Re: Fwd: Re:

Can you please send me WSJ op Ed. Tx

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Mueller's Fruit of the Poisonous Tree

It makes no difference how h=norable he is. His investigation is tainted by the bias that attended

its o=igin in 2016.

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By

David B. Rivkin Jr.</=pan> and

<=u>

Elizabeth Price Foley=/span>

June 22,=2018 6:38 p.m. ET

414 COMMENTS

Special counsel Robert Mueller's investigation may face a s=rious legal obstacle: It is tainted by antecedent political bias. The June 1= report from Michael Horowitz, the Justice Department's inspector general, unearthed a pattern of anti-Trump bias by high-ranking o=ficials at the Federal Bureau of Investigation. Some of their communication=, the report says, were "not only indicative of a biased state of m=nd but imply a willingness to take action to impact a presidential candidate's electoral prospects." A=though Mr. Horowitz could not definitively ascertain whether this bias 4>=9Cdirectly affected" specific FBI actions in the Hillary Clinton em=il investigation, it nonetheless affects the legality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.<=>

Crossfire was launched only months before the 2016 election. Its FB= progenitors—the same ones who had investigated Mrs. Clinton—=eployed at least one informant to probe Trump campaign advisers, obtained Foreign Intelligence Surveillance Court wiretap warrants= issued national security letters to gather records, and unmasked the ident=ties of campaign officials who were surveilled. They also repeatedly leaked=investigative information.

Mr. Horowitz is separately scrutinizing Crossfire and isn'= expected to finish for months. But the current report reveals that FBI off=cials displayed not merely an appearance of bias against Donald Trump, but animus bordering on hatred. Peter Strzok, who led=both the Clinton and Trump investigations, confidently assuaged a colleague=E241)4os fear that Mr. Trump would become president: "No he wont8040t. We'll stop it." An unnamed FBI lawyer assigned to Crossfire told a colleague he was "devastated" and 4,=9Cnumb" after Mr. Trump won, while declaring to another FBI attorne=: "Viva le resistance."

The report highlights the FBI's failure to act promptly up=n discovering that Anthony Weiner's laptop contained thousands of M=s. Clinton's emails. Investigators justified the delay by citing the "higher priority" of

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Crossfire. But Mr. Horowitz=writes: "We did not have confidence that Strzok's decision t= prioritize the Russia investigation over following up on Ethel investigati=e lead discovered on the Weiner laptop was free from bias."<=>

Similarly, although Mr. Horowitz found no evidence that then-FBI D=rector James Comey was trying to influence the election, Mr. Comey did make=decisions based on political considerations. He told the inspector general that his election-eve decision to reopen the C=inton email investigation was motivated by a desire to protect her assumed p=esidency's legitimacy.

The inspector general wrote that Mr. Strzok's text message= "created the appearance that investigative decisions were impacted=by bias or improper considerations." The report adds, importantly, that "most of the text messages raising such questions pertained to=the Russia investigation." Given how biases ineluctably shape behav=or, these facts create a strong inference that by squelching the Clinton in=estigation and building a narrative of Trump-Russia collusion, a group of government officials sought to bolster Mrs. Clintont=804es electoral chances and, if the unthinkable happened, obtain an insura=ce policy to cripple the Trump administration with accusations of illegitim=cy.

What does this have to do with Mr. Mueller, who was appointed in M=y 2017 after President Trump fired Mr. Comey? The inspector general conclud=s that the pervasive bias "cast a cloud over the FBI investigations to which these employees were assigned,"=including Crossfire. And if Crossfire was politically motivated, then its c=lmination, the appointment of a special counsel, inherited the taint. All s=ecial-counsel activities— investigations, plea deals, subpoenas, reports, indictments and convictions—are fru=t of a poisonous tree, byproducts of a violation of due process. That Mr. M=eller and his staff had nothing to do with Crossfire's origin offer= no cure.

When the government deprives a person of life, liberty or property= it is required to use fundamentally fair processes. The Supreme Court has m=de clear that when governmental action "shocks the conscience," it violates due process. Such cond=ct includes investigative or prosecutorial efforts that appear, under the t=tality of the circumstances, to be motivated by corruption, bias or entrapm=nt.

In U.S. v. Russell (19=3), the justices observed: "We may someday be presented with a situation in which the conduct of law enforcement agents is so outrageous=that due process principles would absolutely bar the government from invoki=g judicial processes to obtain a conviction." It didn't tak= long. In Blackledge v. Perry (1974), the court concluded that due process was o=fended by a prosecutor's "realistic likelihood of '=indictiveness " that tainted the "very initia=ion of proceedings."

In Young v. U.S. ex rel. Vuitton =/span>(1987), the justices held that because prosecutors have "power to employ the full machinery of the state in scrutinizi=g any given individual ... we must have assurance that those who would wi=ld this power will be guided solely by their sense of public responsibility=for the attainment of justice." Prosecutors must be "disinterested" and make "dispassionate ass=ssments," free from any personal bias.

In Williams v. Pennsylvania=nbsp;(2016), the court held that a state judge's potential bias violated due process because he had played a role, a quarter-century earlie=, in prosecuting the death-row inmate whose habeas corpus petition he was h=aring. The passage of time and involvement of others do not vitiate the tai=t but heighten "the need for objective rules preventing the operation of bias that might otherwise be ob=cured," the justices wrote. A single biased individual "mig=t still have an influence that, while not so visible ... is nev=rtheless significant."

In addition to the numerous anti-Trump messages uncovered by the i=spector general, there is a strong circumstantial case—including pe=sonnel, timing, methods and the absence of evidence—that Crossfire was initiated for political, not national-security, purposes.<=u>

It was initiated in defiance of a longstanding Justice Department p=esumption against investigating campaigns in an election year. And while im=artiality is always required, a 2012 memo by then-Attorney General Eric Holder emphasizes that impartiality is 40=9Cparticularly important in an election year," and "politic= must

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play no role in the decisions of federal prosecutors or investigators-regarding any investigations. ... Law enforcement officers and prosecutors may never select the timing of investigative steps=or criminal charges for the purpose of affecting any election, or for the p=rpose of giving an advantage or disadvantage to any candidate or political p=rty."

Strong evidence of a crime can overcome this policy, as was the ca=e with the bureau's investigation of Mrs. Clinton's private=email server, which began more than a year before the 2016 election. But Crossfire was not a criminal investigation. It was a counteri=telligence investigation predicated on the notion that Russia could be coll=ding with the Trump campaign. There appears to have been no discernible evi=ence of Trump-Russia collusion at the time Crossfire was launched, further reinforcing the notion that it w=s initiated "for the purpose" of affecting the presidential=election.

The chief evidence of collusion is the hacking of the Democratic N=tional Committee's servers. But nothing in the public record sugges=s the Trump campaign aided that effort. The collusion narrative therefore hinges on the more generic assertion that Russia aimed t= help Mr. Trump's election, and that the Trump campaign reciprocate= by embracing pro-Russian policies. Yet despite massive surveillance and in=estigation, there's still no public evidence of any such exchange—only that Russia attempted to sow pol=tical discord by undermining Mrs. Clinton and to a lesser extent Mr. Trump.=u>

Some members of the Trump team interacted with Russians and advoca=ed dovish policies. But so did numerous American political and academic eli=es, including many Clinton advisers. Presidential campaigns routinely seek opposition research and interact with foreign powe=s. The Clinton campaign funded the Steele dossier, whose British author pai= Russians to dish anti-Trump dirt. The Podesta Group, led by the brother of=Mrs. Clinton's campaign chairman, received millions lobbying for Russia's largest bank and the Europe=n Center for a Modern Ukraine, both with deep Kremlin ties. The Clinton Fou=dation and Bill Clinton took millions from Kremlin-connected businesses.=/u>

collusion-related charges against anyone. No evidence Evidence has emerged suggest= of one Trump-Russia of his targets, collusion, George and Papadopoulos, Mr. Mueller=has was lured yet to to bring London, plied with the prospect of Russian information damagin= to Mrs. Clinton, and taken to dinner, where he drunkenly bragged that heQ=80,d heard about such dirt but never seen it. These circumstances not onl= fail to suggest Mr. Papadopoulos committed a crime, they reek of entrapment. The source of this information, former Au=tralian diplomat Alexander Downer, admits Mr. Papadopolous never mentioned e=ails, destroying any reasonable inference of a connection between the DNC h=ck and the Trump campaign.

Crossfire's progenitors thus ignored an obvious question: 1= Russia promised unspecified dirt on Mrs. Clinton but never delivered it, h=w would that amount to collusion with the Trump campaign? If anything, such behavior suggests an attempt to entice and pote=tially embarrass Mr. Trump by dangling the prospect of compromising informa=ion and getting his aides to jump at it.

Given the paucity of evidence, it's staggering that the FB= would initiate a counterintelligence investigation, led by politically bia=ed staff, amid a presidential campaign. The aggressive methods and subsequent leaking only strengthen that conclusion. If the FBI s=ncerely believed Trump associates were Russian targets or agents, the prope= response would have been to inform Mr. Trump so that he could protect his c=mpaign and the country.

Mr. Trump's critics argue that the claim of political bias=is belied by the fact that Crossfire was Trump-Russia not leaked collusion before narrative. the election. Shortly In=fact, after there Cr=ssfire's were launch, vigorous, CIA successful Director John pre-election Brennan efforts and Mr. to Comey publicize briefed the Co=gress, triggering predictable leaking. Christopher Steele and his patrons e=barked on a media roadshow, making their dossier something of an open secret in Washington.

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On Aug. 29, 2016, the New York Times published a letter to Mr. Com=y from Senate Minority Leader Harry Reid, saying he'd learned of .=804>evidence of a direct connection between the Russian government and Donald Trump's presidential campaign," which=had "employed a number of individuals with significant and disturbi=g ties to Russia and the Kremlin." On Aug. 30, the ranking Democrat=c members of four House committees wrote a public letter to Mr. Comey requesting "that the FBI assess whether connections betwe=n Trump campaign officials and Russian interests" may have contribu=ed to the DNC hack so as "to interfere with the U.S. presidential e=ection." On Sept. 23, Yahoo News's Michael Isikoff reported= the Hill briefings and the Steele dossier's allegations regarding C=rter Page. On Oct. 30, Harry Reid again publicly wrote Mr. Comey: "=n my communications with you and other top officials in the national securi=y community, it has become clear that you possess explosive information about close ties and coordination between Donald Trum=, his top advisors, and the Russian government."

That these leaking efforts failed to prevent Mr. Trump's v=ctory, or that Mr. Comey's ham-fisted interventions might have also=hurt Mrs. Clinton's electoral prospects, does not diminish the legal significance of the anti-Trump bias shown by government officials=

The totality of the circumstances creates the appearance that Cros=fire was politically motivated. Since an attempt by federal law enforcement=to influence a presidential election "shocks the conscience," any prosecutorial effort derived from such an outr=geous abuse of power must be suppressed. The public will learn more once th= inspector general finishes his investigation into Crossfire's gene=is. But given what is now known, due process demands, at a minimum, that the special counsel's activity be pause=. Those affected by Mr. Mueller's investigation could litigate such=an argument in court. One would hope, however, that given the facts either M=. Mueller himself or Deputy Attorney General Rod Rosenstein would do it first.

Mr. Rivkin and Ms. Fol=y practice appellate and constitutional law in Washington. He served at the=Justice Department and the White House Counsel's Office during the Reagan and George H.W. Bush administrat=ons. She is a professor at Florida International University College of Law.=/span>

Appeared in the June 23, 2018, print edition.

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Best,

=

Andrew

Washington Square

1050 Connecticut Ave, N.W. | Suite=1100
https://maps.go=gle.com/?q=1050+Connecticut+Ave,+N.W.+%7C+Suite+1100+%0D%0A+Washington,+D=+20036&entry=gmail&source=g

Here it is.

Sent from my iPhone

i htink weak thoughts?

jeevacation@gmail.com mailto:jeevacation@gmail=com " <jeevacation@gmail.com mailto:jeevacation@gmail.com= >

Big deal

Yawn. And David Rivki= is a hack. Zero — and I mean zero — chance that a co=rt would find a due process violation on these facts. Fruit of the po=sonous tree doctrine does not apply.