[Swiftwater Gazette] Understanding the Swamp
kroposki at att.net
Sat Oct 21 11:00:21 EDT 2017
Understanding the Swamp
The following is articleabout how Mueller and the swamp operates. Never mind that it might take criminal behavior.
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Silverglate: How RobertMueller Tried To Entrap Me
October 17, 2017
Is special counsel RobertS. Mueller III, appointed in mid-May to lead the investigation into suspectedties between Donald Trump’s campaign and various shady (aren’t they all?)Russian officials, the choirboy that he’s being touted to be, or is he more akinto a modern-day Tomas de Torquemada, the Castilian Dominican friar who was thefirst Grand Inquisitor in the 15th Century Spanish Inquisition?
Given the rampant mediapartisanship since the election, one would think that Mueller’s appointmentwould lend credibility to the hunt for violations of law by candidate, nowPresident Trump and his minions.
But I have known Muellerduring key moments of his career as a federal prosecutor. My experience has taught me to approach whatever he does inthe Trump investigation with a requisite degree of skepticism or, at the veryleast, extreme caution.
When Mueller was theacting United States Attorney in Boston, I was defense counsel in a federalcriminal case in which a rather odd fellow contacted me to tell me that he hadinformation that could assist my client. He asked to see me, and I agreed tomeet. He walked into my office wearing a striking, flowing white gauze-likeshirt and sat down across from me at the conference table. He was prepared, hesaid, to give me an affidavit to the effect that certain real estate owned bymy client was purchased with lawful currency rather than, as Mueller’s officewas claiming, the proceeds of illegal drug activities.
My secretary typed up theaffidavit that the witness was going to sign. Just as he picked up the pen, helooked at me and said something like: “You know, all of this is actually false,but your client is an old friend of mine and I want to help him.” As I threwthe putative witness out of my office, I noticed, under the flowing whiteshirt, a lump on his back – he was obviously wired and recording every wordbetween us.
Years later I ran intoMueller, and I told him of my disappointment in being the target of a stingwhere there was no reason to think that I would knowingly present perjuredevidence to a court. Mueller, half-apologetically, told me that he never reallythought that I would suborn perjury, but that he had a duty to pursue the leadgiven to him. (That “lead,” of course, was provided by a fellow that welawyers, among ourselves, would indelicately refer to as a “scumbag.”)
This experience made me realize thatMueller was capable of believing, at least preliminarily, any tale of criminalwrongdoing and acting upon it, despite the palpable bad character and obviouslyquestionable motivations of his informants and witnesses. (The lesson was particularly vivid because Mueller andI overlapped at Princeton, he in the Class of 1966 and me graduating in 1964.)
Years later, my warinesstoward Mueller was bolstered in an even more revelatory way. When he led thecriminal division of the U.S. Department of Justice, I arranged in December1990 to meet with him in Washington. I was then lead defense counsel for Dr.Jeffrey R. MacDonald, who had been convicted in federal court in North Carolinain 1979 of murdering his wife and two young children while stationed at FortBragg. Years after the trial, MacDonald (also at Princeton when Mueller and Iwere there) hired me and my colleagues to represent him and obtain a new trialbased on shocking newly discovered evidence that demonstrated MacDonald hadbeen framed in part by the connivance of military investigators and FBI agents.Over the years, MacDonald and his various lawyers and investigators hadcollected a large trove of such evidence.
The day of the meeting, Iwalked into the DOJ conference room, where around the table sat a phalanx ofFBI agents. My three colleagues joined me. Mueller walked into the room, wentto the head of the table, and opened the meeting with this admonition,reconstructed from my vivid and chilling memory: “Gentlemen: Criticism of the Bureau is anon-starter.” (Another lawyer attendee of the meeting remembered Mueller’swords slightly differently: “Prosecutorial misconduct is a non-starter.” Eitherversion makes clear Mueller’s intent – he did not want to hear evidence thateither the prosecutors or the FBI agents on the case misbehaved and framed aninnocent man.)
Special counsel Mueller’s backgroundindicates zealousness that we might expect in the Grand Inquisitor, not the choirboy.
Why Special ProsecutorsAre A Bad Idea
The history of specialcounsels (called at different times either “independent counsel” or “specialprosecutor”) is checkered and troubled, resulting in considerable Supreme Courtlitigation around the concept of a prosecutor acting outside of the normal DOJchain of command.
The Supreme Court in 1988approved, with a single dissent (Justice Antonin Scalia), the concept of anindependent prosecutor. Still, all subsequent efforts to appoint such aprosecutor have led to enormous disagreements over whether justice was done.Consider Kenneth Starr’s obsessive four-year, $40-million pursuit of PresidentBill Clinton for having sex with a White House intern and then lying about it.Special Counsel Patrick J. Fitzgerald’s 2006 pursuit of I. Lewis “Scooter”Libby is not as infamous, but it should be. Fitzgerald indicted and a jurylater convicted Libby, a top aide to Vice President Dick Cheney, for lyingabout leaking to the New York Times the covert identity of CIA officer ValeriePlame Wilson. Subsequent revelations that there were multiple leaks and thatWilson’s CIA identity was not a secret served to discredit Libby’s indictment.Libby’s sentence was commuted. Libby’s relatively speedy reinstatement into thebar is seen by many as evidence of his unfair conviction. Considered in tandem,the campaigns against Democrat Clinton and Republican Libby raise disturbingquestions about the use of special or independent prosecutors.
Yet despite the constitutional issues, the mostserious problem with a special counsel is that when a prosecutor is appointedto examine closely the lives and affairs of a pre-selected group of targets,that prosecutor is almost certain to stumble across multiple actions that mightbe deemed criminal under the sprawling and incredibly vague federal criminalcode.
In Mueller’s case, one canhave a very high degree of confidence that he will uncover alleged felonieswithin the ranks of the inner circle of the President’s men (there are very fewwomen to investigate in this administration). This could well include Trumphimself.
I described thisphenomenon long before Trump began his improbable rise, in my 2009 book “ThreeFelonies a Day: How the Feds Target the Innocent” (Encounter Books, updatededition, 2011). I explained how federal“fraud” statutes were so vague that just about any action in the daily life ofa typically busy professional might be squeezed into the elastic definition ofsome kind of federal felony. Harvard Law Professor (and, I should note, myformer professor and subsequent longtime friend and colleague) Alan Dershowitzhas beaten me to the punch, making the case in a raft of articles and on TV andradio that none of the evidence thus far leaked to or adduced by investigativereporters constitute federal crimes.
But Mueller’s demonstrated zeal and ampleresources virtually assure that indictments will come, even in the absence ofactual crimes rather than behavior that is simply “politics as usual”.
IfMueller claims that Trump or members of his entourage committed crimes, itdoesn’t mean that it’s necessarily so.
We should take Mueller andhis prosecutorial team with a grain of salt. But a grain of salt seems anoutmoded concept in an age when both sides – Trump and his critics – seemimpervious to inconvenient facts. The most appropriate slogan for all thecombatants on both sides of the Trump wars (including, alas, the reporters andtheir editors) might well be: “Don’t confuseme with the facts; my mind is made up.”
Harvey Silverglate, acriminal defense and First Amendment lawyer and writer, is WGBH/News’ “FreedomWatch” columnist. He practices law in an “of counsel” capacity in the Bostonlaw firm Zalkind Duncan & Bernstein LLP. He is the author, most recently,of Three Felonies a Day: How the Feds Target the Innocent (New York: EncounterBooks, updated edition 2011). The author thanks his research assistant, NathanMcGuire, for his invaluable work on this series.
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