Friday, March 23, 2018

Byron York: If Mueller didn't charge Flynn and Manafort with collusion, then who was colluding?

Byron York: If Mueller didn't charge Flynn and Manafort with collusion, then who was colluding?

While much about the Mueller investigation remains unknown, we do know the indictments he has filed and the pleas he has reached with various figures in the case.
Trump-Russia special counsel Robert Mueller is authorized to investigate "any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump." The popular word for that is collusion, and it remains at the heart of both the Mueller and the Senate Intelligence Committee investigations. (Majority Republicans on the House Intelligence Committee recently announced they were unable to find evidence proving collusion.)
While much about the Mueller investigation remains unknown, we do know the indictments he has filed and the pleas he has reached with various figures in the case. There are some, including charges against Russia's Internet Research Agency, several individual Russians, and two minor figures, that target either people on the Russian side of the equation or those for whom there are no suspicions of collusion.
But Mueller has charged three people who were in the Trump campaign inner circle -- former national security adviser Michael Flynn, former campaign chairman Paul Manafort, and former deputy campaign chairman Richard Gates, all with ties to Russia and all of whom might be expected to be part of a collusion scheme, had one existed. Mueller has also charged one peripheral hanger-on, George Papadopoulos, who might conceivably have been part of a collusion scenario.
But all have faced charges and none of those charges, at least so far, has involved allegations that Flynn, Manafort, Gates, or Papadapoulos played a role in a scheme of collusion, or coordination, or conspiracy, or whatever it is called. And that could tell the public something about the state of the collusion allegation inside the Mueller investigation.
To put it briefly: What kind of collusion scheme between Russia and the Trump campaign could have existed without Michael Flynn being part of it? What kind of collusion scheme could have existed without Manafort? And Gates? And yet none of them -- nor Papadapoulos, either -- has been charged with taking part in a collusion scheme.
Flynn pleaded guilty to one count of lying to investigators about what he discussed in a phone conversation with Russian ambassador Sergey Kislyak. (Investigators have always known what the two men talked about, since the call was wiretapped, recorded, and transcribed.)
Manafort has been charged with a daunting number of financial crimes, including fraud and tax evasion, relating to his work for a pro-Russian political party in Ukraine.
Gates was charged with most of the crimes Manafort faced, but received a deal from Mueller, allowing him to plead guilty to one count of lying to investigators and one count of hiding profits from his work with Manafort in Ukraine.
Both Gates and Manafort were charged with something called "conspiracy against the United States." As the former prosecutor Andrew McCarthy points out, "there is no such offense in federal law as 'conspiracy against the United States.'" But Mueller's office described their alleged crimes that way, and some media commentators liked the treason-ish sound of the phrase.
Papadopoulos pleaded guilty to one count of lying to investigators about a conversation he had with a Russian who wanted to create ties with the Trump campaign.
All those charges, and none alleging that any of these men, some of them at the highest levels of the Trump campaign, took part in any collusion, or coordination, or conspiracy between the campaign and Russia.
"I can't imagine that there would have been collusion or conspiracy with the Russians that Michael Flynn didn't know about," said Sol Wisenberg, a former prosecutor with the office of independent counsel Kenneth Starr. "If you're trying to make a collusion case and you are Mueller, you're trying to get someone to plead to the crime you're trying to prove."
McCarthy has written much the same. "When a prosecutor has a cooperator who was an accomplice in a major criminal scheme, the cooperator is made to plead guilty to the scheme," he wrote last December. "This is critical because it proves the existence of the scheme."
Even Preet Bharara, the New York U.S. attorney fired by Trump and no fan of the president's, said last year, "When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well."
But in the Mueller investigation, it is precisely the people who would most be expected to be part of a collusion scheme who have not been charged with taking part in any such activity.
Nevertheless, for those hoping for collusion, there are still some possibilities. Mueller might lodge, or might have already lodged, additional charges against Flynn, Manafort, or Gates.
And there is still Carter Page, like Papadopoulos a sometime volunteer Trump adviser, who traveled to Russia in 2016. Page has been publicly vague about his dealings with Mueller but said recently that he has been interrogated for more than 30 hours in the last year by the executive and legislative branches of government. Perhaps Mueller is waiting to charge him with something. Or maybe someone else will be charged with taking part in the long-sought collusion.
Still, it's hard to imagine a collusion plot that never touched Flynn, Manafort, or Gates. Maybe it happened, but after more than 18 months of FBI, and now Mueller, investigations, it's becoming harder to see how.



I wrote here about the Obama administration’s “guidance” threatening litigation against school districts that failed to enforce quotas in school discipline, and the baleful effects that policy is still having across the country. A variation on the theme comes from a case called Kenny v. Wilson, decided just a few days ago by a panel of the 4th Circuit. The case was brought by the ACLU, which alleged that South Carolina statutes referred to as “the Disturbing Schools Law” and “the Disorderly Conduct Law” are unconstitutionally vague. Plaintiffs purport to represent a “proposed class of elementary and secondary public school students in South Carolina.”
Plaintiffs’ constitutional theory is based on reasoning similar to that that gave rise to the Obama administration’s infamous guidance letter:
According to plaintiffs, criminal charges under the two statutes are among the leading reasons young people enter the juvenile justice system in South Carolina. … Plaintiffs also allege that students arrested for violating the statutes are less likely to graduate and more likely to feel stigmatized and afraid….
Plaintiffs claim that the statutes are enforced in a discriminatory manner, leaving racial minorities and students with disabilities especially vulnerable. In 2014-2015 black students in South Carolina were nearly four times as likely to be charged under the Disturbing Schools Law compared to their white classmates. In Charleston County, a charge under the Disturbing Schools Law was the number one reason young people entered the juvenile justice system and black students were more than six times as likely to be charged for the offense compared to white students. Plaintiffs allege that such racial disparities in discipline cannot be explained by differences in behavior among students of different races.
The district court had dismissed the case for lack of standing, but the Court of Appeals found “injury in fact” and returned the case to the trial court for further proceedings. While the holding of the decision is limited to the procedural standing issue, the court’s opinion suggests sympathy for the plaintiffs’ case on its merits (e.g., “S.P is disabled, Nesmith is black, and D.S. is both disabled and black. Thus, the threat of enforcement is particularly credible with respect to these three plaintiffs.”
It remains to be seen how the Kenny case will play out, and of course the theory in that case–that certain South Carolina criminal statutes that seek to maintain order in the schools are impermissibly vague–is different from the race discrimination theory that animated the Obama guidance. But the fact that black students incur discipline at a higher rate than white and Asian students is central to both theories.
It seems to be a little-known fact that courts have explicitly rejected the claim that discrimination can be inferred from racially disparate rates of school discipline. Last year, Hans Bader reviewed some of the precedents:
For years, the courts have recognized that schools are not guilty of discrimination merely because black students get suspended from school at a higher rate than whites, since the higher rate may just reflect higher rates of misbehavior. (See, e.g., Belk v. Charlotte-Mecklenburg Board of Education, 269 F.3d 305, 332 (4th Cir. 2001) (en banc) (although “statistics show that of the 13,206 students disciplined from 1996–98, sixty-six percent were African–American,” this “‘disparity does not, by itself, constitute discrimination,’” and provides “no evidence” that the school district “targets African–American students for discipline.”); Coalition to Save Our Children v. State Board of Education, 90 F.3d 752, 775 (3d Cir. 1996)(rejecting the “assumption ‘that “undiscipline” or misbehavior is a randomly distributed characteristic among racial groups’”); Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981)).
For example, the Seventh Circuit Court of Appeals struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Bd. of Educ., 111 F.3d 528, 538 (7th Cir. 1997)).
Student misconduct rates are not usually the same among different racial groups. A 2014 study in the Journal of Criminal Justice by criminologist John Paul Wright and his co-authors, for example, found that racial disparities in student discipline resulted from more frequent misbehavior by black students, not racism.
The Supreme Court’s ruling in U.S. v. Armstrong….rejected the “presumption that people of all races commit all types of crimes” at the same rate, which is “contradicted by” reality. Blacks, who are only 13 percent of the population, commit nearly half of all homicides…the homicide rate is 10 times higher among black teens than white teens.
There is more, including links that I have omitted, in the linked article. It strikes me that this body of law is one of several that the Left refuses to recognize, and likely will overturn as soon as it has the opportunity.

Commentary: What if Trump is right and there is no collusion?

Commentary: What if Trump is right and there is no collusion?

Last Updated Mar 19, 2018 1:20 PM EDT
On Sunday morning, President Trump wondered in a tweet, "Why does the Mueller team have 13 hardened Democrats, some big Crooked Hillary supporters, and Zero Republicans? Another Dem recently added...does anyone think this is fair? And yet, there is NO COLLUSION!"
What if Donald Trump is right? What if there really is no collusion?
In one sense, the question is irrelevant: Paul Manafort is facing serious money-laundering charges that could land him in jail for 305 years; Gen. Mike Flynn's been found out for his shady dealings with Russia and Turkey; and various other Papadopouli have pleaded guilty to actual—if relatively minor—crimes.  So Robert Mueller could eventually issue stacks of indictments whether Trump's campaign colluded with Russia or not.
For more than a year now, Democrats in Congress like Adam Schiff and liberal media outlets have promised Americans proof that "Trump colluded with Russia to steal the 2016 election using hackers and propaganda," as one far-Left activist put it.  Back in October, Ezra Klein at said it's "almost impossible to believe that there wasn't collusion between Trump's operation and Russia."
Even now, two out of three Democrats still believe Russia actually tampered with the polls to steal the election from Hillary Clinton.
With Trump declared guilty by Democrats and all but convicted in the press, what happens if Mueller confirms the findings of the Republican-controlled House Intelligence Committee -- that there's plenty of Trump campaign incompetence, but no collusion?  
For people who hate or love Trump, it won't matter. They've already made up their minds.  But for the majority of casually-political Americans--who already think Washington politicians are worse than lawyers and used car salesmen when it comes to "very low" ethical standards--what will they conclude if they're told that the whole point of the investigation from the beginning was based on a baseless charge?
Many are likely to think that if there was no collusion, then the entire story really was the "witch hunt" President Trump keeps telling them it is. He will have turned out to be right, no matter how many other things he did wrong.
I believe this is the reason Trump stepped on his own good news regarding the McCabe firing.  Why he didn't do what many (myself included) considered the smart move: Let McCabe's firing speak for itself.  Why he sent out his first-ever tweet attacking special counsel Robert Mueller using the key word: "collusion:"
"The Mueller probe should never have been started in that there was no collusion and there was no crime," he wrote Sunday. "It was based on fraudulent activities and a Fake Dossier paid for by Crooked Hillary and the DNC, and improperly used in FISA COURT for surveillance of my campaign. WITCH HUNT!"
Trump sent this out just as the Russia story hit a profound—and pro-Trump—moment.  Andrew McCabe, whose wife really did get $675,000 in combined donations from a PAC controlled by Clinton ally Terry McAuliffe and from the Virginia Democratic Party, which is also associated with McAuliffe, probably should have recused himself from any Clinton-related investigations. But he was fired, not by Donald Trump, but at the recommendation of FBI's Office of Professional Responsibility. The head of that office is Candace Will, who was given the job in 2004 by then-FBI Director…Robert Mueller.
The OPR reported acted on allegations that McCabe "showed a lack of candor" (is there a nicer way to say "liar" than that?) uncovered by the Inspector General, Michael Horowitz. He was appointed by…Barack Obama.
For everyone other than fringe conspiracy theorists, the evidence of McCabe's bad behavior is indisputable. Even Rep. Schiff—the tip of the Democrats' partisan spear on Russia—conceded Sunday that McCabe's firing "may have been justified."
That should have been the headline. Instead, Trump tweeted and took it away. As national-security reporter Eli Lake put it at Bloomberg: "McCabe's Firing Wasn't Political. Until Trump Made It Political."
Once again, I tend to agree with Lake and others who think Trump's missing the mark by making the story anything other than "Democrat Inside FBI Fired For Fouling Up Trump-Related Investigation, Focus Now Turns To Other Partisan Actors In FBI."  There is a direct line from McCabe to Peter Strzok and Lisa Page and Bruce Ohr—all of whom were anti-Trump partisans and engaged in behavior that raises legitimate questions about their trustworthiness. And that extends to the trustworthiness of the Obama FBI that sought a questionable warrant to spy on Trump based largely on information from Hillary Clinton's campaign. 
Trump appears to be acting on assumption that collusion is his silver bullet.  Keep everyone focused on that question, so that when the verdict comes back "innocent of collusion," Trump can declare himself "not guilty" of any other charge by default.  After all, if the collusion allegation was bogus, isn't the entire investigation?  
That's Trump's case, and it's likely to make sense to the vast majority of Americans who've been promised a collusion story Trump's enemies can't deliver.
Editor's note: An earlier version of this column misidentified Andrew McCabe as a Democrat. It is not known whether he is registered to a political party. 
  • Michael Graham
    CBSN contributor Michael Graham is a conservative columnist for the Boston Herald.

Thursday, March 22, 2018

The Coming Collusion Bloodbath

The Coming Collusion Bloodbath
 Kevin McCullough 
The Coming Collusion Bloodbath

The firing of Andrew McCabe, the discovery of his “private notes,” the ill-tempered response by other Obama loyalists and a yet to be disclosed Inspector General’s report on an investigation that began before Donald Trump had come to office are all pieces of a story that dwarfs the still absent evidence of anything Trump and company did to cooperate with Russians in changing votes in Michigan and Wisconsin.

So many Democrats and Republicans have asserted the lack of evidence in the Russian collusion issue its become comical if not annoying to endure as the uninformed continue to argue otherwise.

But few have had interest in addressing a separate issue that demands attention. For while the Russians attempted mass chaos. The more serious scandal appears to have covered up criminal behavior, illicit manipulation of the FISA process, and an attempt to undo the quite serious results of an election. 

Is there anything more sacred in our representative republic?

The scandal that goes mostly unmentioned began before the election had even occurred but appears to have continued well past the final results of election night, with one candidate winning 30 of 50 states, and racking up a 304 to 227 victory in the electoral college. 

A victory that looks increasingly historic in light of what increasingly appears to be the collusion of the then current administration with one campaign, and in instance after instance attempting to push their thumb on the scale of the outcome.

The Democrats’ illicit partnership with the Obama Justice Department and what appears to be an increasingly corrupted leadership at the Federal Bureau of Investigation was yet one more logistical hurdle that President Trump would have to overcome in his surprising and transformational win.

Few remember, though my radio show discussed at length, the reports that surfaced in October of 2016. In reaction to the bizarre July 5th announcement by then FBI director James Comey, FBI officials revealed that members of the DOJ and FBI investigative teams that had worked the Hillary email case were “angered & disgusted” that the co-opted DOJ and FBI leadership ignored the very real analysis of evidence and decided against bringing criminal indictment against Hillary Clinton for the handling of top secret information. More than 100 FBI agents that worked the case, and more than 6 DOJ attorneys expressed their disgust, according to a source within the group. 

It was later revealed that Comey had been prepared to exonerate Clinton in February of that year when he would yet not interview her until months later. She was also granted an interview, instead of being asked to testify under oath.

We discovered later that Team Hillary’s operation paid for opposition research on Trump that included the hiring of a disgraced British ex-spy, a law firm attached to Hillary, and a collection of accusations largely originating from Russian sources. This dossier was mostly discredited upon it’s discovery. Yet this partisan piece of opposition research for a campaign formed the basis for secretive surveillance on Trump campaign members and was continually extended. The other rationales for the FISA warrants included sources that also traced back to Hillary Clinton, one of them being a significant donor to the Clinton foundation.

Yet that disgraced ex-spy remained on retainer by the FBI beyond the discovery that the dossier was in large measure useless. Why would the Obama administration have him there at all? 

Enter the illicit relationship between agents Strzok and Page, and the fact that from before election night, to well afterwards it appears a coordinated effort to undo the election results were thought to be a backstop by then Deputy Director McCabe and you have the elements leading the investigation into all of it that wilfully leaked information (a crime in itself) to the press that slanted in a decidedly pro-Hillary and anti-Trump direction.

Shuffle into the mix Loretta Lynch meeting with Bill Clinton on a tarmac, Dr. Susan Rice penning an imaginative “record” of a President “instructing” investigators to play it “by the book,” Comey penning what should be considered classified and protected notes of conversations he had with the new President and then wholesale gives them to people outside of government and this weekend Deputy Director McCabe admitting to evidently employing a similar practice.

Add to the mix conflicting testimony from former director Comey before Congress on back to back highly publicized visits.

What the universe has truly ignored is the fact that the Inspector General’s investigation (which has been far less publicized than Special Council Robert Mueller’s), and in large measure has had much more devastating impact. Agents have been fired, reassigned, and otherwise dealt with just within the process of the investigation. The limited amount of what we’ve seen from the efforts thus far have painted a picture of corruption at the highest levels, and potentially “Watergate” comparable outcomes upon the report’s issuance.

McCabe’s firing was directly linked to the IG’s findings, and once revealed to the Justice Department’s disciplinary powers a concurrent recommendation was termination. 

That Comey, McCabe, and others have practiced an obvious double standard in the email case of Hillary Clinton where ample evidence caused 106 of the case agents and attorneys working on the case to believe indictment would occur, and simultaneously going to such extraordinary measures through the assistance of essentially Hillary’s campaign operation to attempt to thwart the outcome of the election is more than enough reason to go after them on a criminal basis alone.

That McCabe reportedly lied to the low key Inspector General, while attempting to send General Michael Flynn to prison for lying to the same FBI is of highest hypocrisy.

But hypocrisy is what Comey, McCabe, Strzok, and others seem especially gifted at. 

In some respects Robert Mueller never asked for the position he finds himself in. But if he is not willing to look at the evidence before him and truly follow where it leads then it is time for him to go as well.

There was collusion in the election of 2016. It involved Russians, a British ex-spy, law firms, FBI agents, DOJ attorneys, an FBI director that prejudged evidence, an Attorney General that had an unethical meeting with the spouse of a target, FISA warrants obtained on faulty information that stemmed from political sources, a Deputy Director whose wife received monetary support in an election, an FBI director who lied to Congress, an FBI Deputy Director who lied to the Justice Department’s Inspector General, loads of classified materials that were mishandled and criminally passed to those without clearances, and partisan hacks spearheading inquiries aiming for political outcomes. The scope of this collusion is overwhelming, the attempts are a damning indictment of political operatives that have lost all integrity, and sadly an administration, a major political party, and agents of a deep state that attempted in a wide sweeping number of ways to undo an election that they lost.

Former high-ranking FBI officials (like Chris Swetzer who appeared with Harris Faulkner’s FoxNews broadcast on Friday) believe that the Inspector General’s coming report will be explosive.

For the sake of justice, above all else, I hope it brings clarity to a story our modern media landscape is highly invested in keeping as convoluted as possible.