Monday, May 22, 2017

Taking the Fifth: I'd Like to Testify about Flynn

Insofar as it is fun to point out the utter hypocrisy of General Flynn, presumed traitor and foreign agent,  former cheerleader who loudly proclaimed at the Republican convention that being under FBI investigation makes one unfit for office, claiming protection of the fifth amendment and refusing to comply with a Congressional subpoena for personal papers related to said (ahem, cough cough, alleged) treason, this is exactly the sort of situation the Fifth amendment's guarantee against self-incrimination was intended for. And it in and of itself shouldn't be construed as a signal of guilt. 

Let me revisit a couple of the many times in which the clarion chorus of "guilt by suspicion" just for old time's sake. OK, and for comparison.

Lois Lerner was a senior civil servant -- not a political appointee -- who was in charge of the division that supposedly targeted conservative non-profit organizations for investigation of their tax-exempt status. I'll cut to the chase on the substance of the allegations, which was horse hockey; the IRS were actually doing their jobs in trying to find the extent of political activity by groups that were hiding behind tax-exempt status as "welfare organizations" (forbidden by the tax code) and were investigating both left-leaning and right-leaning groups in roughly equal numbers. (It would have been malpractice not to investigate groups with anti-Tax names whose primary activity was political as to whether they were illegally using tax exemptions for political activity. Their mantra was they didn't want to pay taxes, and they didn't.)

That said, under the tender ministrations of the reprehensible Congressman Darrrell Issa and his Orwellian House Oversight and Government Reform Committee, Lerner was called to testify on the substance of the matter. That's a reasonable request for a normal investigation, but one fraught with peril when the motivation of the investigation is purely to create a fake scandal for the benefit of the electoral fortunes of one party, as was the case here.

Civil Service protections are limited but intend to protect employees in career service from influence to violate their oaths from the political branches of government. So, basically, the same principle that protects such employees from being harassed by, say, the President to use their authority to persecute individuals or groups unjustly, equally extends to them when members of Congress attempt to exhort them to suborn themselves to create a fiction about events.

It's not difficult to understand why this in turn extends to the proper use of the Fifth Amendment as an additional protection -- one might even say the root protection -- in the situation Lerner was in. No matter what she was going to testify, the majority members of the committee were looking for a scalp, and they would try to twist her testimony and entrap her into technical perjury to create wrongdoing where there might not have been one.

To say that in taking the Fifth, Lerner was evading scrutiny, is not correct. The GAO and the Inspector General of the IRS both investigated the matter thoroughly, Congressional Committees combed through reams of documentary evidence, communications were reviewed, and dozens of people interviewed, all leading to no evidence of wrongdoing or even anything close to the substance of the allegations made. The FBI/DoJ investigation determined there was no crime. (It's worth repeating again that the allegations were brought to the Republican Congressmen by Republican-supporting political groups that were using taxpayer money, through their tax-exempt status, to try to change tax policy, and not incidentally aid these same Republican Congressmen in their election efforts.)

Lerner was an honest actor in all this. Being guilty of mismanagement (a conclusion the FBI and Department of Justice came to and voiced publicly, for however they seem to be experts in the matter) is not the same thing as being corrupt. Nevertheless, Issa and the majority proceeded to hold Lerner in Contempt of Congress, a finding that does not have strict parameters the way a finding of contempt of court in a civil or criminal proceeding does, and which was, surprise, very much politicized under the "if she has nothing to hide, why's she taking the fifth?" theory. (Explicitly articulated at the time by many, including current White House Press Secretary Sean Spicer.)

Well, duh. She took the fifth to avoid being persecuted, and the holding of contempt pretty much proves what was in store for her. But had she testified to the Committee, she would have subjected herself to legal jeopardy through possible perjury. Issa himself seemed to not understand the fifth amendment in both intimating Lerner had committed crimes and insisting she not use her Constitutional right.

In a criminal case, as you probably know, there's no way to compel a defendant to testify. This is to avoid a similar problem under cross-examination, where a prosecutor can take statements that may or may not be germane and do a good job of conflating them so a jury might be persuaded it constitutes evidence. A defendant once on the stand can't refuse to answer questions without that in and of itself seeming to show guilt.

Let me briefly also mention Bryan Pagliano. Don't know who he is? He's the sysadmin who installed and ran Hillary Clinton's private residential email server (and successfully defended it against hackers). If you google Mr. Pagliano, he's mentioned almost exclusively in such stalwarts of fake news as the World Net Daily, Free Beacon, and Fox News, because his refusal to comply with subpoenas to Rep. Jason Chaffetz' House Oversight Committee "investigation" into Clinton's email server -- itself a spinoff series from the 11 different Benghazi investigations -- was also touted as evidence of his guilt in a crime. (If you think this has stopped, think again: Chaffetz as recently as February 2017 asked Attorney General Jeff Sessions to criminally charge Pagliano for invoking his fifth amendment rights.)

Pagliano, it's worth noting, cooperated with the FBI in its investigation, in exchange for immunity. The FBI didn't comment on his involvement in James Comey's infamous "she's innocent but she's really guilty of something" announcement in July of 2016, but he clearly made official statements to investigators that may or may not have been made available, whole or in part, to Chaffetz' committee. Since Chaffetz was also in the middle of the infamous October, 2016 leak of the supposed new cache of email from Clinton related to the Anthony Weiner case, which supposedly forced Comey's hand at making the second announcement that hurt Clinton at the polls, it's not unreasonable to assume he and members of the committee had access to FBI material on Pagliano's involvement in the original server and mobile computing access investigation. In fact, it's absurd to think otherwise.

So in turn, Pagliano being called to testify twice -- in September, 2016! What timing! -- before Chaffetz was clearly intended to be a political stunt, but also clearly would have put Pagliano in criminal jeopardy of perjury even with no previous infraction of law on his record.

I will add parenthetically that while we can't know precisely what Pagliano told FBI and DoJ investigators, if he did commit infractions of law while in the private employ of Clinton before or after she became Secretary of State, they would have had to have been technical ones. There's no law against setting up an email server for someone. If there were federal rules about email forwarding, it's not incumbent upon a sysadmin to know the access or storage rules for the recipient of an email. I digress a little, but the idea that a guy like Pagliano -- not a political player, not a wealthy guy -- is guilty of something because he takes an immunity deal is not convincing, given that immunity would be a way of ensuring he wouldn't come into legal jeopardy and have to endure the humiliation and even greater legal expense of defending himself. I just get the sense of Pagliano is that he's a fellow geek hired to do a job and has gotten the short end of the stick from history here, and would prefer to fade to obscurity.

All that noted, there's nothing substantive he could have added to the Congressional inquiry, already itself quite dicey, and Chaffetz, with access to the confidential FBI investigation, was in a perfect position to ask questions in such as way as to create the impression of wrongdoing on Pagliano's part and in turn possibly actionable perjury. And despite this, Chaffetz (as of February 2017 at least) is still trying to pursue a criminal case against him. I'll repeat this: he was granted immunity by the FBI, but not by Congress; he cooperated fully with the authorities; the FBI concluded there were no crimes committed; but Chaffetz is still trying to criminally persecute the guy.

So that brings us back to General Flynn. I'm no legal authority but the prima facie case that he committed crimes seems to be relatively evident. He is the subject of an ongoing FBI investigation of which he the primary target for criminal wrongdoing, and his attorney has been informed of this. We know this because his attorney said this publicly.

So his refusal to comply with subpoenas from Congress to supply materials, which would then be part of the public record, is fairly consistent with the intent of the fifth amendment. Flynn, unlike Lerner, was a political appointee. He is also subject to stricter standards under the Uniform Code of Military Justice, as a reserve and general officer of the United States. He has both an astounding amount of legal jeopardy and multiple sources of that jeopardy. It's possible (not saying it is so, but that it might be so) he's innocent on either technical or substantive grounds. But he has to have his fair hearing in court, as part of the system, and the right against self-incrimination is just as important for the apparently guilty as for the exonerated.

And even with a friendly Congress, there may be an interest in throwing him under the bus to save Trumpolini's bacon, or possibly the Vice President, or all of the above. The suspect perambulations of Devin Nunes in relaying private Congressional investigatory material directly to Trumpolini is Exhibit A that at least some Congressmen of the majority party are more than willing to short circuit due process in the interests of political expediency, or whatever odd motiviation Nunes had.

Some people-- notably former drug czar General Barry McCaffrey, a one-time intimate of General Flynn in an intelligence capacity  -- have for months now suggested Flynn has some mental health issues. (And as recently as last week on MSNBC.) I hope it is self-evident that if this is the case, it's a material factor in a question of criminal culpability with respect to the crimes of which he is accused.

Whether this is the honorable thing for Flynn to plead the fifth is another matter. There is the concept of the interest of the country before personal fortune (sort of the crux of the substance of the allegations) and in some cases that means willingness to go to prison for the truth to be told. I'll say that as loudly about Edward Snowden (also apparently guilty of the crimes of which the government accuses him) as I would about Mike Flynn. Doing the time sometimes exonerates you in the court of history; coming clean (a la John Dean) can make you a prophet with honor. So I hope General Flynn relents, even as I admire the wisdom of his counsel in urging him to take the protection of the fifth amendment.

So while I will not be joining in the catcalls of "if he has nothing to hide, why is he taking the fifth?" (tempting though it may be), I do not excuse General Flynn of the higher duty to his country. But I do not have the intimidating powers of government at my finger tips. That's why we have a bill of rights in the first place, and we can't pick and choose who gets its protection. Rights are inalienable, as someone once said.

Wednesday, May 10, 2017

Your Pocket Guide to Republican Constitutional Crimes

Of course Trump could get away with it. Four of the past five previous Republican administrations have engaged in fairly dire Constitutional crimes (not even discussing the 2000 Presidential election) with diminishing consequences, aided in part by Republican Congressional delegations with succeedingly smaller interests in Constitutional governance and greater ones in power at any cost.

I'll leave the current debacle off the pocket guide, but run your own checklist for: venal personal gain, motivation to get elected at any cost, political payback/vengeance, and the all-time winner, cover-ups and obstruction of justice in the interests of all of the above.



Constitutional Crime:

Broadly, abuse of power in furtherance of electoral manipulation.

Extensive use of government  and political party machinery and outright crime (including burglary and money laundering) to gain re-election, and then a criminal conspiracy to obstruct justice. 

(It later turned out Nixon also deliberately scuttled the 1968 Vietnamese peace accord in order to affect the 1968 election, but that wasn’t proven until just a few years ago.)

How it was uncovered/investigated:

Dogged reporting, followed by (ultimately bipartisan) Congressional investigation, followed by two Special Prosecutors.

Special Prosecutor(s):

Archibald Cox, Leon Jaworski

Role of Congress:

The Democratic majority was aided by many Republicans of good faith in pursuing the investigation, after initially partisan reactions to the initial revelations, and it was the televised Congressional hearings that ended up uncovering much of the most damning evidence and propelled the establishment of the Special Counsel and subsequent criminal indictments.

What Happened to the Perps:

Lots of people went to jail. Nixon was forced to resign nearly three years after the major crimes which he committed or helped to cover up, but was pardoned (possibly unconstitutionally) before being criminally charged by President Ford.



Constitutional Crime:

Violating explicit Congressional laws, the US government, at the direction of the executive branch, including senior members of the National Security establishment (both NSA and CIA), sold military arms to our adversary Iran as ransom in exchange for the release of hostages taken in the wake of the US military intervention in Lebanon, and then used the financial proceeds to arm and train a rebel (terrorist, in some eyes) group in Nicaragua. Members of the administration then proceeded to obstruct justice and the investigation by perjury and  spoliation of evidence (notably Oliver North shredding documents and smuggling them out in in Secretary’s underwear). Money from these sales was also diverted to persons for personal expenses.

How it was uncovered/investigated:

Foreign “partners” in these crimes, in both Iran and Nicaragua, revealed details of the arrangements in late 1986 (perhaps in part to embarrass the United States) at which point Reagan admitted in a televised broadcast the gist of the arrangement. An independent commission without subpoena power or the ability to compel testimony under oath was appointed by Reagan to do initial two-month investigation (The Tower Commission), generally seen as an attempt to whitewash the affair, after which special committees of the House of Representatives and Senate were formed specifically to investigate the affair.  After public and Congressional pressure, ultimately Lawrence Walsh was appointed Special Prosecutor in late 1986, where most criminal details of the affair were exposed.

Special Prosecutor:

Lawrence Walsh

Role of Congress:

Congressional investigation uncovered many details of the arrangement, but was marred on several counts. The first was granting limited immunity in testimony to key participants, notably Oliver North, which ultimately allowed the conspirators to escape criminal prosecution (in North’s case, on appeal). The second was in having a significant split between the majority (then Democrat) report and the minority report, which differed on levels of culpability and the degree to which the senior political members of the administration were involved.

What happened to the perps:

13 members of the conspiracy were indicted from crimes ranging from perjury to defrauding the government to destruction of evidence. Two were given immunity for testimony for the prosecution, 1 was convicted of crimes and had his conviction overturned due to Congressional immunity (North), 1 was convicted of crimes and had the conviction thrown out on a technicality (Admiral John Poindexter) and the remaining nine defendants were all given probation ranging from six months to two years. President George Bush then later pardoned: Secretary of Defense Caspar Weinberger, National Security Advisor Robert McFarlane, Assistant Secretary of State Eliot Abrams (who almost got a similar role in the Trump administration) and two CIA deputies who were in charge of the covert operations, erasing their criminal records and ending their probations.

President Reagan, forced to testify in criminal trials after his term was over, essentially pleaded he couldn’t remember anything, so his role may never be known in full.


George W. Bush

Constitutional Crime:

Conspiracy to manufacture evidence to convince Congress to  pass an authorization of a war; subsequent cover-up and political dirty tricks, including uncovering the identity of US covert agents as retaliation, intended to mask the manipulation and manufacturing of evidence. Evidence extended to strongly implicate the Vice President, Dick Cheney, although evidence of the President’s involvement and knowledge of these conspiracies has never been made clear.

How it was uncovered/investigated:

Following the illegal exposure of the identity of its covert agent, Valerie Plame, by the planned leak to discredit Plame’s husband as a source — intended to cover-up the manufacture of evidence concerning Iraq’s alleged desire to obtain uranium from Niger —  the CIA requested the FBI and Department of Justice investigate the particular offense. John Ashcroft, then attorney general, had a conflict of interest in that he had received nearly a million dollars of consulting fees from several members of the administration (including Karl Rove) who had peripheral or direct involvement in the conspiracy, and recused himself in late 2003. A special prosecutor, Patrick Fitzgerald, was appointed (by none other than  Acting Attorney General James Comey), who conducted a remarkably discreet investigation with virtually no leaks about suspects and crimes for which insufficient evidence could be produced.

Most other aspects of the false Weapons of Mass Destruction propaganda campaign were uncovered by the press, but in some cases (Judith Miller, Robert Novak) the press were willing participants or unwitting dupes in the initial misinformation campaign. Subsequent Congressional investigations concluded there were no weapons of mass destruction, but little came of them in terms of practical consequences, and Libby was the only criminal defendant ever charged and convicted in the affair. Most of what is known about the broader WMD conspiracy came about through independent reporting by multiple parties, although the Special Prosecutor shared explicit details of the Plame affair with the public in bringing the sole indictment.

Special Prosecutor:

Patrick Fitzgerald (limited to Plame Affair)

Role of Congress:

Several Congressional Committees, including the House Select Committee on Intelligence and Armed Service committee, conducted both closed door and open hearings and investigations surrounding the WMD events, and released summary reports that there were no WMDs without assigning culpability for the misdirection. Republican members of congress frequently repeated administration talking points conflating 9/11, Sadaam Hussein, and WMDs even after the issuances of fairly definitive evidence as to the lack of such weapons or weapon programs. Congressional action was ultimately blunted by a deeply partisan divide on the war itself.

What Happened to the Perps:

Vice Presidential Chief of Staff Scooter Libby was sentenced to 30 months in prison and fined, but George W. Bush issued a commutation of his sentence, but never issued a pardon. Libby’s law license was revoked, and later restored in 2016. Other notables involved, including Karl Rove, Richard Armitage, Donald Rumsfeld, and Cheney, never were charged. Cheney was an advocate until the end of the Bush administration for a pardon for Libby. There was no criminal investigation of the manufacture of evidence of WMDs itself, nor has the classified version of the major Congressional investigations ever been released. Use of government money to pay sources who faked evidence (“Curveball”, et alia) has never been accounted for formally.