Author Topic: Mueller Probe Examining Whether Donald Trump Obstructed Justice  (Read 26022 times)

Offline Battle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #60 on: March 24, 2019, 01:12:17 pm »

Offline Battle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #61 on: March 24, 2019, 02:52:29 pm »
Sunday, 24th March 2019
The Question the Mueller Report Has Not Answered:  WHY?
by David Frum

Good news, America.

Russia helped install your president.

But although he owes his job in large part to that help, the acting-president did not conspire or collude with his helpers.

He was the beneficiary of a foreign intelligence operation, but not an active participant in that operation.

He received the stolen goods, but he did not conspire with the thieves in advance.

This is what puppetine and its enablers in Congress and media are already calling exoneration.

But it offers no reassurance to Americans who cherish the independence and integrity of their political process.

The question unanswered by the attorney general’s summary of Special Counsel Robert Mueller’s report is:


Russian President Vladimir Putin took an extreme risk by interfering in the 2016 election as he did.

Had Hillary Clinton won the presidency, the most likely outcome, Russia would have been exposed to fierce retaliation by a powerful adversary.

The prize of a drumphf presidency must have glittered alluringly indeed to Putin and his associates.


Did they admire drumphf’s anti-NATO, anti-EU, anti-ally, pro-Assad, pro-Putin ideology?

Were they attracted by his contempt for the rule of law and dislike of democracy?

Did they hold compromising information about him, financial or otherwise?

Were there business dealings in the past, present, or future?

Or were they simply attracted by drumphf’s general ignorance and incompetence, seeing him as a kind of wrecking ball to be smashed into the U.S. government and U.S. foreign policy?

Many public-spirited people have counted on Robert Mueller to investigate these questions, too, along the narrowly criminal questions in his assignment.

Perhaps he did, perhaps he did not; we will know soon, either way.

But those questions have always been the important topics.

The drumphf presidency from the start has presented a national-security challenge first, a challenge to U.S. public integrity next. But in this hyper-legalistic society, those vital inquiries got diverted early into a law-enforcement matter.

That was always a mistake, as I’ve been arguing for two years.

Now the job returns to the place it always belonged and never should have left:


This is all the more the case since the elections of 2018 restored independence to that body.

The 2016 election was altered by Putin’s intervention, and a finding that the drumphf campaign only went along for the ride does not rehabilitate the democratic or patriotic legitimacy of the Trump presidency.

drumphf remains a president rejected by more Americans than those who voted for him, who holds his job because a foreign power violated American laws and sovereignty.

It’s up to Congress to deal with this threat to American self-rule.

Mueller hasn’t provided answers, so much as he has posed a question:

Are Americans comfortable with this idiot in the White House, now that they know he broke no prosecutable criminal statutes on his way into high office?

Would You Like To Know More?
« Last Edit: May 14, 2019, 10:43:41 pm by Battle »

Offline Battle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #62 on: March 26, 2019, 03:53:53 am »
Sunday, 24th March 2019
Lowered Barr
by Neal Kumar Katyal

On Sunday afternoon, soon after Attorney General bill barr released a letter outlining the Mueller investigation report, acting-president drumphf tweeted "Total EXONERATION!" but there are any number of reasons the acting-president should not be taking on a victory lap.

First, obviously, he still faces the New York investigations into campaign finance violations by the drumphf team and the various investigations into the drumphf empire.

And Mr. barr, in his letter, acknowledges that the Mueller report "does not exonerate" drumphf on the issue of obstruction, even if it does not recommend an indictment.

But the critical part of the letter is that it now creates a whole new mess.

After laying out the scope of the investigation and noting that Mr. Mueller's report does not offer any legal recommnedations, Mr. barr declares that it therefore "leaves it to the attorney general to decide whether the conduct decribed in the report constitutes a crime."

He then concludes the president did not obstruct justice when he fired the F.B.I. director, James Comey.

Such a conclusion would be momentous in any event.

But to do so within 24 hours of recieving the report (which pointedly did not reach that conclusion) should be deeply concerning to every American.

The special counsel regulations were written to provide the public with confidence that justice was done.

It is impossible for the public to reach that determination without knowing two things.

First, what did the Mueller report conclude, and what was the evidence on obstruction of justice?

And second, how could Mr. Barr have reached his conclusion so quickly?

Mr. barr's letter raises far more questions than it answers, both on the facts and the law.

His letter says that Mr. Mueller set "out evidence on both sides of the question and leaves unresolved what the special counsel views as 'difficult issues' of law and fact concerning whether the acting-president's actions and intent could be viewed as obstruction."

Yet we don't know what those "difficult issues" were, because Mr. barr doesn't say, or why Mr. Mueller, after deciding not to charge on conspiracy, let Mr. barr make the decision on obstruction.

On the facts, Mr. barr says that government would need to prove that drumphf acted with "corrupt intent" and there were no such actions.

But how would Mr. barr know?

Did he even attempt to interview drumphf to interview drumphf about his intentions?

What kind of prosecutor would even make a decision about someone's intent without even trying to talk to him?

Particularly in light of Mr. Mueller's pointed statement that his report does not "exonerate" drumphf. 

Mr. Mueller didn't have to say anything like that.

He did so for a reason.

And that reason may well be that there is troubling evidence in the substantial record that he compiled.

Furthermore, we do not know why Mr. Mueller did not try to force an interview with the acting-president.

The reason matters greatly.

Mr. Mueller could have concluded that interviews of sitting presidents for obstruction matters are better done within the context of a congressional impeachment investigation (perhaps because a sitting president cannot be indicted, the barr letter says this legal argument didn't influence Mr. barr's conclusion but again is pointedly silent as to Mr. Mueller).

Or Mr. barr could have concluded that the attorney general, not a special counsel, should carry out such an interview.

The fact that Mr. barr rushed to judgement, within 48 hours, after a 22-month investigation, is deeply worrisome.

The opening lines of the obstruction section of Mr. barr's letter are even more concerning.

It says that the special counsel investigated "a number of actions by the acting-president --- most of which have been the subject of public reporting."

Please note: The article ends abrubtly here
« Last Edit: March 26, 2019, 06:10:16 am by Battle »

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #63 on: March 26, 2019, 08:46:21 am »

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #64 on: March 26, 2019, 02:49:31 pm »
I need someone to explain to me how your Campaign Manager can give Russians crucial polling data and it NOT be collusion.

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #65 on: April 03, 2019, 09:52:37 am »
Nifty Hustle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #66 on: April 09, 2019, 05:23:47 am »

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #67 on: April 09, 2019, 06:39:51 pm »
Monday, April Fools Day 2019
How Barr May Interpret What It Means to Withold "Grand Jury Information"
by Barbara McQuade

What is Attorney General William Barr doing with removing grand jury information from the Mueller report before disclosing it?

While rules govern grand jury secrecy, they contain room for interpretation.

Barr’s very decision to engage in this process to keep parts of the report hidden from Congress is a danger sign.

If Barr is using grand jury secrecy rules as a shield to prevent disclosure of the Mueller report, he may find himself suffering blowback from Congress and the public.

The Attorney General’s second letter regarding Special Counsel Robert Mueller’s report stated that the report will be released to Congress and the public after Barr and his staff have made “redactions that are required.”
He lists four categories for redaction:

(1) grand jury material;

(2) material that potentially compromises intelligence source and methods;

(3) material that could affect “ongoing matters,” including ones the Special Counsel has referred to other parts of the Justice Department; and

(4) “information that would unduly infringe on the personal privacy and reputational interests of peripheral third parties.”

While any one of those categories might be interpreted broadly enough to conceal large swaths of Mueller’s findings, grand jury material is one that permits Barr great discretion in defining its scope.

In his first letter, Barr highlighted Federal Rule of Criminal Procedure 6(e), which provides that an attorney for the government must not disclose a “matter occurring before the grand jury”—though with some relevant exceptions that Barr did not discuss.

Many reasons exist for grand jury secrecy – to prevent flight of a target, to insure deliberations free from interference, to prevent witness tampering, to promote candor from witnesses, and to protect the reputations of those under investigation who are not ultimately charged.

See United States v. Proctor & Gamble Co., 356 U.S. 677, 681, n. 6 (1959). As an “attorney for the government,” Barr has a legal obligation to comply with the rule.

Defining the Scope of Grand Jury Information

Certainly, grand jury witness testimony comes within the definition of a “matter occurring before the grand jury,” but some courts have defined the scope of the rule more broadly than that.

The D.C. Circuit, which likely controls here, has held that Rule 6(e) covers disclosure of “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.” SEC v. Dresser Industries, 628 F.2d 1368, 1382 (D.C. Cir. 1980).

That definition leaves a great deal of room for interpretation.

Some courts have taken the position that reports of interviews of witnesses in anticipation that they will testify before the grand jury qualify as matters occurring before the grand jury, that is, if that information “may reveal what occurred before the grand jury.”

Martin v. Consultants and Administrators, 966 F.2d 1078, 1097 (7th Cir. 1992).

Other courts have held that if the report of an interview was not itself presented to the grand jury, then the report does not become grand jury material. Anaya v. United States, 815 F.2d 1373, 1380 (10th Cir. 1987).

Barr’s initial letter to Congress from March 24 stated that Mueller’s team interviewed approximately 500 witnesses.

If Barr wanted to prevent the disclosure of the reports from these interviews, he could try to take the position that they were conducted in anticipation that the witnesses would testify before the grand jury, and redact from Mueller’s report the names of the witnesses and the substance of their statements.

He would face significant obstacles potentially including reports conducted for the counterintelligence investigation and those conducted before a grand jury ever formed.

But that is not to say Barr would not try this route, and, in the event the Department gets challenged in court, fight it out there.

Documents also may become 6(e) material when subpoenaed by a grand jury if they would reveal what the grand jury considered.

In Fund for Constitutional Government v. National Archives, 656 F.2d 856, 869 (D.C. Cir. 1981), the court included within the scope of 6(e) “documents considered by the grand jury.” Even pre-existing documents created for an independent purpose but subpoenaed by the grand jury may, in some cases, be covered by 6(e) where the documents are sought to discover what the grand jury obtained rather than for their own intrinsic value. United States v. Interstate Dress Carriers, Inc., 280 F.2d 52, 54 (2d Cir. 1960).

Barr could share the documents with Congress without violating 6(e), but the fact that they were obtained for a grand jury investigation is the part that would be secret.

According to Barr’s initial letter, Mueller’s grand jury issued 2,800 subpoenas.

Grand jury subpoenas are most often used to seek records from third parties, such as banks and service providers.

A single subpoena might yield thousands of pages of documents in response.

With 2,800 subpoenas served, Mueller and his team likely obtained thousands if not millions of pages of documents.

If the actual reason for the disclosure of the documents were to inform the public that they were obtained by the grand jury, the documents themselves or even a list of the documents could arguably be grand jury material covered by Rule 6(e).

If Barr takes this view, then he might redact reference to them in Mueller’s report.

Once again, the question is how far Barr tries to push the envelope within his zone of discretion.

A very expansive view of 6(e) protection could also prevent the disclosure of materials obtained in a search warrant.

Ordinarily, items obtained by search warrant are not considered matters occurring before the grand jury even if a grand jury is investigating the same subject.

In re Search Warrant for Second Floor Bedroom, 489 F.Supp. 207, 210 (D.R.I. 1980). However, the Fourth Circuit has stated that where a government agent used search warrants and subpoenas to obtain information indiscriminately, the official may become an “agent of the grand jury,” causing the materials to merge under the protection of 6(e).

In re Grand Jury Subpoena, 920 F.2d 235, 243 (4th Cir. 1990). Barr’s letter indicates that Mueller executed 500 search warrants, likely yielding voluminous documents.

If Barr were to take the aggressive Fourth Circuit approach to search warrant materials, then he could potentially try to shield from disclosure any reference to them.

Barr might consider even Mueller’s own analysis to be grand jury material protected by Rule 6(e). In Fund for Constitutional Government, 656 F.2d at 869, the court included within the scope of 6(e) “conclusions reached as a result of the grand jury investigations.”

One of the great curiosities about Mueller’s report is his failure to reach a conclusion as to whether President Trump obstructed justice.

Did Mueller believe that the evidence was inconclusive?

Or did he find that while the evidence was sufficient, he was unsure whether charges should be filed for obstruction of justice against the president as a matter of law in light of his role as head of the executive branch?

Or was he instead deferring to Congress to decide whether the evidence proved a high crime or misdemeanor for which impeachment is appropriate?

Of course, this presumes that evidence of obstruction was presented to the grand jury, which there is good reason to think it was not.

Many questions also abound over Mueller’s conclusion that the “investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

If “conclusions reached as a result of the grand jury investigations” are broadly understood and protected from disclosure under Rule 6(e), then we might not learn the answers under an expansive reading by Barr of the rule’s requirements, or more properly we would not learn whether the grand jury considered the evidence.

Exceptions that Authorize Release of Grand Jury Information

One check on Barr’s discretion is the courts.

While Barr, as “an attorney for the government,” must adhere to the secrecy provisions of Rule 6(e), he could seek permission from the district court to disclose to Congress the grand jury material in Mueller’s report.

As Judge John Sirica noted in the Watergate case, once an investigation has ended, many grand jury secrecy considerations disappear.

“There is no need to protect against flight on anyone’s part, to prevent tampering with or restraints on witnesses or jurors, to protect grand jury deliberations, to safeguard unaccused or innocent persons with secrecy.”

In Re Report & Recommendation of June 5, 1972 Grand Jury, 370 F. Supp. 1219, 1229 (D.D.C. 1974). In deciding that the report of the grand jury investigating Watergate should be disclosed to Congress, the court noted that “secrecy must prevail during deliberations, and that any later disclosure will occur at the court’s discretion.” Id. at 1228.

Trial courts have discretion to disclose grand jury material “where the need for it outweighs the public interest in secrecy.”

Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223 (1979).

Even if disclosing the report to the public compromises too much secrecy, Barr could make a more limited to request for disclosure only to Congress.

If Barr were looking for a way to disclose the report to Congress, he might also find authority under Rule 6(e)(3)(D).

That section permits an attorney for the government to disclose a grand jury matter involving counterintelligence to “any federal…official” to assist in that official’s duties, and permits disclosure of grand jury matters involving “grave hostile acts of a foreign power” or intelligence gathering by foreign powers to “any appropriate federal . . . government official” for the purpose of responding to such threats.

Mueller’s investigation has been characterized as, in part, a counterintelligence investigation, seeking to identify links between the Trump campaign and the Russian government.

So long as the content of the report satisfies the definition of this rule, members of the Senate and House intelligence committees may qualify as appropriate federal government officials, which the rule does not define.
The rule provides that the government official receiving the information may use it “only as necessary in the conduct of that person’s official duties.”

The attorney for the government could make this disclosure with only notice to, rather than permission from, the court.

Barr finds himself in a position of great power. He could use Rule 6(e) to try to conceal large portions of Mueller’s report.

If, however, he is committed to maximum transparency, as he pledged during his confirmation hearings, then he has a path to fulfilling that commitment by seeking court permission to disclose the report either to the public or Congress or by using any authority he has to provide the report to Congress with notice to the court.

For its part, Congress could request Barr reveal the criteria he is applying in making redactions—since the devil is in his exact interpretation of “grand jury information”—and why he has failed to use authority he possesses to skip the redaction process and provide the report to Congress under exceptions codified in the very rule he’s invoked for nondisclosure.

If Barr does not invoke the exceptions to grand jury secrecy and provide Mueller’s report, he may find himself defending a subpoena from Congress.

Instead, he could score political points for the administration by agreeing to an outcome that is inevitable anyway.

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #68 on: April 11, 2019, 03:30:46 am »
Thursday, 11th April 2019
Julian Assange arrested by British police at Ecuadorean embassy

by Reuters

(London) - WikiLeaks founder Julian Assange was arrested by British police after they were invited into the Ecuadorean embassy where he has been holed up since 2012.

Police said they arrested Assange after being "invited into the embassy by the Ambassador, following the Ecuadorean government's withdrawal of asylum."

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« Last Edit: April 11, 2019, 02:18:36 pm by Battle »

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #69 on: April 11, 2019, 02:17:09 pm »
Thursday, 11th April 2019
Why the Charge Against Julian Assange Makes No Mention of Espionage or 2016 Russian Hacking
by Tessa Berenson

Wikileaks is at the center of major questions in Robert Mueller’s investigation, including whether anyone involved in drumphf’s presidential campaign assisted the organization in releasing hacked materials. But the charge in the one-count indictment against Wikileaks founder Julian Assange unsealed on Thursday shortly after his arrest doesn’t speak to those questions or broader First Amendment issues.

In an indictment dated March 6, 2018, the United States charges Assange with one count of conspiracy to commit computer intrusion. The indictment alleges “that in March 2010, Assange engaged in a conspiracy with Chelsea Manning, a former intelligence analyst in the U.S. Army, to assist Manning in cracking a password stored on U.S. Department of Defense computers connected to the Secret Internet Protocol Network, a U.S. government network used for classified documents and communications.”

Conspiracy to commit computer intrusion, which violates the Computer Fraud and Abuse Act, is the “meat and potatoes” in the world of computer crime, says Paul Rosenzweig, who teaches at the George Washington University School of Law and was deputy assistant secretary for policy at the U.S. Department of Homeland Security. “Almost everybody that you see who’s charged with a computer fraud of some sort gets a charge that’s somewhere like this.”

This fits with the typical prosecutorial strategy of charging someone with a smaller, more easily provable crime in what could be a larger criminal context. “The conspiracy component of it can be pretty easy to prove, that there had to be some degree of coordination of efforts and action,” says Thomas Holt, a professor in the School of Criminal Justice at Michigan State University who is an expert in computer hacking. “So conspiracy is a way to… treat it as low-hanging fruit where you can at least demonstrate through email and other communications that they were working in some degree in concert to produce an outcome.”

Limiting the indictment against Assange to this one, narrower charge and not charging him with espionage leaves aside any First Amendment questions that could have been raised about Wikileaks publishing classified material. “There has been a lot of speculation that the U.S. would indict Assange merely for distributing classified material,” former federal prosecutor Renato Mariotti wrote on Twitter.

“You have heard a lot of concern about that, and it is justified. Many legitimate press publications in the U.S. distribute classified material at times.”

But this indictment does not charge Assange with a crime related merely to the publication of the material.

Rosenzweig offers this analogy:

If a journalist has sources offering classified documents, the journalist can publish those documents and this indictment against Assange has no bearing on that. But if a source tells a journalist there are documents behind a locked door, and the journalist offers to help pick the lock, that’s when it becomes a crime. “You as a journalist have become engaged in a criminal enterprise in a way that’s different from normal journalist behavior,” Rosenzweig says of that scenario.

This is where relevance to Mueller’s Russia investigation comes in. In 2016, hackers that the U.S. government believes to have been directed by the Russian government hacked the Democratic National Committee and Clinton’s campaign chairman John Podesta.

Batches of the hacked emails were released by Wikileaks. Mueller indicted Russian intelligence officers for crimes related to this operation, but he did not charge Assange.

There are two key relevant questions in Mueller’s investigation. The first is how the hacked material made its way from Russia’s Internet Research Agency to Wikileaks, and whether puppetine advisor Roger Stone or anyone else associated with the campaign was in that chain of custody. The second, related question is whether Stone or anyone else in the campaign assisted in targeting the hacking or selecting and timing the release of hacked material.

(Stone has been charged with lying to Congress and obstructing an investigation into his communications with Assange. Former drumphf lawyer Michael Cohen also testified that he was present for a July 2016 phone call during which Stone informed drumphf that Assange was planning to publish hacked Democratic emails.)

As in Rosenzweig’s analogy, if Stone or another member of the campaign simply knew about the information in advance, that likely wouldn’t be a crime. But if they conspired in the hack, that could be.

Attorney General William Barr has said Mueller’s investigation did not establish that anyone on the drumphf campaign conspired with Russia to influence the election.

For now, this single-count indictment against Assange for activity from nine years ago doesn’t seem to have direct bearing on lingering questions from the Mueller investigation. And Mueller hasn’t recommended any more charges to come directly from his office. But Assange and Wikileaks loom over multiple aspects of Mueller’s investigation, and more details may surface in the coming days when Barr releases a redacted version of the report.

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #70 on: April 14, 2019, 08:21:36 pm »
Sunday, 14th April 2019
The Wait Is Almost Over For The (Almost) Full Mueller Report To Be Released
by Jessica Taylor

Democrats in Congress and an overwhelming majority of the American public are eagerly awaiting the expected release this week of the Mueller report.

First came the wait for special counsel Robert Mueller to conclude his investigation on Russia's interference in the 2016 presidential election.

That happened three weeks ago, but after Attorney General William Barr released a four-page summary of the nearly 400-page report, there has been a new anticipation — and growing acrimony — for the report to be released to members of Congress and the public.

But even when the report is released, it's unlikely the politically divisive debate that has been the hallmark of President Trump's tenure in office will be resolved.

Barr's summary letter on March 24, two days after Mueller delivered his report to the new attorney general, was met with glee from the White House, as he wrote that the lengthy investigation did not find that the Trump campaign "conspired or coordinated with Russia in its efforts to influence the 2016 U.S. presidential election."

The president and most Republicans saw that rundown of Mueller's major findings as "complete and total exoneration," even though Mueller did not take a position on whether Trump obstructed justice, given his comments and actions around the ongoing investigation.

Rather, Mueller's team wrote, according to Barr, that "while this report does not conclude that the President committed a crime, it also does not exonerate him."

Barr and Deputy Attorney General Rod Rosenstein, however, concluded that Mueller's finding were "not sufficient to establish that the President committed an obstruction-of-justice offense."

But given what little Democrats have seen of Mueller's findings, they want more answers on exactly how the Justice Department came to that conclusion.

Barr said he would release more of the report but would need time to make the necessary redactions before it could be made public.

Key House Democrats didn't want to wait and had initially demanded it be made public by April 2.

But Barr responded, saying he thought he could complete any redactions by "mid-April, if not sooner," and the release anticipated for this week does hit that promised timeline.

However, soon after that update from Barr, the House Judiciary Committee, along a party-line vote, authorized a subpoena for the full report and its underlying investigative evidence.

Barr has said he's willing to testify before the House and Senate judiciary committees in early May.

Barr was on Capitol Hill last week testifying before a panel of the House Appropriations Committee on unrelated budget matters, and he was clear that he didn't want to talk much about the Mueller report — but Democrats certainly did.

The attorney general indicated that he would be open to negotiating with congressional leaders who want to see Mueller's underlying evidence once the report is released.

Then, the next day, before a panel of the Senate Appropriations Committee, Barr stoked a whole new controversy when he said he'd launched his own informal inquiry into the origins of the FBI's initial counterintelligence investigation into Russia and the 2016 Trump campaign, which began the summer of that year at the height of the White House race.

Trump has often pointed to this as evidence of bias, and Barr seemed to concur, saying that "spying did occur" on the then-nominee's campaign — a claim Trump has regularly made without evidence.

Later in the hearing, Barr clarified that he has no "specific evidence" of such surveillance but that he has "questions about it" and "concerns about various aspects of it."

All of that suggests the controversy is likely to be far from over even when the redacted, lengthy Mueller report is released.

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #71 on: April 15, 2019, 08:15:27 am »
Monday, 15th April 2019
Barr’s Playbook: He Misled Congress When Omitting Parts of Justice Dep’t Memo in 1989
by Ryan Goodman

On Friday the thirteenth October 1989, by happenstance the same day as the “Black Friday” market crash, news leaked of a legal memo authored by William Barr. He was then serving as head of the Justice Department’s Office of Legal Counsel (OLC). It is highly uncommon for any OLC memo to make headlines. This one did because it was issued in “unusual secrecy” and concluded that the FBI could forcibly abduct people in other countries without the consent of the foreign state. The headline also noted the implication of the legal opinion at that moment in time. It appeared to pave the way for abducting Panama’s leader, Gen. Manuel Noriega.

Members of Congress asked to see the full legal opinion. Barr refused, but said he would provide an account that “summarizes the principal conclusions.” Sound familiar? In March 2019, when Attorney General Barr was handed Robert Mueller’s final report, he wrote that he would “summarize the principal conclusions” of the special counsel’s report for the public.

When Barr withheld the full OLC opinion in 1989 and said to trust his summary of the principal conclusions, Yale law school professor Harold Koh wrote that Barr’s position was “particularly egregious.” Congress also had no appetite for Barr’s stance, and eventually issued a subpoena to successfully wrench the full OLC opinion out of the Department.

What’s different from that struggle and the current struggle over the Mueller report is that we know how the one in 1989 eventually turned out.

When the OLC opinion was finally made public long after Barr left office, it was clear that Barr’s summary had failed to fully disclose the opinion’s principal conclusions. It is better to think of Barr’s summary as a redacted version of the full OLC opinion. That’s because the “summary” took the form of 13 pages of written testimony. The document was replete with quotations from court cases, legal citations, and the language of the OLC opinion itself. Despite its highly detailed analysis, this 13-page version omitted some of the most consequential and incendiary conclusions from the actual opinion. And there was evidently no justifiable reason for having withheld those parts from Congress or the public.

When first asked by reporters about the OLC opinion that Friday, Barr said he could not discuss any of its contents. “I just don’t discuss the work of the office of legal counsel,” he said. “The office … provides legal advice throughout the Administration and does it on a confidential basis.”
The idea that Barr and the administration would not even discuss the content of the opinion could not withstand public pressure. Barr’s stance was especially untenable because his OLC opinion reversed a prior OLC opinion (an unusual event), and the Justice Department had released that prior opinion in full to the public just four years earlier.
President George H.W. Bush was asked about the Barr legal opinion at a news conference on the day the story broke. “The FBI can go into Panama now?,” a reporter asked in connection with the legal opinion. Bush responded that he was “embarrassed” not to know about the OLC opinion. “I’ll have to get back to you with the answer,” the president said.

Within hours, Secretary of State James Baker tried to make some reassuring public comments about the content of the OLC opinion. “This is a very narrow legal opinion based on consideration only of domestic United States law.” Baker said. “It did not take into account international law, nor did it weigh the President’s constitutional responsibility to carry out the foreign policy of the United States.”
It’s not known whether Baker had first cleared his statement with the Justice Department as is often the case for such matters. But his description of the OLC opinion would turn out to be not just misleading, but false.
The Chair of the House Judiciary Committee’s subcommittee on civil and constitutional rights, Rep. Don Edwards, then wrote to the Attorney General requesting the opinion, but he was rebuffed. An assistant attorney general wrote back. “We are unable to provide you with a copy of the 1989 opinion because it is the established view of the Department of Justice that current legal advice by the Office of Legal Counsel is confidential,” she stated. But there was no categorical prohibition, as Barr himself would later admit in testifying before Congress. The assistant attorney general’s letter itself included one glaring counterexample. “I am enclosing a copy of the 1980 opinion,” she wrote, and she noted that the Department had released the 1980 opinion to the public in 1985.

So why not release the 1989 opinion? Was there something to hide?

On the morning of Nov. 8, 1989, Barr came to Congress to testify before Rep. Edwards’ subcommittee. Some of the events that unfolded also bear a remarkable resemblance to Barr’s handling of the Mueller report to date.
First, Barr started out by saying that the history of internal Justice Department rules was a basis for not handing over the full opinion to Congress. “Chairman. Since its inception, the Office of Legal Counsel’s opinions have been treated as confidential,” Barr said.
That statement was misleading or false, and Chairman Edwards knew it.
Edwards quickly pointed out that the Department had released a compendium of opinions for the general public, including the 1980 one that Barr’s secret opinion reversed.

“Up until 1985 you published them, and I have it in front of me—‘Opinions of the Office of Legal Counsel’—the previous opinion.”

Barr retreated. “It has been the long established policy of OLC that except in very exceptional circumstances, the opinions must remain confidential,” Barr replied. The reference to “very exceptional circumstances” backtracked from what Barr had just said and what the letter sent to Rep. Edwards by the assistant attorney general had claimed.

But even the assertion that OLC opinions were released only in “very exceptional circumstances” could not withstand scrutiny. The Justice Department had shared OLC opinions with Congress on many occasions during the 1980s, as a letter by Rep. Edwards to the Justice Department later detailed.

Barr then pointed out his willingness to provide Congress with “our conclusions and our reasoning.” This was the 13-page written testimony which contained a detail recounting of the views expressed in the OLC opinion. Chairman Edwards complained that Barr had violated the rules of the House by submitting his written testimony only that same morning of the hearing, rather than 48 hours in advance. Barr’s timing meant that members of the committee and their staff were not well equipped to analyze or question the OLC’s analysis. But at least they had the OLC’s views in writing.

Or did they?

Barr’s description of the OLC’s views included that as a matter of domestic law the President has the authority to authorize actions by the FBI in foreign countries in violation of customary international law.
Without the benefit of the OLC opinion, Professor Koh explained how Barr could be hiding important matters by asking Congress and the public to trust just the 13-page version. Koh wrote:

“Barr’s continuing refusal to release the 1989 opinion left outsiders with no way to tell whether it rested on factual assumptions that did not apply to the earlier situation, which part of the earlier opinion had not been overruled, or whether the overruling opinion contained nuances, subtleties, or exceptions that Barr’s summary in testimony simply omitted."

Koh’s words proved prescient.

I am not the first to notice that Barr’s testimony omitted parts of the OLC opinion that would have earned the Justice Department scorn from the halls of Congress, legal experts, and the public.

Over one and a half years after his testimony, Congress finally subpoenaed Barr’s 1989 opinion. Another House Judiciary subcommittee issued the subpoena on July 25, 1991. The administration first resisted, but within a week agreed that members of Congress could see the full opinion. That same month, the Washington Post’s Michael Isikoff obtained a copy of the OLC opinion. The Clinton administration, within its first year in office, then published the OLC opinion in 1993 making it publicly available for the first time.

Omission 1: President’s authority to violate the U.N. Charter

Isikoff was drawn to a major issue that Barr had not disclosed in his testimony. The 1989 opinion asserted that the President could violate the United Nations Charter because such actions are “fundamentally political questions.”

That proposition is a very difficult one to sustain, and as Brian Finucane and Marty Lederman have explained, Barr was wrong. The 1989 opinion ignored the President’s constitutional duty to “take care” that US laws, including ratified treaties, be faithfully executed. And the opinion conflated the so-called political question doctrine, which is about whether courts can review an executive branch action, with the question whether an executive branch action is authorized or legal.

What’s more important for our purposes is not whether the 1989 opinion was wrong on this central point, but the fact that Barr failed to disclose this “principal conclusion” to Congress.

There was a reason Isikoff considered the conclusion about the U.N. Charter newsworthy. That’s because it had not been known before. The leading analysis of the Barr opinion is in a forthcoming article in Cornell Law Review by Finucane. He observes, “The members of the subcommittee appear to have been unaware of the opinion’s treatment of the U.N. Charter and the witnesses did not volunteer this information during the hearing.”

Professor Jeanne Woods, in a 1996 law review article in Boston University International Law Journal, also observed the large discrepancy between Barr’s 13-page testimony and what it failed to disclose. “Barr’s congressional testimony attempted to gloss over the broad legal and policy changes that his written opinion advocated.… A careful analysis of the published opinion, and the reasoning underlying it, however, reveals the depth of its deviation from accepted norms,” Professor Woods wrote.

Omission 2: Presumption that acts of Congress comply with international law

Woods also noted that the OLC opinion failed to properly apply the so-called “Charming Betsy” method for interpreting statutes. That canon of statutory construction comes from an 1804 decision, Murray v. The Schooner Charming Betsy, in which the Supreme Court stated, “an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains.” In other words, Congress should be presumed to authorize only actions that are consistent with U.S. obligations under international law. As Professor Curtis Bradley has written, since 1804 “this canon of construction has become an important component of the legal regime defining the U.S. relationship with international law. It is applied regularly by the Supreme Court and lower federal courts, and it is enshrined in the black-letter-law provisions of the influential Restatement (Third) of the Foreign Relations Law of the United States.”

Barr’s opinion not only failed to apply the Charming Betsy presumption in favor of international law; the opinion applied what might be called a “reverse Charming Betsy.” Barr had reasoned that “in the absence of an explicit restriction” concerning international law, the congressional statute should be read to authorize the executive branch to violate international law. “Because, as part of his law enforcement powers, the President has the inherent authority to override customary international law, it must be presumed that Congress intended to grant the President’s instrumentality the authority to act in contravention of international law when directed to do so,” the opinion stated (emphasis added).

That part of the OLC’s analysis has not withstood the test of time. Indeed, there was good reason to keep it buried.

Omission 3: International law on abductions in foreign countries

Finally, Barr’s testimony failed to inform Congress that the 1989 opinion discussed international law.
Barr’s written testimony said that the opinion “is strictly a legal analysis of the FBI’s authority, as a matter of domestic law, to conduct extraterritorial arrests of individuals for violations of U.S. law.” During the hearing he added that “the opinion did not address … how specific treaties would apply in a given context.” The State Department’s legal adviser who appeared alongside Barr supported this characterization of the opinion by saying:

“The Office of Legal Counsel, as the office within the Department of Justice responsible for articulating the Executive Branch view of domestic law, recently issued an opinion concerning the FBI’s domestic legal authority to conduct arrests abroad without host country consent. Mr. Barr has summarized its conclusions for you. As Mr. Barr has indicated, that opinion addressed a narrow question — the domestic legal authority to make such arrests…. My role today is to address issues not discussed in the OLC opinion — the international law and foreign policy implications of a nonconsensual arrest in a foreign country."

But the OLC opinion had addressed some questions of international law and how a specific treaty—the U.N. Charter—might apply in such contexts. The 1980 opinion, which the 1989 one reversed, included strong statements about the international legal prohibition on abductions in other countries without the state’s consent. In analyzing Article 2(4) of the UN Charter, the 1980 opinion quoted from a famous United Nations Security Council resolution which condemned the abduction of Adolph Eichmann in Argentina by Israeli forces. The 1980 OLC opinion stated, “Commentators have construed this action to be a definitive construction of the United Nations Charter as proscribing forcible abduction in the absence of acquiescence by the asylum state.”

The OLC’s 1989 opinion took a very different view. It stated, “The text of Article 2(4) does not prohibit extraterritorial law enforcement activities, and we question whether Article 2(4) should be construed as generally addressing these activities.” The opinion also engaged in what many legal experts would consider controversial if not clearly wrong claims about international law. As one example, the 1989 opinion stated, “because sovereignty over territory derives not from the possession of legal title, but from the reality of effective control, logic would suggest there would be no violation of international law in exercising law enforcement activity in foreign territory over which no state exercises effective control.” The fact that the opinion had to resort to such a claim of “logic,” rather than jurisprudence or the practice and legal views of states, indicated its shallowness.

In fairness to Barr, these statements of international law were not the principal conclusions of the opinion. And, once again, it is not so relevant to our purposes whether these statements of law were wrong. What’s relevant is that Barr represented to Congress in his written and oral testimony that the OLC opinion did not address these legal issues, even though it did.

In the final analysis, Barr’s efforts in 1989 did not serve the Justice Department well. He had long left government service when the OLC opinion was finally made public. The true content of the opinion, given what Barr told the American people and testified before Congress, remains much to the discredit of the Attorney General.

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Offline Battle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #72 on: April 16, 2019, 06:01:08 pm »
Tuesday, 16th April 2019
Barr sowing public mistrust with Mueller report handling

by Josh Gerstein

Attorney General William Barr has created public distrust about whether the Justice Department is committed to sharing as much as possible about the Russia probe's findings, a federal judge said on Tuesday.

“The attorney general has created an environment that has caused a significant part of the public … to be concerned about whether or not there is full transparency,” U.S. District Court Judge Reggie Walton said during a hearing Tuesday afternoon on a Freedom of Information Act suit demanding access to a report detailing the findings of special counsel Robert Mueller.

Walton, an appointee of President George W. Bush, did not elaborate on what actions or statements by the attorney general have generated those perceptions.

Democrats and other critics have faulted Barr for adding his own conclusions favorable to the acting-President into a letter sent to Congress last month summarizing the top-line findings of the report.

In addition, Barr has warned that he plans to make redactions to the report on grounds such as privacy and grand jury secrecy, prompting more complaints.

But despite Walton’s criticism, he denied a request from BuzzFeed to issue a preliminary injunction requiring the Justice Department to release Mueller’s report by Thursday.

A Justice Department spokeswoman said Monday that the nearly 400-page report, with redactions, will be released that morning to Congress and the public.

However, the online media outlet pressed for an order requiring the release of the portions that must be disclosed under FOIA.

Matthew Topic, a lawyer for BuzzFeed, said at the hearing that putting a court order in place would speed up further litigation over whatever information is redacted from the report.

“The government claims it can make an open-ended extension with no specific deadline in mind,” Topic said.

Indeed, Justice Department attorney Courtney Enlow declined to say whether the version of the report made public Thursday will be identical to what the department releases under FOIA.

Nor could she say whether she’d be prepared to commit to that during another hearing set for May 2 on the BuzzFeed case and a related suit.

“I can’t give you a timeline,” Enlow said.

Walton previously declined to issue a deadline for the release of a broader set of Mueller-related records in a suit filed by the Electronic Privacy Information Center, a nonprofit privacy-advocacy group.

However, the judge said Tuesday that he plans to “fast track” the issue of the report and what information in it must be disclosed, then deal with other records from Mueller’s probe.

“We’d be dealing separately with the report,” said Walton.

He also said he’ll want to consider whether to order the government to give him an unredacted copy of the report so he can assess whether the redactions are proper.

“That’s something we will have to work through. I’ll have to think about it,” he said.

Walton said he hopes any disputes will be limited because the Justice Department makes the bulk of the document public.

“I would hope that the government is as transparent as it can be,” the judge said.

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Offline Battle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #73 on: April 17, 2019, 07:48:41 am »
Tuesday, 9th April 2019
Legislators have a responsibility to police obstruction of justice, according to the US Constitution.
by Asha Rangappa

News that Attorney General William Barr might have mischaracterized special counsel Robert Mueller’s final report on obstruction of justice by the acting-president has increased calls for Barr to release the report to Congress.

If Barr refuses to do so and House Judiciary Committee Chairman Jerry Nadler issues a subpoena, we may be in for a separation of powers showdown — and a central question will be the legal basis upon which Congress is entitled to see the fruits of Mueller’s investigation.

The argument for Congress obtaining Mueller’s full report on obstruction is typically based on its constitutional power to impeach:

Since Congress alone has the power to take action against the president, if he has broken the law or abused his power — which is true if the Justice Department adheres to its policy of not indicting a sitting president, even if it is not settled law — Congress would by necessity need to see the evidence Mueller has gathered to determine if impeachment is warranted.

If lawmakers weren’t able to see the report, then the president would effectively be immunized from accountability for wrongdoing while he is in office, putting him above the law.

This is a powerful argument in the battle that could ensue in the coming weeks.

But it overlooks an additional constitutional basis that Congress has for reviewing the president’s conduct:

Congress has a responsibility, rooted firmly in the Constitution, to safeguard the integrity of the justice system, including to prevent obstruction of justice.

Therefore, Mueller’s findings are as much about whether the acting-President has stepped on Congress’ toes as it is about whether he broke the law.

In contesting a subpoena from Congress, the Executive's Mansion likely will make its favorite defense, which is that the president, legally speaking, can’t obstruct justice.

This “unitary executive” theory rests on Article II of the Constitution, which gives the chief executive the power to “take care that the laws be faithfully executed.”
According to this view, this language means the president alone is in charge of which cases to pursue in the justice system:

If he decides to stop an investigation, that is his prerogative, and his reasons for doing so are beyond the purview of investigators, Congress and the courts.

A year before being confirmed as attorney general, Barr laid out an ancillary proposition in a long and rambling memo to Deputy Attorney General Rod Rosenstein, arguing the president can’t be investigated for obstruction based on something that is, on its face, a valid exercise of his power — like firing the FBI director.

According to Barr, questioning the motives behind such an action would have disastrous consequences and open a Pandora’s box of potential inquisitions into “all exercises of prosecutorial discretion.”

The problem with this defense is that it conflates enforcement of the laws — a power that resides in the executive branch — with the administration of justice, which is constitutional responsibility that is shared by all three branches, including Congress.

When it comes to the administration of justice—and those who would thwart the integrity of that process—Congress has a big role to play.

The idea of obstruction of justice has its origins in an 1819 Supreme Court case, McCulloch v. Maryland (a case you might be familiar with if you’re a Hamilton fan), that challenged Congress’ power to create a national bank.

The court found that Congress’ authority to create a bank — even though not explicitly mentioned in the Constitution — stemmed from its power to create laws “necessary and proper” for executing its explicit powers, like collecting taxes, borrowing money and regulating commerce.

Importantly, the court noted that under the same reasoning, Congress could similarly pass laws which are “necessary and proper” to execute the powers of the other branches, as well.

As an example of the latter, the Supreme Court pointed out that Congress could pass laws to ensure the effective functioning of the courts, noting that crimes like “falsifying … a process of the court,” or perjury, were “conducive to the due administration of justice.”

In other words, the court made clear that Congress has the constitutional authority to ensure that the justice system can function without malevolent interference:

This is exactly what obstruction of justice is about.

As courts have observed in more recent cases, it makes sense that Congress would be entrusted with safeguarding the integrity of the judicial process.

After all, Congress itself is responsible for creating all federal courts apart from the Supreme Court.

Protecting the procedure through which cases are investigated, tried and adjudicated is what allows the judicial branch to function as a coequal branch — if defendants could derail cases, mislead investigators or lie to the court with impunity, courts would cease to have the ability to administer justice at all.

This is why “process crimes”—the family of crimes that includes not only obstruction of justice, but false statements, perjury, witness tampering and contempt of court (a mechanism by which the judiciary can assert its own interest in fair administration of the laws)—are indispensable to the rule of law:

They ensure that the integrity of the justice system is maintained from start to finish.

If it’s Congress’ job to create rules that protect the courts’ ability to do their job, then it’s also Congress’ duty to get to the bottom of whether the president has tried to thwart those efforts.

In short, while the president can decide what cases to pursue, it’s Congress’ job to protect how they move through our judicial system.

In fact, understanding obstruction of justice as an expression of Congress’ constitutional power to safeguard the judicial process means that contrary to Barr’s assertions, the motive behind the obstruction matters — particularly when it comes to the president.

Precisely because the test for obstruction of justice is whether someone acted with a “corrupt” motive, the crime gets to the heart of whether drumphf has upheld his oath to ensure “faithful” execution of the laws — and gives the “take care clause” meaning and accountability.

If there is evidence, for example, that drumphf tried to stop the Russia investigation to shield his own private conduct because it is illegal, politically damaging, or even merely embarrassing to him personally, then he has not only violated the U.S. legal code, but also his own constitutional duty to enforce the laws in good faith.

It’s because the president holds such immense power that the obstruction of justice law not only applies to him, but applies especially to him:

When he abuses that authority, he is not only potentially breaking the law, he is encroaching on Congress’ constitutional interest in the administration of justice — which means Congress has a lens, independent of its impeachment power, through which to review his actions.

The full details of Mueller’s report will reveal if drumphf used his power to undermine the efforts of the coequal branches to uphold the rule of law—and Congress has every right to find out.

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« Last Edit: April 17, 2019, 09:34:02 am by Battle »

Offline Hypestyle

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Re: Mueller Probe Examining Whether Donald Trump Obstructed Justice
« Reply #74 on: April 17, 2019, 10:29:26 am »
the entire document needs to be released with no redacting.  Bring Barr up on charges for the stalling and pre-emptive editing.  Expose all the tax history of 45.
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