AG Bill Barr's slick lawyer's tricks on collusion will haunt him.

Updated May 26, 2019, to include comments on treason.
A version of this was published in  the SkyhidailyNews.com May 30, 2019



AG Bill Barr's slick lawyer's tricks on collusion will haunt him. Trump's loyal Attorney General Bill Barr was very deceptive and fooling the American public when he screened the Mueller Report before it was released to the public, giving him a chance to spin his tale and trick the voters. 

Now, the President has granted the same Bill Barr access to all classified findings of any US intelligence agency, the FBI and the CIA,  and the power to declassify them if he wishes,  as his newly appointed special counsel conducts an investigation of the investigators. So now we are supposed to believe the same AG Barr in the future who now has a proven track record of deception. Barr will now be able to screen any classified findings by any of our intelligence agencies, the CIA, and the FBI and then cherry pick which phrases that make his point, regardless of the context or the qualifiers and once again spin another tale.

Barr has lost his credibility. We have been down that road with his slick lawyer trick of claiming his client, the president, is exonerated of" collusion" which Mueller did not even investigate. Mueller exonerated Trump of conspiracy, which is quite a different thing, requiring much more convincing proof and, unlike collusion, is a crime named in the criminal statutes. Conspiracy and collusion are not the same. Conspiracy  is the same as intentionally getting together,  planning actively with Russians. Proof beyond a reasonable doubt is required in convicting someone of a crime. Collusion is .just aiding and abetting and receiving information. without actively conspiring and planning. Collusion could still be an article of impeachment since the House can define what is meant by high crimes and misdemeanors. To be impeached, the president does not have to have been indicted or found guilty of a crime first.

 Here is Mueller from the report:
"In evaluating whether evidence about the collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]”…has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law. For those reasons, the Office’s focus in analyzing questions of joint criminal liability was on conspiracy as defined in federal law."

Barr's client, the President, has his own view of the investigators who investigated him. Barr will have a heck of a time trying to defend and spin Trump's newest charge that those who investigated him committed treason or that the Mueller investigation was an illegitimate "coup".  Last week Trump accused those investigating him of committing "treason" against him and he called them out by name. Those are the words and thoughts worthy of the dictators Trump so admires. Treason laws are designed to protect his power and longevity in office, he thinks. 

Trump has charged the FBI with engineering a coup against himself. As he claimed in his angry and defiant rant last week,  the FBI was working against the "wrong person". This is the same person who meets Putin in secret with whom he shares classified information,  and whose campaign associates had over 200 contacts with Russians, eight of whom have been indicted and some in jail,. This is a person whose fondest dream before and while a candidate is to do the biggest business deal of his life in Russia.  He believes he is the person to whom we pledge allegiance, not to the United States and the democracy, its laws, and national security interests. 

Here is why Donald Trump's bluster and threats against those on his enemy list will go nowhere. Treason has two elements in the Constitution and federal statutes. : 1.working against the interests of the United States 2.with a foreign power with which we are at war. .That definition does not include working against the interests of the president himself.   We have not declared war against Russia, though we consider them our adversary working actively to undermine our democracy and to shape our foreign policy to suit their national interests which are contrary to ours.

 Barr has appointed a special counsel to investigate the investigators to discover whatt led to the Mueller investigation. His challenges are many.in this new investigation.  If claiming the Mueller report and investigation was a "coup", a hoax,  and an illegal witch hunt undertaken by  FBI agents  "out to get him" and not loyal to the president  (other Trump attack lines),   a federal appeals court  in the Roger Stone trial already ruled that the special counsel's appointment was legitimate.  If there was smoke, fire was found. Russian interference in the 2016 election was laid out in vivid detail in the Mueller Report, resulting in numerous indictments of spies and GRU operatives. Five of Trump's campaign associates and three others have already pleaded guilty, mostly for lies and cover-ups of Russian and foreign contacts (including national security advisor Lt.Gen. Mike Flynn),  but also for witness tampering.and bank fraud ( Trump's campaign manager Paul Manafort) and a Russian operative Maria Butina for spying.. Trump himself was conspirator person number one in another case of election finance violations which landed his personal attorney, Michael Cohen, in prison for three years.

18 U.S. Code § 2381. Treason "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States."

https://www.nbcnews.com/politics/white-house/trump-doesn-t-understand-what-treason-means-n1009636

https://www.washingtonpost.com/local/legal-issues/special-counsel-robert-muellers-appointment-is-valid-federal-appeals-court-rules/2019/02/26/5c28505c-fd5a-11e8-862a-b6a6f3ce8199_story.html?utm_term=.d353d22560f9

https://www.washingtonpost.com/opinions/2019/05/31/fox-news-viewer-surprised-that-mueller-hadnt-exonerated-trump-obstruction/?utm_term=.696a8646a726

Getting into the weeds in impeachment

This is a companion piece to a posting on the same day: Crisis in American democracy: Time to impeach?

Here are the realities. To understand it means getting into some weeds.  There are some fundamental protections of American democracy hanging in the balance. The White House getting away with stonewalling Congressional subpoenas undermine guardrails our founders designed to protect us from an autocratic ruler, whether we call them a King, a strong man, a dictator, or an autocrat.  A White House who proclaims they are not subject to the law or to Congress is a near and present danger to democracy.  We now have an Attorney General, Trump's appointee,  Bill Barr, Trump's appointed attorney general, comes equipped with existing views that firing those investigating the President is not a conspiracy to obstruct, even if the act has a corrupt intent to protect his hold on power. Trump's  Barr believes the executive branch is the one to sit in judgment of  possible criminal activities of  their head, the  President, as he declares the Special Counsel Robert Mueller 'sReport  exonerates Donald Trump of obstruction of justice in spite of the report that provides evidence of at least ten attempts, or endeavors, to obstruct the  investigation into widespread  Russian interference in the 2016 elections.   The Justice Department's own manual based on numerous court decisions is that the accused does not need to succeed in obstructing justice, but only needs to "endeavor" to do it, but both Barr and the president's own attorney, Rudy Guiliani choose to ignore that fine point.   The techniques they are using are ignoring all House committee subpoenas and/or claiming executive privilege.

 We have seen this scene before. It is the Richard  Nixon anti-impeachment strategy all over again and we know how that turned out.  Legal experts say case law favors the Democrats. Unlike the Nixon history when Democrats controlled both the Senate and the House,, the Trump administration is counting on a GOP Senate majority and a more friendly Supreme Court to help them out.  Trump on other issues has viewed the Supreme Court as his ally since he appointed two of the justices with many views similar to his. Furthermore, since both Clinton and Watergate impeachment attempts, the rules have changed, putting the Department of Justice in charge of the special counsel investigation. 

https://www.nytimes.com/2019/05/02/us/politics/subpoenas-trump-congress.html

  Last week the issue came to a head in Congressional scrutiny of  Attorney General Barr and the dawning by those who read the latently released Mueller report that the president was not exonerated of obstruction of justice crimes as Barr had deceptively argued in his infamous March 24 “summary” of the report findings. Barr failed to appear before the House judiciary committee May 2 and has so far failed to turn over the unredacted the version of the Mueller report and the underlying evidence.  Wednesday, May 7,  Barr was to be charged with obstruction of Congress and the White House is claiming executive privilege on subpoenas as they play keep away of the full Mueller report from Congress. They are expected to use the same delay, obstruction tactic for the key witness in the obstruction of justice, White House Council Don McGahn, and testimony by Robert Mueller himself who thought his report would be going to Congress for the appropriate remedy. The Trump administration vows to fight every subpoena issued by the House of Representatives for administration witnesses to appear or documents to be produced. They fear above all TV coverage of witnesses testifying would give voters their own chance to decide for themselves who was lying.  Richard Nixon tried that same strategy, with the articles of impeachment including a charge of abuse of power as well as obstruction of justice. Regarding the crime of conspiracy,   Trump was indeed exonerated by Mueller.

 Impeachment is similar to a criminal indictment and the Senate holds a trial and sits in judgment with the power to send the President packing. The process does differ than a criminal indictment and requirements.  In impeachment, the articles (charges) the burden of proof is whatever the House says it is and it defines high crimes and misdemeanors. This is in contrast with a criminal investigation and prosecution.   The Mueller findings look for "proof beyond a reasonable doubt' to justify criminal indictments, but the Department of Justice and a ruling by their legal counsel do not permit the indictment of a sitting president. The remedy lies with Congress, the impeachment process, and indictment after the President leaves the office.

The key to much of this is the judiciary and how much their members honor the oath to support and protect the Constitution as opposed to swearing allegiance to Donald Trump.  An independent judiciary is the fundamental requirement of a democracy. The first step any modern-day wannabe dictator has used to make his once democratic country a rule by a person is to replace the judiciary with loyalists, thereby destroying the ability of courts to hold the strong man to existing laws of the land that are supposed to be applied equally to political friend and foe.  In democracies, an independent judiciary and the rule of law are entwined. In dictatorships, judges can be counted on to rule in favor of the great leader and against dissident voices. In spite of Trump and the Senate fellow travelers trying to fast track stuffing the courts with loyalists to Donald Trump, the only power still standing in the way of whether we are ruled by law or by a  self-serving person who decides what the law means, is an independent judiciary that we hope still exists.  Having successfully appointed two justices, Neil Gorsuch and Brett Kavanaugh, to the highest court, Donald Trump seems to view the Court as his ally. He recently indicated he would expect them to protect him from impeachment or unfavorable rulings by lower courts and Congress. (The Constitution carefully excluded the Court from the impeachment process, except to chair Senate deliberations).

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 Even so, the evidence in the Mueller report was there for all to read of multiple examples of how President Trump had obstructed the investigation into the Russian meddling in the 2016 campaign. Mueller carefully stated in his report the reason why the president was not indicted was because of a Department of Justice rules and a Department of Legal Counsel that a sitting president could not be indicted.  That left impeachment, a Congressional action, or prosecution after leaving the office to resolve.

Damning last week was an open letter by a bipartisan group of over 500  former prosecutors who not only said the evidence was there in the redacted Mueller Report for a criminal conviction. From the letter:

“Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felonies charges for obstruction of justice..”

The friends of Trump have made some counter legal arguments that Trump cannot be accused of obstruction of justice because he was not obstructing an underlying crime and that, though he may have tried to obstruct the FBI investigation by firing the heads of the investigation, Comey and Mueller, he did not succeed.  The Department of Justice manual asserts that the accused only needs to have “endeavored” to obstruct justice, not that he succeeded, and that the obstruction of a criminal investigation alone is sufficient. The Mueller investigation was a criminal investigation.

https://www.justice.gov/jm/criminal-resource-manual-1736-inchoate-obstruction-justice-offenses  

https://www.washingtonpost.com/politics/courts_law/trump-views-the-supreme-court-as-an-ally-sowing-doubt-about-its-independence-among-his-critics/2019/04/27/837c3822-682f-11e9-82ba-fcfeff232e8f_story.html?utm_term=.e4237bad4686

https://www.theatlantic.com/ideas/archive/2019/05/trump-and-putins-phone-call-helsinki-all-over-again/588709/

https://slate.com/news-and-politics/2019/05/federal-prosecutors-letter-trump-obstruction.html

https://www.ethz.ch/content/dam/ethz/special-interest/gess/cis/international-relations-dam/Teaching/pwgrundlagenopenaccess/Weitere/Judicial_Independence.pdf

https://www.realclearpolitics.com/video/2019/05/06/georgetown_law_professor_mueller_subpoena_battle_could_lead_to_true_constitutional_crisis.html

https://www.realclearpolitics.com/video/2018/09/05/feinstein_to_kavanaugh_does_the_president_have_to_answer_a_subpoena.html

https://www.washingtonpost.com/politics/courts_law/trump-views-the-supreme-court-as-an-ally-sowing-doubt-about-its-independence-among-his-critics/2019/04/27/837c3822-682f-11e9-82ba-fcfeff232e8f_story.html?utm_term=.e4237bad4686

Mueller's report exposes Trump's team of liars

A version of this was published in the Sky Hi News April 24, 2019
https://www.skyhinews.com/opinion/opinion-muftic-mueller-report-reveals-trump-administration-as-a-team-of-liars/

President Obama's administration was a team of rivals, but Donald Trump's was a team of liars.  Special Counsel Mueller's report was a treasure trove of information and evidence. It revealed the Trump administration associates and Donald Trump himself often trying to take the Special Counsel and Trump's loyal followers for fools with their lies. The game is not over in the matter of obstruction of justice. It is a may be game on. While Mueller did not find enough evidence to indict Trump and his associates with conspiring with the Russians to influence the 2016 election, he directly stated he did not clear (exonerate) Trump of obstruction of justice and lies were key in reaching that conclusion. 

The Mueller report contained a list of those who were Trump aides and associates indicted for lying: Mike Flynn, Michael Cohen, Alex van der Zwaan, Rick Gates, George Papadopoulos, and Paul Manafort.   The lies they told were either about contacts with Russians or obstruction of justice. 


How many times have we heard the President claim that Russian interference in the election was fake news or that the Mueller investigation was a witch hunt.? This was no BS, as Trump's most loyal supporters would like to believe.   Most of Volume One of the Mueller report is laying out the evidence of Russian interference. Mueller concluded, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” 


One of the most frequent lines Donald Trump repeats is "There is no collusion" with the Russians to interfere in the 2016 campaign. If that was no outright lie, it was because he was committing deception by semantics.  Attorney General Bill Barr perpetuated this deception in his March 24   infamous exoneration letter and claimed numerous times  Mueller found Trump did not "collude" with the Russians.  Mueller went to pains in his report to point out that he did not even investigate "collusion" since that was not a legal term. Per Mueller: he investigated the "conspiracy", which has a standard of people plotting together. "In evaluating whether evidence about collective action of multiple individuals constituted
a crime, we applied the framework of conspiracy law, not the concept of "collusion." 

Rudy Giuliani, the President's lawyer and public advocate,  unintentionally agreed Donald Trump did collude. Guiliani just redefined "collusion" on MSNBC Monday as he tried to make a case that there was nothing wrong with taking information from the Russians to help Trump win. Come on, Guiliani, there is plenty wrong even with that when Trump's foreign policy was in synch with Russia's national interest, but not ours. Trump has been making Russia Great Again.  It may or may not be a tit for tat exchange of something of value, but Russia has gotten their payback in Trump's foreign policy goals, weakening NATO, recognizing Russia's takeover of Crimea, forgiving Russian incursions into eastern Ukraine, and lifting of sanctions against friends of Putin. The Russians did more than just exchange information. They also used that information to target their social media propaganda to shape gullible voter opinions in ways that helped Trump get elected. 

 The first half of the game, whether Trump conspired with the Russians,  may be over,  but the second half is yet to be played. Much. of the second volume of Mueller's report presents evidence and examples of lies regarding the obstruction of justice issue.( Obstruction of justice is a legal term meaning obstruction of the investigation.)  Per Mueller Trump himself lied various times about his orders to fire Mueller and claimed falsely he did not demand loyalty from FBI director Comey. His spokesperson Sarah Huckabee Sanders added her two bits claiming the FBI rank and file was OK with Comey's firing when she never even contacted them. Trump lied about the Trump Tower meeting and his role in shaping public characterization of the meeting. 

Mueller's report left much grist for the impeachment mill since at least ten instances of obstruction of justice were listed. Per Mueller, "Our investigation found multiple acts by the President that were capable of exerting undue influence over law enforcement investigations, including the Russian-interference and obstruction investigations,” ... “The incidents were often carried out through one-on-one meetings in which the President sought to use his official power outside of usual channels. These actions ranged from efforts to remove the Special Counsel and to reverse the effect of the Attorney General’s recusal; to the attempted use of official power to limit the scope of the investigation; to direct and indirect contacts with witnesses with the potential to influence their testimony.”

 In a footnote on page ten, Mueller noted that due to a legal opinion by the Office of Legal Counsel and Department of Justice rules, though he could not indict a sitting president, Congress could still impeach the president or Trump could be prosecuted after he left office.  

 The use of those facts and evidence  regarding the obstruction issue will become the subject of House investigations conducted in public. Even more evidence could come to light if the redacted portions of the report or if the grand jury findings were published. Negotiations are now ongoing on the release of the full unredacted version to select members of Congress However grand jury findings may result in a long legal battle. 

Whether the impeachment process will begin will be more of a Democratic concern about strategy than a sense of duty to provide oversight or the facts presented by Mueller. The Senate in GOP hands will make removal of the president due to impeachment a nonstarter. At the least, expect the drama of the House committees to educate the public through public hearings and the witnesses they will call to testify.  As a burning campaign issue in 2020, the Mueller Report could have limited value.    There are many more issues of concern to voters than the Russian interference and Trump’s role in it.  Timing is also a factor. There are only 18 months until the 2020 election. 

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What was of interest is that Mueller concluded the FBI had opened a counterintelligence investigation into Trump July 31, 2016, and kept that a secret, while blaring to the public their investigation into Hillary Clinton’s emails once dismissed and again reopened ten days before the election. Explicitly in the Mueller report, the reason given for opening the counterintelligence investigation was Trump aide George Papadapolous ‘ drunken revelation to a foreign diplomat that the Russians had information damaging to Clinton and the release of the report by Wikileaks hacking of the Democratic National Committee. It was not the Steele dossier that triggered the investigation.  If the GOP Senate wants to bark up that tree, again, they may be wasting their time in conducting a vindictive, diversionary sideshow.

What was not in the Mueller report was the counter-intelligence findings part of the investigation. Was the President compromised by the Russians and did that cause the president to support policies that would make Russia great again? Why did he want to weaken NATO, lift Russian sanctions imposed by their takeover of Crimea and their stealth attack on Eastern Ukraine?  Did he owe friends of Putin,  money or did they have more dirt on his behavior, including financial hanky panky or something else? Mueller did not go there.  What we do know is that Trump pursued getting Russian approval to build his Trump tower Moscow well into his run for the GOP nomination. Or was Trump just Russia’s willing fellow traveler who was serving his own financial interests? 

https://news.yahoo.com/mueller-report-sarah-sanders-invented-story-about-fbi-agents-reaction-to-comey-firing-175925718.html?ncid=facebook_yahoonewsf_akfmevaatca

A very detailed analysis of Mueller's case for Trump's obstruction of justice.https://www.factcheck.org/2019/04/what-the-mueller-report-says-about-obstruction/

https://news.yahoo.com/mueller-report-revels-already-knew-153200965.html?ncid=facebook_yahoonewsf_akfmevaatca

https://www.justice.gov/storage/report.pdf
https://slate.com/news-and-politics/2019/04/robert-mueller-obstruction-impeachment-trump-corrupt-intent.html

https://www.washingtonpost.com/politics/2019/04/18/trump-actions-mueller-spotlighted-potential-obstruction/?utm_term=.425642b9bc3f&wpisrc=nl_fix&wpmm=1

https://news.yahoo.com/ap-fact-check-trump-ag-041703937.html?ncid=facebook_yahoonewsf_akfmevaatca

https://www.lawfareblog.com/lawfare-podcast-special-edition-mueller-report-under-hour

https://www.msn.com/en-us/news/politics/washington-post-fact-checker-says-trump-has-now-hit-10000-lies-as-president/ar-BBWoIc9?ocid=sf