December 4th, 2017

Andrew C. McCarthy’s latest (and Alan Dershowitz) on Flynn and Mueller

I hope you’ve been reading Andrew C. McCarthy’s take on the Mueller investigation right along. Once again, he offers a must-read analysis.

I’m only going to offer an excerpt, and I urge you to read the whole thing:

Bottom line: If the FBI had a collusion case of some kind, after well over a year of intensive investigation, Flynn and Papadopoulos would have been pressured to plead guilty to very serious charges — and those serious offenses would be reflected in the charges lodged against Manafort. Obviously, the pleas and the indictment have nothing to do with collusion because Mueller has no collusion case…

Since there is no collusion case, we can safely assume Mueller is primarily scrutinizing President Trump with an eye toward making a case of obstructing an FBI investigation. This also makes sense in light of the pleas that have been taken…

The theme of such a prosecution is that the investigative process must be protected, not that some terrible underlying crime (like an espionage conspiracy) has been committed. Witnesses such as Flynn and Papadopoulos would therefore not be made to look like they had gotten a pass on serious offenses; they would look like they had owned up to corrupting the process and are now helping the prosecutor against the principal corruption target…

I continue to believe that this is the real danger for President Trump: A report by the special counsel, either through the grand jury or some other vehicle, concluding (a) that the president had obstructed the FBI’s investigation of Flynn and of Trump-campaign collusion with Russia, and (b) recommending that the matter be referred to Congress for consideration of next steps, potentially including impeachment and removal.

I also tend to trust Alan Dershowitz on legal matters, although not on politics. He’s one of those liberal Democrats who often goes against the prevailing party line, particularly when he’s talking about law. So many people on both sides just hop on the meme du jour for their side and then justify it, even if they have to turn themselves into pretzels to do it. That’s much more rare with Dershowitz than with most, and I value that.

So I was not surprised to see his viewpoint on Flynn and Mueller:

As the president-elect, Donald Trump was constitutionally and politically entitled to try to protect his ability to broker a fair peace between the Israelis and Palestinians by urging all members of the Security Council to vote against or delay the enactment of the resolution. The fact that such efforts to do the right thing did not succeed does not diminish the correctness of the effort. I wish it had succeeded. We would be in a better place today.

Some left-wing pundits, who know better, are trotting out the Logan Act, which, if it were the law, would prohibit private citizens (including presidents-elect) from negotiating with foreign governments. But this anachronistic law hasn’t been used for more than 200 years. Under the principle of desuetude — a legal doctrine that prohibits the selective resurrection of a statute that has not been used for many decades — it is dead-letter. Moreover, the Logan Act is unconstitutional insofar as it prohibits the exercise of free speech.

Dershowitz, who was no Trump supporter and who as far as I know has voted the straight Democratic ticket for most of his life, is just getting warmed up. He continues:

The second question is why did Mueller charge Flynn only with lying? The last thing a prosecutor ever wants to do is to charge a key witness with lying.

A witness such as Flynn who has admitted he lied — whether or not to cover up a crime — is a tainted witness who is unlikely to be believed by jurors who know he’s made a deal to protect himself and his son. They will suspect that he is not only “singing for his supper” but that he may be “composing” as well — that is, telling the prosecutor what he wants to hear, even if it is exaggerated or flat-out false. A “bought” witness knows that the “better” his testimony, the sweeter the deal he will get. That’s why prosecutors postpone the sentencing until after the witness has testified, because experience has taught them that you can’t “buy” a witness; you can only “rent “ them for as long as you have the sword of Damocles hanging over them.

So, despite the banner headlines calling the Flynn guilty plea a “thunderclap,” I think it may be a show of weakness on the part of the special counsel rather than a sign of strength. So far he has had to charge potential witnesses with crimes that bear little or no relationship to any possible crimes committed by current White House incumbents. Mueller would have much preferred to indict Flynn for conspiracy or some other crime directly involving other people, but he apparently lacks the evidence to do so.

Not much more to add on that today, except to say that I agree with McCarthy that the Democrats are determined to impeach and/or remove Donald Trump from office and that’s been clear from the start. That’s one reason the 2018 Congressional elections are so important.

28 Responses to “Andrew C. McCarthy’s latest (and Alan Dershowitz) on Flynn and Mueller”

  1. ColoComment Says:

    And then there is this, from Legal Insurrection’s Prof. Jacobson:

  2. skeptic Says:

    “That’s one reason the 2018 Congressional elections are so important.”

    And as a corollary why the Wisconsin re-districting case now before the Supremes is crucial. If the politician-lawyers in black robes rule against Wisconsin the judges not the elected representatives will do the re-districting. I think this power grab by the judiciary is an almost irresistible temptation for the Supremes so I am not optimistic.

    This will throw the 2018 elections into chaos and the ACLU and other left-wing groups are ready to jump in and exploit the uproar.

  3. Mike K Says:

    This is a coup d’etat being orchestrated by someone in the shadows. I don’t think it is Hillary. Obama is part of the effort and his entrapment of Flynn was an integral part as was the “Russian” theme put out after the election.

    I never thought the US would be subject to the conspiracies we see in third world and south American countries but it may be the case. It may not be an individual. I’m not that conspiracy addicted but the Deep State is real. The FBI and the CIA seem to be part of it and that may be the central organizing force.

    I don’t see this ending well I just hope Trump keeps his own security close. Indira Gandhi made that mistake,

  4. Harry the Extremist Says:

    OK. So how do they take away Pence? Id rather have Pence in office anyway.

  5. J.J. Says:

    Questio: How did the FBI know Flynn lied to them about his conversations with Kislyak?
    Answer: The NSA had listened to them and FISA warrants were issued to find out who the American citizen talking with Kislyak was.
    Question: Who ordered the FISA warrant and who asked for the unmasking?
    Answer: The FBI probably asked for the FISA warrant because they were investigating the Russian interference by the time of the conversations of 12/22/2016 and 12/29/2016.
    The unmasking was probably requested by Samantha Powers or Ben Rhodes. Once the transcripts of the conversations were available, if General Flynn misstated any part of the conversation when being interrogated by the FBI, he could be charged with lying. Can you recall all your telephone conversations perfectly? Flynn may have misstated something or may have shaded some meanings when under questioning. Such a liar, don’t you know?

    Here’s a timeline of events leading up to Flynn’s resignation in February.

    The Obama administration was spying on the incoming Trump administration. The reason: Russian interference in the election. Trump’s enemies would claim it was necessary. To me it appears to be the act of criminalizing the normal activities of your political opponents.

    The Russians set out to destabilize our election and political process. They have succeeded beyond their fondest dreams. All because of hyper-partisanship and a deep dislike of Donald Trump and his deplorable supporters.

  6. Roy Says:

    This is why you never, ever, talk to the cops – especially the Feds. You have the right to remain silent – use it.

  7. n.n Says:

    Yeah. It’s the fourth trimester and even hardened abortionists would hesitate to deem the baby unworthy… nonviable.

  8. Esther Says:

    I’m feeling sick about this.

  9. Geoffrey Britain Says:

    “I agree with McCarthy that the Democrats are determined to impeach and/or remove Donald Trump from office and that’s been clear from the start.” neo

    “So much of left wing thought is a kind of playing with fire by people who don’t even know that fire is hot.” George Orwell

    The impeachment of Trump on ‘trumped up’ charges will, if not immediately, inevitably lead to Civil War and the end of the American Republic. Which, among the more astute on the Left, may well be what they are working to precipitate.

    “Id rather have Pence in office anyway.” Harry the Extremist

    Yes, I’ve been most impressed with Pence’s fierce taking on of the Left and it’s narrative… his speaking out against Islam’s support for terrorism, his speaking out against illegal immigration. His speaking out in agreement with the President he serves. His opposition to Common Core. His speaking out against BLM and altifa. His ripping into Schumer and Pelosi. His scorn for the RINOs that are blocking meaningful reform in Congress.
    Oh wait…

  10. Mike K Says:

    “This is why you never, ever, talk to the cops – especially the Feds. ”

    Have you read the account of how it went down?

    According to another source, with direct knowledge of the Jan. 24 interview, McCabe had contacted Flynn by phone directly at the White House. White House officials had spent the “earlier part of the week with the FBI overseeing training and security measures associated with their new roles so it was no surprise to Flynn that McCabe had called,” the source said.

    McCabe told Flynn “some agents were heading over (to the White House) but Flynn thought it was part of the routine work the FBI had been doing and said they would be cleared at the gate,” the source said.

    It wasn’t until after they were already in (Flynn’s) office that he realized he was being formally interviewed. He didn’t have an attorney with him,” they added. Flynn’s attorney Robert Kelner did not respond for comment.

    The agent who was fired for his role in sending anti-Trump, pro-Hillary messages was also the one who interviewed Flynn.

    Deep Throat again.

  11. miklos000rosza Says:

    This all seems so bad, so bad…

    As Juliette Lewis said in Natural Born Killers, emotionally, “…bad bad bad…”

  12. parker Says:

    As a farm boy, I know when someone has sh*t on their boots. The only question is it bovine, porcine, or poultry.

  13. Griffin Says:

    This is all such a dangerous game.

  14. The Other Chuck Says:

    After saying that every incoming administration has back channel talks with foreign governments, Kunstler explains why Flynn lied to both VP-elect Pence and the FBI:

    For instance, why exactly might Mike Flynn lie about his discussions with Kislyak? That ought to be self-evident as per what I said above: back channel talks are necessarily secret. But why not let Vice-president Pence or the FBI in on it? As for Pence, not all government officials are in-the-loop for back channel talks for the excellent reason that the fewer people involved the less chance of the talks becoming un-secret.

    And the FBI? Why, in December of 2016, might Trump and his aides consider the FBI to be an unreliable agency? Because they knew that officials in the FBI under Director James Comey had politicized the agency in favor of his opponent in the election; that the agency had misbehaved in the Clinton e-mail investigation, the meeting at the Phoenix airport between Bill Clinton and Attorney General Loretta Lynch, and the Christopher Steele Russian intel file affair.

    Kunstler gets it.

  15. huxley Says:

    I’m reminded of the question: What happens if the dog actually catches the car?

    I’m not a Trump guy, but I will be very angry if Democrats manage to force Trump out on this nonsense.

    I won’t be alone.

    Sow the wind, reap the whirlwind.

  16. huxley Says:

    The Other Chuck: I thought you were talking about William Kunstler, the lawyer who defended just about all the 60s/70s radicals.

    But wiki tells me that Kunstler has been dead since 1995.

    Never mind.

    However, twelve years ago James Kunstler was beating the Peak Oil/climate change drum in his book, “The Long Emergency” to the effect we were facing an inevitable period of scarcity and collapse.

    Back then, in a different online arena, I was fighting off a bunch of Kunstler-heads who took his thesis as gospel.

    Oil doesn’t seem to be our problem now, nor climate change.

    Glad this Kunstler isn’t as standard-issue prog as I once thought.

  17. SCOTT OLSON Says:

    I am in agreement with huxley and Geoffry Britain. There will be massive anger in this country, if the Democrats pull of the impeachment and removal of Mr. Trump. This is not going to end well.

  18. Yancey Ward Says:

    I read on that Flynn was ambushed in his office by the Strzok and another FBI agent who lied to get into the office in the first place- the interview took place without Flynn’s lawyer. Don’t know whether or not this is true, but I have no reason to doubt it since I find it nearly impossible to believe any lawyer would have allowed Flynn to lie in such an interview.

    I liked McCarthy’s take, but I do have one quibble here- the obstruction route makes no sense unless the underlying investigation actually finds a prosecutable crime. I still think Mueller is planning to bootstrap this onto a Logan Act violation.

    After that, maybe he tries obstruction, but in my opinion that is just political horseshit. Trump could have told Comey to drop Flynn right then and there, but did not. Since not everyone who lies to the FBI is prosecuted, or even not all the people who commit some other felony are prosecuted, then at some point people at the FBI or the DoJ are every single day declining to prosecute based on discretion that derives directly from the president’s power. I don’t hear people describing that discretion as obstruction. The entire obstruction argument is joke legally- this is just politics, not law.

  19. Cornhead Says:

    1. Alan will be discounted and attacked by the Left because he appears on Fox and supports Israel.

    2. Andy should be on Fox on a near daily basis. Make him a paid regular rather than that idiot Chavetz.

    3. Trump should fire Dowd and hire McCarthy.

  20. Cornhead Says:

    This is bigger than Watergate. As McCarthy has noted, the FBI protected Hillary by intentionally engaging in a fake investigation. This Peter Strzok is at the center of this COVERUP.

    Hilary should have been indicted for multiple crimes. She was protected by the FBI and DOJ. This is how the Swamp works.

  21. Cornhead Says:

    And neo is right. The main theme of the Dems in 2018 will be elect us so we can impeach and remove Trump.

  22. The Other Chuck Says:


    Yes, James Kunstler is the same guy who is still beating the peak oil drum, only now it’s the cost/benefit ratio that will unravel everything. He lives what he preaches having moved to a small upstate NY town to hunker down for the peak oil winter that is around the corner.

    As to his views on Trump and the impending impeachment, he is somewhat like Dersh. He can see that it is becoming nothing more that a witch hunt, one that is tied into the other one.

    Like you I was not a Trump supporter, but forcing him out in this way will inflame the country and lead to some very, very unpleasant consequences.

  23. Geoffrey Britain Says:

    “this is just politics, not law.” Yancey Ward

    Impeachment is about politics… not law.

    Politics is about power. In a representative democracy, that power rests upon the degree of political support it attracts.

    Political support rests upon self-interest, ideology and the perception of what people believe to be true.

    Dems, with the full support of the mass media are building the perception that Trump is illegitimate, unfit, out of control and dangerous. Building a ‘circumstantial’ case that he must go.

  24. teo toon Says:

    As I have said elsewhere, the moment Meuller attempts the Logan Act charge Trump must – let me re-iterate, MUST – have every living ex-president equally charged and sent to Gitmo to await a military tribunal – Trump cannot trust any – any – Federal “judge” – on the same charges plus insurrection if they are involved in Obama’s Resistance movement. The Kennedy estate must also be RICOed for The Swimmer’s contact with the Soviets to get help to prevent Reagan’s election. The time for being nice is over.

  25. teo toon Says:

    Harry the Extremist Says:
    December 4th, 2017 at 4:33 pm

    OK. So how do they take away Pence? Id rather have Pence in office anyway.

    Pence has been in on the removal of Trump from the beginning; but, what he doesn’t know is going to hurt him: He will go along with making Jeb! vice-president; once that is done, the Bush deep state sub-groups will remove Pence a la JFK or RFK; and, what do you know? Jeb! is now president; just like the GOPe wanted all along.

  26. arfldgrs Says:

    and on the other side, the old guard that failed and wont step down is being purged by the left!!!

    as i said, all the people that work with the left HAVE to ahve some dirt, so they have control post power…

    that why they HATE a clean person, they have no defense, nothing sticks, etc…

    your watching them purge the state of those who will no or would not step down even if ordered (if that was possible), they wouild squat using what they earned and the public view… so they are being purged

    but remember the first line in the revolutionary chatechism… the revolutionary is a doomed man…

  27. neo-neocon Says:

    teo toon:

    Yeah. Right. Jeb. Gotcha.

    Take a chill pill and call me in the morning. Or just leave it at the chill pill.

  28. Esther Says:

    For eight years Obama administration foreign policy seemed to be that all the world’s problems are because of Israel. But since Trump was elected that has shut down.

    Even The NY Times daily drum beat on that tapered off. Charlie Rose won’t be having anymore interviews with antiZionists. 🙂 Daily ISIS beheading videos seem to have tapered off too.

    But, maybe there just isn’t journalistic space what with obsessive reporting on Trump?

    So, anyway, what troubles me, in addition to everything else, is noticing that Israel is somehow in the crosshairs of this situation.

    I don’t want to go back to Obama style kick Israel as foreign policy. I don’t want the Democrats to use Israel as a cudgel to realize their impeachment fantasy.

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Previously a lifelong Democrat, born in New York and living in New England, surrounded by liberals on all sides, I've found myself slowly but surely leaving the fold and becoming that dread thing: a neocon.

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