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#157- What does the Mueller Report Really Say?  A Conversation with Benjamin Wittes

 
Nhoj Morley
 
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Nhoj Morley
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20 May 2019 13:37
 

In this episode of the podcast, Sam Harris speaks with Benjamin Wittes about both volumes of the Mueller Report.

#157- What does the Mueller Report Really Say?  A Conversation with Benjamin Wittes


This thread is for listeners’ comments.

 
 
John V. Linton
 
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John V. Linton
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20 May 2019 16:46
 

I know it’s a first rule of intellectual engagement to give a fair listening or full reading to any argument advanced, but it just seems that Harris, by inviting Benjamin Wittes to opine on Mueller, is yet again indulging (for something like 5/5) a voice enthrall to the view that Trump has abused his power.

I have yet to see Harris ever seriously countenance arguments by Alan Dershowitz, Victor Davis Hanson, Kimberley Strassel, Joe DiGenova, Tom Fitton—or any of the other dozen or so brave voices assembling a montage of the Obama era domestic spying on his political enemies.

Harris is foremost in these sorts of discussions a Democrat, as demonstrated by his defense of senators trawling the yearbook of Brett Kavanaugh, in Orwellian fashion, to parse his quotes about beer parties.

It is perhaps only fair to give Sam (yet) another listening here, but frankly I’m tired of his dogged refusal to engage robustly with the immense questions raised on the other side (Clapper, Comey and Brennan having become professional pundits who selectively and criminally leaked, our CIA and FBI using confidential informants against a political campaign, the FISA judges being misled, the country being misled, Trump being misled.)

Never does Sam or anyone in his ideological universe seriously ask what would happen if Trump used so low a threshold as the Steele Dossier to spy on his Democratic opponents in 2020.

Instead, Sam has repeatedly had Russiagate hysterics (Applebaum, Sullivan, etc.) on his program, giving play to the farthest-out-there sort of conspiracy theories, out of his irrational hatred of Donald Trump, and likely (derivatively) William Barr, the latter whose outline of executive power in his letter (job application) is far more intellectually persuasive and coherent than all the natterings of Schiff and Nadler and the entire Democratic caucus put together…

The Steele Dossier has been called the “black hole at the center of the Mueller Report”—meaning that Mueller goes out of his way, aside from saying “unverified” repeatedly, never to inquire into the filthy predicate for so much of this nonsense.  The studied omission is deliberate, as is the horrible Part II legal argument that Trump can be found to have obstructed by merely inspecting the Executive intent (sans any originating crime).  Objective people, read Barr’s original letter before he got the position to understand how bad Mueller’s argument is.  Then read the Mueller report yourselves.  Mueller’s Part II is full of non sequiturs and frightening statements for a prosecutor to make that imply there is guilty-until-proven-innocent.  No surprise there, given Mueller’s history (Bulger).

[ Edited: 20 May 2019 17:19 by John V. Linton]
 
Twissel
 
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Twissel
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21 May 2019 04:55
 

If Republicans trust Dershowitz over Mueller, there really is no hope for the party.

 
 
John V. Linton
 
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21 May 2019 04:56
 

Thanks for the argument, if there is one.

 
Twissel
 
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21 May 2019 05:13
 
John V. Linton - 21 May 2019 04:56 AM

Thanks for the argument, if there is one.

There is.

Check Mueller’s career, and consider if he is the person who would make non sequiturs in his report.
He also has access none of the pundits you mentioned have.

If you choose not to believe Mueller, that’s on you - but Trump will never again get as fair a shake as he got from him.

 
 
Mr Wayne
 
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21 May 2019 05:23
 

This conversation caught my attention.  I found Wittes’ web site to learn more.
https://www.lawfareblog.com/defending-muellers-constitutional-analysis-obstruction-and-faithful-execution

In principle, no one should be above the law.  Therefore, hand waving is never enough when doing a legal interpretation of such a report.

 
 
John V. Linton
 
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21 May 2019 05:24
 

It’s not just about whether one believes Mueller or not (Mueller avoids all the DNC corruption behind Steele though, so there are plenty of grounds not to).

It’s Mueller’s entirely ridiculous theory of obstruction of justice that a sitting president can, by firing Comey or telling Russia to release Hillary’s emails be investigated as to his Executive motive.

This leads to an infinite logical regress, in which the buck never stops, because some lower-order executive official like Mueller can always come up with a theory for why a certain motive was “corrupt”.  But the president is the elected head of the executive; he cannot sensibly superintend an investigation into himself; that’s not how our system is designed.

Impeachment is a remedy, but the Democrats cannot weaponize a preposterous over-reading of “obstruction” to criminalize political behavior and “pass the buck” on impeachment.  That’s why the longstanding OLC guidance that a president cannot be indicted is so important.  It is not a dodge to executive corruption; rather it’s the only way to keep elections meaningful and the transfer of power discrete, wherein debates don’t endlessly go on about who really has power within the Executive and who can subpoena or investigate whom.

It’s quite reasonable, given the conflicts now apparent at the root of the FISA application, for any president to consider removing Mueller.  Trump’s job for which he was hired was partly to clean up the deep state mess, so this nation is not run by liars like Comey, Clapper, and Brennan.  Yes Trump is a liar too, but he’s an elected one.  Those 3 have all colluded to interfere in the prior election.

 
John V. Linton
 
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21 May 2019 05:25
 
Mr Wayne - 21 May 2019 05:23 AM

This conversation caught my attention.  I found Wittes’ web site to learn more.
https://www.lawfareblog.com/defending-muellers-constitutional-analysis-obstruction-and-faithful-execution

In principle, no one should be above the law.  Therefore, hand waving is never enough when doing a legal interpretation of such a report.

It’s not about being above the law; it’s about what the law actually is…

For that matter, the president isn’t “below the law” either.

You can’t have lower-order executive officials second-guessing the elected head of the Executive.  It makes no LOGICAL sense.  I’m not even making a pro-Trump argument, I’m making a constitutional argument.

Any Ninth Circuit opinion can go out on a limb and talk about what “the rule of law” now is; the precise point is that very issue is often in debate.

 
John V. Linton
 
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21 May 2019 05:27
 

Here’s a critique I made a while back about Part II of the Mueller Report on FB:

Volume II of the Mueller Report on obstruction really is not very well argued, to be generous…

Mueller repeatedly makes the absurd argument that:

“Yet the obstruction-of-justice statutes do not aggrandize power in Congress or usurp executive authority. Instead, they impose a discrete limitation on conduct only when it is taken with the ‘corrupt’ intent to obstruct justice. The obstruction statutes thus would restrict presidential action only by prohibiting the President from acting to obstruct official proceedings for the improper purpose of protecting his own interests.”

As if a computer were determining “corrupt intent” rather than highly fallible human beings in Congress themselves subject to precisely the same symmetrical concern. Contra Mueller, his line of reasoning precisely would “aggrandize power in Congress” to anyone who has ever seen Schiff or Nadler in action…

Nor is there anything here “discrete”, i.e. separate and distinct or legally well-walled, about licensing this (or any) Congress to have roving jurisdiction over the quality of a President’s intent to determine whether otherwise wholly lawful Article II actions (say the removal of an inferior officer) are duly predicated.

Here is Mueller indulging the excluded middle logical fallacy:

“Limiting the range of permissible reasons for removal to exclude a “corrupt” purpose imposes a lesser restraint on the President than requiring an affirmative showing of good cause.”

In assessing the legality of Executive action X, Mueller is arguing that because (A) construing obstruction of justice as excluding a corrupt purpose (for an otherwise facially licit act) is a narrower reading of the obstruction statute than (B) requiring a president to show “good cause”, i.e. a book-report-like explicit justification for X to the Congress—it therefore follows that (A), being a narrower construal and proposed limit on Article II authority, is therefore a reasonable impingement on a President’s power by Congress.

But that hardly follows, as (A) may grant too dilatory a power of review to partisans who impugn motives daily and incontinently.

 
Twissel
 
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21 May 2019 05:33
 

John, what, exactly, would (in your opinion) constitute Obstruction?

 
 
John V. Linton
 
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21 May 2019 05:44
 
Twissel - 21 May 2019 05:33 AM

John, what, exactly, would (in your opinion) constitute Obstruction?

Obstruction would be something like the destruction of evidence under subpoena or asking people to perjure themselves.

Obstruction is also commonly understood to blocking the normal course of a criminal investigation—but here things get real complicated real fast.  That’s because the presidency is also especially charged with seeing that all investigations are carried out legitimately, and as the chief Executive Trump would have a constitutional duty to end an investigation which he saw itself as corrupt.  (Indeed a similar argument can be made for Trump refusing to testify.  Mueller had insufficient grounds to compel a sitting president to sit before him, a lower-order executive officer, and therefore Trump was protecting not just his own power but the power of all future presidents not to sit before an investigator sans really strong a priori evidence that a crime has been committed.)

So Trump’s constitutional duty is partly to make sure the Mueller inquiry was even legitimate to begin with—and that’s what makes this an impossible hail-mary to believe that somehow Trump meddling with an investigation is akin to Al Capone doing so.  It is not, because it is partly Trump’s job, as the elected president, to superintend the DOJ and the FBI—especially if they have gone off the rails, which they did, under the last administration.

 
Twissel
 
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21 May 2019 06:00
 

So Trump has done nothing wrong?

 
 
John V. Linton
 
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John V. Linton
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21 May 2019 06:04
 

I never said Trump has done nothing wrong; Trump does something wrong nearly every single day.  (So do many presidents).

The point is criminalizing political conduct, versus leaving it to the people via elections to throw the bums out.

Look, reverse this mirror for a moment:  Say Obama had come in by a whisker, finding evidence of a similar Steele Dossier, after having been half-briefed (misleadingly) by Comey, and discovered that his campaign had been spied upon by George W. Bush’s intel people in its final days, and that the opposition campaign (McCain) had submitted the (faulty) opposition research that comprised the basis for a FISA warrant that was itself predicated on misleading the FISA judges.

What I think has become so outrageous here is: a) many Americans can no longer even run this thought experiment; and b) our national MSM would be a photographic negative of its current reactivity level—screaming from the hills over civil liberties abuses and the need for high intel officials going to jail.  Jeffrey Toobin would be leading the brigade.

People are simply tired of this neutron-bomb-level-blinding double standard.

 
Twissel
 
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21 May 2019 06:17
 

John, you have picked your data carefully to support your conclusions.

But they aren’t the relevant facts: the Steele dossier was never evidence, nor was it the Initial trigger for an investigation.
Furthermore, the investigation started as Counter-intelligence, which has a much lower burden of credibility to start. If the FBI had learned that China is trying to help Clinton, would that have been out of bounds to investigate?

And most importantly: The Mueller investigations has lead to indictments and prison sentences: are you saying that all Judges and Grand Juries involved are ignorant of the real facts or laws?

Thanks to Mueller’s report, we have proof of Russian interference - proof we would not have if the FBI had followed your standards about opening a Counter-intelligence investigation.

 
 
John V. Linton
 
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21 May 2019 06:26
 

You are talking about a counter-intelligence investigation into a SITTING president of the United States.  The very fact that there is a “much lower burden of credibility to start” such an enterprise should also concern people that it might be politically abused—given the immense vise-like pressure over who should have won in 2016.  You act like these legal questions are being considered in a vacuum, by robots.

But for the Steele Dossier, there would have been no FISA warrants, and all the fruit gleaned therein.  (McCabe has said but for Steele, there would be no FISA.  They evidently tried several times before, sans Steele, incidentally, and gained no warrant.)  The Steele dossier permitted spying retroactively on the campaign emails of Page.

The Russian interference in our election is a legitimate concern—and sure, Manafort was found to have committed crimes—but it is obvious that if HRC had won in 2016, whatever Russian efforts were discovered would have been a sidebar story in the NYT and the U.S. would have responded by running some sort of mild social-media campaign in Russia to commensurately punish, or leaked some records of the Russians and then moved on.

The entire, convulsive, nonstop 24/7 fixation is very obviously rooted in the desire to upend Trump’s presidency and to question its legitimacy far more than the initial Russian predicate.

The FBI did learn—to return to your hypothetical—that Senator Feinstein had a Chinese spy working for decades under her.  And you know what they did?  They went to Senator Feinstein and gave her a “defensive briefing”.

Why wasn’t Trump entitled to the same?  Very obviously, because they wanted a pretext to spy on his campaign…

Look at the difference at how Michael Cohen was treated versus how Cheryl Mills was treated.  Okay, different rules, different investigations.  Fine.  But the overwhelming large-grain resolution on the picture is a DOJ/FBI that went to the ends of the earth to redefine “gross negligence” in Clinton’s case to include intent, for the first time ever—while many of the SAME people went to the ends of the earth to redefine “obstruction of justice” to be absurdly over-construed regarding Trump.

It should be noted that one of Mueller’s examples—Trump commenting publicly on the investigation: a) should be protected political speech; b) Obama was also guilty of in relation to the Clinton email investigation—yet there were no serious calls to impeach Obama for meddling in an internal DOJ affair.

 
John V. Linton
 
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21 May 2019 06:29
 

And the Padalouplous earlier predicate often cited is one very thin reed on which to hang a counter-intelligence investigation of a U.S. political campaign.

It’s not even clear that he wasn’t set up by our own deep-state operatives—just like Fusion GPS may have played a role in the infamous Trump Tower meeting.

These are all manufactured predicates; the real scandal is the weaponization of our intel agencies against the American people, which is also a far more insidious threat than even some Russian collusion (if it had been proved) would be.

 
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