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Mueller Report: RES ISPA IOQUITUR

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Posted on July 23 2019

 

Do NOT waste our Time with Speeches

 

In my line of work res ipsa loquitur“ is a latin phrase that I’ve heard more often than “what’s for lunch”...but it’s a very nuanced doctrine - res ipsa loquitur translates to “the thing speaks for itself” - oddly those not in my line of work often (incorrectly equate) res ipsa loquitur with “prima facie“..

 

RES IPSA LOQUITOR - Under the doctrine this typically means some type of negligence and there are several factors that are applied - generally speaking this relates to negligence is presumed because a person had complete control over the “object” or “situation” - it also requires establishing the following:

 

The actions are so obvious that the duty of care and breach may be inferred by the clear nature of the actions and the obvious conclusions:

1. The act ordinarily would not occur without someone’s negligence.

2. In this instance the accident probably did not occur without someone’s negligence.

3. The accident was caused by an instrumentality that was under the exclusive control of the defendant.

4. The accident was not caused in any way by the plaintiff

 

PRIMA FACIE 

At first sight; on the first appearance; on the face of it; so far as can be judged from the first disclosure ; presumably. A litigating party is said to have a prima facie case when the evidence in his favor is sufficiently strong for his opponent to be called on to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side. In some cases the only question to be considered is whether there is a prima facie case or no. Thus a grand jury are bound to find a true bill of indictment, if the evidence before them creates a prima facie case against the accused; and for this purpose, therefore, it is not necessary for them to hear the evidence for the defense.

 

But one could easily construct a  res ipsa loquitur argument that Special Counsel Mueller’s Report “speaks for itself” - because the Report is exhaustive and it does speak for itself but having Mueller bring his Report to life could prove invaluable.

 

Searchable Volume I - found here.

Searchable Volume II - found here.

 

Mueller (redacted) Report 1st Read pages 1-150

Don McGahn - the litigation quagmire and the Mueller Report

Mike Flynn and the Mueller Report

Annie Donaldson and Hope Hicks Mueller Report

Acting Attorney General Matt Whitaker - pardon me?

May 1, 2019 Roy Cohn 2.0 - Barr Senate Testimony 

 

 

Direct Question I would ask Special Counsel Mueller

 

If we are in agreement that asking probative questions - will likely result in Mueller offering zilch then you need to understand what “direct questions” are - in my line of work they are known as Yes or No questions. Lawmakers need to be surgically precise in their questions. For example here’s what I would ask in a rapid fire (speed round):

Can a sitting potus be indicted? Was indicting a sitting president an option?

Did Russia interfere in the 2016 presidential election? If so how.

Did Russia interfere in the 2017 & 2018 Election? If so how.

To your knowledge has the Administration shored up our electoral system?

Did you interview Trump Sr or Trump Jr? Why did you not subpoena the President?

Did you subpoena any one from the Trump Organization? The Trump Family?

Did the Trump campaign have contacts with any emissaries of the Russian Government? If so how many

Did any witness refuse to cooperate?

In your Report it repeatedly states the “inability to obtain evidence - please clarify if that “evidence” was withheld or simply unavailable?

Did Russia and/or WikiLeaks sway the 2016 election?

Of the Obstructive episodes would a private citizen be criminally charged?

Did any witness invoke their 5th Amend right?

Does the report show no collusion?

Does your report show no obstruction?

Broadly speaking in Volume I would you say the timeframe of events, as in the  Trump Campaign and nearly 17 individuals with more than 39 interactions with Russians - does Executive Privilege apply before January 20, 2017? If so please point to the statute, OLC and/or case law to support how Executive Privilege would apply prior to president Trump being sworn in.

  

Special Counsel Mueller, I’d like to draw your attention to pages 7 and 10 of Volume  I - could  you please read the first paragraph on each page?

Who is Paul Manafort? And what role did Manafort play in the Trump campaign?

Who is Konstantin Kilimnik? Is Mr. Kilmnik a Russian Intelligence Officer? Is Kilmnik a United States Citizen? 

Your report, specifically on pages 7 & 10 states Mr Manafort provided internal campaign polling data to a Russian National, is that accurate?

Your Report specifically on page 10  first paragraph states that Mr Manafort lied about providing the trump campaign internal polling data to a Russian, is that correct?

 

 

 

Special Counsel Mueller, could you please read, from Volume II page 1 paragraph number 4 which starts:

First, a traditional prosecution or declination decision entails a binary determination to initiate or decline a prosecution....

Second, while the OLC opinion concludes that a sitting President may not be prosecuted, it recognizes that a criminal investigation during the President's term is permissible.

 

Now Special Counsel Mueller, could you please read (also in Volume II) page 2 -paragraph 4 - which starts:

Fourth, if we had confidence after a thorough investigation of the facts that the President clearly did not commit obstruction of justice, we would so state. Based on the facts and the applicable legal standards, however, we are unable to reach that judgment. The evidence we obtained about the President' s actions and intent presents difficult issues that prevent us from conclusively determining that no criminal conduct occurred. Accordingly, while this report does not conclude that the President committed a crime, it also does not exonerate him.

 

Again I understand the thoroughness of your Report and the rationale and some of the evidence - on May 30, 2019 Attorney General Barr appeared on CBS this Morning. In his televised interview AG Bart stated and I quote: 

 

 “personally felt” Special Counsel Robert Mueller “could've reached a decision” on obstruction of justice by President Trump.

 

My question is - were you allowed to reach a prosecutorial decision based on the Obstructive Episodes?

Please explain what are the elements of obstruction of justice and would warrant a criminal prosecution?

 

 

And lastly Director Mueller on page 176, also in Volume II - could you please read footnote number 1279 - did your team examine the possibility of charging individuals for “trafficking in the stolen DNC data”?

 

 

 

But apparently I’m just shoving bonbons in my calorie hole - but according to some I have a new job at Judicial Watch. So I wouldn’t know what I’m opining about. Nor would I have the intellectual knowledge in establishing a predicate to ask surgically exact “direct questions” in a yes or no answers format. The fact is Congress has to make the most of Mr Mueller’s first and last Congressional Appearance. Although you might find my previous write ups informative and a quick guide of what’s in the Report.

 

March 23, 2019, Part I

 

Admittedly I was one of the skeptics that unequivocally doubted the various news reports, largely from anonymous sources, that Special Counsel Mueller had concluded his investigation and had submitted his findings to the newly confirmed Attorney General. Clearly I was wrong but I figured I’d own up to that because I believe in being transparent and “owning” mistakes.

Without trying to defend why I was wrong, I’ll simply say that it struck me as implausible because Trump was wheels up heading to Mar A Largo. Yet I should have paid closer attention. Given Trump’s main White House Counsel attorneys Flood & Cipollone and his two most senior from the Comms shop all flew down on AirFarceOne (typo absolutely intended). Nonetheless after Attorney General Barr releases his March 23, 2019 to the four members of Congress, I decided to write up a decent dissection of AG Barr’s letter and what to expect. See entry here.

There were several areas of concern. I am/was suprised that others in the legal community either didn’t catch or they just chose to merely ignore the facts. My point? Given AG Barr’s additional (two) follow up letters to Congress in so many days, it feels like a highly orchestrated clean up on aisle 5.

Reading AB Barr’s letter in concert with 28 CFR §600 et seq.

Potential arguments Trump’s AG would present as to redact/withhold 28 CFR §600.8 (2)(b) Notificationof significant events, I specifically highlighted the August 2, 2017 second DAG Memo to Special Counsel Mueller

And how the FCRP regarding Grand Jury Materials may not be made available to Congress and/or the American People.

 

 

March 24, 2017 Barr Part II

 

In the follow up, Special Counsel Mueller and Attorney General Barr (AGBarr) Part II entry I discussed a multitude of topics. Once again drawing your attention to parts of AG Barr’s four page “principal conclusions”. For example how AB Barr’s “principal conclusions” that only included eighty fours words from Mueller’s report. And how you should view AG Barr’s four page “summary” and what areas of concern you should look for. I should probably note as contrary as this might sound:

 

I would never support the notion of “unauthorized leaks” of Special Counsel Mueller’s Report. Insofar as to “leaks” this is one 

 

Insofar as leaking the highly anticipated Special Counsel Report, that would be catastrophic in terms of the Report’s integrity. Moreover it would give rise and affirm Trump’s “deep state” and the “system is rigged” conspiracy theories by the Conspiracy Theorists in Chief. I am unwilling to give Trump that “prize”, given Trump and his surrogates engaged in a two+ year smear campaign attacking our Institutions (DOJ, FBI, IC and Courts). You should ask yourself, has acted in ways a guilty man with many skeletons to hide. No really take a step back and ask yourself:

 

If Trump is so Innocent then why does he act so Guilty???

 

With respect to the main “principal conclusion” again AG Barr’s summary, I wouldn’t be intellectually honest if I said: “I trust AG Barr’s summary”...it’s not that I have any factual reason not to trust AG Barr. I am a person who wants to review the report, as well as the underlying documents and then make my own assessment. By nature I tend to be a skeptical person. Given AG Barr’s June 2018 unsolicited memorandum to the DOJ and his less than stellar answers during his Senate Conformation hearing.

I’m of the mind, we should “trust but always verify” again this should not be construed as an unwillingness to accept Special Counsel Mueller’s findings. I just want to read the report and make my own “informed” determination. It is plausible that in the end I might agree with AG Barr’s assessment. But we, the American tax payers paid for this report, therefore we should have access to it provided it does not compromise our National Security. Notwithstanding if we take AG Barr’s findings that, “special Counsel Mueller could not establish any links that Trump or his campaign conspired with Russia” during that 2016 election, I suppose that’s a good thing. Yet it is really difficult to reconcile with Trump’s strange affinity and coziness he has with Putin, while constantly slamming our IC & FBI. It just doesn’t comport with Trump’s behavior.

 

 

March 24, 2019 Part III

 

By now you should know that I have a tendency of going back and re-reading documents (irrespective if it’s a report or a legal filing). This is in fact a work hazard of mine. And why I tend to be effective when tasked with formulating a legal argument or finding a way to annihilate a legal argument. In Part III, found here I choose to tune out the screaming pundits, both anti/pro Trump and drill down harder and deeper into AG Barr’s “principal conclusions”. I specifically pointed out that AG Barr said “my review is ongoing”, I don’t know why others missed this or the other factually based observations. 

 

AG Barr & SC Mueller Part IV

 

AG Barr sent this two page letter to Congress.

To appropriately set your expectations, I will only discuss the actual contents of AG Barr’s March 29, 2019 follow up letter to Congress and provide you with orginal source factually based data. Let’s start with Page 1, paragraph two.

 

And lastly, don’t take my word for it, To date over 1,000 former Federal Prosecutors unequivocally state:

 

Each of us believes that the conduct of President Trump described in Special Counsel Robert Mueller’s report would, in the case of any other person not covered by the Office of Legal Counsel policy against indicting a sitting President, result in multiple felony charges for obstruction of justice.

The Mueller report describes several acts that satisfy all of the elements for an obstruction charge: conduct that obstructed or attempted to obstruct the truth-finding process, as to which the evidence of corrupt intent and connection to pending proceedings is overwhelming. (emphasis added)

These include:

· The President’s efforts to fire Mueller and to falsify evidence about that effort;

· The President’s efforts to limit the scope of Mueller’s investigation to exclude his conduct; and

· The President’s efforts to prevent witnesses from cooperating with investigators probing him and his campaign.

 

 

 

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1 comment

  • M Hirose: July 29, 2019

    Thank you, as always, for your wisdom!!

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