Coming Legal Attractions

In Democracy in America Alexis de Tocqueville wrote about his perceptions of America almost 200 years ago. Much of his observations have stood the test of time. Among them his views of Americans’ respect for the legal system:

Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language, usual in judicial proceedings in their daily controversies. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that the whole people contracts the habits and the tastes of the magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time, and accommodates itself to all the movements of the social body; but this party extends over the whole community, and it penetrates into all classes of society; it acts upon the country imperceptibly, but it finally fashions it to suit its purposes.

And so it is, that two matters of public interest: The misuse of intelligence to affect the presidential election in Hillary Clinton’s favor and then to hamstring and oust Donald Trump and the enduring mysteries surrounding Jeffrey Epstein will test the legal system and the public’s continued willingness to respect it.

1. The Misuse of Political Power and Access to Intelligence Information 

James Comey

Two matters are likely to reveal more of the machinations of the FBI and intelligence agencies in the past presidential election and since. First there’s the Department of Justice’s Inspector General’s inquiries. The first inquiry resulted in a devastating account of former FBI Director James Comey’s conduct. Many were disappointed that Attorney General William Barr chose not to indict him based on the record IG Michael Horowitz presented, but bear in mind, this inquiry did not cover what will be a larger report on the abuse of the FISA (Foreign Intelligence Surveillance Act) in which it seems Comey played a significant role.

While Comey, as is his self-deluded wont, claims the report vindicated him, it most certainly did not. 

Kevin Brock, former assistant director of intelligence for the FBI and an FBI special agent for 24 years as well as principal deputy director of the National Counterterrorism Center (NCTC), certainly knows the rules of the game. He presented a devastating rejoinder to Comey’s suggestion he was owed an apology by those critical of his conduct. He says the worst for Comey is still to come

But here in the real world, this is what the IG’s investigation has confirmed: James Comey, as FBI director, created and maintained a separate record system that he kept in a desk drawer. He then also took most of those official records home. If that wasn’t enough recklessness, he leaked some of those records to the press after he was fired. [snip] Creating a separate record system in the FBI is a mortal sin, and with good reason. Every newly minted agent at Quantico learns this as part of FBI 101. Anytime an FBI agent, to include the director, collects information in an official capacity, that information must be documented, associated with a case file number and entered into the FBI’s case management system. Comey never did that. In fact, his now infamous memos weren’t entered into the official FBI system until after he was fired.

Having one system of record ensures that all information collected by the FBI is searchable, discoverable and transparently linked to the authorities that allow that collection. A separate, hidden record system gives rise to suspicions and disrupts the economy of trust that the FBI has worked hard to maintain with the American people.

Still to come, says Brock, is the IG’s report about Comey’s veracity to the FISA court, where he signed multiple times to the veracity of false and misleading statements to justify widespread surveillance of the Trump campaign. And then there are the findings of  U.S. Attorney John Durham and whether Comey and his minions violated both the FBI and Justice department guidelines when it initiated a counterintelligence investigation into the Trump campaign.  He’s in no position, by my reckoning, to take any victory laps. (It is an interesting side note to consider that as acting attorney general, he waited until the eleventh hour when Attorney General John Ashcroft was in the hospital and the existing intelligence surveillance program was about to expire to raise objections to its breadth and made sure the public knew of his “principled” objections to surveillance, and yet he participated fully in this most outrageous spying on Trump’s campaign. Psychologists can probably explain his ability to compartmentalize these inconsistencies better than I can.)

General Flynn

As you may recall, although General Flynn has pleaded guilty to lying to the FBI, he has yet to be sentenced. He recently changed lawyers and his present counsel, Sidney Powell, dropped a bombshell pleading last this week. 

In it, she charges that the prosecution has repeatedly failed to produce Brady (exculpatory) evidence to the defense, despite a clear court order that they do so, and in violation of their legal and ethical responsibilities. It’s an unusual motion to be filed at this stage of the proceeding, and it seems to me -- though others have a different interpretation -- that Flynn is arguing that all the evidence against him was illegally obtained, and the government’s failure to disclose proof in their possession that this is so ultimately requires the case against Flynn be dismissed. (From my point of view, if this evidence is tainted, as Powell asserts it is, it’s hard to imagine how any other evidence in the government’s possession would not be.) I’ve linked to the full, extensive pleading so you can see for yourself how well thought out and argued the lengthy  motion is. In sum, in addition to suppressing evidence (Brady material), which destroyed the credibility of their primary witness, counsel argues that the Ohr-Steele, Fusion GPS, and the Clinton campaign were working with the Special Counsel’s prosecutors Andrew Weissmann and Zainad Ahmad, despite the fact that they had no “legitimate reason to be privy to [Bruce Ohr’s] operation with Fusion GPS and Steele.” Further, she notes that the second agent who interviewed Flynn was Bruce Ohr’s contact with the FBI, who passed along the corrupted and false information from that group and may have joined the Special Counsel’s team. Flynn has consistently been denied the FBI 302s and the notes of Bruce Ohr.

Even when the government did tardily provide defense with some documentation, it denied it was exculpatory, though Flynn argues it certainly was.

The judge hearing this case, Judge Emmet G. Sullivan, was the judge who heard the Senator Ted Stevens case and who was shocked when he found out post-conviction and after Stevens resigned and subsequently perished, that the DoJ and FBI had engaged in serious and intentional misconduct, including “the systematic concealment of significant exculpatory evidence.”

Citing other cases, counsel makes a strong argument of the Department’s abuse of power .

Apart from the Brady arguments, Flynn contends that there are “egregious Fourth amendment violations at issue in this case.”

Either Mr. Flynn was (i) the subject of a pretextual counter-intelligence investigation apparently resulting from an FBI/CIA operation routed and funded through the Office of Net Assessment in the Department of Defense, using Stefan Halper to smear him as an “agent of Russia;” (ii) part of the documented abuses of the NSA database; (iii) the subject of a criminal leak of classified information regarding his conversations with Ambassador Kislyak; (iv) illegally unmasked; or (v) some combination of the above. Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration -- especially from late 2015 to 2016 -- dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies. Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors.

Flynn seeks a contempt order for the massive Brady violations and the appointment of a new prosecution team unrelated to the Special Counsel investigation “…or the U.S. Attorney’s Office for the District of Columbia… now equally implicated in the suppression of evidence favorable to the defense.” In addition to issuing an order to show cause why the government should not be held in contempt, find the prosecutors in contempt of the Brady order, and order them and the Department of Justice to “preserve all evidence emails, notes, texts, cell phones” and to produce all the Brady information listed (in a sealed separate motion) as well as any other Brady information in its possession.

The hearing on this motion is set for September 10.

It may be of minor significance, but it intrigues me that Hillary’s attorneys were allowed to view classified information despite their lack of security clearances, while Flynn’s are being denied such access: 

Congressman Jason Chaffetz asked Director Comey whether Hillary Clinton’s attorneys had the required security clearances necessary to view classified material. As Clinton has stated numerous times, she retained several attorneys to help her sort through her emails to determine what was work-related before turning them over to the State Department.

In a fiery exchange towards the end of today’s testimony with Congressman Jason Chaffetz, Director Comey revealed that Clinton’s attorneys did not have proper security clearances. Congressman Chaffetz was dumbfounded and asked the Director to explain how this did not show intent to disclose classified material to persons without a proper security clearances.

2.  Jeffrey Epstein

The criminal case against him was dismissed this week. Civil cases against his estate will likely continue. Those who allegedly were his co-conspirators may also face criminal charges. The investigation into the circumstances of his death continue. Over at KausFiles, Mickey Kaus, like me, finds the sexual misconduct only part of the story. “For one thing, how did he get his money? Look at the possibilities on the list -- money laundering, espionage, blackmail, insider trading… Nobody thinks he made his half billion legally the way he said he made his money: by brilliantly managing a hedge fund.”

And he has a question about the NYT coverage of Epstein as well.

Either Times editors didn't know a good story when they saw it -- a likely possibility at the old L.A. Times, but not at the NYT -- or there was something holding them back. What was it? It would be crude to suggest it was politics — that at some level they realized investigating Epstein would inevitably lead to embarrassment or worse for Bill Clinton and by extension Hillary Clinton, who was running for president or planning to run throughout this period. But sometimes the crude explanation is the right one. True, the Times did run a less explosive Bill Clinton sex piece in 2006 (“Nights out find him zipping around Los Angeles with his bachelor buddy, Ronald W. Burkle”). But that piece got so much blowback the paper may have decided not to go any further on its own — an editorial stance known around newsweeklies as ‘Get it first, but first get it second.’

Since leaving the White House, the Clintons have built largely separate lives around their distinct career paths.

Chasing girls is one thing, after all. Underage girls are another.

Maybe the Times’ editors — and not just the top ones (Raines, Keller, Abramson & Baquet) — can provide a more sophisticated account. They’ve got some ‘splainin to do.

Well, a lot of people have a lot of ‘splainin to do and in the coming weeks.  I look forward to seeing them do so. Will the outcomes of the various cases and investigations meet our expectations of a lawful, just society or not?

In Democracy in America Alexis de Tocqueville wrote about his perceptions of America almost 200 years ago. Much of his observations have stood the test of time. Among them his views of Americans’ respect for the legal system:

Scarcely any question arises in the United States which does not become, sooner or later, a subject of judicial debate; hence all parties are obliged to borrow the ideas, and even the language, usual in judicial proceedings in their daily controversies. As most public men are, or have been, legal practitioners, they introduce the customs and technicalities of their profession into the affairs of the country. The jury extends this habitude to all classes. The language of the law thus becomes, in some measure, a vulgar tongue; the spirit of the law, which is produced in the schools and courts of justice, gradually penetrates beyond their walls into the bosom of society, where it descends to the lowest classes, so that the whole people contracts the habits and the tastes of the magistrate. The lawyers of the United States form a party which is but little feared and scarcely perceived, which has no badge peculiar to itself, which adapts itself with great flexibility to the exigencies of the time, and accommodates itself to all the movements of the social body; but this party extends over the whole community, and it penetrates into all classes of society; it acts upon the country imperceptibly, but it finally fashions it to suit its purposes.

And so it is, that two matters of public interest: The misuse of intelligence to affect the presidential election in Hillary Clinton’s favor and then to hamstring and oust Donald Trump and the enduring mysteries surrounding Jeffrey Epstein will test the legal system and the public’s continued willingness to respect it.

1. The Misuse of Political Power and Access to Intelligence Information 

James Comey

Two matters are likely to reveal more of the machinations of the FBI and intelligence agencies in the past presidential election and since. First there’s the Department of Justice’s Inspector General’s inquiries. The first inquiry resulted in a devastating account of former FBI Director James Comey’s conduct. Many were disappointed that Attorney General William Barr chose not to indict him based on the record IG Michael Horowitz presented, but bear in mind, this inquiry did not cover what will be a larger report on the abuse of the FISA (Foreign Intelligence Surveillance Act) in which it seems Comey played a significant role.

While Comey, as is his self-deluded wont, claims the report vindicated him, it most certainly did not. 

Kevin Brock, former assistant director of intelligence for the FBI and an FBI special agent for 24 years as well as principal deputy director of the National Counterterrorism Center (NCTC), certainly knows the rules of the game. He presented a devastating rejoinder to Comey’s suggestion he was owed an apology by those critical of his conduct. He says the worst for Comey is still to come

But here in the real world, this is what the IG’s investigation has confirmed: James Comey, as FBI director, created and maintained a separate record system that he kept in a desk drawer. He then also took most of those official records home. If that wasn’t enough recklessness, he leaked some of those records to the press after he was fired. [snip] Creating a separate record system in the FBI is a mortal sin, and with good reason. Every newly minted agent at Quantico learns this as part of FBI 101. Anytime an FBI agent, to include the director, collects information in an official capacity, that information must be documented, associated with a case file number and entered into the FBI’s case management system. Comey never did that. In fact, his now infamous memos weren’t entered into the official FBI system until after he was fired.

Having one system of record ensures that all information collected by the FBI is searchable, discoverable and transparently linked to the authorities that allow that collection. A separate, hidden record system gives rise to suspicions and disrupts the economy of trust that the FBI has worked hard to maintain with the American people.

Still to come, says Brock, is the IG’s report about Comey’s veracity to the FISA court, where he signed multiple times to the veracity of false and misleading statements to justify widespread surveillance of the Trump campaign. And then there are the findings of  U.S. Attorney John Durham and whether Comey and his minions violated both the FBI and Justice department guidelines when it initiated a counterintelligence investigation into the Trump campaign.  He’s in no position, by my reckoning, to take any victory laps. (It is an interesting side note to consider that as acting attorney general, he waited until the eleventh hour when Attorney General John Ashcroft was in the hospital and the existing intelligence surveillance program was about to expire to raise objections to its breadth and made sure the public knew of his “principled” objections to surveillance, and yet he participated fully in this most outrageous spying on Trump’s campaign. Psychologists can probably explain his ability to compartmentalize these inconsistencies better than I can.)

General Flynn

As you may recall, although General Flynn has pleaded guilty to lying to the FBI, he has yet to be sentenced. He recently changed lawyers and his present counsel, Sidney Powell, dropped a bombshell pleading last this week. 

In it, she charges that the prosecution has repeatedly failed to produce Brady (exculpatory) evidence to the defense, despite a clear court order that they do so, and in violation of their legal and ethical responsibilities. It’s an unusual motion to be filed at this stage of the proceeding, and it seems to me -- though others have a different interpretation -- that Flynn is arguing that all the evidence against him was illegally obtained, and the government’s failure to disclose proof in their possession that this is so ultimately requires the case against Flynn be dismissed. (From my point of view, if this evidence is tainted, as Powell asserts it is, it’s hard to imagine how any other evidence in the government’s possession would not be.) I’ve linked to the full, extensive pleading so you can see for yourself how well thought out and argued the lengthy  motion is. In sum, in addition to suppressing evidence (Brady material), which destroyed the credibility of their primary witness, counsel argues that the Ohr-Steele, Fusion GPS, and the Clinton campaign were working with the Special Counsel’s prosecutors Andrew Weissmann and Zainad Ahmad, despite the fact that they had no “legitimate reason to be privy to [Bruce Ohr’s] operation with Fusion GPS and Steele.” Further, she notes that the second agent who interviewed Flynn was Bruce Ohr’s contact with the FBI, who passed along the corrupted and false information from that group and may have joined the Special Counsel’s team. Flynn has consistently been denied the FBI 302s and the notes of Bruce Ohr.

Even when the government did tardily provide defense with some documentation, it denied it was exculpatory, though Flynn argues it certainly was.

The judge hearing this case, Judge Emmet G. Sullivan, was the judge who heard the Senator Ted Stevens case and who was shocked when he found out post-conviction and after Stevens resigned and subsequently perished, that the DoJ and FBI had engaged in serious and intentional misconduct, including “the systematic concealment of significant exculpatory evidence.”

Citing other cases, counsel makes a strong argument of the Department’s abuse of power .

Apart from the Brady arguments, Flynn contends that there are “egregious Fourth amendment violations at issue in this case.”

Either Mr. Flynn was (i) the subject of a pretextual counter-intelligence investigation apparently resulting from an FBI/CIA operation routed and funded through the Office of Net Assessment in the Department of Defense, using Stefan Halper to smear him as an “agent of Russia;” (ii) part of the documented abuses of the NSA database; (iii) the subject of a criminal leak of classified information regarding his conversations with Ambassador Kislyak; (iv) illegally unmasked; or (v) some combination of the above. Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration -- especially from late 2015 to 2016 -- dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies. Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors.

Flynn seeks a contempt order for the massive Brady violations and the appointment of a new prosecution team unrelated to the Special Counsel investigation “…or the U.S. Attorney’s Office for the District of Columbia… now equally implicated in the suppression of evidence favorable to the defense.” In addition to issuing an order to show cause why the government should not be held in contempt, find the prosecutors in contempt of the Brady order, and order them and the Department of Justice to “preserve all evidence emails, notes, texts, cell phones” and to produce all the Brady information listed (in a sealed separate motion) as well as any other Brady information in its possession.

The hearing on this motion is set for September 10.

It may be of minor significance, but it intrigues me that Hillary’s attorneys were allowed to view classified information despite their lack of security clearances, while Flynn’s are being denied such access: 

Congressman Jason Chaffetz asked Director Comey whether Hillary Clinton’s attorneys had the required security clearances necessary to view classified material. As Clinton has stated numerous times, she retained several attorneys to help her sort through her emails to determine what was work-related before turning them over to the State Department.

In a fiery exchange towards the end of today’s testimony with Congressman Jason Chaffetz, Director Comey revealed that Clinton’s attorneys did not have proper security clearances. Congressman Chaffetz was dumbfounded and asked the Director to explain how this did not show intent to disclose classified material to persons without a proper security clearances.

2.  Jeffrey Epstein

The criminal case against him was dismissed this week. Civil cases against his estate will likely continue. Those who allegedly were his co-conspirators may also face criminal charges. The investigation into the circumstances of his death continue. Over at KausFiles, Mickey Kaus, like me, finds the sexual misconduct only part of the story. “For one thing, how did he get his money? Look at the possibilities on the list -- money laundering, espionage, blackmail, insider trading… Nobody thinks he made his half billion legally the way he said he made his money: by brilliantly managing a hedge fund.”

And he has a question about the NYT coverage of Epstein as well.

Either Times editors didn't know a good story when they saw it -- a likely possibility at the old L.A. Times, but not at the NYT -- or there was something holding them back. What was it? It would be crude to suggest it was politics — that at some level they realized investigating Epstein would inevitably lead to embarrassment or worse for Bill Clinton and by extension Hillary Clinton, who was running for president or planning to run throughout this period. But sometimes the crude explanation is the right one. True, the Times did run a less explosive Bill Clinton sex piece in 2006 (“Nights out find him zipping around Los Angeles with his bachelor buddy, Ronald W. Burkle”). But that piece got so much blowback the paper may have decided not to go any further on its own — an editorial stance known around newsweeklies as ‘Get it first, but first get it second.’

Since leaving the White House, the Clintons have built largely separate lives around their distinct career paths.

Chasing girls is one thing, after all. Underage girls are another.

Maybe the Times’ editors — and not just the top ones (Raines, Keller, Abramson & Baquet) — can provide a more sophisticated account. They’ve got some ‘splainin to do.

Well, a lot of people have a lot of ‘splainin to do and in the coming weeks.  I look forward to seeing them do so. Will the outcomes of the various cases and investigations meet our expectations of a lawful, just society or not?