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Archive for May, 2019

MUELLER PASSES THE BATON
And Exits Stage Left

Written by: DENNIS BRUCE PHIFER, ESQ. MEMBER OF DE & DC BARS
Date: May 30, 2019

Today Robert Mueller accomplished by innuendo what he was unable to do by evidence. He insinuated that “but for” the Constitution and a Department of Justice (“DOJ”) policy that prevents a sitting president from being indicted, he would have done so. He suggested, without saying so directly, that there may well have been evidence sufficient to justify a charge of obstruction of justice. In doing so, he knew that his words would be used to fuel the fervor for an impeachment inquiry.

I wonder how a charge of obstruction of justice may properly lie against the President for seeking advice from trusted advisers. Are we trying to isolate the President? To deprive him of counsel and information? To keep him from having an honest conversation? From trying to understand the rules of engagement? From trying to right a wrong? Is our goal to render him impotent? To silence him? To make him fearful and tentative? Are we now prosecuting thought crimes? Is that the Orwellian world in which we want to live? Expansive theories of obstruction of justice are the natural enemy of civil liberties. How is it right to allow a person to be attacked ruthlessly and relentlessly, but wrong to allow him to defend his name and honor?

After allowing the “ground” to overpower the “figure” in his report, Mueller announced that he would say no more on the subject. He stated that he had closed his office as of the time of his press statement. In doing so, he did maximum damage to the President while putting himself largely beyond the reach of a Congressional subpoena and inconvenient questions. He wouldn’t have to face cross examination. He wouldn’t have to address why his office took a blind eye to Hillary’s close connection to Ukrainian and Russian agents and others at home and abroad who conspired to produce disinformation to throw the election to Hillary and, following her loss, to fuel a coup to expel President Trump from office.

If he says no more, Mueller substantially avoids the risk of impeaching his own credibility. Without an inconvenient turn of events, it is unlikely that Nadler will call him before his committee. Nor will Burr.

Mueller gave Nadler what he needs. He gave him the rationale, the “messaging”, however tortured – for a path forward to harass and demean the President, to attack his stature and credibility, to impede his agenda, to echo “impeach speak” without recrimination or restraint, and to hobble his re-election bid.

This nuanced, misleading but well-prepared statement was released in a “hurriedly” called press conference – one in which no questions were taken from the press – the day following Comey’s publication of his “we had good reason to do what we did” editorial in the Washington Post. Michael Wolff, the oft maligned author, huckstered his most recent book on the same day by claiming that Mueller had prepared a three-count indictment of Trump before setting it aside.
The likelihood of the concert of action of Mueller and Comey – and, possibly, Wolff, is hard to ignore. The synergy and sequencing of events is unmistakable.

Mueller is alleged to be friends with both Attorney General Barr and Former FBI Director Comey. Comey wanted a Special Counsel appointed. Comey got what he wanted. He got Mueller. Barr got thrown under the bus. Barr’s relationship with Mueller appears to be collateral damage to the larger mission. Mueller’s brief attribution of “good faith” to Barr regarding his summary of the Mueller Report was an ineffective, insincere and incomplete salve to the wounds caused to Barr’s reputation and his larger mission by Muller’s innuendo and flawed logic. Having failed to snare the President in a perjury trap, he invited the Congress to give the obstruction investigation yet another try. He impaired the first two years of the President’s first term. He is now asking Congress to go it alone and impair the next two.

Out of all the legal talent in the country, no one has ever explained why Mueller was selected to serve as Special Counsel, especially since he was just turned down for the job of FBI Director by President Trump on the previous day. How could his potential conflict be ignored? How could Mueller in good faith accept the appointment under those circumstances? Nor has anyone explained why the mandate to the Special Counsel to investigate Russia’s involvement in the 2016 election was interpreted to exclude the manifest and manifold collusion of foreign agents – including among them, Russians and Ukrainians and Brits and others – that aided and abetted both Hillary’s campaign and Trump’s wrongful and relentless persecution.

With a different choice of words, with a different emphasis, with a different focus, Mueller could have taken the steam out of the Democrats’ raging torrent of subpoenas and its echoic impeachment inquiry, but he chose to take a diametrically different tack. He all but insisted that the impeachment inquiry continue. He revealed his political purpose. I was anticipating Nadler and Schiff’s response as Mueller was speaking. He used their language and their arguments.

Why would he do this? Is it because there is some “there there”? That is unlikely. After two-years, a “there there” would have been front-and-center. Mueller would have been the poster child of the globalist elite. He would have been a “made man”. It would have been a “shot over the bow” at Farage, Salvini, Orban and others who favor self-determination and national pride over obedience to the global ruling class. The message to them would have been clear – “You are next!”

In his statement, Mueller was as honest as he could be while still poisoning the water. As a practical matter, Mueller knows that frank lies can come back to haunt you. Parsing and being cleverly “misleading” is much more defensible and harder to prove.

Mueller knew his words would be used to impeach William Barr who represented before Congress that Mueller confirmed on “three occasions” that the DOJ rule of “no indictment of a sitting President” played no part in his decision not to indict. He knew that this would support the calls for impeachment of Barr himself for lying to Congress and being “the President’s lawyer and not the nation’s.” He knew that this would trench on Barr’s credibility as Barr undertook an investigation of the investigators. He knew this would support claims that any subsequent prosecution of the “investigators” was going to be “politically motivated” and unwarranted. How hard is it to figure this out? Yesterday, Michael Avenatti, the super lawyer for the unsuspecting, claimed that his present prosecution by the DOJ was a politically motivated payback for his opposition to the President.

Mueller’s statement gave further cover to Comey, Clapper, Brennan and others. It is unlikely that this was unintentional. Each continues to try to justify the unjustifiable. Their friends in the media are all too ready to give their accusations and protestations 24-hour loops in rebroadcasts hoping the echo chamber mutes the opposing inconvenient truths. It’s as if the world of politics is populated by people for whom there are no objective truths. It seems that far too many people believe that if a lie is not falsifiable, it is true – at least true enough, — at least until they can come up with a better lie. As a nation, we all would do well to remember that he also lies who disfigures truth.

Physiognomy matters. Demeanor matters. Mueller’s voice seemed unsteady for half his speech. The question is why. He is a person of power and prestige. Why did his voice and his face betray him? Was he saying something that he believed to be regrettably true but epochal, and that it would likely be used to try to take down the President? Was he merely responding to the significance and gravity of the situation? Or was he saying something that he did not sufficiently believe to be true and knew that it too would be used in the service of epic mischief and mendacity? Was I seeing regret and resignation or a telling dissonance arising from a consciousness of guilt?

I believe it was the latter. Though powerful, he struck me as being afraid of others more powerful than he. After all, as considerable as it is, his power is derivative. His opportunity to serve as Special Counsel was itself derivative. Looking at his face and hearing his voice, I could not help but remember Senator Schumer’s admonition to President Trump, that if: “… you take on the intelligence community, they have six-ways from Sunday to get back at you.”

I fear that admonition. I fear for the country. The threat of “six-ways from Sunday” is a menacing brick on the road to Orwell’s 1984.

In investigating the investigators, Barr would do well to remember that Mueller is himself an investigator.

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