Monday, April 2, 2018
The Question of Special Counsel : Congress, Sessions, Dershowitz
THE REAL NEWS TODAY IS ABOUT THE ONGOING WAR AGAINTS AMERICA AND PRESIDENT TRUMP. Special Counsel Robert Mueller surely knows that that the damage is all on the ProgDem / Deep State side, but he persists in trying to torment and trap President Trump. • • • MORE STROZOK-PAGE EMAILS. Restore American Glory wrote last Thursday : "Republican congressional investigators released a new set of text messages between FBI officials Peter Strzok and Lisa Page this week, and they may prove that the Obama White House was coordinating secretly with the intelligence community in the Trump/Russia investigation -- quite contrary to the story they were telling the public. In the texts, GOP investigators say, Strzok and Page indicate that the White House, the CIA, the FBI, the DOJ, and the Democrat leadership in the Senate were all 'colluding' and sharing information as the 2016 race between Trump and Hillary Clinton was just getting started in August of 2016. 'Make sure you can lawfully protect what you sign,' Page wrote to Strzok on August 2, 2016. 'Just thinking about congress, foia, etc. You probably know better than me.' The next day, Strzok wrote to Page, describing then-FBI Deputy Director Andrew McCabe concern with 'information control' as it related to the new Trump/Russia investigation. On August 8, Strzok texted: 'Internal joint cyber cd intel piece for D, scenesetter for McDonough brief, Trainor [head of FBI cyber division] directed all cyber info be pulled. I’d let Bill and Jim hammer it out first, though it would be best for D to have it before the Wed WH session.' According to Republican investigators who spoke off the record to Fox News, the 'D' in these texts refers to FBI Director Jim Comey. McDonough is White House Chief of Staff Denis McDonough. A congressional source told Fox News that while there was not necessarily a smoking gun in the texts, they were disturbing enough to create the need for further investigation. 'We are not making conclusions,' said the source. 'What we are saying is that the timeline is concerning enough to warrant the appointment of an independent investigator to look at whether or not the Obama White House was involved [in the Trump-Russia investigation].' ” • Perhaps the most troubling aspect of the texts is this: On August 27, 2016, then-Senate Minority Leader Harry Reid published on open letter to James Comey demanding that the FBI begin investigating any contacts between the Trump campaign and Moscow officials. The letter was written to make it seem that Reid came by this through published reports and rumors and that the FBI, at the time, was not involved in any such investigation. The day after the New York Times reported on Reid’s letter, Strzok sent a link to the Times article to Page, and then he texted her : “D [which is Comey] said at am brief that Reid called him and told him he would be sending a letter.” This has led Republicans to believe that Reid’s letter was meant as “cover” for the fact that the FBI and the DOJ, in coordination with the White House, had already been investigating the Trump campaign for more than a month by that time. A congressional source told Fox News : “The ‘here we go’ text between Strzok and Page indicates the FBI/ DOJ knew the letter from Reid was coming. This created the inference they knew it would create public calls for an investigation into Russian interference -- covering them.” • The Reid letter combined with the Strzok-Page text messages is highly revealing about what President Obama knew and authorized in 2016, and the combination could be the beginning of a long legal battle for Obama and his presidential staff, as their claims of distance from the intelligence community’s investigation into Trump’s supposed collusion with Russia are collapsing. Donald Trump has claimed all along that this was a partisan witch hunt aimed at helping Hillary Clinton and destroying his presidency. And with every new leak, his version of the story becomes more and more credible. • • • BUT, SESSIONS MARCHES BY THE NUMBERS. Fox News reported last Thursday that : "Jeff Sessions is rejecting GOP calls for a second special counsel, but reveals that a US attorney is investigating potential DOJ and FBI FISA abuses. Ed Henry gave details on 'Special Report' andthey were summarized by Fox journalist Brooke Singman : "Attorney General Jeff Sessions revealed Thursday a federal prosecutor was evaluating certain issues involving the FBI, the Clinton Foundation and Uranium One, but said he would not appoint a second special counsel at this point. In a letter directed to Senate Judiciary Chairman Chuck Grassley, House Judiciary Committee Chairman Bob Goodlatte and House Oversight Committee Chairman Trey Gowdy, Sessions revealed that he asked US Attorney John Huber to lead the evaluation into issues raised by the committees in recent months. 'I write in response to recent letters requesting the appointment of a Special Counsel to review certain prosecutorial and investigative determinations made by the Department of Justice in 2016 and 2017. I take the concerns you raise seriously,' Sessions wrote, noting how important it was that the American people and Congress had 'confidence' in the Justice Department. Congressmen Gowdy and Goodlatte have called for a second special counsel to investigate possible FISA abuses. Sessions referenced a November 2017 letter sent by Assistant Attorney General Stephen Boyd, first reported by Fox News, directing senior federal prosecutors to evaluate 'certain issues' requested by congressional Republicans, involving the sale of Uranium One and alleged unlawful dealings related to the Clinton Foundation. On November 13, 2017, Boyd wrote : 'These senior prosecutors will report directly to the Attorney General and the Deputy Attorney General [Rod Rosenstein], as appropriate, and will make recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a Special Counsel.' Sessions revealed Thursday in the letter to top Republican lawmakers in both chambers of Congress that Huber was the senior federal prosecutor leading that effort. 'Mr. Huber is conducting his work from outside the Washington DC area and in cooperation with the Inspector General,' Sessions said, noting that Huber’s review would 'include a full, complete, and objective evaluation of these matters in a manner that is consistent with the law and facts.' ” • John Huber is a federal prosecutor, twice confirmed unanimously by the Senate as US attorney for the District of Utah in 2015 and again in 2017. Huber had previously served in leadership roles within the US Attorney’s Office as national security section chief and executive assistant US attorney. Huber, appointed US Attorney by President Obama in 2015, has also been looking at whether the FBI should have more thoroughly probed Hillary Clinton’s ties to Uranium One, a Russian nuclear energy agency. AG Sessions said in his letter : "I receive regular updates from Mr. Huber and upon the conclusion of his review, will receive his recommendations as to whether any matters not currently under investigation should be opened, whether any matters currently under investigation require further resources, or whether any matters merit the appointment of a Special Counsel." Huber ultimately would be the prosecutor to decide whether issues raised by Republicans in Congress warrant the appointment of a second special counsel, Sessions said, citing the US Code and noting that the appointment of a special counsel is "reserved for use in only the most 'extraordinary circumstances," and that any special counsel must be "selected from outside the United States Government." Sessions wrote : "To justify such an appointment, the Attorney General would need to conclude that 'the public interest would be served by removing a large degree of responsibility for the matter from the Department of Justice'....The Department has successfully investigated and prosecuted many high-profile resource-intensive matters since the regulations were promulgated in 1999, but the regulations' standard has been found to be satisfied on only two occasions." Sessions added that it was "more common" to appoint "accountable prosecutors" to conduct investigations within the department. • On March 6, Gowdy and Goodlatte wrote a joint letter to Sessions demanding the appointment of a special counsel to investigate "conflicts of interest" and decisions "made and not made" by current and former Justice Department officials in 2016 and 2017, noting that "the public interest requires" the action. The letter cited potential Foreign Intelligence Surveillance Act (FISA) abuses, which Justice Department Inspector General Michael Horowitz announced Wednesday would be investigated by his team. The Horowitz statement said : "The Office of Inspector General will initiate a review that will examine the Justice Department’s and the Federal Bureau of Investigation’s compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the US Foreign Intelligence Surveillance Court (FISC) relating to a certain US person. As part of this examination, the OIG also will review information that was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source.” • The Horowitz statement lends support to Sessions' continuing emphasis on the authority of the Justice Department inspector general to “collect evidence through subpoena, and develop cases for presentation to the Attorney General...for prosecution.” Many Republicans had raised about relying solely on Horowitz, Stephen Vladeck, a national security law professor at the University of Texas, told TheHill : “I think it’s actually another in a series of examples of Sessions walking a pretty fine tightrope and at least, thus far, navigating it successfully.” The Sessions announcement was a disappointment to some Trump allies in Congress who have clamored for the appointment. Representative Mark Meadows, a Freedom Caucus leader who often talks with President Trump, said : “I disagree with the attorney general. The Justice Department is not complying with the subpoena and oversight responsibility we have in Congress, so for the attorney general to say there’s not enough there is extremely disappointing.” The White House itself did not comment on the Sessions decision, however, nor did Trump. And key lawmakers on Capitol Hill who have formally requested a second special counsel -- such as Goodlatte and Gowdy -- instead chose to focus on the appointment of Huber, calling the move “encouraging.” • In the Time Magazine interview in which Sessions was featured on the cover, Sessions sent the signal that he is working for Trump : “I want to do what the President wants me to do. But I do feel like we’re advancing the agenda that he believes in. And what’s good for me is it’s what I believe in, too.” Sessions, a former Alabama Senator and early supporter of the President during his campaign, has successfully carried out Trump initiatives beyond the handling of the Russia investigation. Sessions was praised by Trump in March for dismissing FBI Deputy Director Andrew McCabe a day before he would have been eligible for his pension. • Sessions told lawmakers in his Thursday letter that he understands that the Justice Department is "not above criticism," and noted that if anyone "falls short" of the "highest level of integrity, ethics and professionalism," he would act : "I will fulfill my responsibility to take necessary action to protect the integrity of our work," Sessions wrote, thanking the lawmakers for their "leadership" on the matters, and stating that he would make their letters available to both Huber and Horowitz. • Steven Cash, a lawyer at Day Pitney, said Sessions was simply following regular protocol by declining to appoint a special counsel, given the narrow circumstances under which such an appointment is warranted : “It seems like this is sort of regular order of business." Cash also said Sessions was right not to completely rule out the possibility of appointing one should a reason arise : “That’s not surprising either, because you never know what you’re going to find. And you should never rule it out.” • • • SESSIONS AND CONGRESS WANT THE SAME THING. That is, a thorough invesitgation of all the allegations raised by the Devin Nunes Memo charging that the FBI and DOJ abused the Foreign Surveillance Intelligence Act (FISA). GOP lawmakers allege that investigators used information from the Steele Russia Dossier, a controversial file full of political opposition research compiled by ex-M16 agent Christopher Steele -- whose accusations about a Trump-Russia collusion have not been proven by either Democrat leaders in Congress or by more than a year of special counsel Robert Mueller probing. The Dossier has pretty much been shown to be the sole basis for the FBI's obtaining of a politically-motivated FISA surveillance warrant for former Trump aide Carter Page. • The differences arise in the methods to be used for the investigation. DOJ Inspector General Michael Horowitz's announcement that he will review potential FISA abuses by both the Justice Department and the FBI, is AG Sessions' response to requests from Congress for a second special counsel. Horowitz' Office of the Inspector General statement, reported by Fox News, outlines the review and makes it clear that McCabe and the Carter Page warrant are in focus : “The OIG will initiate a review that will examine the Justice Department’s and the Federal Bureau of Investigation’s compliance with legal requirements, and with applicable DOJ and FBI policies and procedures, in applications filed with the U.S. Foreign Intelligence Surveillance Court (FISC) relating to a certain US person. As part of this examination, the OIG also will review information that was known to the DOJ and the FBI at the time the applications were filed from or about an alleged FBI confidential source.” The OIG statement added that Horowitz also would “review the DOJ’s and FBI’s relationship and communications with the alleged source as they relate to the FISC applications.” The statement continued, “If circumstances warrant, the OIG will consider including other issues that may arise during the course of the review.” • Earlier in March, Sessions directed Horowitz to probe the allegations of government surveillance abuse, in light of memos released on Capitol Hill by the House Intelligence Committee about FBI and DOJ efforts to obtain FISA warrants to surveil Trump campaign adviser Carter Page. Sessions told a February news conference : “We believe the Department of Justice must adhere to the high standards in the FISA court. Yes it will be investigated. And I think that’s just the appropriate thing the inspector general will take that as one of the matters he’ll deal with.” • Fox News Brooke Singman summarized the Nunes Memo and the FBI FISA warrant application : "House Intel Republicans released a memo in late February detailing the DOJ's and FBI’s surveillance of Page, saying the infamous anti-Trump Dossier funded by Democrats 'formed an essential part' of the application to spy on him. The Dossier, authored by former British spy Christopher Steele and commissioned by Fusion GPS, was funded in part by the Democratic National Committee and Hillary Clinton’s presidential campaign through the law firm Perkins Coie. It included salacious and unverified allegations about President Trump’s connections to Russia. The Republican Memo stated that former FBI Deputy Director Andrew McCabe testified that 'no surveillance warrant would have been sought' from the FISA court 'without the Steele dossier information.' The Memo also said Steele, who worked as an FBI informant, eventually was cut off from the bureau for what the FBI described as the most serious of violations, 'an unauthorized disclosure to the media of his relationship with the FBI.' The memo noted that the FBI and DOJ obtained 'one initial FISA warrant' targeting Page and three FISA renewals from the FISC. The statute required that every 90 days, a FISA order on an American citizen 'must be reviewed.' Former FBI Director James Comey signed three FISA applications for Page, while McCabe, current Deputy Attorney General Rod Rosenstein who leads the Russia probe, former Deputy Attorney General Sally Yates and former Acting Deputy Attorney General Dana Boente signed at least one, according the Republican Memo." • The White House said the GOP Memo raised “serious concerns about the integrity of decisions made at the highest levels of the Department of Justice and the FBI to use the government’s most intrusive surveillance tools against American citizens.” Republican lawmakers and Sessions had been pressing Horowitz to probe the alleged FISA abuses. FBI Director Wray has now announced plans to “double the number” of agents handing records for the House Judiciary Committee after it subpoenaed the Justice Department for documents on FISA, the Clinton email investigation and the firing of McCabe. • Over the last year, Horowitz also has been conducting a review of the FBI's and DOJ’s actions related to the investigation into Clinton’s use of a private email server while she was Secretary of State. A final report on the investigation is expected in several months. • • • DERSHOWITZ SPEAKS OUT ABOUT THE USE OF SPECIAL COUNSEL. In an interview with CBSDFW.TV in Dallas, Alan Dershowitz said last Wednesday that he is fearful of the criminalization of political differences in today’s discourse and that he doesn’t think special counsels are the right way to approach criminal justice. Dershowitz spoke to CBS 11 political reporter Jack Fink about Special Counsel Robert Mueller’s investigation into whether the Trump campaign colluded with the Russians to affect the outcome of the 2016 election. Dershowitz told Fink : “I think the investigation should end and I think the Congress should appoint a special non-partisan commission,” because a congressional committee would be too partisan; adding : “That’s the way it’s done in other western democracies. They don’t appoint a special counsel and tell them to ‘Get that guy...’ that’s what they did in the Soviet Union. Lavrentiy Beria, the head of the KGB said to Stalin, ‘Show me the man, and I’ll find you the crime!' That’s what special counsel does.” • Dershowitz was quick to point out that he was not making a direct correlation between the United States and the former Soviet Union : “I’m not comparing obviously the Soviet Union and the United States. We have structural protections in our Bill Of Rights but it’s going down the wrong direction." • But, Dershowitz has a good point. He says : “The issue of criminalization [of political differences] has not been subject to rational discourse. Democrats hate when they politicize and criminalize political differences against Democrats...when they did it with Bill Clinton. Republicans hate when they do it against their people...President Trump. But each one supports it when they’re against their enemies and partisanship prevails over principle. It’s very hard to have a reasonable discussion.” Dershowitz said that citizens should fear the direction of this investigation for their own sake. He warned that today criminalization of political differences appears -- now -- to only affect Presidents and political leaders, but : “Tomorrow it can affect you and me. If you give the prosecutor the ability to stretch the criminal law to fit a target, it’s very dangerous.” • Dershowitz told Fink that special counsels are not the right way to approach criminal justice : “When you appoint a special counsel you give them targets and you say, ‘You better get that guy or the people around him...and we’re going to give you tens of millions of dollars. And if you come up empty handed you’re a failure.'” Dershowitz explained that if an ordinary prosecutor goes months without finding a crime then “that’s great, no...there have been no crimes committed.” He says not so with a special counsel. “Special Counsel always has the goal of ‘getting the people.’ They’re going to find crimes, or they’re going to manufacture crimes or they’re going to stretch the criminal law to fit the ‘crimes’ because they’re not going to come away empty handed.” • When asked what he thinks should happen in the current situation, Dershowitz said : “I think Rod Rosenstein needs to say to the special counsel, ‘Do not investigate the private finances of the President before he became President; do not investigate his relatives; do not investigate his sex life.’ Don’t do -- to President Trump -- what Ken Starr did to President Clinton. It started with Whitewater and ended up with a blue dress. That’s not the appropriate way a special counsel should operate.” • Rosenstein appointed Mueller as special counsel after Attorney General Sessions recused himself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States. Dershowitz had some strong words for Rosenstein : “I think Rod Rosenstein is concerned more about his reputation than anything else. I don’t understand why he’s not recused. He is the key witness in the firing of Comey.” • Dershowitz said if he were President Trump’s lawyer, Rosenstein would be the first witness he would call asking him, “Rod Rosenstein, you wrote the memo...you justified the firing...explain how you justified the firing. Did the President tell you to do it? Did you tell the President to do the firing?” • Dershowitz worries that the American public is quickly losing faith in the justice system and he called that a terrible, terrible tragedy : “We need neutral objective people administering justice. You can’t have an FBI agent like Strzok who is writing messages saying ‘oh we have to stop Trump from becoming President.' The American public insists that justice not only be fair, but be seen to be fair -- appear to be fair. You need the appearance and the reality of justice. We’re not having that today.” • Dershowitz said he thinks Trump should not have fired former FBI Director James Comey in the way that he did : “Look, Comey should have been fired. I think Clinton would have fired him had she been elected. [Comey] did a terrible, terrible thing during the election and he may have influenced the election. That’s not the job of the FBI. He should have been fired but I think it was a mistake for the President to fire him in the manner that he did. I don’t think it was illegal -- I think it was a constitutionally authorized act -- but I think we wouldn’t have a special counsel today if not for that firing.” • Dershowitz said he sees absolutely no evidence that there was either collusion between Trump and the Russian government and/or obstruction of justice : “I would think by this time there would be some public disclosure of any such charges. Collusion -- if it happened, and there’s no evidence that it happened -- would be a sin, it would not be a crime. It is not a crime to collude about an election unless there are payments made, or violations of the federal law involving gifts to campaigns from foreign governments. But collusion itself is not a crime. I think that the President cannot be charged with obstruction of justice for exercising his constitutional authority. He has the authority to fire anybody in the executive branch -- the Supreme Court has said that.” • Regarding a possible impeachment, Dershowitz said “no one knows” whether or not there has to be a crime committed by the President -- while he is in office -- for him to be impeached : “I believe the Constitution says what it means. The Constitution says in order to be impeached, the President must have committed bribery, treason or other high crimes and misdemeanors. I take that seriously. And I don’t think a President can be impeached for doing something that isn’t criminal.” He said he did not think President Bill Clinton should have been impeached either. Dershowitz said he believes that no party should take up impeachment unless they are sure they can remove the President : “You don’t go after the President unless he’s committed an act which would warrant removal. And for that to happen, [there] would have to be wide bipartisan support. There is no bipartisan support for impeachment of this President today.” • • • DEAR READERS, I can only say, "Amen, Professor Dershowitz, Amen."