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Robert Mueller is here to stay, get use to it.

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Posted on August 13 2018

so for those who have followed me on twitter know I do my best to track the various legal matters. Yet most of the time it just feels  like a big blur. When things start to get that fuzzy, it is always best to go back to basics.

 

March 2, 2017 - AG Session Recusal:

link to DOJ-OPA Press Release No: 17-237, found here.

“During the course of the last several weeks, I have met with the relevant senior career Department officials to discuss whether I should recuse myself from any matters arising from the campaigns for President of the United States.

“Having concluded those meetings today, I have decided to recuse myself from any existing or future investigations of any matters related in any way to the campaigns for President of the United States” (emphasis added)

 

May 17, 2017 DAG Rosenstein:

link to DOJ-OPA Press Relase No 17-541, found here.

link to DAG Rosenstein ORDER NO: 3915-2017, found here.

 

“In my capacity as acting Attorney General, I determined that it is in the public interest for me to exercise my authority and appoint a Special Counsel to assume responsibility for this matter,” said Deputy Attorney General Rosenstein. “My decision is not a finding that crimes have been committed or that any prosecution is warranted. I have made no such determination. What I have determined is that based upon the unique circumstances, the public interest requires me to place this investigation under the authority of a person who exercises a degree of independence from the normal chain of command.”

 

Many people lose sight of the actually statutory recitals listed in the May 2017 Appointment, specifically 28 CFR §600 et seq:

 

Before we dive in to the Special Counsel CFR, you should know that CFR is an acronym for:  Code of Federal Regulation. A CFR (and this is VERY important) is:

...codification of the general and permanent rules published in the Federal Register by the departments and agencies of the Federal Government. (emphasis added)

 

Because CFRs are “codified” they supersede “Agency guidelines”, this distinction is often overlooked.

28 CFR §600 et seq 

GENERAL POWERS OF SPECIAL COUNSEL

originally this CFR was promulgated shortly after Congress allowed the Independent Counsel statute was allowed to sunset in July 1999. To read 28 CFR §600 in its entirety, you can click on this Government Publishing Office, link found here.

 

Don’t take my word for it, read Former Acting Solicitor General Neal Katyal, May 19, 2017 Washington Post OpEd, link found here. Some forget that Mr Katyal wrote the CFR, so I think it’s appropriate to say he’s certainly a subject matter expert on 28 CFR §600. Mr Katyal walks us through three key & critical points:

First: ...Our Constitution gives the president the full prosecution power in Article II; accordingly, any federal prosecutor works ultimately for the president. That constitutional reality is not something we could write around with a regulation. Instead, we opted to try to focus accountability for any such activity...

Second: ...Congress could muck up Mueller’s investigation. Several congressional committees are looking into Russia, and any one of them could decide to give immunity to a particular witness. You’ve seen the drill before: Some high-ranking corporate executive comes before Congress and refuses to answer a question because it might incriminate her...

Third: ...regulations permit Rosenstein to define the scope and powers of the investigation. At the outset, the sweep looks fairly broad, encompassing “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump” and “any matters that arose or may arise directly from the investigation.” But that is not as broad as the authorities that were given...

 

Of the three areas discussed I’d say it’s safe to assume that Mr Katyal’s second scenario has already come to pass, thanks to Devin Nunes. Thankfully we still have a glimmer of hope with the Bipartisan Senate Intelligence Committee, but let’s be honest Devin Nunes as the Chairman of the HPSCI has accomplished his mission. By his actions and working in concert with the White House, specifically Donald Trump that House Investigation is irreconcilably broken. All under Speaker Ryan’s watch & tacit approval.   

So if you are a target and/or a defendant facing Special Counsel Mueller and his team of venerable attorneys and investigators. What is your recourse? Naturally you will argue that:

 

“but your honor, I’m not that bad, the bad guy is Mueller and his appointment is unlawful so nope I’m not coming to the Grand Jury...”

 

I should probably back up for a moment and briefly discuss the timeline or northworthy events that ultimate lead to a criminal indictment:

Step 1 - you commit or conspire to commit a Federal Crime

Step 2 - an Investigation starts, including gathering of evidence, typically through a Court authoritized: search warrant, surreptitiously monitoring the target communiques (emails, text, phone calls etc)

Step 3 - Grand Jury Testimony (either a newly empaneled or currently empaneled)

Step 4 - Grand Jury hands down a True Bill, meaning they have heard enough evidence from the prosecution (and witnesses) that the “target” has committed a crime(s) and should be Indicted.

Step 5 - Indictment...

Between steps 3 & 4 some witnesses may try to fight the Grand Jury Subpoenas, Case in point Paul Manafort’s Former Realtor Wayne Holland and his former FARA Attorney both fought their Grand Jury subpoenas, they both lost:

 



Link to Judge Howell’s memo regarding Manafort’s Real Estate Agent’s refusal to appear before the DC Grand Jury can be found here.

 

 

In October of 2017 within hours of the Manafort & Gates indictments unsealed the DC Court also unsealed, this memo regarding Manafort’s former Attorney and the correct application of the Crime/Fraud exemption.

 

 

Link to the Octobet 2017 DC Judge Howell’s memo, found here.

In the matter of Roger Stone’s associate Andrew Miller who ignored two subpoenas and continues to fight the “appointment of” Special Counsel Mueller, Chief Judge Howell issued this scathing 82 page Opinion. Long story short? Judge Howell is the third separate judge who has opined that the appointment of a Special Counsel is lawful AND constitutional. I suppose Mr Miller thinks he’s above the law and therefore he isn’t required to answer subpoenas...

 

 

With respect to Manafort Case in EDVA. he did try to argue the “constitutionality” of Special Counsel Mueller’s appointment 

 

 

Judge Ellis’ memo came after Judge Berman Jackson (DC Judge) in mid May she issued the following regarding Manafort’s assertion that the Appointment of Special Counsel Mueller was “unconstitutional”

 

 

And then of course we have the tiny matter of Concord Consulting argument which largely mirrored Manafort’s (now thrice failed) argument that the appointment of Mueller is “unconstitutional”:

 

 

 

So if you are keeping count, there are now four separate Federal Judges who have each rejected the argument (or iterative argument)  that Mueller’s appointment was some how unconstitutional. The very definition of insanity is doing the same thing over and over, but expecting a different outcome.

The bottom like is this isn’t a “hoax” and it most certainly is not a “witch hunt”. Even if, let’s say Trump sets a series of events that would lead to the (unauthorized) firing of Special Counsel Mueller, that would be catastrophic to Trump and the GOP writ large. Why? Because Mueller is a professional, ethical and by the book man. We are lucky to have him and the team he assembled. Furthermore Mueller has (rightfully) farmed cases out by referring them to the appropriate AUSA. Basically the horses have left the stable and there’s no way to put them back in while they are on the race track...Mueller isn’t going anywhere so get use to seeing him.

As a tax payer, I’ll say this, we the American people are getting one helluva ROI with Special Counsel Mueller’s office and his team. Lastly if Trump et al are innocent, then why are they acting so guilty?

 

 

And because it’s Monday, let’s not forget to laugh and smile so here’s an oldie but goodie SNL Skit, it’s perfection and I hope Trump et al are scared shitless. Because as far as I am concerned you betray our Country, you deserve to die penniless in jail. 

 

 

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