Category: Tadas Klimas

The FBI's McCabe and Bias in the Deep State


Consider the perfidy that has been revealed to us at the top reaches of the FBI and DOJ.  While a second special counsel should be appointed, it may be found that no crimes were committed.  What we may have is a situation of gross prosecutorial under-zealousness and gross prosecutorial overzealousness, which is to say of bias.

Think, for the former, of Mrs. Clinton’s probable exposure of national secrets or Lois Lerner’s IRS jihad and, for the latter, the judgment entered against General Flynn.  Absent other facts that do not appear to be there, going berserk against General Flynn is not a crime, nor is weakly investigating and declining to prosecute Lerner or Clinton.  The same can probably be said for the FISA warrants unwarrantedly targeted against the Trump administration.

That is the problem, and therein lies the danger.

Now, many have trumpeted the false doctrine that it is illegitimate and tantamount to obstruction of justice to criticize or to strive to supervise such agencies of government as the FBI, DOJ, and IRS.  This conviction is what former CIA director John Brennan based his now infamous tweet upon, and which it is fair to say has disgraced him, and this (false) conviction has fueled similar sentiments expressed by others, such as Rep. Mark Pocan (D-Wis.) (“destruction of our democracy”).

One reporter viciously attacked the president for having “little respect” for “institutional independence,” which, purportedly, the firing of McCabe demonstrates.  But a web search for the phrase “institutional independence,” which the reporter posits is so important that the president is to be berated for disrespecting, brings up almost nothing – save one South African web page.

In other words, there is no such thing as institutional independence in the constitutional arrangement of the United States.  The president is the executive.  The executive is unitary.  It is supposed to be.  The position of the Framers was summed up by James Wilson at the Constitutional Convention: “In order to control the Executive you must unite it” (Page Smith, The Constitution, p.155).  The Framers understood that unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us.  And thus, they will be completely beyond our control.  (Even the lamentable James Comey has admitted that the president has the power to direct FBI investigations.)

Some may still not have a firm grasp upon just what the president should and must be in charge of.  The most important thing is for him to police the officials’ discretion.  Officials have a great deal of discretion; in law enforcement, this manifests in decisions as to what to investigate, whom to prosecute, and how.  But these decisions not all cut and dried.  Both inefficiency and bias can appear in any system, and it is the duty of the president to ride herd upon this, with the aid of the Congress exercising its oversight function.

In this light, the acknowledgement of a president’s power of oversight and direction does not mean acquiescence to or even support for partisan meddling and obstruction of justice.  The former is absolutely necessary to maintain democracy, and use of this power in ways the electorate does not support, even if entirely lawful and with good intentions, may result in a change of administration.  The latter is dealt with in several ways, depending upon the situation.  Were a president’s motives corrupt, the facts may constitute obstruction of justice, and even a president can be indicted after he has left office.  A sitting president may also be impeached.

It seems necessary to stress that in the actual case, Andrew McCabe was terminated not for abuse of office, but on the basis of the FBI’s own investigation, which found that McCabe had lied.  Many ignore this, and so many others (@48) equate even comment by the president upon matters, such as Andrew McCabe’s actions, with obstruction of justice.  It simply is not.

One can hear the lamentations drifting in over the battlements.

Oh, why can’t we just let the agencies run themselves?

Because of bias, my dear.

McCabe was fired not for bias, although he should have been.  What happens when bias takes a grip on an agency?  Note again that mere bias is not unlawful.

Imagine a game with a referee such as basketball or football.  Let us posit that the referee is biased.  What he does when he favors one team over another, bending over backwards not to call a foul on one team and calling fouls that never were on another, does not run afoul of the criminal code.  This is true even if many of those around him are also biased in the same manner.

It’s hard to win a basketball game when the referee is against you.  It’s hard to get a fair shake when important government agencies such as the FBI, the DOJ, and the IRS have declared a jihad against you.  To shift our focus for a moment from the FBI, consider the IRS-Lois Lerner scandal.  Eventually, the IRS apologized for aggressively targeting conservative groups, and the DOJ settled civil cases brought by those groups.

That is why we have a unitary executive.  The elected president must ride herd on unelected officials.

But this is not to say that this part of our constitutional heritage is supported by all.  As pointed out above, many are stridently opposed.  And indeed, de facto, the situation on the ground, so to speak, is other.

In fact, it is extremely difficult for a president and his Cabinet to eradicate – no, even to mitigate – bias and favoritism in the face of massive bureaucratic obstruction.  Witness the inexplicable refusal by the DOJ clerkdom to prosecute Lois Lerner, Hillary Clinton, and fill-in-the-blank.

It is precisely awareness of the Deep State’s bias and obstructionism that prompts many of President Trump’s tweets.  Indeed, he has stated in regard to the DOJ’s treatment of Hillary Clinton that “I am very unhappy with it.  The saddest thing is that because I’m the President of the United States, I am not supposed to be involved with the Justice Department, I am not supposed to be involved with the FBI. … I am very frustrated by it.”

President Trump is not the first president to feel frustrated in his dealings with the Deep State.  H.R. Haldeman, chief of staff to President Richard Nixon, in his book The Ends of Power relates that Nixon felt even then – nearly fifty years ago – that the IRS was unfairly aggressive in its investigations regarding Republicans and ignored or was extraordinarily lenient when the perpetrators were Democrats.  This drove Nixon − who had no Twitter account in those days before the internet – to distraction.  Haldeman mused:

Why was Nixon so angry? …  I believe what caused his anger was that by 1971 Nixon had realized that he was virtually powerless to deal with the bureaucracy in every department of the government.  It was no contest.  Nixon could rave and rant.  Civil servants, almost all liberal Democrats, would thumb their noses at him. …


Republican Cabinet officers, installed at the head of departments, soon find that they rule nothing.  The real decisions are made below by people who cannot be fired under Civil Service rules and who will be there long after the Republican Cabinet officers depart.  As far as civil servants are concerned, every Republican administration is a transient phenomenon of no lasting importance.


We found this out at another agency, the I.R.S.  I was involved in some of these efforts – and what a waste of time. Example: … [W]hen Republicans screamed about tax audits and pointed fingers at ‘deserving’ Democrats, [we] couldn’t get any action at all against those Democrats [such as] … the notorious Mr John Doe, a Democrat, who we had been told was cheating on his taxes[.] …


On the other hand, it seemed almost certain that as soon as a notable person in any field, from Billy Graham to John Wayne, announced his backing of Nixon, a tax audit notice would arrive in the next week’s mail, courtesy of a loyal Democrat civil servant in the I.R.S.


The measure of Nixon’s powerlessness is [illustrated by the ludicrous suggestion of a low-level White House employee] on how the President could get action at the I.R.S.: ‘Why don’t I write them an anonymous letter?’

Nixon’s understanding of what we would now call the biased Deep State may have been ahead of its time.  As law professor Michael J. Glennon wrote in 2014, “[t]he public believes that the constitutionally-established institutions control national security policy, but that view is mistaken.  Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal” (National Security and Double Government, p. 1).

Amazingly, Trump’s tweets exhorting action and criticizing inaction indeed may be working.  That is, they may achieve something close to constitutionally prescribed presidential control of executive agencies.  If so, his tweets have risen to constitutional importance, however improbable that may be.  And if so, tweet on, Mr. President…tweet on.

The author is a former law school dean and former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).

Andrew McCabe was fired from the FBI reportedly for lying.  He should have been fired for misuse of office and bias.

Notably, lying to the FBI is a crime under the False Statements Act.  So what “Andy” did was arguably a crime, for which dismissal is normal.  But bias, favorable or unfavorable, is not a crime.  That is why it is far more dangerous if left unchecked.  And that is why Andrew McCabe should have been fired for it.

Consider the perfidy that has been revealed to us at the top reaches of the FBI and DOJ.  While a second special counsel should be appointed, it may be found that no crimes were committed.  What we may have is a situation of gross prosecutorial under-zealousness and gross prosecutorial overzealousness, which is to say of bias.

Think, for the former, of Mrs. Clinton’s probable exposure of national secrets or Lois Lerner’s IRS jihad and, for the latter, the judgment entered against General Flynn.  Absent other facts that do not appear to be there, going berserk against General Flynn is not a crime, nor is weakly investigating and declining to prosecute Lerner or Clinton.  The same can probably be said for the FISA warrants unwarrantedly targeted against the Trump administration.

That is the problem, and therein lies the danger.

Now, many have trumpeted the false doctrine that it is illegitimate and tantamount to obstruction of justice to criticize or to strive to supervise such agencies of government as the FBI, DOJ, and IRS.  This conviction is what former CIA director John Brennan based his now infamous tweet upon, and which it is fair to say has disgraced him, and this (false) conviction has fueled similar sentiments expressed by others, such as Rep. Mark Pocan (D-Wis.) (“destruction of our democracy”).

One reporter viciously attacked the president for having “little respect” for “institutional independence,” which, purportedly, the firing of McCabe demonstrates.  But a web search for the phrase “institutional independence,” which the reporter posits is so important that the president is to be berated for disrespecting, brings up almost nothing – save one South African web page.

In other words, there is no such thing as institutional independence in the constitutional arrangement of the United States.  The president is the executive.  The executive is unitary.  It is supposed to be.  The position of the Framers was summed up by James Wilson at the Constitutional Convention: “In order to control the Executive you must unite it” (Page Smith, The Constitution, p.155).  The Framers understood that unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us.  And thus, they will be completely beyond our control.  (Even the lamentable James Comey has admitted that the president has the power to direct FBI investigations.)

Some may still not have a firm grasp upon just what the president should and must be in charge of.  The most important thing is for him to police the officials’ discretion.  Officials have a great deal of discretion; in law enforcement, this manifests in decisions as to what to investigate, whom to prosecute, and how.  But these decisions not all cut and dried.  Both inefficiency and bias can appear in any system, and it is the duty of the president to ride herd upon this, with the aid of the Congress exercising its oversight function.

In this light, the acknowledgement of a president’s power of oversight and direction does not mean acquiescence to or even support for partisan meddling and obstruction of justice.  The former is absolutely necessary to maintain democracy, and use of this power in ways the electorate does not support, even if entirely lawful and with good intentions, may result in a change of administration.  The latter is dealt with in several ways, depending upon the situation.  Were a president’s motives corrupt, the facts may constitute obstruction of justice, and even a president can be indicted after he has left office.  A sitting president may also be impeached.

It seems necessary to stress that in the actual case, Andrew McCabe was terminated not for abuse of office, but on the basis of the FBI’s own investigation, which found that McCabe had lied.  Many ignore this, and so many others (@48) equate even comment by the president upon matters, such as Andrew McCabe’s actions, with obstruction of justice.  It simply is not.

One can hear the lamentations drifting in over the battlements.

Oh, why can’t we just let the agencies run themselves?

Because of bias, my dear.

McCabe was fired not for bias, although he should have been.  What happens when bias takes a grip on an agency?  Note again that mere bias is not unlawful.

Imagine a game with a referee such as basketball or football.  Let us posit that the referee is biased.  What he does when he favors one team over another, bending over backwards not to call a foul on one team and calling fouls that never were on another, does not run afoul of the criminal code.  This is true even if many of those around him are also biased in the same manner.

It’s hard to win a basketball game when the referee is against you.  It’s hard to get a fair shake when important government agencies such as the FBI, the DOJ, and the IRS have declared a jihad against you.  To shift our focus for a moment from the FBI, consider the IRS-Lois Lerner scandal.  Eventually, the IRS apologized for aggressively targeting conservative groups, and the DOJ settled civil cases brought by those groups.

That is why we have a unitary executive.  The elected president must ride herd on unelected officials.

But this is not to say that this part of our constitutional heritage is supported by all.  As pointed out above, many are stridently opposed.  And indeed, de facto, the situation on the ground, so to speak, is other.

In fact, it is extremely difficult for a president and his Cabinet to eradicate – no, even to mitigate – bias and favoritism in the face of massive bureaucratic obstruction.  Witness the inexplicable refusal by the DOJ clerkdom to prosecute Lois Lerner, Hillary Clinton, and fill-in-the-blank.

It is precisely awareness of the Deep State’s bias and obstructionism that prompts many of President Trump’s tweets.  Indeed, he has stated in regard to the DOJ’s treatment of Hillary Clinton that “I am very unhappy with it.  The saddest thing is that because I’m the President of the United States, I am not supposed to be involved with the Justice Department, I am not supposed to be involved with the FBI. … I am very frustrated by it.”

President Trump is not the first president to feel frustrated in his dealings with the Deep State.  H.R. Haldeman, chief of staff to President Richard Nixon, in his book The Ends of Power relates that Nixon felt even then – nearly fifty years ago – that the IRS was unfairly aggressive in its investigations regarding Republicans and ignored or was extraordinarily lenient when the perpetrators were Democrats.  This drove Nixon − who had no Twitter account in those days before the internet – to distraction.  Haldeman mused:

Why was Nixon so angry? …  I believe what caused his anger was that by 1971 Nixon had realized that he was virtually powerless to deal with the bureaucracy in every department of the government.  It was no contest.  Nixon could rave and rant.  Civil servants, almost all liberal Democrats, would thumb their noses at him. …


Republican Cabinet officers, installed at the head of departments, soon find that they rule nothing.  The real decisions are made below by people who cannot be fired under Civil Service rules and who will be there long after the Republican Cabinet officers depart.  As far as civil servants are concerned, every Republican administration is a transient phenomenon of no lasting importance.


We found this out at another agency, the I.R.S.  I was involved in some of these efforts – and what a waste of time. Example: … [W]hen Republicans screamed about tax audits and pointed fingers at ‘deserving’ Democrats, [we] couldn’t get any action at all against those Democrats [such as] … the notorious Mr John Doe, a Democrat, who we had been told was cheating on his taxes[.] …


On the other hand, it seemed almost certain that as soon as a notable person in any field, from Billy Graham to John Wayne, announced his backing of Nixon, a tax audit notice would arrive in the next week’s mail, courtesy of a loyal Democrat civil servant in the I.R.S.


The measure of Nixon’s powerlessness is [illustrated by the ludicrous suggestion of a low-level White House employee] on how the President could get action at the I.R.S.: ‘Why don’t I write them an anonymous letter?’

Nixon’s understanding of what we would now call the biased Deep State may have been ahead of its time.  As law professor Michael J. Glennon wrote in 2014, “[t]he public believes that the constitutionally-established institutions control national security policy, but that view is mistaken.  Judicial review is negligible; congressional oversight is dysfunctional; and presidential control is nominal” (National Security and Double Government, p. 1).

Amazingly, Trump’s tweets exhorting action and criticizing inaction indeed may be working.  That is, they may achieve something close to constitutionally prescribed presidential control of executive agencies.  If so, his tweets have risen to constitutional importance, however improbable that may be.  And if so, tweet on, Mr. President…tweet on.

The author is a former law school dean and former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).



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Other Secrets of the FBI


First, many well-known pundits, including the former Speaker of the House, Newt Gingrich, and (very recently) Sebastian Gorka (@ 5:03), former deputy assistant to President Trump, have claimed that the FBI failed to place former Secretary of Defense Hillary Clinton under oath when they interviewed her, the idea being that because of this she is not subject to prosecution in the same way former National Security Advisor General Michael Flynn was.

This is simply incorrect. It is a crime to make even an unsworn false statement to the FBI under 18 USC §1001, the False Statement Act. Oaths are not necessary under this act. Moreover, oaths are not administered by FBI agents. It is doubtful that they even could be. Thus, Mrs. Clinton remains liable under the False Statement Act for any false statements made to the FBI — and not only to the FBI, inasmuch as the statute actually covers statements made to other agencies as well.

For instance, Mrs. Clinton stated to the Inspector General of the State Department that she turned all her government emails over to the Department of State. Yet the FBI found she did not turn over 17,000 of them.

That is not to say that there is not something bizarre at the very least regarding General Flynn’s being prosecuted for violation of the False Statements Act while Mrs. Clinton is not. After all, the underlying activity of Flynn was not only legal, but it was what he should have been doing as the incoming National Security Advisor: he was in contact with a Russian ambassador in order to support U.S. policy — Obama’s policy. Whereas the underlying activity of Mrs. Clinton was  1) her felonious failure to comply with the Federal Records Act, 2) thwart Freedom of Information Act inquiries, and 3) to be at the least grossly negligent regarding the handling of classified material in her possession, also a felony under the Espionage Act. Given recent revelations, this disparity is troubling at best, and at worst — and it probably is the latter — is, given recent revelations, evidence of extreme bias if not corruption.

(As a former law professor and dean I cannot resist adding that I completely agree with Stephen R. Morrison of UND law school that the False Statements Act “relies only on prosecutorial forbearance and discretion to prevent its abuse.” (p. 111) Moreover, in order to prevent abuse, the Act’s purpose should be narrowly construed (and not widely as it was with Flynn). As Justice Ruth Bader Ginsburg has stated, the Act really was designed to protect agencies of the United States government from becoming “victim[s] of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions.” (Brogan v. U.S., 522 U.S. 398 at 400). Such an interpretation would have protected Flynn but would still have reached Mrs. Clinton.)

Time to move on to the next “secret.” This one facilitated the faking of an espionage investigation.

The FBI is a topsy-turvy organization. It may be hard to believe, but the shots are called by the people who would appear to be at the bottom of the organizational chart. That is, cases are assigned to regular, field office, agents: it is the case agent, not some “boss,” who decides how to conduct the investigation. This involves the steps taken, the investigative techniques used, and their timing. Thus, investigations are not “driven” from the top down.

Supervisors do have legitimate functions, of course. Primary among them is to assure the investigative techniques used are appropriate, lawful, and authorized. Certain techniques or even simple interviews in some circumstances require approval of officials “higher up” the organizational structure. There is nothing wrong with this: the more sensitive an investigatory technique, the more a dutiful agent would want to have the proposal reviewed.

Therefore, one can say that the investigation of cases in the FBI is decentralized. The FBI is further decentralized because its local offices, called field offices, are all administered as separate units. This is where the case agent is permanently assigned and out of which investigations are conducted.

All of this militates towards an apolitical, unbiased, disposition. The typical FBI field office agent cares little about his “higher ups” at FBIHQ. Such agents have dedicated their careers toward being “witnesses to the truth,” and the field office agent knows that those at FBIHQ are not better agents than he is. Indeed, they typically have less experience, since they opted for management at some point in their careers while the case agent remained an active investigator. Another thing to bear in mind is that FBI agents are both competitive and attuned to their surroundings. Any attempt to interfere, in a biased or corrupt way, with an investigation at a field office would be difficult to do quietly.

But if the FBI’s field offices are apolitical, its headquarters is the exact opposite. Indeed, FBIHQ can be described as being nothing but political. It has been since day one. Even back in 1993 FBIHQ was described as being extremely attuned to the political winds — although in that context it was largely legitimate — to obtain additional funding, to respond to legitimate criticism. (There is a difference between being politically attuned versus being biased.) 

It is clear then, that the field office is where cases are investigated, not at FBIHQ; further, investigations are not top-driven. It is also clear that field offices are largely apolitical whereas FBIHQ is exactly the opposite by nature. This dichotomy of function has made it difficult for political bias to impose itself. To put it more strongly, this framework makes it quite difficult for any group — or cabal — to corrupt an FBI investigation.

It therefore remains quite striking, as some have sought to deny, that the Mrs. Clinton servergate espionage investigation was conducted directly from FBIHQ and therefore outside of the aforesaid usual and normal framework.  

Now, from time to time, some investigations have been so conducted. It may make some sense to have an investigation conducted from FBIHQ; for instance, when an investigation stretches across several field offices (the crash of TWA Flight 800) or if it involves an occurrence outside of the United States (the U.S.S. Cole bombing in Yemen).

But these two investigations — concerning the Cole and TWA 800 — were complex investigations. Yet there was nothing complex per se about the Clinton servergate-espionage investigation. It was such an open-shut affair that even given the massaged and extremely fake FBIHQ-run investigation there was such overwhelming evidence of guilt that Comey had to resort to the most fervid tergiversations in order to evade recommending indictment.

Therefore it is not quite correct to say, “The Mrs. Clinton espionage investigation was fake because it was conducted out of FBIHQ.” It is, however, not at all incorrect to say, “Because the Mrs. Clinton espionage investigation was conducted out of FBIHQ, it was easier to politicize it, to massage it, and indeed to corrupt it.”

The next and last topic involves the investigation of the Trump campaign and administration by a special counsel foisted upon us by that hapless Rod Rosenstein.

Most people do not realize that the FBI’s most important function is that of counterintelligence. It is the FBI and not some other agency which must counter — must fight — the professional intelligence services of other nations operating in and against the United States.

Theoretically, there are two ways to go about doing this. One is to investigate every American. After all, the foreign intelligence officers need to obtain the nation’s secrets or subvert its processes, and it can’t do that without the help, witting or unwitting, of Americans.

But that approach would be, to say the least, un-American.

The other approach is to watch the foreign intelligence officers.

The usual rules do not apply in the spooky world. Foreign intelligence officers need not be suspected of a crime to be investigated. Their phones can be “tapped,” as it were, pursuant to orders not from a regular court, but from the FISA court. Any activities they engage in to influence anything at all would be monitored and even countered.

Most Americans, one would think, understand, in some inchoate manner, that it is always possible that some foreign spook has or may try to harm America. They are not against the idea that this be looked at. This attitude is not incorrect.

And indeed the Special Counsel’s unpredicated investigation is maintained by this attitude. It holds on to its last shreds of legitimacy only by means of it. Yet it rests upon a perversion of the usual FBI counterintelligence mandate. We as a people do not investigate each other just on the odd chance that someone somewhere is guilty of something. That would be a witch hunt.

The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).

 

 

 

 

 

 

 

 

 

 

 

 

During these last few days, the Federal Bureau of Investigation has been the center of attention as perhaps never before. As this is being written, a memo may be released pertaining to the FBI that may prove to be the most scandalous of all time.

This article seeks not to reveal classified or formerly classified material, but to impart a better understanding of recent events relating to the FBI. Some of the topics covered are secrets in the sense that many people who should know better have fixed ideas that are wrong about the FBI. Other topics are simply not known to the general public. In both cases a better understanding of these topics will allow for a better and more-informed general discussion concerning all matters pertaining to that institution.

First, many well-known pundits, including the former Speaker of the House, Newt Gingrich, and (very recently) Sebastian Gorka (@ 5:03), former deputy assistant to President Trump, have claimed that the FBI failed to place former Secretary of Defense Hillary Clinton under oath when they interviewed her, the idea being that because of this she is not subject to prosecution in the same way former National Security Advisor General Michael Flynn was.

This is simply incorrect. It is a crime to make even an unsworn false statement to the FBI under 18 USC §1001, the False Statement Act. Oaths are not necessary under this act. Moreover, oaths are not administered by FBI agents. It is doubtful that they even could be. Thus, Mrs. Clinton remains liable under the False Statement Act for any false statements made to the FBI — and not only to the FBI, inasmuch as the statute actually covers statements made to other agencies as well.

For instance, Mrs. Clinton stated to the Inspector General of the State Department that she turned all her government emails over to the Department of State. Yet the FBI found she did not turn over 17,000 of them.

That is not to say that there is not something bizarre at the very least regarding General Flynn’s being prosecuted for violation of the False Statements Act while Mrs. Clinton is not. After all, the underlying activity of Flynn was not only legal, but it was what he should have been doing as the incoming National Security Advisor: he was in contact with a Russian ambassador in order to support U.S. policy — Obama’s policy. Whereas the underlying activity of Mrs. Clinton was  1) her felonious failure to comply with the Federal Records Act, 2) thwart Freedom of Information Act inquiries, and 3) to be at the least grossly negligent regarding the handling of classified material in her possession, also a felony under the Espionage Act. Given recent revelations, this disparity is troubling at best, and at worst — and it probably is the latter — is, given recent revelations, evidence of extreme bias if not corruption.

(As a former law professor and dean I cannot resist adding that I completely agree with Stephen R. Morrison of UND law school that the False Statements Act “relies only on prosecutorial forbearance and discretion to prevent its abuse.” (p. 111) Moreover, in order to prevent abuse, the Act’s purpose should be narrowly construed (and not widely as it was with Flynn). As Justice Ruth Bader Ginsburg has stated, the Act really was designed to protect agencies of the United States government from becoming “victim[s] of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions.” (Brogan v. U.S., 522 U.S. 398 at 400). Such an interpretation would have protected Flynn but would still have reached Mrs. Clinton.)

Time to move on to the next “secret.” This one facilitated the faking of an espionage investigation.

The FBI is a topsy-turvy organization. It may be hard to believe, but the shots are called by the people who would appear to be at the bottom of the organizational chart. That is, cases are assigned to regular, field office, agents: it is the case agent, not some “boss,” who decides how to conduct the investigation. This involves the steps taken, the investigative techniques used, and their timing. Thus, investigations are not “driven” from the top down.

Supervisors do have legitimate functions, of course. Primary among them is to assure the investigative techniques used are appropriate, lawful, and authorized. Certain techniques or even simple interviews in some circumstances require approval of officials “higher up” the organizational structure. There is nothing wrong with this: the more sensitive an investigatory technique, the more a dutiful agent would want to have the proposal reviewed.

Therefore, one can say that the investigation of cases in the FBI is decentralized. The FBI is further decentralized because its local offices, called field offices, are all administered as separate units. This is where the case agent is permanently assigned and out of which investigations are conducted.

All of this militates towards an apolitical, unbiased, disposition. The typical FBI field office agent cares little about his “higher ups” at FBIHQ. Such agents have dedicated their careers toward being “witnesses to the truth,” and the field office agent knows that those at FBIHQ are not better agents than he is. Indeed, they typically have less experience, since they opted for management at some point in their careers while the case agent remained an active investigator. Another thing to bear in mind is that FBI agents are both competitive and attuned to their surroundings. Any attempt to interfere, in a biased or corrupt way, with an investigation at a field office would be difficult to do quietly.

But if the FBI’s field offices are apolitical, its headquarters is the exact opposite. Indeed, FBIHQ can be described as being nothing but political. It has been since day one. Even back in 1993 FBIHQ was described as being extremely attuned to the political winds — although in that context it was largely legitimate — to obtain additional funding, to respond to legitimate criticism. (There is a difference between being politically attuned versus being biased.) 

It is clear then, that the field office is where cases are investigated, not at FBIHQ; further, investigations are not top-driven. It is also clear that field offices are largely apolitical whereas FBIHQ is exactly the opposite by nature. This dichotomy of function has made it difficult for political bias to impose itself. To put it more strongly, this framework makes it quite difficult for any group — or cabal — to corrupt an FBI investigation.

It therefore remains quite striking, as some have sought to deny, that the Mrs. Clinton servergate espionage investigation was conducted directly from FBIHQ and therefore outside of the aforesaid usual and normal framework.  

Now, from time to time, some investigations have been so conducted. It may make some sense to have an investigation conducted from FBIHQ; for instance, when an investigation stretches across several field offices (the crash of TWA Flight 800) or if it involves an occurrence outside of the United States (the U.S.S. Cole bombing in Yemen).

But these two investigations — concerning the Cole and TWA 800 — were complex investigations. Yet there was nothing complex per se about the Clinton servergate-espionage investigation. It was such an open-shut affair that even given the massaged and extremely fake FBIHQ-run investigation there was such overwhelming evidence of guilt that Comey had to resort to the most fervid tergiversations in order to evade recommending indictment.

Therefore it is not quite correct to say, “The Mrs. Clinton espionage investigation was fake because it was conducted out of FBIHQ.” It is, however, not at all incorrect to say, “Because the Mrs. Clinton espionage investigation was conducted out of FBIHQ, it was easier to politicize it, to massage it, and indeed to corrupt it.”

The next and last topic involves the investigation of the Trump campaign and administration by a special counsel foisted upon us by that hapless Rod Rosenstein.

Most people do not realize that the FBI’s most important function is that of counterintelligence. It is the FBI and not some other agency which must counter — must fight — the professional intelligence services of other nations operating in and against the United States.

Theoretically, there are two ways to go about doing this. One is to investigate every American. After all, the foreign intelligence officers need to obtain the nation’s secrets or subvert its processes, and it can’t do that without the help, witting or unwitting, of Americans.

But that approach would be, to say the least, un-American.

The other approach is to watch the foreign intelligence officers.

The usual rules do not apply in the spooky world. Foreign intelligence officers need not be suspected of a crime to be investigated. Their phones can be “tapped,” as it were, pursuant to orders not from a regular court, but from the FISA court. Any activities they engage in to influence anything at all would be monitored and even countered.

Most Americans, one would think, understand, in some inchoate manner, that it is always possible that some foreign spook has or may try to harm America. They are not against the idea that this be looked at. This attitude is not incorrect.

And indeed the Special Counsel’s unpredicated investigation is maintained by this attitude. It holds on to its last shreds of legitimacy only by means of it. Yet it rests upon a perversion of the usual FBI counterintelligence mandate. We as a people do not investigate each other just on the odd chance that someone somewhere is guilty of something. That would be a witch hunt.

The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).

 

 

 

 

 

 

 

 

 

 

 

 



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Lois Lerner and Non-Conspiracy Conspiracy


The decision not to prosecute Lois Lerner is a miscarriage of justice. On top of Ms. Lerner’s actions against taxpayers — denying tax-exempt status to groups for political gain and failing to protect taxpayer information — the Department’s response blatantly ignores our most troubling finding: that Ms. Lerner intentionally misled federal investigators in a flagrant violation of the law. This is unacceptable and Ms. Lerner must be held accountable. Our democracy is injured when those who taxpayers entrust with great authority ignore the law to advance their own political agenda without repercussion.

Yet the DOJ letter, signed by a Stephen E. Boyd, claims that after having reviewed the matter, that “reopening the investigation would not be appropriate based on the available evidence,” specifically focusing on the lack of evidence of intent to discriminate.

First, let’s take a look at what the DOJ is basing its conclusion on. One might simply say it is policy — and that is not incorrect. This appears not to be a law-driven conclusion, but one resulting from the exercise of “prosecutorial discretion.” Yet let’s put that aside. The DOJ does point to a legal argument: that of intent.

But it is a very specific and indeed new-fangled intent that they imply. It is amusingly reminiscent of what was said in Hillary’s defense regarding her (intentional) failure to safeguard of the nation’s secrets.

To state the thinking behind the DOJ’s position: there is no evidence that Lerner and others in the IRS in their actions and communications with one another consciously, overtly and intentionally conspired to commit a crime; neither is there evidence they as individuals consciously and overtly set out to commit a crime.

It is true there are some crimes which require a high level of intent — but most require merely general intent, which can be inferred from the act itself. And intent can be proven also by acts committed after the crime itself, such as the destruction of email.

Yet what is important here is that Lois Lerner and doubtlessly so many others in the IRS thought that their discrimination against conservative groups was moral, was needful, was good, and was the opposite of an immoral and illegal act.

This kind of situation lends itself to what can be called a nonconspiratorial conspiracy. While strictly speaking, conspiracy is a specific intent crime, when a number of people believe some contemplated course of action is good, they do not necessarily have to communicate their intent to take that action. Thus, these offensive DOJ officials are coreligionists, not coconspirators; they do not have to conspire since they collectively have already taken their decision.

This may explain how, as a body, the IRS turned against certain American citizens in the IRS-Tea Party scandal. The blow to the Republic that the IRS delivered can partly be evaluated by remembering that one of the impeachment counts against Nixon was that he purportedly endeavored to use the IRS to discriminate against political groups. Even the seeking was thought to be a high crime and misdemeanor.

But what of the DOJ, especially since this is now Session’s DOJ? What is their motivation? Judge Anthony Napolitano posited that they are acting to protect people that had worked at the DOJ before so that they would in turn be protected. Further, even the DOJ in its letter implied that many of the people involved in the decision not to prosecute Lerner were the same ones who had declined to prosecute under Obama and Lynch.

With respect to Judge Napolitano, he is wrong in regard to the motivation of the DOJ officials. The DOJ officials of the Obama era are not in legal jeopardy. So what is afoot?

The present-day, Sessions-DOJ, officials and Lerner and the other culpable IRS officials are coreligionists. As French polymath Gustave Le Bon wrote over 100 years ago, certain ideas have “invaded the entire field of their understanding,” and their impulses “assume a peculiar form which I cannot better define than by giving it the name of a religious sentiment.” (Le Bon, The Crowd, 37)

(Yes, it is a religious sentiment at the base of it all. While we owe a debt to Patrick Buchanan for coining the term “cultural war,” [James Ciment, Social Issues in America, 173] a mere cultural difference neither explains the reason such a phenomenon exists, nor its vehemence.)

This sufficiently explains the DOJ’s action. After all, is it discrimination to discriminate against the deplorable? It seems not.

That would be bad enough. But the real problem is that these people are not only entrenched in “deep state” positions, but that they are not made to be subordinate to officials elected by those who hold views which are not in line with theirs.

This is possible, first of all, because of a vacuum. Despite the fact that in the United States the executive is unitary, a very aggressive left-wing dominated media would have it otherwise, and has been driving this part of its agenda forward for years. Hence the president and his cabinet are very hesitant to do that which they must constitutionally do: direct the activities of their underlings, especially in regard to policy decisions.

(Even the lamentable Comey admitted that the president has the power to direct investigations. Indeed, we have a unitary executive because unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us and, indeed, completely beyond our control.)

But the second reason for the insubordination is the inner conviction of the subordinates that their policy views are not supposed to be subordinated to those of the elected president and his top lieutenants. This is both because those views are religious in nature and because it is certain these subordinates believe that indeed the executive must not be allowed to be unitary.

Of course, this will be demonstrated predominantly when the chief executive is of the opposing party. Otherwise, all is well. Meetings can take place on tarmacs, investigations will be called “matters,” classified and other government documents can be taken into personal possession, the names of persons swept up in surveillance can be unmasked and even leaked to the press, and the general refrain is “we will see no evil.”

What are we to do?

First, we must reject such risibly disingenuous assertions as contained in Assistant Attorney General Stephen E. Boyd’s letter, which fly in the face of all the obvious facts: to wit, that in relation to the Lerner case,

I assure you that the Department has carefully studied the law [!!!], given the evidence the utmost consideration, and thoroughly reviewed the prior investigation from an objective perspective.

Note that this is Boyd’s personal assertion. He now owns it. But let us not allow him and the rest of them to lull us into believing that they did indeed acted objectively — this is the department of the tarmac, let us remember.

Secondly, we must insist and demand, publicly, that the only elected official in the entire executive branch — the president — act to control his underlings. (Some have begun to do so.) When he does act to control them, we must support him — publicly — vigorously (and peacefully).

It is only in this manner that we will repair the damage done to our constitutional structure and to the idea of equality before the law.

We must never give in temptation: we must not give up our freedom so as to be taken care of by some banal inquisitor.

As for this unfortunate assistant attorney general and his like, where do they find these guys?

The author is a former law school dean and a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He was also chief legal counsel to the president of the parliament of Lithuania.

On Friday, September 8, 2017 — just before the weekend — the DOJ announced that it would not prosecute Lois Lerner for her part in the IRS-Tea Party scandal.

Evidence of Lerner’s guilt is overwhelming. As Peter Roskam (R, Il), chairman of the House Tax policy subcommittee, stated in response to the DOJ’s declination,

The decision not to prosecute Lois Lerner is a miscarriage of justice. On top of Ms. Lerner’s actions against taxpayers — denying tax-exempt status to groups for political gain and failing to protect taxpayer information — the Department’s response blatantly ignores our most troubling finding: that Ms. Lerner intentionally misled federal investigators in a flagrant violation of the law. This is unacceptable and Ms. Lerner must be held accountable. Our democracy is injured when those who taxpayers entrust with great authority ignore the law to advance their own political agenda without repercussion.

Yet the DOJ letter, signed by a Stephen E. Boyd, claims that after having reviewed the matter, that “reopening the investigation would not be appropriate based on the available evidence,” specifically focusing on the lack of evidence of intent to discriminate.

First, let’s take a look at what the DOJ is basing its conclusion on. One might simply say it is policy — and that is not incorrect. This appears not to be a law-driven conclusion, but one resulting from the exercise of “prosecutorial discretion.” Yet let’s put that aside. The DOJ does point to a legal argument: that of intent.

But it is a very specific and indeed new-fangled intent that they imply. It is amusingly reminiscent of what was said in Hillary’s defense regarding her (intentional) failure to safeguard of the nation’s secrets.

To state the thinking behind the DOJ’s position: there is no evidence that Lerner and others in the IRS in their actions and communications with one another consciously, overtly and intentionally conspired to commit a crime; neither is there evidence they as individuals consciously and overtly set out to commit a crime.

It is true there are some crimes which require a high level of intent — but most require merely general intent, which can be inferred from the act itself. And intent can be proven also by acts committed after the crime itself, such as the destruction of email.

Yet what is important here is that Lois Lerner and doubtlessly so many others in the IRS thought that their discrimination against conservative groups was moral, was needful, was good, and was the opposite of an immoral and illegal act.

This kind of situation lends itself to what can be called a nonconspiratorial conspiracy. While strictly speaking, conspiracy is a specific intent crime, when a number of people believe some contemplated course of action is good, they do not necessarily have to communicate their intent to take that action. Thus, these offensive DOJ officials are coreligionists, not coconspirators; they do not have to conspire since they collectively have already taken their decision.

This may explain how, as a body, the IRS turned against certain American citizens in the IRS-Tea Party scandal. The blow to the Republic that the IRS delivered can partly be evaluated by remembering that one of the impeachment counts against Nixon was that he purportedly endeavored to use the IRS to discriminate against political groups. Even the seeking was thought to be a high crime and misdemeanor.

But what of the DOJ, especially since this is now Session’s DOJ? What is their motivation? Judge Anthony Napolitano posited that they are acting to protect people that had worked at the DOJ before so that they would in turn be protected. Further, even the DOJ in its letter implied that many of the people involved in the decision not to prosecute Lerner were the same ones who had declined to prosecute under Obama and Lynch.

With respect to Judge Napolitano, he is wrong in regard to the motivation of the DOJ officials. The DOJ officials of the Obama era are not in legal jeopardy. So what is afoot?

The present-day, Sessions-DOJ, officials and Lerner and the other culpable IRS officials are coreligionists. As French polymath Gustave Le Bon wrote over 100 years ago, certain ideas have “invaded the entire field of their understanding,” and their impulses “assume a peculiar form which I cannot better define than by giving it the name of a religious sentiment.” (Le Bon, The Crowd, 37)

(Yes, it is a religious sentiment at the base of it all. While we owe a debt to Patrick Buchanan for coining the term “cultural war,” [James Ciment, Social Issues in America, 173] a mere cultural difference neither explains the reason such a phenomenon exists, nor its vehemence.)

This sufficiently explains the DOJ’s action. After all, is it discrimination to discriminate against the deplorable? It seems not.

That would be bad enough. But the real problem is that these people are not only entrenched in “deep state” positions, but that they are not made to be subordinate to officials elected by those who hold views which are not in line with theirs.

This is possible, first of all, because of a vacuum. Despite the fact that in the United States the executive is unitary, a very aggressive left-wing dominated media would have it otherwise, and has been driving this part of its agenda forward for years. Hence the president and his cabinet are very hesitant to do that which they must constitutionally do: direct the activities of their underlings, especially in regard to policy decisions.

(Even the lamentable Comey admitted that the president has the power to direct investigations. Indeed, we have a unitary executive because unless the elected president is in control of unelected officials, then we can be assured those unelected officials will be in control of us and, indeed, completely beyond our control.)

But the second reason for the insubordination is the inner conviction of the subordinates that their policy views are not supposed to be subordinated to those of the elected president and his top lieutenants. This is both because those views are religious in nature and because it is certain these subordinates believe that indeed the executive must not be allowed to be unitary.

Of course, this will be demonstrated predominantly when the chief executive is of the opposing party. Otherwise, all is well. Meetings can take place on tarmacs, investigations will be called “matters,” classified and other government documents can be taken into personal possession, the names of persons swept up in surveillance can be unmasked and even leaked to the press, and the general refrain is “we will see no evil.”

What are we to do?

First, we must reject such risibly disingenuous assertions as contained in Assistant Attorney General Stephen E. Boyd’s letter, which fly in the face of all the obvious facts: to wit, that in relation to the Lerner case,

I assure you that the Department has carefully studied the law [!!!], given the evidence the utmost consideration, and thoroughly reviewed the prior investigation from an objective perspective.

Note that this is Boyd’s personal assertion. He now owns it. But let us not allow him and the rest of them to lull us into believing that they did indeed acted objectively — this is the department of the tarmac, let us remember.

Secondly, we must insist and demand, publicly, that the only elected official in the entire executive branch — the president — act to control his underlings. (Some have begun to do so.) When he does act to control them, we must support him — publicly — vigorously (and peacefully).

It is only in this manner that we will repair the damage done to our constitutional structure and to the idea of equality before the law.

We must never give in temptation: we must not give up our freedom so as to be taken care of by some banal inquisitor.

As for this unfortunate assistant attorney general and his like, where do they find these guys?

The author is a former law school dean and a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA). He was also chief legal counsel to the president of the parliament of Lithuania.



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Comey's Game (II): The Mueller Gambit


It is definitely not a criminal investigation. For one thing, the order explicitly states that if “the Special Counsel deems it necessary and appropriate, [he] is authorized to prosecute federal crimes arising from the investigation of these matters.” Secondly, Rosenstein in his statement accompanying the order says that his “decision is not a finding that crimes have been committed or that any prosecution is warranted.”

So, the special counsel is to conduct a foreign counterintelligence investigation. What is that, anyway?

Few people realize it, even amongst those who work in government, but the most important activity that the FBI performs is in the field of counterintelligence. It identifies and counters the clandestine activities of foreign intelligence services operating in the United States. The subjects of these investigations, in essence, are foreign governments.

The FBI’s counterintelligence activity has little or nothing to do with the Department of Justice. These are not criminal investigations. Prosecutors do not get involved, except in very limited roles, such as in obtaining FISA court warrants.

This means two things. Prosecutors, such as Mueller and his team, have no expertise in foreign counterintelligence. (Mueller is a former FBI director: this does not mean he has the expertise to actually conduct such an investigation; neither do those he has hired as special counsel.) Secondly, they can’t do it; it requires expertise, of course, but also an apparatus, such as that the FBI possesses.

Rosenstein’s order makes it clear that a criminal case can be investigated by Mueller if warranted. 

This is what the pertinent regulation – the AG guideline — says as to when a criminal, as opposed to a foreign counterintelligence, investigation can be initiated by the FBI (and presumably by the special counsel):

C. Investigations


(1) A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The investigation may be conducted to prevent, solve, and prosecute such criminal activity.


The standard of “reasonable indication” is substantially lower than probable cause. … However, the standard does require specific facts or circumstances indicating a past, current, or impending violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.  [Emphasis added]

This makes Mueller’s authority similar to that of the FBI, which can also investigate criminal cases arising out of its foreign counterintelligence investigations.  Many have been perplexed by Comey’s game in seeking a special counsel. After all, Comey formerly testified there is no evidence regarding collusion by the Trump campaign and the Russians.

In pondering this question, it should be kept in mind Comey during his conversation with President Trump was not Joe Citizen. He was the director of the FBI. He was the master of an investigative agency with the appropriate jurisdiction and resources.

The foreign counterintelligence investigation into Russian activities during the election was ongoing.

Nothing prevented Comey as FBI director from pursuing an obstruction of justice investigation against persons in the White House if warranted. Indeed, as a matter of law, he was obligated to report to the Deputy Attorney General (the FBI director’s “supervisor,” Rosenstein), if he believed anyone, such as the president, had sought to obstruct justice in his own regard. He didn’t.

All of this is confirmed by the testimony of acting FBI Director McCabe, taken after Comey had been fired. McCabe testified no one had interfered with the FBI’s investigation, that the White House had never even contacted him. And most tellingly, when asked by Senator Rubio whether he needed to have this investigation taken away from him, he replied succinctly: “No, sir.”

If Comey doubted the FBI’s or the DOJ’s ability to act fairly, he should have said so. Publicly.  One cannot fairly believe Mueller’s ad hoc team is going to do better than the FBI would.  We must disbelieve Comey had real doubts as to the FBI and DOJ’s ability to perform this investigation. He as the FBI director could have ensured all relevant investigation was properly conducted.  And according to the acting FBI director McCabe, it was being pursued without interference.

So as far as justice is concerned, there is no discernible reason to appoint a special counsel.

So why did Rosenstein appoint one?

Comey may have exploited a unique situation. Rosenstein had in his memo recommended Comey be fired as FBI director. Rosenstein had authored it as “supervisor” of the FBI by virtue of his position as Deputy Attorney General (DAG). But because of Attorney General Session’s recusal, Rosenstein was also the (acting) AG. As such he could appoint a special counsel.

Rosenstein may have felt vulnerable by the AG’s recusal in the situation exploited by Comey. Comey’s leaked memo was used to fuel speculation that not only was Trump & Co. in league with the Russians, but that there was an active coverup. Not wanting to be tarred with the same brush (he had, after all, recommended Comey be fired and was, as DAG, the “supervisor” of the FBI), Rosenstein may have caved and appointed the special counsel. An action which, as established above, was not necessary in order to have these matters investigated and thus not strictly speaking in the service of justice.

What did Comey’s gambit gain by getting a special counsel appointed?

Some speculate the fix is in, that Mueller and Comey are old friends, that Mueller’s hired assistants donated overwhelmingly to the Democrats and so forth. Perhaps.

But this maneuver by Comey has resulted in the appearance of an investigation into the president for obstruction, for collusion with the Russians, and for a coverup. (Some news outlets are reporting Mueller has actually pursuing such investigations.)

Further, even if Mueller’s probe ends with no prosecutions, Comey’s gambit will have succeeded in putting the president under a cloud for the next several years and in strengthening the narrative that his election was illegitimate.

Further, in the same vein, leaks and reactions to leaks will continue to dominate the headlines, taking away from any real achievements of the administration.

All of this is rather certain to affect the congressional elections coming up next year (2018). If the Republicans lose the House, the question of impeachment arises. At this moment, certainly this would be groundless, but it probably would destroy Trump’s presidency.

Not a bad play from Comey’s point of view.

The will of the people in electing this president may wind up being thwarted, but that apparently is of little import.

The right person in the right place can make all the difference. As exemplified by the case of Mr. Comey, so can the wrong one.

The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).

James Comey testified that he leaked his infamous memo in order to prompt the appointment of a special counsel. In order to understand his game, the task assigned to the special counsel must be identified. It is a very unusual one.

The order signed by Acting Attorney General Rosenstein states that the remit is to be in the realm of foreign counterintelligence. Robert Mueller, the special counsel, is to investigate possible collusion between the Russians and the Trump campaign.

It is definitely not a criminal investigation. For one thing, the order explicitly states that if “the Special Counsel deems it necessary and appropriate, [he] is authorized to prosecute federal crimes arising from the investigation of these matters.” Secondly, Rosenstein in his statement accompanying the order says that his “decision is not a finding that crimes have been committed or that any prosecution is warranted.”

So, the special counsel is to conduct a foreign counterintelligence investigation. What is that, anyway?

Few people realize it, even amongst those who work in government, but the most important activity that the FBI performs is in the field of counterintelligence. It identifies and counters the clandestine activities of foreign intelligence services operating in the United States. The subjects of these investigations, in essence, are foreign governments.

The FBI’s counterintelligence activity has little or nothing to do with the Department of Justice. These are not criminal investigations. Prosecutors do not get involved, except in very limited roles, such as in obtaining FISA court warrants.

This means two things. Prosecutors, such as Mueller and his team, have no expertise in foreign counterintelligence. (Mueller is a former FBI director: this does not mean he has the expertise to actually conduct such an investigation; neither do those he has hired as special counsel.) Secondly, they can’t do it; it requires expertise, of course, but also an apparatus, such as that the FBI possesses.

Rosenstein’s order makes it clear that a criminal case can be investigated by Mueller if warranted. 

This is what the pertinent regulation – the AG guideline — says as to when a criminal, as opposed to a foreign counterintelligence, investigation can be initiated by the FBI (and presumably by the special counsel):

C. Investigations


(1) A general crimes investigation may be initiated by the FBI when facts or circumstances reasonably indicate that a federal crime has been, is being, or will be committed. The investigation may be conducted to prevent, solve, and prosecute such criminal activity.


The standard of “reasonable indication” is substantially lower than probable cause. … However, the standard does require specific facts or circumstances indicating a past, current, or impending violation. There must be an objective, factual basis for initiating the investigation; a mere hunch is insufficient.  [Emphasis added]

This makes Mueller’s authority similar to that of the FBI, which can also investigate criminal cases arising out of its foreign counterintelligence investigations.  Many have been perplexed by Comey’s game in seeking a special counsel. After all, Comey formerly testified there is no evidence regarding collusion by the Trump campaign and the Russians.

In pondering this question, it should be kept in mind Comey during his conversation with President Trump was not Joe Citizen. He was the director of the FBI. He was the master of an investigative agency with the appropriate jurisdiction and resources.

The foreign counterintelligence investigation into Russian activities during the election was ongoing.

Nothing prevented Comey as FBI director from pursuing an obstruction of justice investigation against persons in the White House if warranted. Indeed, as a matter of law, he was obligated to report to the Deputy Attorney General (the FBI director’s “supervisor,” Rosenstein), if he believed anyone, such as the president, had sought to obstruct justice in his own regard. He didn’t.

All of this is confirmed by the testimony of acting FBI Director McCabe, taken after Comey had been fired. McCabe testified no one had interfered with the FBI’s investigation, that the White House had never even contacted him. And most tellingly, when asked by Senator Rubio whether he needed to have this investigation taken away from him, he replied succinctly: “No, sir.”

If Comey doubted the FBI’s or the DOJ’s ability to act fairly, he should have said so. Publicly.  One cannot fairly believe Mueller’s ad hoc team is going to do better than the FBI would.  We must disbelieve Comey had real doubts as to the FBI and DOJ’s ability to perform this investigation. He as the FBI director could have ensured all relevant investigation was properly conducted.  And according to the acting FBI director McCabe, it was being pursued without interference.

So as far as justice is concerned, there is no discernible reason to appoint a special counsel.

So why did Rosenstein appoint one?

Comey may have exploited a unique situation. Rosenstein had in his memo recommended Comey be fired as FBI director. Rosenstein had authored it as “supervisor” of the FBI by virtue of his position as Deputy Attorney General (DAG). But because of Attorney General Session’s recusal, Rosenstein was also the (acting) AG. As such he could appoint a special counsel.

Rosenstein may have felt vulnerable by the AG’s recusal in the situation exploited by Comey. Comey’s leaked memo was used to fuel speculation that not only was Trump & Co. in league with the Russians, but that there was an active coverup. Not wanting to be tarred with the same brush (he had, after all, recommended Comey be fired and was, as DAG, the “supervisor” of the FBI), Rosenstein may have caved and appointed the special counsel. An action which, as established above, was not necessary in order to have these matters investigated and thus not strictly speaking in the service of justice.

What did Comey’s gambit gain by getting a special counsel appointed?

Some speculate the fix is in, that Mueller and Comey are old friends, that Mueller’s hired assistants donated overwhelmingly to the Democrats and so forth. Perhaps.

But this maneuver by Comey has resulted in the appearance of an investigation into the president for obstruction, for collusion with the Russians, and for a coverup. (Some news outlets are reporting Mueller has actually pursuing such investigations.)

Further, even if Mueller’s probe ends with no prosecutions, Comey’s gambit will have succeeded in putting the president under a cloud for the next several years and in strengthening the narrative that his election was illegitimate.

Further, in the same vein, leaks and reactions to leaks will continue to dominate the headlines, taking away from any real achievements of the administration.

All of this is rather certain to affect the congressional elections coming up next year (2018). If the Republicans lose the House, the question of impeachment arises. At this moment, certainly this would be groundless, but it probably would destroy Trump’s presidency.

Not a bad play from Comey’s point of view.

The will of the people in electing this president may wind up being thwarted, but that apparently is of little import.

The right person in the right place can make all the difference. As exemplified by the case of Mr. Comey, so can the wrong one.

The author is a former FBI agent, awarded the National Intelligence Medal of Achievement (NIMA).



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Comey's Game



A former FBI agent, awarded the National Intelligence Medal of Achievement, says the jig is up.



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