Jonathan Turley:

“…The problem, of course, is that there remained the inconvenient absence of any crime. Indeed, we now know there never was any credible evidence of collusion with the Russians by Trump campaign officials. New transcripts show dozens of officials confirming they never saw evidence of collusion. That is when the FBI and Justice Department leadership collectively reached for the last refuge of the prosecutorial scoundrel: the Logan Act.

When Strzok overruled the career prosecutors and investigators to keep open the investigation, he immediately raised the Logan Act as a possible way to charge Flynn. We previously learned that former acting Attorney General Sally Yates also raised the Logan Act as a possible charge, and we know that McCabe pushed the Logan Act in the absence of any other crime. (McCabe was later found to have lied to investigators but, unlike Flynn, was never charged).

The new material shows that former FBI Director James Comey also raised the Logan Act, with President Obama, in discussing FBI surveillance of Flynn. In one meeting, Justice Department officials were surprised that Obama already knew of the surveillance even though Yates was not aware of the facts. One document states, “Yates had no idea what the president was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act.”

Keep in mind that the use of the Logan Act against the incoming national security adviser would have been not only patently unconstitutional but positively ludicrous. There was nothing illegal in Flynn responding to Russian diplomats upset about sanctions recently imposed against Russia, just days before the start of the Trump administration. Trump himself stated publicly that he wanted to reframe relations with Russia, including sanctions. The transcripts show Flynn encouraging the Russians not to retaliate and saying the administration would reexamine the relationship.

Consider the absurdity of using this law against the incoming adviser for speaking with foreign diplomats on the eve of the new administration. The use of the Logan Act in that instance is just slightly better than an Alien and Sedition Acts prosecution against WikiLeaks. We now know there never was evidence of collusion by Flynn or anyone in the Trump campaign. By December, career investigators in the FBI Washington field office wanted to stop investigating Flynn. Then, in January, every one of the major players at the FBI and the Justice Department justified further investigation under the Logan Act. Thus, the only crime being pushed was an unconstitutional act that has never been used successfully in a prosecution.

It turned out that they would not need it, however. Although FBI investigators said they did not believe Flynn intentionally lied (and noted that Flynn understood his conversation with Russian officials was monitored and presumably transcripted), that nevertheless was the charge former special counsel Robert Mueller ultimately used. Flynn fought the charges but pleaded guilty after Mueller virtually bankrupted him and threatened to charge his son.

Perhaps it is fitting that these Obama administration officials turned to the Logan Act. Obama, who had dismissed Flynn from another post, opposed his appointment as national security adviser. It did not matter if there was no evidence against Flynn. As President Adams declared in calling for enactment of the Logan Act, there must be punishment for those with the “temerity and impertinence” to challenge those in power.

So after no evidence of collusion or a crime by Flynn was found by the end of 2016, Strzok, McCabe, Comey, Yates and perhaps even Obama retreated to that last refuge of the prosecutorial scoundrel, the Logan Act, under the apparent theory that an unconstitutional crime is still better than no crime at all…”

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Jonathan Turley:

“…Former President Barack Obama is being quoted from a private call that the “rule of law is at risk” after the Justice Department moved to dismiss the case against former national security adviser Michael Flynn. Obama reportedly told members of the Obama Alumni Association that “There is no precedent that anybody can find for someone who has been charged with perjury just getting off scot-free.” Without doubting the exhaustive search referenced by President Obama, he might have tried calling one “alum”: former Attorney General Eric Holder. Holder moved to dismiss such a case based on prosecutorial errors in front of the very same judge, Judge Emmet Sullivan. [Notably, CNN covered the statements this morning without noting the clearly false claim over the lack of any precedent for the Flynn motion]

The Obama statement is curious on various levels. First, the exhaustive search may have been hampered by the fact that Flynn was never charged with perjury. He was charged with a single count of false statements to a federal investigator under 18 U.S.C. 1001. I have previously wrote that the Justice Department should move to dismiss the case due to recently disclosed evidence and thus I was supportive of the decision of Attorney General Bill Barr.

Second, there is ample precedent for this motion even though, as I noted in the column calling for this action, such dismissals are rare. There is a specific rule created for this purpose. Federal Rule of Criminal Procedure 48(a) states the government may dismiss an indictment, information or complaint “with leave of the court.” Moreover, such dismissals are tied to other rules mandating such action when there is evidence of prosecutorial misconduct or fundamental questions about the underlying case from the view of the prosecutors. I wrote recently about the serious concerns over the violation of Brady and standing court orders in the production and statements of the prosecutors in the case.

Third, there is also case law. In Rinaldi v. United States, 434 U.S. 22 (1977) which addressed precedent under Petite v. United States, 361 U.S. 529 (1960) dealing with the dangers of multiple prosecutions. There are also related cases in Bartkus v. Illinois, 359 U. S. 121 (1959), and Abbate v. United States, 359 U. S. 187 (1959). The Rinaldi decision involved a petitioner convicted of state offenses arising out of a robbery, who believed that the government should have moved to dismiss a federal offense arising out of the same robbery under the Department’s Petite policy. The Court laid out the standard for such motions. The thrust of that controversy concerned double jeopardy and dual jurisdictions. However, the point was that the rule is key in protecting such constitutional principles and that courts should be deferential in such moves by the Department: “In light of the parallel purposes of the Government’s Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.”

There are also lower court decisions on this inherent authority. For example, in the D.C. Circuit (where the Flynn case was brought), the ruling in United States v. Fokker Servs. B.V., No. 15-3016 (D.C. Cir. 2016) reaffirms the deference to prosecutors on such questions. The Court noted that this deference extends to core constitutional principles:

“The Executive’s primacy in criminal charging decisions is long settled. That authority stems from the Constitution’s delegation of “take Care” duties, U.S. Const. art. II, § 3, and the pardon power, id. § 2, to the Executive Branch. See United States v. Armstrong, 517 U.S. 456, 464 (1996); In re Aiken Cnty., 725 F.3d 255, 262-63 (D.C. Cir. 2013). Decisions to initiate charges, or to dismiss charges once brought, “lie[] at the core of the Executive’s duty to see to the faithful execution of the laws.” Cmty. for Creative Non-Violence v. Pierce, 786 F.2d 1199, 1201 (D.C. Cir. 1986). The Supreme Court thus has repeatedly emphasized that“[w]hether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion.” United States v. Batchelder, 442 U.S. 114, 124 (1979); see Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978).

Correspondingly, “judicial authority is . . . at its most limited” when reviewing the Executive’s exercise of discretion over charging determinations. . . . The Executive routinely undertakes those assessments and is well equipped to do so.”

Fourth, there are cases where the Department has moved to dismiss cases on grounds of prosecutorial misconduct or other grounds touching on due process, ethical requirements or other concerns. One that comes to mind is United States v. Stevens where President Obama’s own Attorney General, Eric Holder, asked the same judge in the Flynn case to dismiss that case. That was just roughly ten years ago. As with Flynn, there was an allegation of withheld evidence by prosecutors.

At the time of the motion Holder declared “The Department of Justice must always ensure that any case in which it is involved is handled fairly and consistent with its commitment to justice. Under oftentimes trying conditions, the attorneys who serve in this Department live up to those principles on a daily basis.” What is obvious is the new guidelines issued at the time were honored in the breach during the Flynn prosecution.

While people of good faith can certainly disagree on the wisdom or basis for the Flynn motion, it is simply untrue if President Obama is claiming that there is no precedent or legal authority for the motion.

The rare statement by President Obama is also interesting in light of the new evidence. As I discussed in a column this morning in the Hill newspaper, the new material shows that Obama was following the investigation of Flynn who he previously dismissed from a high-level position and personally intervened with President Donald Trump to seek to block his appointment as National Security Adviser. Obama reportedly discussed the use of the Logan Act against Flynn. For a person concerned with precedent, that was also a curious focus. The Logan Act is widely viewed as unconstitutional and has never been used to successfully convicted a single person since the early days of the Republic. Now that is dubious precedent…”

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The former president knows what documents exist. He knows what his role in the Russiagate fiasco was. He knows that A.G. Barr is digging and will uncover everything. He knows that the Durham investigation is a criminal probe. He may have already testified under oath in the Durham investigation, if not, he is concerned that he may have to.

The former president knows that if he makes statements now that are untrue or that he cannot make while under oath he puts himself in legal jeopardy.

The former President knows that the recent release of documents implicate him in the Russiagate/Flynn fiasco. He knows that he has to respond before the Trump Administration and Republicans shape the narrative.

The former president knows that if he goes before the press, even the fawning liberal media, he could be asked uncomfortable questions about what he knew and when he knew it. If he doesn’t answer, he will be criticized. If he does answer he may put himself in a box.

What does he do? He talks privately on the phone to former advisers. He asks them to record and leak the conversation to friendly media. He counts on the liberal MSM to take his comments as direction and talking points to counter Trump.  In this way he has to answer no questions. He risks nothing. He appears to be responding to the document release when he really is not.

How brave he is. Leading from behind again.

Why doesn’t he come before the media make a statement and take questions?

Hat tip to Glenn Reynolds

Related:

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CrowdStrike couldn’t say for sure Russians stole DNC emails

The Democrats and liberal media have engaged in so much lying it is hard to get my head around it. I have known for a long time about their lies, but now that proof has come out, it is shocking. I think many in the liberal media and political class are delusional.

Worth clicking over

Bruce Thornton:

“…The Pulitzer folks have awarded their prize to the New York Times for the lead essay in its “1619 Project,” a bit of lefty agitprop so egregious that even throwback liberal American historians have ripped it to shreds. This offense comes two years after a joint Pulitzer award to the Times and the Washington Post for its brazenly partisan coverage of the Russian collusion lie cooked up by rogue clerks in the FBI and DOJ. Indeed, this bias is a long tradition for the Pulitzer. The Times’s man in Moscow, Walter Duranty, was rewarded with the prize for helping Stalin obscure his mass murders, which suited the leftist inclinations of the Times and the Pulitzer board…”

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What a colossal jerk. This is who Democrats are.

Another Democrat caught lying to the public. This is who they are.

Sean Davis:

“…Former Obama administration defense official Evelyn Farkas testified under oath that she lied during an MSNBC interview when she claimed to have evidence of alleged collusion, a newly declassified congressional transcript of her testimony shows. Farkas testified before the House Permanent Select Committee on Intelligence on June 26, 2017, as part of the committee’s investigation into Russian interference in the 2016 presidential election between Donald Trump and former Secretary of State Hillary Clinton.

Lawmakers keyed in on an appearance Farkas made on MSNBC on March 2, 2017, in which she urged intelligence community bureaucrats to disseminate within the government and potentially even leak to media any incriminating information they had about Trump or his aides.

“I had a fear that somehow that information would disappear with the senior [Obama administration] people who left…[that] it would be hidden away in the bureaucracy,” Farkas said.

Farkas, who served in the Obama administration as the deputy assistant secretary of Defense for Russia, Ukraine, and Eurasia from 2012 through 2015, also claimed that administration officials appointed by Trump might even destroy evidence of alleged collusion if they “found out how we knew what we knew about the Trump staff’s dealing with Russians.”

They might “try to compromise those sources and methods,” Farkas alleged in the MSNBC interview. “And we would no longer have access to that intelligence.”

“Not enough was coming out into the open and I knew there was more,” Farkas claimed.

But Farkas sang a different tone under oath when questioned by lawmakers about what she actually “knew” about collusion.

“Why don’t we go back to that sentence that I just asked you about. It says ‘the Trump folks, if they found out how we knew what we knew about their staff dealing with Russians,” Gowdy said. “Well, how would you know what the U.S. government knew at that point? You didn’t work for it, did you?”

“I didn’t,” said Farkas, a former mid-level Russia analyst who left the federal government in 2015.

“Then how did you know?” Gowdy responded.

“I didn’t know anything,” Farkas said.

“Did you have information connecting the Trump campaign to the hack of the DNC?” Gowdy asked.

“No,” Farkas admitted.

“So when you say, ‘We knew,’ the reality is you knew nothing,” Gowdy asked later during the deposition.

“Correct,” Farkas responded.

Gowdy didn’t stop there.

“So when you say ‘knew,’ what you really meant was felt?” he asked.

“Correct,” Farkas answered.

“You didn’t know anything?” Gowdy continued.

“That’s correct,” Farkas responded.

Farkas, a Democrat, is currently running for Congress in New York’s 17th district…”

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