Justice Delayed or Justice Denied? A Response To Andrew Weissmann And Ryan Goodman – Thelegaltorts

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Federal Court Rules Against Trump Administration On The “Third-Country Asylum” Rule – JONATHAN TURLEY

Recently, I posted a criticism of Andrew Weissmann, one of the top prosecutors with Special Counsel Robert Mueller, who ran a column with Professor Ryan Goodman encouraging Justice Department attorneys not to assist U.S. Attorney John Durham in his ongoing investigation (at least before the election) and dismissing the basis for the plea agreement reached with former FBI lawyer Kevin Clinesmith.  Goodman argues that I was unfair to him and Weissmann in my posting and I wanted to respond.  I did include a longer quote from the column to be sure that their point was better understood in context in an updated posting. However, in my view, the defense of this column only highlights the inherent bias that the original posting sought to address. Rather than append this long discussion at the end of the original column, I felt it deserved its own posting and consideration by readers. The discussion below is a response not just to Goodman’s tweets but their column.

On Twitter, Professor Goodman makes four basic points which I make out into roughly six points. I would like to address each below.  However, it is worth noting that only one point appears to be a claim of misrepresentation.

First, Goodman states that the posting was “seriously flawed” and “Turley badly misrepresents what we said, what Justice Dept charged, and more… This is a pattern for Turley (see final tweet in this thread for that pattern)…” I will address the “pattern” referenced by Goodman below. However, Goodman states that the blog “falsely claims op-ed calls on DOJ lawyers ‘to undermine’ Durham investigation. He points out that “(o)ur op-ed: DOJ lawyers should refuse IMPROPER requests if VIOLATE oath to Constitution and policy on actions that interfere in election; plus Durham CAN indict after 11/3.”

This appears to be the heart of Goodman’s claim of misrepresentation (indeed it appears the only claim). It is a rather curious and tautological point. Goodman simply restates his argument that what Durham is doing is improper and thus says that it cannot be viewed as “undermining” Durham’s investigation. Yes, I believe telling DOJ lawyers that they should refuse to assist in indictment or pleas is undermining Durham’s investigation, even if it is to do so for a few months. Such pleas or indictments are critical parts to an investigation or additional criminal cases. Durham, who even Democratic leaders have acknowledged is an apolitical and dedicated prosecutor, believes that this plea is needed to move forward on what could be a broader prosecution. Durham was delay by the pandemic but has moved to complete this long-standing investigation. For Durham, waiting for additional months is an example of an unnecessary example of justice delay being justice denied. He is allowed to move forward with his case and the cited “unwritten norm” of the authors is highly challengeable.  Regardless of the merits, it hardly seems “seriously flawed” to characterize a call for Durham’s subordinates to stand down as undermining his investigation.

Goodman adds that this is not undermining the investigation because it violates their oath.  Again, this just assumes what Weissmann and Goodman has said is demonstrably true. Specifically, they argue that the entering of this plea would violate long-standing policies but they are conclusory in describing the violation. Indeed, the premise of the column is that the investigations themselves are an effort of Attorney General Bill Barr to influence the election.  Here is what they say is the violation:

“Today, Wednesday, marks 90 days before the presidential election, a date in the calendar that is supposed to be of special note to the Justice Department. That’s because of two department guidelines, one a written policy that no action be influenced in any way by politics. Another, unwritten norm urges officials to defer publicly charging or taking any other overt investigative steps or disclosures that could affect a coming election.”

The first objection is that any action under two ongoing investigations would be influenced by politics. Again, the two authors simply assume that the investigations are political in design and purpose. Durham does not.  There are no reports that Durham has been denied total control over his investigation, including when he enters pleas or indictments. The “action” here is a criminal plea that is based on false evidence being given to the federal court. While Weissmann has dismissed the basis for the indictment, most of us do not. It is a serious violation that warranted this action. Again, Weissmann and Goodman cannot just assert that this is political and then denounce others for misrepresenting their columns by objecting that it is not. My posting goes into detail why I believe Clinesmith commit this crime as does a separate column. Notably, this first point would seem to support the overall suggestion of the two authors that the investigations themselves are political, not just the timing of any indictments or pleas.

The reference to “unwritten norm” is equally curious. There is no hard and fast rule on which cases must be held back and which cases can proceed before an election. Weissmann and Goodman seem to think that anything dealing with the Russian investigation must be categorically halted in terms of public filings. Why?  Well, they explain that:

“The genesis of the department’s admirable practice of creating a protective shell surrounding an election recognizes that unelected officials at the Justice Department should not take action that could distort an election and influence the electorate. If someone is charged immediately before an election, for instance, that person has no time to offer a defense to counter the charges. The closer the election, the greater the risk that the department is impermissibly acting based on political considerations, which is always prohibited.”

Many major cases have impacts on the political debate but this “unwritten norm” does not require them to be frozen in amber. The primary purpose of this norm is not to indict a candidate or bring charges against a campaign just before an election. This is an action against a former prosecutor, not a candidate or campaign. The Clinton campaign is four years in the past and it has not been implicated in any conspiracy with Clinesmith. There is no stated connection in this plea to Biden or his campaign.  Moreover, the allegation against Clinesmith was already public and long discussed in the media after the Inspector General flagged the false statement. Barr testified in Congress that he does not view the Durham investigation as covered by any such rule that there is a good-faith basis for that view. Yet, Weissmann and Goodman believe that DOJ attorneys working with Durham should refuse to assist him in bringing this plea or other indictments to the court?

In their column, Weissmann and Goodman insist that the DOJ cannot issue any indictment, charge or report when it might give ”an advantage or disadvantage to any candidate or political party.” This case shows just how sweeping and disruptive that reasoning would be for any case that could be used to the advantage of some candidate or campaign in an election period. They wrote that three months to an election, a plea by a former FBI agent violates this policy despite the details of the allegations being public for a year and widely discussed.  They cite to the fact that the Mueller waited to indict Russian military figures before the mid-term election.

“The special counsel’s office knew it could not indict Russian military intelligence officials for the 2016 hacking operation in the run-up to the 2018 midterm elections. That’s right: The office could not indict the Russians — not only political candidates or aides. Such matters were so politically fraught that such an action by the special counsel might affect the election.”

I am a bit unclear on this point in term of dates, but I may be missing something. The midterm elections were held on November 6, 2018.  On July 18, 2018, Mueller released charges against Russians. That was just over 118 days before the election. It is certainly beyond 90 days, but the indictments were released before the election. (By the way, it included the confirmation that Mueller could not find any evidence of a single Trump campaign official knowingly dealing or colluding with Russians in the operation.  That was viewed as exonerating not incriminating evidence for the Administration.) More importantly, one could argue that the Russian indictment was not bound by this informal rule but it dealt with the elections.  It was raising questions about a wide variety of groups and social media vehicles for influencing the election. That seems demonstrably different from the Clinesmith matter, which deals with the conduct of Justice Department officials.

Second, Goodman says that I misrepresented their column by saying that Clinesmith was charged for falsely stating Carter Page was not a CIA source to court, when Page was a source.

At the outset, it is worth noting that this point has nothing to do with the column that Goodman says was thoroughly misrepresented.  He juxtaposes the indictment, not his column, to claim some error. Yet, he simply repeats the position of Weissmann that the Clinesmith charge is somehow flawed because the charge “never mentions Page’s status or whether lawyer knew it.” I am still at a loss about this point.  Clinesmith pleaded guilty because he knowingly filed a false document that not only failed to tell the court that Page was an American intelligence asset or source but also claimed that he might be a Russian asset or source.  Weissmann and Goodman can claim that this is some major inherent flaw but it is not a view shared by many.

Third, again unrelated to the column, Goodman objects that “Turley tries to amplify Clinesmith’s charge, compare how he described Flynn’s charge for lying to FBI (and admitting being unregistered foreign agent): “pretty anemic” (Fox News 12/13/18) “rather anemic crime that borders on the pathetic” (Fox News 12/18/18)

This is finally something that we can agree upon. I did compare the indictments and I did view Flynn’s indictment to be anemic.  I will let you judge the comparison in the posting and column.

Fourth, again unrelated to the column, Goodman objects that “Turley goes down a familiar rabbit hole of disinformation. He writes, at length, that Flynn false statement was not material in reference to CRIMINAL investigation, but never mentions key in Flynn false statement case was ongoing COUNTERINTELLIGENCE investigation.”

Again, this ignores the finding of the Justice Department itself that there was no investigation involving Flynn by the time of the interviews by the agents. I and others have addressed this point in prior writings. Goodman again just repeated the conclusory point as fact. In December 2016, investigators had found no evidence of any crime by Flynn. They wanted to shut down the investigation; they were overruled by superiors, including FBI special agent Peter Strzok, Deputy Director Andrew McCabe and Director James Comey. Comey himself reportedly told Obama before the interviews that the conversations with the Russians appeared entirely “legit.” The “rabbit hole” Goodman describes is actually the finding of the Justice Department:

“(T)he Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “ absence of any derogatory information.” … The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue.”

Indeed, former Acting Attorney General Sally Yates agreed that Comey “went rogue” in sending the agents to Flynn’s office — the same agents who later said that they did not believe Flynn intentionally lied.

Fifth, Goodman (again without context) repeatedly notes that the following people objected that I misrepresented their positions.

These are indeed some of the experts who have expounded theories that I viewed as facially unsound.  There is an insatiable appetite for theories of crimes committed by Trump or his family or campaign. The fact that such theories never panned out or were made the basis for impeachments or indictments is immaterial. They are popular and rarely supported.  It then falls to others to shoulder the unpopular task of noting that these theories are unsupported by case law or radical extensions of the criminal code.

When confronted on the lack of legal support for the theories, the claim (as with Goodman) is that there must be some misrepresentation. Take Professor Rangappa. I criticized her for a call to impeach Barr and earlier claims that Comey’s notes (which he took from the FBI) are really no more than a collection of “personal recollections.”  The suggested use of impeachment against Barr is absurd and sensational. It would convert policy disagreements into high crimes and misdemeanors.  Rangappa’s dismissal of the importance of removing these notes was contradicted by the FBI itself which ultimately found what I stated in these columns: these are official FBI documents and contained potential classified information. Likewise, Eliason has objected to columns criticizing his various theories of indictable acts by Trump. including a bribery theory. I testified against such a unsupportable theory in the impeachment hearing and it was not adopted by the Democrats in their ultimate articles of impeachment.  Notably, the popularity of such theories in the press is in direct contrast to their rejection in the courts. Without repeating all of these points, the reader can judge such disagreements on the merits by searching these names on the blog, which links to the underlying debates.

Finally, Goodman’s objections to my criticism was primarily focused on disagreements on the merits of the Clinesmith case, but conspicuously omitted one of the main points of the blog: that Weissmann has a conflict of interest in seeking to undermine the Durham investigation.

Once again, both Weissmann and Goodman have dismissed these investigations as political and there is a fair chance that a Biden Administration could well scuttle what is left of the investigation. However, whatever the future of these investigation, Weissmann has a professional interest in its findings. As I stated in my blog, Weissmann relied on some of the same material and sources for his investigation. While there is no evidence of any criminal or ethical violation by Weissmann, the findings of Durham could prove embarrassing to him. The Russian collusion claims appear to have been quickly and strongly contested by American intelligence, including the veracity and reliability of Christopher Steele. The findings of Durham could raise questions about the decisions made by the Mueller team and the failure to disclose information (as were raised in the Flynn case).  His labeling of these investigations as political and unethical is troubling given the overlap with his own record in the review.

In the end, I was more concerned about the suggestion that I misrepresented the column by Weissmann and Goodman. I have include a longer quote from the column and linked to this more depth discussion. However, I stand by the criticism of Weissman and the call for DOJ attorneys to refuse to assist John Durham in such indictments or pleas.

 

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