RUTHFULLY YOURS

In terminal medical cases, doctors often deal with patients who move through “stages” that begin with denial. These so-called Kübler-Ross stages can be a long road toward acceptance. A weird form of Kübler-Ross seems to have taken hold of the media. Rather than refusing to accept indicators of impending death, many journalists and analysts seem incapable of accepting signs that the Trump presidency could survive.

That painful process was more evident Tuesday night when the Washington Post reported that special counsel Robert Mueller told the White House last month that Trump was not considered a “target” but only a “subject” of the investigation. After a year of being assured that “bombshell” developments and “smoking gun” evidence was sealing the criminal case against Trump, the dissonance was too great for many who refuse to accept the obvious meaning of this disclosure.

The U.S. Attorney’s manual defines a “subject” as a “person whose conduct is within the scope of the grand jury’s investigation.” It is a designation that can change but it is also a meaningful description of the current status of an individual. Mueller at this time apparently does not believe Trump meets the definition of a target or a “person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.” That would have been less notable when Mueller was appointed in 2017 than it is now, after more than a year, dozens of criminal counts, hundreds of thousands of documents, and a bevy of cooperating witnesses.

That Mueller does not believe there is “substantial evidence linking [Trump] to the commission of a crime” would seem to merit some, albeit grudging, recognition. However, there has been a disturbing lack of objectivity in the coverage of this investigation from the start. Throughout it, some of us have cautioned that the criminal case against Trump was far weaker than media suggested. Fired FBI Director James Comey himself told Congress that Trump was not a target of his investigation. Indeed, Trump was reportedly upset with Comey largely because Comey would not say that publicly.

We now have a redacted version of the deputy attorney general’s guidance to the special counsel.

Eight months ago, in August 2017, Deputy Attorney General Rod Rosenstein secretly gave Special Counsel Robert Mueller specific guidance as to the crimes Mueller is authorized to investigate. The guidance came about ten weeks after Mueller’s May 17 appointment. This guidance purports to describe the grounds for criminal investigations, marking the limits of the special counsel’s jurisdiction.

As readers may recall, these columns have been critical of the deputy attorney general for failing to provide such guidance. Instead, I’ve contended, Rosenstein assigned Mueller to conduct a counterintelligence investigation, which is not a sound basis for appointing a special counsel; the regulations require grounds for a criminal investigation.

So . . . was I wrong? No, I was right.

We learned Tuesday morning, based on a Monday-night court filing by Mueller, that Rosenstein’s amplification of Mueller’s jurisdiction was set forth in a classified memorandum dated August 2, 2017. That memo was filed just one week after a July 26 column in which I comprehensively laid out the deficiencies in Rosenstein’s appointment order and suggested that he could cure the problem by “specify[ing] exactly what potential crimes the special counsel is authorized to investigate.” To be clear, I do not claim to be the only commentator who has criticized the deficiencies of Rosenstein’s appointment order, though I doubt others have done so as consistently and pointedly, including with proposals for bringing it into compliance. (See, e.g., “Mend, Don’t End, Mueller’s Investigation.”)

The Deficiencies of Rosenstein’s Order Appointing Mueller

To recap, Rosenstein appointed Mueller on May 17, 2017, days after President Trump’s botched firing of FBI director James Comey — a debacle in which the administration’s conflicting explanations for the director’s removal, coupled with the president’s reprehensible comments about Comey for the consumption of Russian diplomats he hosted at the White House, intensified Democratic calls for a special counsel.

‘Patriotism is the last refuge of the scoundrel.”

Samuel Johnson famously used that line in an attack on William Pitt for supposedly advancing his agenda under warped pretenses. During the McCarthy era and the 1960s anti-war movement against Vietnam, when leftists were called unpatriotic, they offered Johnson’s line as a riposte, quoting it ad nauseam, not as a serious counter-argument but as an accusation that the conservative establishment was smearing them.

When Harvey Weinstein was caught coercing female subordinates, assaulting actresses, and offering quid pro quo perks for quickie sex, he thought, in medieval fashion, that he could preserve his fortune and power by making politically correct offsets. Weinstein pompously announced that despite the charges of sexual assault, he should be given a pass because he was buying politically correct indulgences:

I am going to need a place to channel that anger so I’ve decided that I’m going to give the NRA my full attention. I hope Wayne LaPierre will enjoy his retirement party. I’m going to do it at the same place I had my Bar Mitzvah. I’m making a movie about our President, perhaps we can make it a joint retirement party.

Weinstein crammed a lot of firewalls into his apologia: His crimes were merely a matter of “anger” management. He was religiously devout. The ironic upside of assaulting women was that now he could be turned loose to devote his “full attention” to battling NRA. And he now would have time to use his cinematic talents to trash Trump. Why would liberal women hound someone promising a twofer destruction of the NRA and Trump?

Late-night host Steven Colbert tried a similar me con. He used obscene and homophobic imagery to smear Trump, in words that would have gotten a conservative fired: “In fact, the only thing your mouth is good for is being Vladimir Putin’s cock holster.” The Left did not care that he had smeared the president of the United States, but Colbert potentially had committed a mortal sin in suggesting that a homosexual act was tawdry or embarrassing.

‘We need a Disney princess who’s had an abortion,” tweeted a Pennsylvania branch of Planned Parenthood last week. Though the tweet was deleted, Planned Parenthood Keystone chief Melissa Reed stands by it. “Planned Parenthood believes that pop culture . . . has a critical role to play in educating the public and sparking meaningful conversations around sexual and reproductive health issues and policies, including abortion,” she said in a statement to Fox News.

Feminist critics have been waging war on Disney princesses since the 1990s, and they’re gaining ground. Peggy Orenstein’s 2011 best seller, “Cinderella Ate My Daughter,” called the fairy-tale heroine a symbol of “the patriarchal oppression of all women.”

Disney has been listening. In 2016 the company launched the Dream Big, Princess campaign, which recasts Ariel as a speed-swimming champion, Rapunzel as a gymnast and Cinderella as a dance prodigy. In an obvious nod to the feminist notion that traditional princesses are “damsels in distress,” Disney has edited out the princesses’ signature inner virtues of integrity, courage, optimism and heart, and replaced them with feminist-approved—but ultimately shallow—physical achievement. CONTINUE AT SITE

Trying to Delegitimize the Prosecutor Is Not Obstruction It is protected speech in our system — lawful, even if unsavory. On their always intriguing podcast Skullduggery, Yahoo News’s Michael Isikoff and Dan Klaidman had Ken Starr as their guest on Friday. That was especially fitting in the wake of the 60 Minutes Stormy Daniels interview. As I pointed […]

Last week ex-CIA chief Michael Hayden signed a letter with a “bipartisan group of 115 national security leaders” that counsels the Trump administration and new National Security Advisor John Bolton not to jettison the nuclear deal with Iran. Hayden’s justification for this advice illustrates all the stale ideas and unexamined assumptions about foreign affairs that have brought us to this crisis in the first place––and why we need the return to realism we are likely to see with Bolton at the helm.

Hayden starts by admitting that the deal has problems. Iran was on the economic ropes because of the sanctions, and so should have been the “suppliant,” not us. Hayden’s delicate indirection refers to Obama’s shameful eagerness for a deal, any deal in fact, to burnish his foreign policy “legacy” and please the “international community” with his commitment to “multilateralism” and “smart diplomacy” instead of military power. Hayden also notes Obama’s “bait-and-switch when selling the deal to Congress,” a reference to the post facto concessions to the regime, like “abandoned or altered positions on no notice inspections,” which of course make the whole idea of monitoring Iran’s activities a mere aspiration.

Hayden also knows that Iran is a “bad actor.” But this vague cliché cannot accurately describe a repressive, brutal regime that has for nearly forty years soaked its hands in American blood, and now has replaced the U.S. as the dominant power in the Middle East. And it downplays Iran’s role in destabilizing the region as it creates a Shia crescent from Syria to Yemen, and builds a proxy attack-force on Israel’s borders in order to bring the mullahs closer to fulfilling their eschatological dream of “wiping Israel off the map.”

But the vagueness of “bad actor” allows Hayden to make an astonishing claim like this one: “Still, Iran is further away from a weapon with this agreement than they would be without it.” Apart from the either-or fallacy in believing that total war is the only alternative to a bad deal, what possible information does Hayden have that makes this credible? What empirical evidence can he produce to buttress the certainty of such a claim? By what means are the inspectors able to ascertain that Iran is in fact living up to the deal, or even to know the existence or location of all its nuclear development facilities? And what about the preposterous begged question in the letter’s claim that the “Iran will be prohibited from exceeding severe limits” by “continuing, unprecedented international monitoring”? How does “severe” square with the IAEA’s inability to monitor Iran’s compliance with Section T, which bans “activities which could contribute to the development of a nuclear explosive device”?

Everybody wants to get in on the act.

We’re talking about another day, another cause célèbre for social justice warriors. The SJWs must really believe in idle hands being the devil’s playground — at least, they would if they believed in the devil.

Never mind. The SJWs are hard up for promoting causes that truly annoy us so they simply recycled arguments they used to smash Confederate monuments and are now using them to smash those who offended Native Americans.

Believe me, it’s a very long list.

Presidents, generals, icons like Daniel Boone, and the occasional bald settler who annoyed tribesmen by denying them a suitable trophy scalp to pin to their lodgepole.

I don’t think there are any monuments to that last entry, but for the rest, it’s a target-rich environment.

Los Angeles Times:

No other city has taken down a monument to a president for his misdeeds. But Arcata is poised to do just that. The target is an 8½-foot bronze likeness of William McKinley, who was president at the turn of the last century and stands accused of directing the slaughter of Native peoples in the U.S. and abroad.

“Put a rope around its neck and pull it down,” Chris Peters shouted at a recent rally held at the statue, which has adorned the central square for more than a century.

Peters, who heads the Arcata-based Seventh Generation Fund for Indigenous People, called McKinley a proponent of “settler colonialism” that “savaged, raped and killed.”

A presidential statue would be the most significant casualty in an emerging movement to remove monuments honoring people who helped lead what Native groups describe as a centuries-long war against their very existence.

The push follows the rapid fall of Confederate memorials across the South in a victory for activists who view them as celebrating slavery. In the nearly eight months since white supremacists marched in central Virginia to protest the removal of a Robert E. Lee statue, cities across the country have yanked dozens of Confederate monuments. Black politicians and activists have been among the strongest supporters of the removals.

A response to Orin Kerr

Orin Kerr is an insightful legal analyst, so when we are in disagreement I take his criticism seriously. Respectfully, however, his Lawfare critique of a recent column in which I took issue with Special Counsel Robert Mueller’s pleading practices is not his best work.

To recap my argument, Mueller’s tactic of charging sensational offenses and pleading them down to comparatively trivial crimes flouts guidelines that are prescribed in the U.S. Attorney’s Manual and that are followed by responsible U.S. attorneys’ offices. Kerr objects, contending that a provision in the manual that I did not discuss indicates there is more leeway in the guidelines than I let on.

I think he is wrong on this narrow point because the guideline he cites, which applies to non-prosecution agreements for potentially culpable witnesses when time is of the essence, is not pertinent to the situation I was discussing: viz., the plea deal of Richard Gates, who faced two indictments alleging financial-fraud felonies involving over $100 million in the aggregate, but was permitted to plead guilty to minor charges. Before we come to that, though, some underbrush needs clearing.

First, Kerr implies that I see the manual guidelines as legally binding. I don’t, and never have — not in 20 years living under them as a prosecutor, nor in the succeeding 15 years as a commentator. The thrust of my argument is that Mueller is not upholding critical Justice Department “standards” and “policy” (the words used in the column) that are expressed in the guidelines. If the guidelines were binding, there would be little point in arguing policy, as I have done; I would call for court enforcement. But the guidelines reflect internal DOJ standards; there is no judicial remedy for deviations.

In a different recent column, I highlighted the manual’s opening passages, which unambiguously declare that the guidelines are just that, guidelines. (See Section 1-1.100.) How strictly they are honored is up to federal prosecutors, their supervisors, and Justice Department leadership. In my experience, the manual’s guidelines are taken quite seriously — they certainly were in the U.S. attorney’s office for the Southern District of New York (SDNY), where I worked. But Mueller is effectively unsupervised, so no one is going to force him to adhere to them. Kerr’s description of my claim that Mueller is “breaking the rules” suggests that I’ve accused the special counsel of violating the law. No, I’ve accused him of abusing his discretion.

That this is not actionable does not make it right.

Second, while the guidelines obviously aim to ensure equal and ethical enforcement of federal law across the country, just as significant is their goal of promoting the most effective investigations and prosecutions possible under whatever circumstances prevail. My criticism is directed to this latter objective, which I think Kerr fails to give its due.

A defendant should be required to plead guilty to “the most serious readily provable” offense charged, as dictated by the guideline I cited (U.S. Attorneys Manual, Section 9-27.430), which is directly applicable to plea agreements. Kerr grouses that I don’t address the purportedly complicating factor of cooperation in discussing this provision (though he acknowledges that I do raise it elsewhere — we’ll come to that). But there is no need to address cooperation as if it complicated matters, because it doesn’t: The “most serious readily provable” standard applies to plea agreements regardless of whether cooperation is in the mix.

Requiring such a guilty plea not only ensures that the defendant is held appropriately accountable and is not given favorable treatment in comparison to others similarly situated; a plea to “the most serious readily provable charge” also makes the defendant a more compelling cooperating witness. By contrast, failing to require a plea to the most serious offense degrades the defendant’s testimony, which is usually offered to prove against other defendants the same serious offense on which the cooperating defendant has been given a pass.

A concrete example makes the point. A defendant who has committed bank-fraud conspiracy and pleads guilty to bank-fraud conspiracy is an effective witness — his admission of guilt goes a long way toward proving the existence of the scheme and makes it more likely that conspirators he implicates will be convicted. This helps the prosecution. On the other hand, if the prosecutor lets the defendant plead guilty to a minor (non-bank-fraud) conspiracy to induce his testimony against other bank-fraud conspirators, it signals to the jury that the bank-fraud conspiracy is not as serious as the indictment suggests; it opens the door to defense claims that the cooperator was given a major break to buy his testimony and exaggerate the culpability of the other conspirators. This hurts the prosecution.

I am not criticizing Mueller because I’m a contrarian who eschews special-counsel appointments (though I plead guilty to that). Regardless of my take on Mueller’s appointment, if Richard Gates committed $100 million in financial fraud, I want to see him commensurately punished for it. If Paul Manafort committed these same egregious crimes, I want to see Mueller effectively prosecute him. This should involve the main cooperating witness, Gates, pleading guilty to the most serious readily provable charge against both himself and Manafort.

That is what would have been required, at a minimum, in the U.S. attorney’s office where I worked. More likely, an SDNY prosecutor would have insisted that Gates plead guilty to all of the offenses that he and Manafort were indicted for committing jointly. This prudent practice was the standard during my years in the office, and I am pleased to say that it continued in the years after I left. (See, e.g., Byron York’s recent Washington Examiner column in which he quotes former SDNY U.S. attorney Preet Bharara: “When we had evidence against somebody and wanted them to flip, we made them plead guilty to every bad act that they had ever done, especially if we were later going to be alleging other people had engaged in that activity as well.”)

The jury that acquitted Noor Salman of aiding and abetting her husband’s slaughter at the Pulse nightclub believed she was aware of what her husband was planning, but based on the detailed jury instructions and the nature of the evidence they were presented, they had no choice but to deliver a “not guilty” verdict. We know this now because the Orlando Sentinel received a statement from the foreman, which is presented in its entirety below. What leaped out at me was a single sentence criticizing the FBI, that comes 294 words into the statement.

I wish that the FBI had recorded their interviews with Ms. Salman as there were several significant inconsistencies with the written summaries of her statements.

Many readers may recall from the FBI’s handling of the Hillary Clinton email scandal that no recordings were made of the FBI’s interview with her (or with any other witnesses, for that matter). This is because the only record of subject interviews that the FBI makes is Form 302s, notes prepared by an agent.

Readers may also recall that according to two investigative reporters, Sara Carter and Mike Cernovich, fired FBI deputy director Andrew McCabe has been accused of asking FBI agents to alter 302 reports. It is not clear if this accusation was part of the inspector general’s report that led to McCabe’s firing, nor is it clear that it actually happened.

What matters to me is the ridiculous policy of not recording the actual interviews, and instead relying on the integrity, skill, and diligence of FBI agents in faithfully recording everything of any relevance that took place during an interview. Sometimes, the pacing and tone of voice of a subject may have great relevance, for example, and written notes cannot possibly fully reflect the reality of the situation.

Relying on Form 302s made sense only in the era when recording an interview was impossible or difficult owing to technology limits. But now that a pocket cell phone can record interviews almost effortlessly, there is no justification of ceding to the FBI the task of writing up what an agent thinks (or wishes) was said.

Civil libertarian icon Harvey Silverglate is scathing about this practice:

Instead of electronically recording its interviews and interrogations, the FBI’s policy is to rely on agents’ typewritten “section 302 reports,” crafted to reflect the supposed substance of the exchange. At such sessions, one agent takes notes by hand while the second agent – in the traditional two-agent FBI interviewing team – conducts the interview/interrogation. Tape recordings are almost never done because such recordation is – believe it or not – against formal written FBI policy. Therefore, the 302 report becomes the sole arbiter of what was, and was not, said; moreover, as we will see below, any interviewee who contests its accuracy risks prosecution. Hence, a potential witness’ script is written – and not necessarily by the witness himself – the moment he opens his mouth in the presence of an agent.

President Donald Trump is facing a revolt from his base for having signed the bloated omnibus spending bill that torpedoes his “drain the swamp” pledges. But the president now has an opportunity to achieve a small measure of redemption: he should offer loud and unequivocal support to Interior Secretary Ryan Zinke, who is being hammered for reportedly having rejected identity politics in favor of meritocracy.

Zinke is facing a storm of media criticism from liberals for allegedly saying that diversity is “not important,” though his office denies that he said this. The same sources that reported Zinke’s comments say that he followed up by stating that what he cared about was excellence—and that by hiring the best people, he would in fact put together the most diverse group anyone has ever had. This second statement is a cowardly concession (as is his denial of his initial diversity observation, assuming that he made that initial statement). Sometimes meritocracy will yield diversity; sometimes it won’t. The point is that it doesn’t matter. Diversity should not be an end in itself; excellence is the goal.

Rejecting the primacy of diversity constitutes a head-on assault on the received wisdom of Washington and elite American culture. Gender and racial quotas have been the order of business for the last three decades. The #MeToo movement has only intensified pressures on public and private organizations to hire based on sex and skin color. The result: wasted resources, the sidelining of merit, and ever more virulent and irrational identity politics. The rule of the diversity regime is that you’re required to be fanatically obsessed with race and gender until you aren’t—because at that unpredictable moment, whenever it comes, noticing race and sex becomes racist and sexist.