Friday, December 8, 2017

Is Mueller through? An interesting analysis

From A Legal Perspective, Mueller’s Investigation is Dead. Here’s Why
Posted By Nick James On 1:51 PM 12/07/2017 In |
Like a headless turkey running around in circles, Special Counsel Robert Mueller’s anti-Trump investigation is dead, even if he does not yet realize it. While his investigation stumbles onward, with life support provided by the biased media, from a legal perspective the viability of any criminal case that Mueller could possibly bring has been effectively gutted thanks to the news (suppressed for months by Mueller’s team) that the FBI’s “key agent” in both the Russia investigation and the Clinton email probe was an ardent Hillary supporter with an anti-Trump bias.

Under federal law, a prosecutor is required “to disclose exculpatory and impeachment information to criminal defendants and to seek a just result in every case.” Specifically, pursuant to Giglio v. United States, prosecutors are obligated to provide defendants with impeachment evidence, which includes, according to the DOJ’s guidelines, evidence of a witness’s biases, “[a]nimosity toward defendant,” or “[a]nimosity toward a group of which the defendant is a member or with which the defendant is affiliated.”

As a result, in any prosecution brought by Mueller against a Republican target, defense counsel would be entitled under the Constitution to all evidence in the government’s possession relevant to exploring the apparent biases of FBI agent Peter Strzok and his animosity toward Trump and the Republican Party. This, in and of itself, could be a case-killer because it is very unlikely that Mueller or the DOJ would want defense counsel poring through all the records and documents, emails, and texts in the DOJ’s and Strzok’s possession revealing the agent’s biases since this could fatally undermine any other cases or investigations the agent has worked on—such as the FBI’s decision to recommend charging General Flynn with lying to federal agents even though Hillary Clinton’s besties, Cheryl Mills and Huma Abedin, were given a free pass despite apparently doing the same thing.

Significantly, the fatal damage done to Mueller’s anti-Trump investigation does not only rest in the fact that defense counsel will be able to conduct an unlubricated prostate examination on the FBI’s key agent at trial. Instead, the real reason why Mueller will not risk a criminal trial is the lasting damage that would be done to the FBI’s reputation by having Strzok’s baggage brought into the daylight.

 To expose the agent’s biases, defense counsel would have the opportunity to cross-examine the agent and his apparent mistress, an FBI lawyer who also worked on Mueller’s investigation and the Clinton email probe, about their exchanged messages showing support for Clinton and hostility to Trump. Additionally, the agent’s wife, a high-profile attorney at another federal agency, apparently was a member of several pro-Obama and pro-Clinton Facebook groups and is a follower of a Facebook page called “We Voted for Hillary.”

One can only imagine the fun that an aggressive defense attorney would have shredding Strzok’s credibility by grilling him to see if he shared his wife’s posted political views.

The prospect of having to reveal to defense counsel and the public the FBI’s dirty laundry concerning Strzok—the former deputy head of the agency’s counterespionage unit—plus having to watch as defense attorneys parade the disgraced agent, his disgraced FBI mistress, and possibly his betrayed wife before the jury to explore the extent of his anti-Trump biases pretty much kills the likelihood of Mueller indicting any other Republicans. There’s simply too much downside.

Undeniably, if Mueller were to proceed with a trial under these tainted circumstances, he would be exposing the country’s vaunted legal system and the agency he once headed, to both national and international ridicule. The FBI’s reputation for impartiality would be forever flushed down the toilet. This price simply is not worth it particularly since he has found no evidence of collusion between Trump and Russia. Indeed, one wonders, cynically, if this realization prompted Mueller to offer a light plea deal to Flynn so that he could quickly sign him up as a cooperator and add the general as a notch on his prosecutorial belt before the DOJ notified the public of the real reason for Strzok’s removal from Mueller’s team? (Arguably, Giglio disclosure obligations only apply after a person has been indicted but not if he pleads guilty pre-indictment.)

Finally, it is worth noting that under principles analogous to the fruit-of-the-poisonous-tree doctrine, any FBI agents or officials who worked with Strzok (including James Comey) would be tainted by, and subject to cross-examination to explore, Strzok’s biases and whether he is the type of person who hid from them his biases while making key charging recommendations.

In short, Mueller’s anti-Trump investigation is effectively dead (unless his targets’ lawyers are nincompoops). And, ironically, this is all the fault of Strzok and his mistress who wanted to help “Crooked Hillary” and target Trump. How do you like ‘dem apples?

Nick James is a trial attorney in the D.C. area who formerly worked for the United States Department of Justice as an award-winning federal prosecutor.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.

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Monday, November 20, 2017

"Racists" and "victims"

By sheer coincidence, while I was writing about real and imagined racists, my friend Joan Swirsky was writing about real and imagined victims. Her essay is well worth reading.

Sunday, November 19, 2017

Is an allegation of "racism" debatable?

Recently, while considering the use and abuse of the word "racism," I was reminded of an episode that occurred while teaching constitutional law at Brooklyn Law School. For over 20 years I eviscerated the Supreme Court Heart of Atlanta and McClung cases, tying most of my students who agreed with the Court in logical knots and exposing the result-oriented, dishonest, and indefensible majority opinion. Not surprisingly, some of those students felt themselves aggrieved. Paraphrasing today's vernacular, they considered my deconstruction of the majority opinion worse than a mere "micro-aggression"! As I recall, they considered it no what today would be called a "macro-aggression"-- and worse, in a "safe space" no less, the hallowed halls of academe. (In those days, there was no First Amendment roped-off area across the street).

One semester, soon after a two-hour class devoted to the cases, I received an invitation to visit the Dean. After the requisite small-talk, the following colloquy occurred:

Dean: I've had a group of your con law students in here complaining that you're a racist.
I stared at him, dead silent.
At least fifteen seconds passed.
Dean: Well?
Holzer: Well what?
Dean: Well, what about what they said?
More silence.
Dean: Well, don't you have anything to say?
Holzer: No.
Dean: No?
Holzer: No.
Dean: If someone called me a racist, I'd sure want to deny it.
Holzer: No doubt.
More silence, longer this time.
Dean: So you're not going to deny it?
Holzer: Deny it? I'm not even going to acknowledge it.
Dean: What?
More silence.
Dean: Well, I guess that's it.
Holzer: Yes.
I stood up and left.

He never mentioned the subject again.

For those with the stamina to read my excoriation of the Heart of Atlanta and McClung cases, please see