EFTA02549970

From: jeffrey E. <[email protected]> Sent: Saturday, June 23, 2018 5:26 PM To: Kathy Ruemmler Subject: Re: Fwd: Re: exactly my view. on facebook =1 thought you might look at the recent Internet and privacy opinions =and pose some open questions. to be discussed . mark wan=s to bring the Internet to the rest of the world.. and health=are . . his wife is nice but boring.. what do you=see as the challegnes what does she or he see.. =C2 social On Sat, Jun 23, 2018 at 7:11 PM, Kathy Ruemmler wrote: Yawn. And David Rivkin is a ha=k. Zero — and I mean zero — chance that a court woul= find a due process violation on these facts. Fruit of the poisonous=tree doctrine does not apply. On Jun 23, 2018, at 12:0= PM, jeffrey E. <[email protected] <[email protected]» wrote: i htink weak thoughts? Forwarded message Fro=: Steve Bannon <steve@arc-ent com&g=; Date: Sat, Jun 23, 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: EFTA_R1_01705393 EFTA02549970 Here it is. S=nt from my iPhone Begin forwarded message: From: "Grossman, Andrew M" Date: June 23, 2018 at 12:56:55 AM EDT To: "Rivkin, David" Subject: Re: 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=/span> 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 =E2 directly affected" specific FBI actions in the Hillary Cli=ton 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. Clinton =80 deployed 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. 2 EFTA_R1_01705394 EFTA02549971 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=E2 t. We'll stop it." An unnamed FBI lawyer assigned to Crossfire told a colleague he was "devastated" and =80 numb" 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 [the] 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 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=E2 s 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, =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 =98vindictiveness' " that tainted the "very in=tiation of proceedings." In Young v. U.S. ex rel. Vuitton =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 3 EFTA_R1_01705395 EFTA02549972 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 =80 particularly 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 the=purpose 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. 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=E2 d 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 =iased staff, amid a presidential campaign. The aggressive methods 4 EFTA_R1_01705396 EFTA02549973 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. Comey 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 Democratic 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 dossier's allegations regarding =arter Page. On Oct. 30, Harry Reid again publicly wrote Mr. Comey: =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=. 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 outrageous 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.</=pan> Best, <1=> Andrew</=> 5 EFTA_R1_01705397 EFTA02549974 Andrew Grossman Partner <image001.png><=u> Washington Square=u> 1050 Connect=cut Ave, N.W. I Suite 1100 <https://maps.=oogle.com/?q=1050+Connecticut+Ave,+N.W.+%7C+Suite+1100+%0D%0A+Washington=+DC+20036&ent ry=gmail&source=g> Washington, =C 20036 <https://maps.=oogle.com/?q=1050+Connecticut+Ave,+N.W.+%7C+Suite+1100+%0D%0A+Washington=+DC+20036&ent ry=gmail&source=g> -5304 T +1.202.861.1697 agrossman=bakerlaw.com <mailto:[email protected]> bakerlaw.com <http://www.ba=erlaw.com/> <image003.png> <http://www.=akerlaw.com/FindLawyers.aspx?Lookup_By_Email=agrossman> <image004.png> <https://twitter.com/andrewmgrossman> From= "Rivkin, Dav=d" <[email protected] <mailto:[email protected]» Date: Friday, June 22, 2018 at 7:50 PM To: "Grossman, Andrew M" <[email protected] <mailto:agrossman@b=kerlaw.com» Subject: <no subject> Can you please send me WSJ op Ed. Tx</=> Sent from my iPhone 6 EFTA_R1_01705398 EFTA02549975 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. 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