File 026484
Mueller Investigation and FBI Bias in 2016 Election - Legal Analysis (File 026484)
Email chain containing a Wall Street Journal opinion article by David Rivkin Jr. and Elizabeth Price Foley analyzing alleged political bias in Special Counsel Robert Mueller's investigation and the FBI's Crossfire Hurricane counterintelligence operation.
Summary
This document is an email chain forwarded among political and legal figures in June 2018, featuring a Wall Street Journal op-ed arguing that the Mueller investigation is tainted by the political bias of FBI officials involved in investigating both Hillary Clinton's emails and the Trump campaign. The article cites the Justice Department Inspector General's report revealing anti-Trump bias among FBI personnel, particularly in the Crossfire Hurricane investigation, and applies constitutional law principles to argue that the special counsel's activities are 'fruit of a poisonous tree' and should be paused. The chain includes commentary from Steve Bannon, David Rivkin Jr., Andrew Grossman of Baker Hostetler law firm, and others discussing the legal implications of bias in federal investigations.
From: jeffrey E. [jeeyacation@gmail.com]Sent: 6/23/2018 4:01:37 PMTo: Kathy RuemmlerSubject: Fwd: Re:Attachments: image003.png; image002.png; image001.png; image004.pngImportance: Highi htink weak thoughts?----------Forwarded message----------From: Steve Bannon _________________Date: Sat, Jun 23, 2018 at 2:44 PMSubject: Fwd: Re:To: "jeevacation@gmail.com" <jeevacation@gmail.com>Big dealBegin forwarded message:Resent-From: ‹>From: "Rivkin, David" <41.1.11.>Date: June 23, 2018 at 8:14:49 AM EDTTo: Steve Bannon__________________Subject: Fwd: Re:Here it is.Sent from my iPhoneBegin forwarded message:From: "Grossman, Andrew M" _______________________Date: June 23, 2018 at 12:56:55 AM EDTTo: "Rivkin, David" <Subject: Re:Mueller's Fruit of the Poisonous TreeIt makes no difference how honorable he is. His investigation is tainted by the bias thatattended its origin in 2016.ByDavid B. Rivkin Jr. andElizabeth Price FoleyJune 22, 2018 6:38 p.m. ETHOUSE OVERSIGHT 026484414 COMMENTSSpecial counsel Robert Mueller's investigation may face a serious legal obstacle: It is tainted byantecedent political bias. The June 14 report from Michael Horowitz, the Justice Department'sinspector general, unearthed a pattern of anti-Trump bias by high-ranking officials at the FederalBureau of Investigation. Some of their communications, the report says, were "not only indicative of abiased state of mind but imply a willingness to take action to impact a presidential candidate's electoralprospects." Although Mr. Horowitz could not definitively ascertain whether this bias "directlyaffected" specific FBI actions in the Hillary Clinton email investigation, it nonetheless affects thelegality of the Trump-Russia collusion inquiry, code-named Crossfire Hurricane.Crossfire was launched only months before the 2016 election. Its FBI progenitors—the same ones whohad investigated Mrs. Clinton—deployed at least one informant to probe Trump campaign advisers,obtained Foreign Intelligence Surveillance Court wiretap warrants, issued national security letters togather records, and unmasked the identities of campaign officials who were surveilled. They alsorepeatedly leaked investigative information.Mr. Horowitz is separately scrutinizing Crossfire and isn't expected to finish for months. But thecurrent report reveals that FBI officials displayed not merely an appearance of bias against DonaldTrump, but animus bordering on hatred. Peter Strzok, who led both the Clinton and Trumpinvestigations, confidently assuaged a colleague's fear that Mr. Trump would become president: "Nohe won't. We'll stop it." An unnamed FBI lawyer assigned to Crossfire told a colleague he was"devastated" and "numb" after Mr. Trump won, while declaring to another FBI attorney: "Viva leresistance."The report highlights the FBI's failure to act promptly upon discovering that Anthony Weiner's laptopcontained thousands of Mrs. Clinton's emails. Investigators justified the delay by citing the "higherpriority" of Crossfire. But Mr. Horowitz writes: "We did not have confidence that Strzok's decision toprioritize the Russia investigation over following up on [the] investigative lead discovered on theWeiner laptop was free from bias."Similarly, although Mr. Horowitz found no evidence that then-FBI Director James Comey was tryingto influence the election, Mr. Comey did make decisions based on political considerations. He told theinspector general that his election-eve decision to reopen the Clinton email investigation was motivatedby a desire to protect her assumed presidency's legitimacy.The inspector general wrote that Mr. Strzok's text messages "created the appearance that investigativedecisions were impacted by bias or improper considerations." The report adds, importantly, that "mostHOUSE OVERSIGHT 026485of the text messages raising such questions pertained to the Russia investigation." Given how biasesineluctably shape behavior, these facts create a strong inference that by squelching the Clintoninvestigation and building a narrative of Trump-Russia collusion, a group of government officialssought to bolster Mrs. Clinton's electoral chances and, if the unthinkable happened, obtain an insurancepolicy to cripple the Trump administration with accusations of illegitimacy.What does this have to do with Mr. Mueller, who was appointed in May 2017 after President Trumpfired Mr. Comey? The inspector general concludes that the pervasive bias "cast a cloud over the FBIinvestigations to which these employees were assigned," including Crossfire. And if Crossfire waspolitically motivated, then its culmination, the appointment of a special counsel, inherited the taint. Allspecial-counsel activities—investigations, plea deals, subpoenas, reports, indictments andconvictions—are fruit of a poisonous tree, byproducts of a violation of due process. That Mr. Muellerand his staff had nothing to do with Crossfire's origin offers no cure.When the government deprives a person of life, liberty or property, it is required to use fundamentallyfair processes. The Supreme Court has made clear that when governmental action "shocks theconscience," it violates due process. Such conduct includes investigative or prosecutorial efforts thatappear, under the totality of the circumstances, to be motivated by corruption, bias or entrapment.In U.S. v. Russell (1973), the justices observed: "We may someday be presented with a situation inwhich the conduct of law enforcement agents is so outrageous that due process principles wouldabsolutely bar the government from invoking judicial processes to obtain a conviction." It didn't takelong. In Blackledge v. Perry (1974), the court concluded that due process was offended by aprosecutor's "realistic likelihood of 'vindictiveness' " that tainted the "very initiation of proceedings."In Young v. U.S. ex rel. Vuitton (1987), the justices held that because prosecutors have "power toemploy the full machinery of the state in scrutinizing any given individual. . . we must have assurancethat those who would wield this power will be guided solely by their sense of public responsibility forthe attainment of justice." Prosecutors must be "disinterested" and make "dispassionate assessments,"free from any personal bias.In Williams v. Pennsylvania (2016), the court held that a state judge's potential bias violated dueprocess because he had played a role, a quarter-century earlier, in prosecuting the death-row inmatewhose habeas corpus petition he was hearing. The passage of time and involvement of others do notvitiate the taint but heighten "the need for objective rules preventing the operation of bias that mightotherwise be obscured," the justices wrote. A single biased individual "might still have an influencethat, while not so visible . . . is nevertheless significant."HOUSE OVERSIGHT 026486In addition to the numerous anti-Trump messages uncovered by the inspector general, there is a strongcircumstantial case—including personnel, timing, methods and the absence of evidence—that Crossfirewas initiated for political, not national-security, purposes.It was initiated in defiance of a longstanding Justice Department presumption against investigatingcampaigns in an election year. And while impartiality is always required, a 2012 memo by then-Attorney General Eric Holder emphasizes that impartiality is "particularly important in an electionyear," and "politics must play no role in the decisions of federal prosecutors or investigators regardingany investigations. . . . Law enforcement officers and prosecutors may never select the timing ofinvestigative steps or criminal charges for the purpose of affecting any election, or for the purpose ofgiving an advantage or disadvantage to any candidate or political party."Strong evidence of a crime can overcome this policy, as was the case with the bureau's investigation ofMrs. Clinton's private email server, which began more than a year before the 2016 election. ButCrossfire was not a criminal investigation. It was a counterintelligence investigation predicated on thenotion that Russia could be colluding with the Trump campaign. There appears to have been nodiscernible evidence of Trump-Russia collusion at the time Crossfire was launched, further reinforcingthe notion that it was initiated "for the purpose" of affecting the presidential election.The chief evidence of collusion is the hacking of the Democratic National Committee's servers. Butnothing in the public record suggests the Trump campaign aided that effort. The collusion narrativetherefore hinges on the more generic assertion that Russia aimed to help Mr. Trump's election, and thatthe Trump campaign reciprocated by embracing pro-Russian policies. Yet despite massive surveillanceand investigation, there's still no public evidence of any such exchange—only that Russia attempted tosow political discord by undermining Mrs. Clinton and to a lesser extent Mr. Trump.Some members of the Trump team interacted with Russians and advocated dovish policies. But so didnumerous American political and academic elites, including many Clinton advisers. Presidentialcampaigns routinely seek opposition research and interact with foreign powers. The Clinton campaignfunded the Steele dossier, whose British author paid Russians to dish anti-Trump dirt. The PodestaGroup, led by the brother of Mrs. Clinton's campaign chairman, received millions lobbying forRussia's largest bank and the European Center for a Modern Ukraine, both with deep Kremlin ties. TheClinton Foundation and Bill Clinton took millions from Kremlin-connected businesses.No evidence has emerged of Trump-Russia collusion, and Mr. Mueller has yet to bring collusion-related charges against anyone. Evidence suggests one of his targets, George Papadopoulos, was luredto London, plied with the prospect of Russian information damaging to Mrs. Clinton, and taken toHOUSE OVERSIGHT 026487dinner, where he drunkenly bragged that he'd heard about such dirt but never seen it. Thesecircumstances not only fail to suggest Mr. Papadopoulos committed a crime, they reek of entrapment.The source of this information, former Australian diplomat Alexander Downer, admits Mr.Papadopolous never mentioned emails, destroying any reasonable inference of a connection betweenthe DNC hack and the Trump campaign.Crossfire's progenitors thus ignored an obvious question: If Russia promised unspecified dirt on Mrs.Clinton but never delivered it, how would that amount to collusion with the Trump campaign? Ifanything, such behavior suggests an attempt to entice and potentially embarrass Mr. Trump bydangling the prospect of compromising information and getting his aides to jump at it.Given the paucity of evidence, it's staggering that the FBI would initiate a counterintelligenceinvestigation, led by politically biased staff, amid a presidential campaign. The aggressive methods andsubsequent leaking only strengthen that conclusion. If the FBI sincerely believed Trump associateswere Russian targets or agents, the proper response would have been to inform Mr. Trump so that hecould protect his campaign and the country.Mr. Trump's critics argue that the claim of political bias is belied by the fact that Crossfire was notleaked before the election. In fact, there were vigorous, successful pre-election efforts to publicize theTrump-Russia collusion narrative. Shortly after Crossfire's launch, CIA Director John Brennan and Mr.Comey briefed Congress, triggering predictable leaking. Christopher Steele and his patrons embarkedon 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. Comey from Senate Minority LeaderHarry Reid, saying he'd learned of "evidence of a direct connection between the Russian governmentand Donald Trump's presidential campaign," which had "employed a number of individuals withsignificant and disturbing ties to Russia and the Kremlin." On Aug. 30, the ranking Democraticmembers of four House committees wrote a public letter to Mr. Comey requesting "that the FBI assesswhether connections between Trump campaign officials and Russian interests" may have contributedto the DNC hack so as "to interfere with the U.S. presidential election." On Sept. 23, Yahoo News'sMichael Isikoff reported the Hill briefings and the Steele dossier's allegations regarding Carter Page.On Oct. 30, Harry Reid again publicly wrote Mr. Comey: "In my communications with you and othertop officials in the national security community, it has become clear that you possess explosiveinformation about close ties and coordination between Donald Trump, his top advisors, and the Russiangovernment."HOUSE OVERSIGHT 026488That these leaking efforts failed to prevent Mr. Trump's victory, or that Mr. Comey's ham-fistedinterventions might have also hurt Mrs. Clinton's electoral prospects, does not diminish the legalsignificance of the anti-Trump bias shown by government officials.The totality of the circumstances creates the appearance that Crossfire was politically motivated. Sincean attempt by federal law enforcement to influence a presidential election "shocks the conscience," anyprosecutorial effort derived from such an outrageous abuse of power must be suppressed. The publicwill learn more once the inspector general finishes his investigation into Crossfire's genesis. But givenwhat is now known, due process demands, at a minimum, that the special counsel's activity be paused.Those affected by Mr. Mueller's investigation could litigate such an argument in court. One wouldhope, however, that given the facts either Mr. Mueller himself or Deputy Attorney General RodRosenstein would do it first.Mr. Rivkin and Ms. Foley practice appellate and constitutional law in Washington. He served at theJustice Department and the White House Counsel's Office during the Reagan and George H.W. Bushadministrations. She is a professor at Florida International University College of Law.Appeared in the June 23, 2018, print edition.Best,AndrewAndrew GrossmanPartnerBakerHostetlerWashington Square1050 Connecticut Ave, N.W. I Suite 1100Washington, DC 20036-5304bakerlaw.comHOUSE OVERSIGHT 026489From: "Rivkin, David" <.Date: Friday, June 22, 2018 at 7:50 PMTo: "Grossman, Andrew M" <Subject: <no subject>Can you please send me WSJ op Ed. TxSent from my iPhoneThis email is intended only for the use of the party to which it isaddressed and may contain information that is privileged,confidential, or protected by law. If you are not the intendedrecipient you are hereby notified that any dissemination, copyingor distribution of this email or its contents is strictly prohibited.If you have received this message in error, please notify us immediatelyby replying to the message and deleting it from your computer.Any tax advice in this email is for information purposes only. The contentof this email is limited to the matters specifically addressed hereinand may not contain a full description of all relevant facts or acomplete analysis of all relevant issues or authorities.Internet communications are not assured to be secure or clear ofinaccuracies as information could be intercepted, corrupted, lost,destroyed, arrive late or incomplete, or contain viruses. Therefore,we do not accept responsibility for any errors or omissions that arepresent in this email, or any attachment, that have arisen as a resultof e-mail transmission.please noteThe information contained in this communication isconfidential, may be attorney-client privileged, mayconstitute inside information, and is intended only forthe use of the addressee. It is the property ofJEEUnauthorized use, disclosure or copying of thiscommunication or any part thereof is strictly prohibitedand may be unlawful. If you have received thiscommunication in error, please notify us immediately byreturn e-mail or by e-mail to jeevacation@gmail.com, anddestroy this communication and all copies thereof,including all attachments. copyright -all rights reservedHOUSE OVERSIGHT 026490