Justice Department and the FBI, and hardly distant from their old office.

Andrew Weissmann, Mr. Mueller’s deputy, is chief of the Justice Department’s criminal fraud section and was once FBI general counsel. Until Mr. Strzok’s demotion, he was a top FBI counterintelligence officer, lead on the Trump probe. Michael Dreeben is a deputy solicitor general. Elizabeth Prelogar, Brandon Van Grack, Kyle Freeny, Adam Jed, Andrew Goldstein— every one is a highly placed, influential lawyer on loan from the Justice Department. Lisa Page—Mr. Strzok’s mistress, with whom he exchanged those texts—was on loan from the FBI general counsel’s office.

Does anyone think this crowd intends to investigate Justice Department or FBI misdeeds? To put it another way, does anyone think they intend to investigate themselves? Or that they’d investigate their longtime colleagues— Andrew McCabe, or Mr. Ohr or Mr. Strzok? Or could we instead just acknowledge the Mueller team has enormous personal and institutional interests in justifying the actions their agencies took in 2016—and therefore in stonewalling Congress?

The Strzok texts raise the additional question of whether those interests extend to taking down the president. Mr. Strzok was ejected from Team Mueller for exhibiting anti-Trump, pro-Clinton behavior. By that standard, one has to wonder how Mr. Mueller has any attorneys left.

Judicial Watch this week released an email in which Mr. Weissmann gushed about how “proud and in awe” he was of former acting Attorney General Sally Yates for staging a mutiny against the Trump travel ban. Of 15 publicly identified Mueller lawyers, nine are Democratic donors—including several who gave money to Mrs. Clinton’s 2016 campaign. Jeannie Rhee defended the Clinton Foundation against racketeering charges, and represented Mrs. Clinton personally in the question of her emails. Aaron Zebley represented Justin Cooper, the Clinton aide who helped manage her server. Mr. Goldstein worked for Preet Bharara, whom Mr. Trump fired and who is now a vigorous Trump critic. The question isn’t whether these people are legally allowed (under the Hatch Act) to investigate Mr. Trump—as the left keeps insisting. The question is whether a team of declared Democrats is capable of impartially investigating a Republican president.

Some want Attorney General Jeff Sessions to clean house, although this would require firing a huge number of career Justice Department lawyers. Some want Mr. Trump to fire Mr. Mueller— which would be counterproductive. Some have called for a special counsel to investigate the special counsel, but that way lies infinite regress.

There is a better, more transparent way. Mr. Sessions (or maybe even Mr. Trump) is within rights to create a short-term position for an official whose only job is to ensure Justice Department and FBI compliance with congressional oversight. This person needs to be a straight shooter and versed in law enforcement, but with no history at or substantial ties to the Justice Department or FBI. It would be a first, but we are in an era of firsts. Congress is the only body with an interest and ability to get the full story of 2016 to the public, thereby ending this drama quickly. But that requires putting an end to the obstruction.

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Still Looking for Evidence

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WSJ Dec. 1, 2017 7:01 p.m. ET

Robert Mueller’s special prosecution machine grinds on, and on Friday it crushed former national security adviser Mike Flynn on the ever-ready charge of lying to the FBI. The guilty plea is a tragedy for the former three-star general and head of the Defense Intelligence Agency, but whether it is ominous for the Trump Presidency depends on what Mr. Flynn is telling Mr. Mueller.

Prosecutors signaled Mr. Flynn’s cooperation by filing an “information,” rather than an indictment, on charges of making false statements about his meetings with former Russian Ambassador Sergey Kislyak in two December 2016 meetings. The meetings discussed the U.S. and Russian responses to sanctions that President Obama had imposed on the Kremlin for meddling in the 2016 campaign.

This specific charge is surprising because, as a seasoned intelligence officer, Mr. Flynn had to know that the U.S. would be listening to Mr. Kislyak’s conversations and have transcripts. CNN reported on Feb. 17 that “the FBI interviewers believed Flynn was cooperative and provided truthful answers,” even though he first said sanctions were not discussed and later said he couldn’t recall.

A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied but had forgotten what had been discussed. Perhaps the FBI changed its view.

Or perhaps Mr. Flynn felt he was facing more serious charges that could be mitigated by copping a plea to a single count and cooperating. A legal defense would require hundreds of thousands of dollars that a longtime military family doesn’t have, and his son, Michael Jr., was also under investigation. News reports Friday said the son won’t now be prosecuted.

Mr. Flynn could still face up to six months in prison, and his sentencing will be postponed and depend on what his plea agreement says is his “substantial assistance in the investigation or prosecution of another person who has committed an offense.” Mr. Mueller is known for his brutal mercy.

How this relates to the claim of Trump campaign collusion with Russia during the 2016 presidential campaign isn’t clear. Mr. Flynn’s meetings with the Russian ambassador occurred after the election. The press corps is hyperventilating that a statement filed in connection with Mr. Flynn’s plea says an unnamed senior Trump transition official spoke with Mr. Flynn about what he should tell the Russian ambassador. News reports Friday identified that official as Jared Kushner, Donald Trump’s son-in-law.

Yet there is nothing scandalous, or even unusual, about a presidential transition meeting with a foreign ambassador. The statement says Mr. Flynn was advised that the transition team at Mar-a-Lago “didn’t want Russia to escalate the situation”—which also isn’t a crime even if they should have waited until taking office before conducting foreign policy.

For what it’s worth, Mr. Trump’s attorney Ty Cobb on Friday portrayed Mr. Flynn’s plea as no big deal: “The false statements involved mirror the false statements to White House officials which resulted in his resignation [as national security adviser] in February of this year. Nothing about the guilty plea or the charge implicates anyone other than Mr. Flynn.”

Nothing in Friday’s documents shed more light on what happened during the 2016 presidential campaign. Perhaps Mr. Flynn has more secrets to share, and Mr. Mueller seems to be targeting Mr. Kushner for a turn of his screws. But in today’s hyperpartisan Washington it pays to wait for the evidence.

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DNC and the Law – WSJ

Don’t hold your breath waiting for DOJ to investigate.
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WSJ 11/13/2017
By Cleta Mitchell And Hans von Spakovsky

Donna Brazile has confirmed Bernie Sanders’s worst suspicions. Ms. Brazile, who served as interim chairman of the Democratic National Committee during the fall 2016 campaign, says in a new book that during the primaries, the DNC was controlled by Hillary Clinton’s campaign. Ms. Brazile claims the arrangement was “not illegal,” but that is far from clear.

Ms. Brazile reports that when she arrived on the job in July 2016, Gary Gensler, the campaign’s chief financial officer, told her the DNC was fully under the control of the campaign. In September 2015, 10 months before Mrs. Clinton’s nomination, the party had moved its bank account to the same bank in New York used by the Clinton campaign and created a joint fundraising committee, the Hillary Victory Fund, whose treasurer, bank account, and control were vested in the campaign. Then, in an August 2015 memorandum of understanding, the DNC essentially handed over its operations to the Clinton campaign for the next 15 months.

The purpose of joint fundraising committees is to allow more than one entity to collaborate in raising money and share in the costs. Each participant is subject to federal contribution limits. When the party itself is a participant, its committee (in this case the DNC) normally handles accounting and financial controls. Not here. The Hillary Victory Fund was controlled by the Clinton campaign, with a campaign employee as treasurer and the fund’s bank account established at the Clinton campaign’s bank. According to Federal Election Commission reports, the Hillary Victory Fund has raised more than $526 million.

The DNC asserted its “neutrality” by also entering into a joint fundraising committee with the Sanders campaign. It raised a total of $1,000. And the Bernie Victory Committee treasurer was the DNC’s designee.

“Money in the battleground states usually stayed in that state,” Ms. Brazile writes, “but all the other states funneled that money directly to the DNC, which quickly transferred the money to Brooklyn”—i.e., Clinton headquarters. She says state parties raised $82 million, of which they kept less than 0.5%.

The memorandum of understanding promised the Clinton campaign, among other things, “complete and seamless access to all research work product and tools” paid for by the DNC, despite Federal Election Commission regulations that prohibit privately sharing such research with a candidate without either reporting the costs as an in-kind contribution or allocating them against the party’s coordinated spending limits for that candidate.

The memo also tied transfers of funds raised for the DNC by the Hillary Victory Fund to operational control of the DNC’s expenditures: “The release of the Base Amounts each month are conditioned on the following: . . . hiring of DNC Communications Director . . . DNC senior staff . . . joint authority

over strategic decisions . . . alerting HFA”—Hillary for America, the campaign—“in advance of . . . any direct mail communications that features a particular Democratic primary candidate or his or her signature.”

Contributions to the DNC, even though made through the Hillary Victory Fund, were required by law to be transferred to the party and could not legally be withheld by the Clinton-designated treasurer. Nor does the law allow a single candidate to control a political party’s operations and expenditures.

National party committees have higher contribution limits than candidates do—$334,000 a year vs. $2,700 for each election. The memorandum raises the possibility that Clinton campaign took advantage of the DNC’s higher limits, then availed itself of all the resources the DNC could buy—without having any of the attendant costs or expenditures assessed against the campaign.

There are strict statutory limits on what a party committee can contribute to any candidate and what a party can spend in coordination with its candidates. We don’t like limits on the ability of parties to support their candidates. But campaign- finance zealots, egged on by media outlets (which are not subject to any limits), made certain that the McCain-Feingold law of 2002 stringently limited coordination between candidates and political parties. Although the Supreme Court struck down parts of McCain-Feingold in the 2010 Citizens United case, the coordination limits still apply. The FEC and the Justice Department should investigate the Clinton-DNC arrangement.

Candidate Clinton railed against Citizens United— a case that involved a documentary film critical of her— arguing that “big money” and “secret spending” are ruining our politics. Is it too much to ask that those who loudly demand greater regulation of political speech and spending themselves abide by the laws already on the books?

Ms. Mitchell is a partner at Foley & Lardner LLP who practices federal campaign finance law. Mr. von Spakovsky is a senior legal fellow at the Heritage Foundation and a former commissioner on the Federal Election Commission.

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