Thursday, May 18, 2017

Why The Special Prosecutor Will Also Need A Select Committee

Assuming Donald Trump suffers from Alzheimer's disease (see previous post) his 'woe is me' speech at the Coast Guard Academy yesterday may well have been perfectly justified. Especially when he spoke the following words:

"No politician in history has been treated worse or more unfairly...Things are not always fair..You will find that things happen to you that you do not deserve and that are not always warranted."

And Trump is spot on if, indeed, he entered office saddled with the burden of Alzheimer's disease. Then it certainly follows he'd have been treated "unfairly" in the same way an autistic or retarded person might be treated if held to standards of thought and behavior s/he can't possibly meet.  So yeah, if one has Alzheimer's "things are not always fair" - ask Janice's cousin Desmond who watched haplessly as his mental functions deteriorated over 6-7 years from peak to babbling baby.

Enter now Robert Mueller, appointed yesterday by deputy AG Rod Rosenstein as Special Prosecutor into the Trump-Russia investigation and ancillary matters. Mueller has impeccable credentials including having led the U.S. probe into the Pan Am 103 bombing in 1988, and also being FBI Director for 12 years. 

How broad are Mueller's powers?  To be succinct his powers are wide -ranging with the potential to expand in other directions. He's been given (by the deputy AG) the power to "investigate any links or coordination between the Russian government and individuals associated with the campaign of President Donald Trump...and other matters that arose or may arise directly from the investigation."

Rosenstein will oversee Mueller's work and technically can relieve him of his duties and has the power to end the investigation. But most astute observers find this would be most unwise and cast further suspicion on the process, especially suspicion that Trump or Sessions might have "twisted his arm" to comply. Also, if Rosenstein were to block any of  Mueller's actions he'd have to give an explanation to congress. (The oversight power went back to the Justice Dept. in 1999, after the Ken Starr investigation of the  alleged Clinton 'Whitewater' scandal. Starr found nothing there, so rather than go away empty handed he accepted an illegal tape recording from Linda Tripp of a phone conversation with Monica Lewinsky over Clinton's behavior.  For reference, Tripp lived in Columbia, MD at the time and Maryland state law made the undisclosed taping of another person a felony. Starr used the tape as evidence anyway.)

To cut a long story short, Trump will now become the "hunted" rather than the "hunter" and the 24/7 news cycle will now change - diminishing all media Trumpy-ism and accentuating the Special Prosecutor and his investigation.  Let's note here the sprawling scope of the existing FBI investigation which spans multiple field offices across the country, and is implemented as both a criminal and counter intelligence investigation.

The question remains of where Mueller's concentration of resources should be: into collusion or obstruction of justice.  Given Mueller will not only be able to look into the latter issues - rendered ever more obvious the last four days- but can also delve into underlying connections to the Trump campaign, many will say he ought to focus on collusion. But I suspect that may not be the best choice.

The lower threshold to meet is obstruction of justice, especially after the Comey memos are released - likely next week. Also Comey is expected to testify Wednesday before the House Oversight Committee.  Therefore, the lower hanging fruit, if you will, is obstruction of justice. This is because the actual means by which the Russians carried out the collusion have not been determined or agreed upon.  Still, it is the word most bandied about, for example by Rep. Maxine Waters (CA).

Why not go after collusion? Let's first not split semantic hairs here and concede collusion implies conspiracy. In this country the c-word is verboten and anathema and immensely high standards are required to prove it. The last successful effort to do so was in connection with the Iran -Contra Conspiracy during the Reagan administration.  The facts of the Iran-Contra conspiracy were meticulously presented in The Iran –Contra Report (1994) published by Random House at the behest of Independent Counsel Lawrence E. Walsh.  Walsh's job was rendered straightforward because he had access to manifests, for example, showing shipments of Israeli Hawk and TOW missiles to Iran.

Mueller himself will have access to paper trails "following the money" - including the side investigation of the financial crimes network (FINCEN).  In this case, the money trail and FBI investigation itself began with looking into what the Russians did via numerous transactions with assorted Trump associates and how these were paid for. That is one of the largest aspects, but what gets all the media's attention is whether anyone in the Trump campaign colluded with the Russians, i.e. conspired with them to tilt the 2016 election to Trump.

The problem? As articulated last night by Ken Dilanian, member of the NBC investigative unit, more than one FBI official laments this collusion emphasis even became public. According to one official Dilanian spoke to: "It took a lot of investigative tools away from the FBI".  Dilanian also added another key point: in these types of investigations the FBI prefers to operate 'in the shadows'. As soon as it becomes public, the conspirators change their behavior, change the way they communicate. 

This almost certainly happened in the JFK conspiracy assassination cover up, after the architects of the plan realized they had to alter their priorities of action - especially after the House Select Committee on Assassinations was formed. Thus, the CIA - using a willing tool (Rep. Henry Gonzalez) staged a phony outcry against then HSCA head Richard Sprague. Recall Sprague vowed to do a "no holds barred" investigation from top to bottom. In effect, he'd become too threatening for his own good, especially in the further evidence he might commandeer - including the actual (not fake) autopsy photos. To stop him the CIA used not only Gonzalez (to disparage him) but its own media assets,  mainly via “Operation Mockingbird"

So Dilanian's points concerning conspirators changing their behavior and communications after media exposure are not without merit. More to the point, as Dilanian put it last night in his MSNBC interview:

"(Once the conspirators change their behavior)  the investigators are now looking backward and there's very little chance of catching current criminal activity. They're more looking at records and that's why we see all these records' requests and subpoenas for them."

So in many ways, though most of us are certain collusion -conspiracy is central to the modus operandi of what transpired, proving it is another matter. The "cows have escaped the barn" before the barn door was closed, to put it another way.  Rep. Maxine Waters this morning on 'Morning Joe' insisted collusion will "be a lot easier to prove than many people think" adding: "When you look at Manafort, it's going to be easy to identify emails, travel, bank records, and I think he's been involved in money laundering."

She also added that looking at Flynn's activities may yield similar results. But Sam Stein, in questioning her, wasn't convinced this was anything more than circumstantial. Waters then insisted there was a "strategy" devised by which the Russians cooperated with Trump campaign people to ensure Hillary Clinton wasn't elected.  But after more pressing by Stein, Waters agreed "there has been no actual evidence yet".

So again, I suspect this is all a step too far for the Special Prosecutor to be able to prosecute individuals based on it. This is why I think a select committee may also be needed, to at least issue a firm conclusion if not prosecutions.  Note that a select committee has as its remit the investigative aspects into a case, more than the legislative.

The House Select Committee into the Kennedy assassination may have fallen short because of political tampering (with the CIA interjecting itself to have Richard Sprague replaced by G. Robert Blakey), but it did ultimately find for conspiracy in its conclusion, e.g.

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I believe that once all the combined resources are assessed under one Select Committee it will be possible to come to a similar conclusion of conspiracy ("collusion") that the HSCA arrived at in the Kennedy case.

In any case, there are more "shoes" to drop. Stay tuned.

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