EFTA02549692

From: jeffrey E. <[email protected]> Sent: Saturday, June 23, 2018 4:02 PM To: Kathy Ruemmler Subject: Fwd: Re: i htink weak thoughts? Forwarded message From: Steve Banno Date: Sat, Jun 2=, 2018 at 2:44 PM Subject: Fwd: Re: To: "[email protected] <mailto:[email protected]> " <[email protected] <mailto:[email protected]» Big deal Begin forwarded message: Resent•From: From: "Rivkin, David" Date: June 23, 2018 at 8:14:49 AM EDT To: Steve Bannon Subject: Fwd: Re: Here it is. Sent from my iPhone Begin forwarded message: From: "Grossman, Andrew M' Date: June 23, 2018 at 12:56: To: "Rivkin, David" Subject: Re: 1 EFTA_R1_01705038 EFTA02549692 Mueller's Fruit of the Poisonous Tree It makes no difference ho= honorable he is. His investigation is tainted by the bias that attended i=s origin in 2016. By Elizabeth Price Fo=ey June 2=, 2018 6:38 p.m. ET 414 COMMENTS=/u> Special counsel Robert Mueller's investigation may face = serious legal obstacle: It is tainted by antecedent political bias. The J=ne 14 report from Michael Horowitz, the Justice Department's inspector general, unearthed a pattern of anti-Trump bias by high-ranking =fficials at the Federal Bureau of Investigation. Some of their communicati=ns, the report says, were "not only indicative of a biased state o= mind but imply a willingness to take action to impact a presidential candidate's electoral prospects."=Although Mr. Horowitz could not definitively ascertain whether this bias =E244>directly affected" specific FBI actions in the Hillary Clirton email investigation, it nonetheless affects the legality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.=u> Crossfire was launched only months before the 2016 election. Its=FBI progenitors—the same ones who had investigated Mrs. ClintonQ=80Qdeployed at least one informant to probe Trump campaign advisers, obtained Foreign Intelligence Surveillance Court wiretap warrant=, issued national security letters to gather records, and unmasked the ide=tities of campaign officials who were surveilled. They also repeatedly lea=ed investigative information. Mr. Horowitz is separately scrutinizing Crossfire and isn*=99t expected to finish for months. But the current report reveals that FBI=officials displayed not merely an appearance of bias against Donald Trump, but animus bordering on hatred. Peter Strzok, who le= both the Clinton and Trump investigations, confidently assuaged a colleag=e's fear that Mr. Trump would become president: "No he won=E24*t. We'll stop it." An unnamed FBI lawyer assigned to Crossfire told a colleague he was "devastated" and 4>=804onumb" after Mr. Trump won, while declaring to another FBI att=rney: "Viva le resistance." The report highlights the FBI's failure to act promptly =pon discovering that Anthony Weiner's laptop contained thousands o= Mrs. Clinton's emails. Investigators justified the delay by citing the "higher priority" of Crossfire. But Mr. Horowit= writes: "We did not have confidence that Strzok's decisio= to prioritize the Russia investigation over following up on [theJ investi=ative lead discovered on the Weiner laptop was free from bias."=/u> Similarly, although Mr. Horowitz found no evidence that then-FBI=Director James Comey was trying to influence the election, Mr. Comey did m=ke decisions based on political considerations. He told the inspector general that his election-eve decision to reopen the=Clinton email investigation was motivated by a desire to protect her assum=d presidency's legitimacy. The inspector general wrote that Mr. Strzok's text messa=es "created the appearance that investigative decisions were impac=ed by bias or improper considerations." The report adds, important=y, that "most of the text 2 EFTA_R1_01705039 EFTA02549693 messages raising such questions pertained t= the Russia investigation." Given how biases ineluctably shape beh=vior, these facts create a strong inference that by squelching the Clinton=investigation and building a narrative of Trump- Russia collusion, a group of government officials sought to bolster Mrs. Clinton=E204os electoral chances and, if the unthinkable happened, obtain an in=urance policy to cripple the Trump administration with accusations of ille=itimacy. What does this have to do with Mr. Mueller, who was appointed in=May 2017 after President Trump fired Mr. Comey? The inspector general conc=udes that the pervasive bias "cast a cloud over the FBI investigations to which these employees were assigned,O=9D including Crossfire. And if Crossfire was politically motivated, then i=s culmination, the appointment of a special counsel, inherited the taint. =11 special-counsel activities—investigations, plea deals, subpoenas, reports, indictments and convictions—are fr=it of a poisonous tree, byproducts of a violation of due process. That Mr.=Mueller and his staff had nothing to do with Crossfire's origin of=ers no cure. When the government deprives a person of life, liberty or proper=y, it is required to use fundamentally fair processes. The Supreme Court h=s made clear that when governmental action "shocks the conscience," it violates due process. Such con=uct includes investigative or prosecutorial efforts that appear, under the=totality of the circumstances, to be motivated by corruption, bias or entr=pment. In U.S. v. Russell =1973), the justices observed: "We may someday be presented with a situation in which the conduct of law enforcement agents is so outrageou= that due process principles would absolutely bar the government from invo=ing judicial processes to obtain a conviction." It didn't =ake long. In Blackledge v. Perry (1974), the court concluded that due process was =ffended by a prosecutor's "realistic likelihood of 4P=98vindictiveness' " that tainted the "very in=tiation of proceedings." In Young v. U.S. ex rel. Vuitton0=A0(1987), the justices held that because prosecutors have "power to employ the full machinery of the state in scrutiniz=ng any given individual ... we must have assurance that those who would =ield this power will be guided solely by their sense of public responsibil=ty for the attainment of justice." Prosecutors must be "disinterested" and make "dispassionate as=essments," free from any personal bias. In Williams v. Pennsylvania<=i> (2016), the court held that a state judge's potential bias violated due process because he had played a role, a quarter-century earli=r, in prosecuting the death-row inmate whose habeas corpus petition he was=hearing. The passage of time and involvement of others do not vitiate the =aint but heighten "the need for objective rules preventing the operation of bias that might otherwise be o=scured," the justices wrote. A single biased individual "m=ght still have an influence that, while not so visible ... is =evertheless significant." In addition to the numerous anti-Trump messages uncovered by the=inspector general, there is a strong circumstantial case—including=personnel, 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 Departmen= presumption against investigating campaigns in an election year. And whil= impartiality is always required, a 2012 memo by then-Attorney General Eric Holder emphasizes that impartiality is 4)=800particularly important in an election year," and "pol=tics must play no role in the decisions of federal prosecutors or investig=tors regarding any investigations.... Law enforcement officers and prosecutors may never select the timing of investigative step= or criminal charges for the purpose of affecting any election, or for therpurpose of giving an advantage or disadvantage to any candidate or politic=l party." Strong evidence of a crime can overcome this policy, as was the =ase with the bureau's investigation of Mrs. Clinton's priv=te email server, which began more than a year before the 2016 election. But Crossfire was not a criminal investigation. It was a counter=ntelligence investigation predicated on the notion that Russia could be co=luding with the Trump campaign. There appears to have been no discernible =vidence of Trump-Russia collusion at the time Crossfire was launched, further reinforcing the notion that it=was initiated "for the purpose" of affecting the president=al election. 3 EFTA_R1_01705040 EFTA02549694 The chief evidence of collusion is the hacking of the Democratic=National Committee's servers. But nothing in the public record sug=ests the Trump campaign aided that effort. The collusion narrative therefore hinges on the more generic assertion that Russia aimed=to help Mr. Trump's election, and that the Trump campaign reciproc=ted by embracing pro-Russian policies. Yet despite massive surveillance an= investigation, there's still no public evidence of any such exchange—only that Russia attempted to sow po=itical discord by undermining Mrs. Clinton and to a lesser extent Mr. Trum=. Some members of the Trump team interacted with Russians and advo=ated dovish policies. But so did numerous American political and academic =lites, including many Clinton advisers. Presidential campaigns routinely seek opposition research and interact with foreign pow=rs. The Clinton campaign funded the Steele dossier, whose British author p=id 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 Europ=an Center for a Modern Ukraine, both with deep Kremlin ties. The Clinton F=undation and Bill Clinton took millions from Kremlin-connected businesses.=u> No evidence has emerged of Trump-Russia collusion, and Mr. Muell=r has yet to bring collusion-related charges against anyone. Evidence sugg=sts one of his targets, George Papadopoulos, was lured to London, plied with the prospect of Russian information damagi=g to Mrs. Clinton, and taken to dinner, where he drunkenly bragged that he=E24040d heard about such dirt but never seen it. These circumstances not=only fail to suggest Mr. Papadopoulos committed a crime, they reek of entrapment. The source of this information, former A=stralian diplomat Alexander Downer, admits Mr. Papadopolous never mentione= emails, destroying any reasonable inference of a connection between the D=C hack and the Trump campaign. Crossfire's progenitors thus ignored an obvious question= If Russia promised unspecified dirt on Mrs. Clinton but never delivered i=, how would that amount to collusion with the Trump campaign? If anything, such behavior suggests an attempt to entice and pot=ntially embarrass Mr. Trump by dangling the prospect of compromising infor=ation and getting his aides to jump at it. Given the paucity of evidence, it's staggering that the =BI would initiate a counterintelligence investigation, led by politically =lased staff, amid a presidential campaign. The aggressive methods and subsequent leaking only strengthen that conclusion. If the FBI=sincerely believed Trump associates were Russian targets or agents, the pr=per response would have been to inform Mr. Trump so that he could protect =is campaign and the country. Mr. Trump's critics argue that the claim of political bi=s is belied by the fact that Crossfire was not leaked before the election.=ln fact, there were vigorous, successful pre-election efforts to publicize the Trump-Russia collusion narrative. Shortly after C=ossfire's launch, CIA Director John Brennan and Mr. Carney briefed =ongress, triggering predictable leaking. Christopher Steele and his patron= embarked on a media roadshow, making their dossier something of an open secret in Washington. On Aug. 29, 2016, the New York Times published a letter to Mr. C=mey from Senate Minority Leader Harry Reid, saying he'd learned of="evidence of a direct connection between the Russian government and Donald Trump's presidential campaign," whic= had "employed a number of individuals with significant and distur=ing ties to Russia and the Kremlin." On Aug. 30, the ranking Democ=atic members of four House committees wrote a public letter to Mr. Comey requesting "that the FBI assess whether connections betw=en Trump campaign officials and Russian interests" may have contri=uted to the DNC hack so as "to interfere with the U.S. presidentia= election." On Sept. 23, Yahoo News's Michael Isikoff repo=ted the Hill briefings and the Steele dossiers allegations regarding =arter Page. On Oct. 30, Harry Reid again publicly wrote Mr. Comey: 4b=9Cln my communications with you and other top officials in the national se=urity community, it has become clear that you possess explosive information about close ties and coordination between Donald Tru=p, his top advisors, and the Russian government." That these leaking efforts failed to prevent Mr. Trump's=victory, or that Mr. Comey's ham-fisted interventions might have a=so hurt Mrs. Clinton's electoral prospects, does not diminish the legal significance of the anti-Trump bias shown by government official=. 4 EFTA_R1_01705041 EFTA02549695 The totality of the circumstances creates the appearance that Cr=ssfire was politically motivated. Since an attempt by federal law enforcem=nt to influence a presidential election "shocks the conscience," any prosecutorial effort derived from such an out=ageous abuse of power must be suppressed. The public will learn more once =he inspector general finishes his investigation into Crossfire's g=nesis. But given what is now known, due process demands, at a minimum, that the special counsel's activity be paus=d. Those affected by Mr. Mueller's investigation could litigate su=h an argument in court. One would hope, however, that given the facts eith=r Mr. Mueller himself or Deputy Attorney General Rod Rosenstein would do it first. Mr. Rivkin and Ms. F=ley practice appellate and constitutional law in Washington. He served at =he Justice Department and the White House Counsel's Office during the Reagan and George H.W. Bush administra=ions. She is a professor at Florida International University College of La=. Appeared in the June 23, 2018, print edition.4=pan> Best, </=> Andrew</=> <http://www.bakerlaw.c=m/vcards/agrossman.vcf> 4>=A0 <https://twitter.com/andrewmgrossman> From= Date: Friday, June 22, 2018 at 7:50 PM To: "Grossman, Andrew M" Subject: <no subject> Can you please send me WSJ op Ed. Tx</=> 5 EFTA_R1_01705042 EFTA02549696 Sent from my iPhone This email is intended only for the use of the party to which it is addressed and may contain information that is privileged, confidential, or protected by law. If you are not the intended recipient you are hereby notified that any dissemination, copying or distribution of this email or its contents is strictly prohibited. If you have received this message in error, please notify us immediately Any tax advice in this email is for information purposes only. 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