It Is Now an Obstruction Investigation
December 4, 2017
Which means that it’s an impeachment investigation The smoke is clearing from an explosive Mueller investigation weekend of charges, chattering, and tweets. Before the next aftershock, it might be helpful to make three points about where things stand. In ascending order of importance, they are: 1.) There is a great deal of misinformation in the commentariat about how prosecutors build cases. 2.) For all practical purposes, the collusion probe is over. While the “counterintelligence” cover will continue to be exploited so that no jurisdictional limits are placed on Special Counsel Robert Mueller, this is now an obstruction investigation.
3.) That means it is, as it has always been, an impeachment investigation.
Building a Case Many analysts are under the misimpression that it is typical for federal prosecutors to accept guilty pleas on minor charges in exchange for cooperation that helps build a case on major charges. From this flawed premise, they reason that Mueller is methodically constructing a major case on Trump by accepting minor guilty pleas from Michael Flynn and George Papadopoulos for making false statements, and by indicting Paul Manafort and an associate on charges that have nothing to do with Trump or the 2016 election.
That is simply not how it works, strategically or legally. As I’ve tried to explain a few times now (see here and here), if a prosecutor has an accomplice cooperator who gives the government incriminating information about the major scheme under investigation, he pressures the accomplice to plead guilty to the major scheme, not to an ancillary process crime — and particularly not to false-statements charges.
Strategically, and for public-relations purposes (which are not inconsequential in a high-profile corruption investigation, just ask Ken Starr), a guilty plea to the major scheme under investigation proves that the major scheme really happened — here, some kind of criminal collusion (i.e., conspiracy) in Russia’s espionage operation against the 2016 election. The guilty-plea allocution, in which the accomplice explains to the court what he and others did to carry out the scheme, puts enormous pressure on other accomplices to come forward and cooperate. In a political corruption case, it can drive public officials out of office.
Justice Department policy calls for prosecutors to indict a defendant on the most serious readily provable charge, not to plead out a case on minor charges to obtain cooperation. The federal sentencing guidelines also encourage this. They allow a judge to sentence the defendant below the often harsh guidelines calculation. This can mean a cooperator gets as little as zero jail time or time-served, no matter how serious the charges. This sentencing leniency happens only if the defendant pleads guilty and provides substantial assistance to the government’s investigation. That is what enables the prosecutor to entice an accomplice to cooperate; the prosecutor does not need to entice cooperation by pleading the case out for a song.
The practice of pressuring a guilty plea to the major charges makes the accomplice a formidable witness at trial. The jury will know that he is facing a potential sentence of perhaps decades in prison unless he discloses everything he knows and tells the truth in his testimony. That is what triggers the prosecutor’s obligation to file the motion that allows the court to sentence under the guidelines-recommended sentence.
Trading a plea on minor charges for cooperation is a foolish gambit that badly damages the prosecutor’s case. It suggests that the cooperator must not have disclosed details about the major scheme. Otherwise the prosecutor would have charged him with it. It implies that the prosecutor is so desperate to make a case on a major target that he gave bad actors a pass on serious charges — something experienced prosecutors know that juries hate.
It is even worse to plead accomplices out on false-statements counts. This establishes that the main thing the jury should know about the accomplice is that he is not to be trusted. That is not how you make someone a strong witness. And unlike the accomplice who pleads guilty to the major scheme, an accomplice who pleads guilty to false statements is looking at a maximum sentence of just five years and a more likely sentence of no time even before he has cooperated — not much of an incentive to disclose everything and tell the truth. A good prosecutor does not front-load the benefits of cooperation; he makes the accomplice earn sentencing leniency by full disclosure and testimony.
Bottom line: If the FBI had a collusion case of some kind, after well over a year of intensive investigation, Flynn and Papadopoulos would have been pressured to plead guilty to very serious charges — and those serious offenses would be reflected in the charges lodged against Manafort. Obviously, the pleas and the indictment have nothing to do with collusion because Mueller has no collusion case.
It’s Now an Obstruction Investigation
Since there is no collusion case, we can safely assume Mueller is primarily scrutinizing President Trump with an eye toward making a case of obstructing an FBI investigation. This also makes sense in light of the pleas that have been taken.
Obstruction itself is a process crime — i.e., it relates to interference in the investigation of an underlying transaction that may or may not be criminal. In the first point, above, we noted that prosecutors generally do not let a cooperator settle a case by pleading guilty to a mere process crime. But if the main case the prosecutor is trying to build is itself a process crime, such as obstruction, then it is not all that damaging that the witnesses have pled guilty only to process crimes. The theme of such a prosecution is that the investigative process must be protected, not that some terrible underlying crime (like an espionage conspiracy) has been committed. Witnesses such as Flynn and Papadopoulos would therefore not be made to look like they had gotten a pass on serious offenses; they would look like they had owned up to corrupting the process and are now helping the prosecutor against the principal corruption target.
Mueller’s theory appears to be straightforward: The FBI was investigating Russian meddling in the election and the possibility of Trump-campaign complicity in it. Even though Flynn’s interactions with Russian ambassador Sergei Kislyak did not amount to Trump-campaign collusion in Russia’s perfidy, they did show that the Trump transition was dabbling in foreign relations with the Putin regime (among other foreign governments) and was attempting to undermine the policy of the incumbent Obama administration — at least on the U.N. resolution condemning Israel. (On the sanctions Obama had imposed on Russia, Flynn made no commitments and encouraged his Russian counterpart not to escalate matters in retaliation, which, if anything, was supportive of Obama’s policy.)
Here, we should consider the specter of the Logan Act. This provision, more than two centuries’ old, is almost never invoked (and never has been successfully). It’s constitutionally suspect and essentially ignored. It was not a viable basis for prosecution. But the Trump transition may not have appreciated this, particularly given reported speculation at the time of Flynn’s communications with Kislyak that the Obama Justice Department was considering Logan Act charges against Flynn.
Even putting the Logan Act aside, we have only one president at a time. It is unseemly for an incoming administration to undermine the sitting president. If revealed, such behavior would be politically damaging enough. Here, that damage of Trump-transition interference with President Obama’s foreign relations would have been magnified by Russia’ involvement, given that Democrats were accusing Trump of colluding with Putin to throw the election. This made any conversation about the sanctions between Flynn and Kislyak look terrible, no matter how innocent they were and no matter how normal for a transition period.
Consequently, Mueller would theorize, Flynn had a motive, for legal and political reasons, to lie about his contacts with the Russian ambassador. And because Flynn was taking direction from Trump-transition officials in connection with those contacts, President Trump had a motive to make the FBI’s Flynn investigation disappear. This motive, the theory goes, explains why Trump pressured Comey to drop the Flynn investigation, and why he ultimately fired Comey — a move that, the very next day, he told Russian diplomats was related to the pressure Trump had been facing “because of Russia.”
That’s where we’re headed.
So, It’s an Impeachment Case
Assuming I am correct about Mueller’s theory, its fatal flaw as a vehicle for prosecution is the same as it has always been: As president, Trump had incontestable power to exercise prosecutorial discretion and to fire the FBI director.
Because of more ill-advised tweeting this weekend, there is now a suggestion that when Trump fired Flynn in February — and when he allegedly asked Comey to let the Flynn investigation go — he knew that Flynn had lied to the FBI. There are factual disputes here: The tweet was apparently written by a Trump lawyer, not Trump himself; Trump apparently denies knowing Flynn had lied to the FBI (just that he had lied to Vice President Pence); and Trump continues to deny former FBI director James Comey’s sworn testimony that Trump pressured him to drop the Flynn investigation.
For argument’s sake, let’s assume the worst: Trump knew Flynn had lied to the FBI (i.e., that Flynn had committed at least one felony), and he leaned on Comey to close the FBI’s probe. Even with those assumptions, there is still no obstruction case.
The FBI and the Justice Department are not a separate branch of government; they are subordinates of the president delegated to exercise his power, not their own. Even on Comey’s account, Trump did not order him to shut down the Flynn investigation, even though he could have. Trump could have ordered an end of the Russia counterintelligence investigation, but he did not. He could have pardoned Flynn, which would effectively have ended the FBI’s criminal investigation — beyond any possibility of review. We can stipulate that these would have been sleazy things to do, potentially damaging to national security, and still grasp that the president had the undeniable power to do them.
Similarly, the president had undeniable power to fire the FBI director. You can argue that his reason was corrupt, but the truth is that he didn’t need a reason at all — he could have done it because it was Tuesday and he felt like firing someone; he could have done it because he figured that the Justice Department’s criticism of Comey’s handling of the Clinton emails investigation gave him the political cover he needed to dispense with a subordinate he found nettlesome. The point is that even if the president hoped that cashiering Comey would derail an investigation he was addled by, it was wholly in Trump’s discretion to fire the director. Moreover, firing the director did not derail the Russia investigation; it has proceeded apace under the director whom Trump appointed to replace Comey.
The president may not be prosecuted in a criminal judicial proceeding for exercising his discretion, however objectionably, in executive matters over which the courts have no power of review. If Mueller tried to indict him, Trump would have unfettered discretion to fire Mueller and to direct the Justice Department to drop the case.
You may not like that, but that’s the way it is. It is not, however, the end of the matter.
Any powers can be abused. When executive powers are abused, Congress retains the constitutional authority to impeach and remove the president. Obstruction of an FBI investigation may not be realistically prosecutable in court, but there is congressional precedent — in the Nixon and Clinton situations — for obstruction to be a “high crime and misdemeanor” triggering impeachment. Undoubtedly, abuse of the pardon power would also be an impeachable offense, even though it is not reviewable by the courts.
I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.
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Who's this supposed to be?
Attorney who became Hitler's Blood Judge, Roland Freisier.
None of this investigation would have ever happened if Hillary had won the election. After investigating, unmasking illegally Americans, DNC colluding, Hillary getting exonerated, Obama already knowing Russia was meddling they knew there was no collusion, but their plan to totally gain control over this country and finish the transformation was ended by Trump's election and they wouldn't accept their plans had been curtailed.
Now they'll extend this investimation at least until 2018 elections and with the MSN's assistance, hope they win the House and impeach Trump.
Apparently a random Nazi reference just to add more absurdity to this entire POS.
Why shouldn't they? The GOP did the same thing with Benghazi(!!!!!!!!!!!!!!!!). Nine investigations, 500 million dollars spent, and never found a thing... It was all done to keep up the smear campaign for the GOP. Then there was wiki leaks...releasing just a little bit of information every day, just to keep that doubt going. The way I look at it? If this investigation fails, the dems get 8 more tries, before the cons get to scream, "witch hunt".
"Any powers can be abused. When executive powers are abused, Congress retains the constitutional authority to impeach and remove the president. Obstruction of an FBI investigation may not be realistically prosecutable in court, but there is congressional precedent — in the Nixon and Clinton situations — for obstruction to be a “high crime and misdemeanor” triggering impeachment. Undoubtedly, abuse of the pardon power would also be an impeachable offense, even though it is not reviewable by the courts."
That really dosen't seem to apply here. Nixon was charged with obstruction for not turning over tapes of his phone conversations. Trump is totally cooperating with Mueller. In the case of Bill Clinton, he misused FBI files and allegedly had Vernon Jordan preparing Monica Lewinsky to commit perjury. Here again Trump hasn't done anything like that. A charge of Obstruction in this case would be a seismic event
Is he, Vicky? What's your source for that?
Funny, neither of those really serious sounding allegations ever showed up during the articles impeachment. So, what's your source for that, too?
There you go again with the sophomoric name calling/insults.
Telling .....
President Clinton impeached
After nearly 14 hours of debate, the House of Representatives approves two articles of impeachment against President Bill Clinton , charging him with lying under oath to a federal grand jury and obstructing justice. Clinton, the second president in American history to be impeached, vowed to finish his term.
It was Vernon Jordan who couldn't remember anything even though he paged Lewinsky at one point 3 times in one hour. That was the obstruction of justice.
Nice link, irrelevant but nice.
Now, how about posting some ACTUAL proof?
Trump said that he isn't under investigation, how is that cooperating? I bet you are thinking of Flynn..
I am still laughing about trump's lawyer 1) said that he wrote the tweet and 2) said that trump cannot be charged with obstruction, (he can).
The reality is that trump may be impeached for obstruction, but he wouldn't be charged with obstruction until after he was out of office. I know that sounds strange, but, that's the way it goes. Same thing with Bill Clinton, he was impeached, but acquitted as well. I doubt trump would be that lucky given that 2/3rd's of the country wants him out of office.
Trump hasn't said that recently, maybe you're confused.
Trump wasn't under investigation unless Comey lied. Imagine Comey........................lying. Trump said that back when it was true.
I think things have changed.
He was impeached by the house on two charges, one of lying to a grand jury, "I did not have sex with that woman", and obstruction of justice stemming from his apparently asking Lewinsky to file a false affidavit.
With Trump we have him likely telling his transition team to negotiate with Russia before he had the authority to do so, then instructing them to lie to investigators about it which Flynn apparently did. Then he attempted to make the investigation of Flynn go away by asking Comey to stop the investigation even though he likely knew Flynn had lied to the FBI. I think it's a much bigger issue when we have a President asking his staff to lie for him about secret deals being made with an enemy foreign government who had just deployed active measures during our election to get him elected than a President trying to hide a consensual affair.
Umm...Okay. If you insist.
Lying to the FBI is a felony punishable with up to 5 years in prison. Not minor.
"Trading a plea on minor charges for cooperation is a foolish gambit that badly damages the prosecutor’s case.
They had far more to charge him with. Why charge him with something that would destroy his credibility as a witness? BTW why did the FBI bother giving him that interview on Jan 24th when they already knew everything he said in the meetings? Didn't the infamous FBI agent Peter Strzok lead that interrogation?
Sounds like they intended to trap him
Just remember....
Why charge him with something that would destroy his credibility as a witness?
Because his credibility isn't as big of an issue when they are just indicting people for process crimes. Guidelines say he has to plead to the most serious crime, and apparently, lying is the most serious crime Flynn committed.
IF Mueller had any intention of proceeding with evidence of a conspiracy with Russia, he would have had Mueller plead guilty to conspiracy.
What guidelines....the Wishful Thinking Guidelines of People Named Trump?
Haven't you seen that book? It is a best seller at all the right wing book stores. It's called "The Spinners guide to Right Wing Spinning", it's on both FoxNew's and Breitbart's must read lists. .
Chapter 1:
Hillary! Benghazi!
Chapter 2:
Hillary! Emails!
I'd go on, but don't want to ruin the ending for you, I'll give you a clue though.......
>>>>>>>SPOILER<<<<<<<<<<
>>>>>>>SPOILER<<<<<<<<<<
It ends with top investigators in Hawaii.
Cue the crickets.
This is one of those articles where conservatives try to convince themselves that they understand what is going on. Not very convincingly I might add.
A German bank revealed today that they have handed over Trump's financial records to Robert Mueller. Mueller wouldn't need financial records to pursue an obstruction of justice case.
Andrew McCarthy has no more knowledge of what is going on than any of the other dozens of legal pundits that have weighed in on this matter.
And what is Mueller doing with that? I thought this was an investigation concerning Russian interference in the 2016 election?
Sounds like It's a get Trump hunt - oh, "A WITCH HUNT!"
Donald trump has been a money launderer for Russian interests for a long time. It is only logical that they would pursue any of his financial entanglements with Russians, including Russian organized crime figures.
That is the focus of the investigation but it doesn't mean that if Muller doesn't find other illegal activities he will ignore them. Collusion at this point is obvious, obstruction is looking more and more likely and if outright conspiracy is found? Trump is truly fucked.
Have you just emerged from a cave, Vicky? One of the potential motivations for Trump to conspire with Putin was to protect his financial holdings in Russia as well as anywhere he's been financed by Russian oligarchs. It's the old "follow the money" rule and with Trump it's always about the money; HIS money.
Provide any evidence of collusion. Please. There's been none in the real world, but I'd be curious what passed for evidence in imagination land where unicorns dispense justice to their magical friends.
Show your proof John. Quit making baseless accusations.
Did you read KT McFarlands emails?
What????? What the hell does that have to do with him winning or losing the election? Just why would he have to "conspire" to protect his financial holdings? You saying Putin told him if he didn't win his money was gone? Please splain Lucy........
None of the pundits know a thing, but John of all people here on The Newstalkers knows. Yes he knows all about Trump being a money launderer for the Russian interest for a long time. They should call John up and have him be a witness and then they could all go home and let John take care of it.
Bur he knows how to prosecute large, international criminal conspiracies. Whatever Mueller's ultimate theory is, it won't be based upon Flynn being involved in an election conspiracy with Russia.
Bank records are likely income tax related. But we will see.
You probably got that one right. The conspiracy to jack the election had to be motivated by more than just wanting to help Trump be president. It's about money.....colossally large amounts of money and that's where Mueller's going now.
You are about to experience the awe and mystery which reaches from the inner mind to – The Outer Limits.
Trump owed Deutsche a crap load of money. Now just like the banks do with our loans, Deutsche bank SELLS Trump's debt to a Russian run bank. So now, Trump owes the Russians a crap load of money.
Putin, who doesn't only run Russia, he also runs the freaking financial system in Russia, wants sanctions remove REALLY bad. It's costing him and his comrades BILLIONS every year and wants them gone. So perhaps through Deutsche bank, Putin has them whisper into Trump's ear that Russia now holds his note.
Then Putin does a little more whispering and tells Jr. that Russia wants to help Trump become POTUS for the small price of removing sanctions. Jr's answer is 'I love it!' and the Wiki dirt flies. In August of 2016, Trump signs a letter of agreement with Russians.
Trump does speeches that glorifies WikiLeaks and publicly asks Russian hackers for more help.
Flynn tell the Russians that the issue of sanctions will be taken care of after the inauguration.
We now return control of your television set to you.
It seems not to have occurred to the writer of this pathetic POS that Mueller only needed to use one charge to get what he needs out of Mueller and to load up a bunch of other charges would have sent a signal to everyone else who may be a target of this investigation. He's got a much stronger hand with Flynn's grassing if those on whom he's grassing don't really know what to expect. We know the desperation level must be 11 (and rising) now for people clinging to hope that this will really all blow over but with the news this morning that Mueller's going after Trump's financial records with Deutsche Bank (and who knows who else) and the possibility that Mueller will or already has subpoenaed his tax returns (wouldn't those financial records have to show up in his returns, after all?) indicates that this investigation is going into high gear.
That's not how any of this works.
You wish.
You wish.
No, I know.
I didn't vote for Trump. I have no vested interest in him. But watching the moonbattery from left wingers who simply make up conclusions based on imaginary facts and ignorance of the legal system is simply too much sometimes.
If the House impeaches Trump, so be it. But it's not going to be because Flynn talked to the Russians during the transition.
It is gospel now to the political right that Clinton and Democrats had the Steele dossier created to smear Trump.
Unfortunately that is not what happened. Christopher Steele grew concerned about what he was hearing concerning Trump and wanted to see if he could produce oppo research about him that would prevent him becoming "leader of the free world". Steele initiated the dossier and initiated the dispersal of it to political opponents of Trump. Once he found someone willing to pay for it he continued, but he began the project on his own, out of concern with keeping the compromised Trump out of the White House. It is not a creation of Clinton or the Democrats , it is the creation of someone with contacts in Russia who was afraid that Trump would win the election and be blackmailed by Russia. For all we know maybe he would have been had the dossier not been made public.
So he then interfered.......Limey Limey Limey
UK, UK, UK
A British spy tried to interfere with our sovereign election. Off with his head.............
And you say this...........
While stating this..........
You don't know anything. Nearly verything you post is wishful thinking. I don't care who you claim you didn't vote for, you're carrying water for Trump now.
Steele was hired to do this initially by, most likely, supporters of JEB!!! who, when JEB!! dropped out, Steele began to shop the investigation around and, in turn, got some money from the DNC then after the election the FBI became interested when Flynn's contacts with Kislyev were discovered.
It's ironic that you state this below this post of yours: .
"Steele was hired to do this initially by, most likely, supporters of JEB!!! who, when JEB!! dropped out/"
Literally everything in your post has been proven false. I'm actually amazed you can jam that many false facts into a couple clauses. It's truly a bravura performance of fake news you pulled off there. You managed to literally ignore every piece of published reporting on the provenance of the Steele dossier.
I hope Mueller has some serious bodyguards.
Was just talking to my wife about that. I think they'd be FBI agents.
this is the heart of the seeder's "thoughts" on the matter
their plan to totally gain control over this country and finish the transformation was ended by Trump's election and they wouldn't accept their plans had been curtailed.
more ridiculous right wing conspiracy theories.
why cant they just go away and leave everyone else alone?
It's true we don't know what Mueller knows. There may be avenues related to a conspiracy with Russia or tax fraud or who knows what else that he could be exploring at this point. Maybe the leaks about silly stuff like McFarlane's email are just red herrings to make Trump feel secure while Mueller keeps a tight clamp over all the actual evidence of wrongdoing.
But McCarthy's argument is damn compelling about what has been made public so far. There's not a scintilla of evidence in any of the plea allocutions that support a conspiracy charge. None of the supposed co-conspirators have plead guilty to being involved in a conspiracy, which they would have if Mueller was using them to establish the existence of a conspiracy. So either Flynn, coffee boy and Manafort are bit players who Mueller disposed of because they are irrelevant to the actual conspiracy or crime he is focusing on, or Mueller has no evidence of a conspiracy with Russia and is going after as many process crimes that he can with the goal of showing Trump involved in a pattern of obstructing justice with regards to what happened during the transition.