A warning about Robert Mueller, from a civil liberties lawyer he tried to entrap

A warning about Robert Mueller, from a civil liberties lawyer he tried to entrap

It has been relatively quiet lately on the Russian-collusion Democrat-Media leak and rumor mill. “Relatively” is the key word.

What once was a sustained campaign of leaks timed to hit every 2-3 days to create a permanent Russia-collusion news cycle, now barely makes a sound.

Of course, some Russian collusion is more newsworthy to the media than others, with the Uranium One scandal receiving a tiny fraction of the coverage as completely speculative Trump campaign rumors did.

Andy McCarthy has what so far is the best article detailing why Uranium One matters, The Obama Administration’s Uranium One Scandal

Let’s put the Uranium One scandal in perspective: The cool half-million bucks the Putin regime funneled to Bill Clinton was five times the amount it spent on those Facebook ads — the ones the media-Democrat complex ludicrously suggests swung the 2016 presidential election to Donald Trump. The Facebook-ad buy, which started in June 2015 — before Donald Trump entered the race — was more left-wing agitprop (ads pushing hysteria on racism, immigration, guns, etc.) than electioneering. The Clintons’ own long-time political strategist Mark Penn estimates that just $6,500 went to actual electioneering. (You read that right: 65 hundred dollars.) By contrast, the staggering $500,000 payday from a Kremlin-tied Russian bank for a single speech was part of a multi-million-dollar influence-peddling scheme to enrich the former president and his wife, then–secretary of state Hillary Clinton. At the time, Russia was plotting — successfully — to secure U.S. government approval for its acquisition of Uranium One, and with it, tens of billions of dollars in U.S. uranium reserves.

As to alleged Trump campaign collusion with the Russians, there has been nothing made public, even through leaks, that shows such collusion.

At most, based on what’s been leaked so far, you might have had some people around Trump trying to use their connections to Trump to promote themselves and their businesses. That’s a far cry from campaign collusion, which of course, isn’t itself a crime (though it would be wrong).

In the absence of reasonable belief that a crime was committed, there never should have been a Special Counsel appointed. A Special Counsel is not supposed to be the equivalent of Lavrentiy Beria’s secret police, someone who finds the man and then tries to find the crime.

The reason that’s so dangerous is that the federal (and state) criminal laws, in the hands of an aggressive prosecutor, can be abused. Someone who is an expert on that problem is Harvey Silverglate, a Boston civil liberties attorney who, among other things, was co-founder of the Foundation for Individual Rights in Education.

Silverglate’s book, Three Felonies a Day, demonstrates that the criminal laws are so broad and so counter-intuitive in many cases, that ordinary, honest, otherwise law-abiding citizens may be in violation of the law without realizing it. From the book self-description:

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day. Why? The answer lies in the very nature of modern federal criminal laws, which have exploded in number but also become impossibly broad and vague. In Three Felonies a Day, Harvey A. Silverglate reveals how federal criminal laws have become dangerously disconnected from the English common law tradition and how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. The volume of federal crimes in recent decades has increased well beyond the statute books and into the morass of the Code of Federal Regulations, handing federal prosecutors an additional trove of vague and exceedingly complex and technical prohibitions to stick on their hapless targets. The dangers spelled out in Three Felonies a Day do not apply solely to “white collar criminals,” state and local politicians, and professionals. No social class or profession is safe from this troubling form of social control by the executive branch, and nothing less than the integrity of our constitutional democracy hangs in the balance.

We have a system which would make Lavrentiy Beria salivate, in which almost anyone could be prosecuted if there were prosecutors so-inclined.

So we have to trust in prosecutors to be honest and not to try to find the person first, the crime second.

We know in real life it doesn’t happen that way, particularly when there is a special prosecutor/counsel. Patrick Fitzgerald’s witchhunt against Scooter Libby is one of the first examples to come to mind – an investigation of Libby for allegedly leaking the identity of CIA agent Valerie Plame Wilson when prosecutors knew from the get-go that someone else was responsible for the leak. Libby was prosecuted and convicted not for the leak, but for allegedly obstructing justice in the way he answered questions about his non-involvement in the leak, a classic “process” crime.

Another example, though less popularly known, is the prosecution of Arthur Andersen accounting firm and Enron executives. Former federal prosecutor Sidney Powell has a column in The Hill about those prosecutions and lead prosecutor Andrew Weissman:

Weissmann, as deputy and later director of the Enron Task Force, destroyed the venerable accounting firm of Arthur Andersen LLP and its 85,000 jobs worldwide — only to be reversed several years later by a unanimous Supreme Court.

Next, Weissmann creatively criminalized a business transaction between Merrill Lynch and Enron. Four Merrill executives went to prison for as long as a year. Weissmann’s team made sure they did not even get bail pending their appeals, even though the charges Weissmann concocted, like those against Andersen, were literally unprecedented.

Weissmann’s prosecution devastated the lives and families of the Merrill executives, causing enormous defense costs, unimaginable stress and torturous prison time. The 5th Circuit Court of Appeals reversed the mass of the case.

Weissmann quietly resigned from the Enron Task Force just as the judge in the Enron Broadband prosecution began excoriating Weissmann’s team and the press began catching on to Weissmann’s modus operandi.

Which brings us to the team of prosecutors Robert Mueller, Special Counsel, has assembled. That team is approaching the size of the entire U.S. Attorney’s Office (criminal and civil) for the entire State of Rhode Island and Providence Plantations.

What started off as an appointment to investigate Russian interference in the election and alleged collusion with the Trump campaign now appears focused, at least in part, on finding crimes committed by those around Trump, particularly Paul Manafort. A dawn raid on Manafort’s home was unusual, and likely an act of intimidation.

So should we trust Mueller not to abuse his power of investigation, not to seek to find a person and then look for the crime?

Harvey Silverglate had an experience with Mueller that is chilling. Mueller tried to set Silverglate up for a crime, to entrap Silverglate into committing a crime. Silverglate writes at the website of public broadcaster WGBH, How Robert Mueller Tried To Entrap Me:

But I have known Mueller during key moments of his career as a federal prosecutor. My experience has taught me to approach whatever he does in the Trump investigation with a requisite degree of skepticism or, at the very least, extreme caution.

When Mueller was the acting United States Attorney in Boston, I was defense counsel in a federal criminal case in which a rather odd fellow contacted me to tell me that he had information that could assist my client. He asked to see me, and I agreed to meet. He walked into my office wearing a striking, flowing white gauze-like shirt and sat down across from me at the conference table. He was prepared, he said, to give me an affidavit to the effect that certain real estate owned by my client was purchased with lawful currency rather than, as Mueller’s office was claiming, the proceeds of illegal drug activities.

My secretary typed up the affidavit that the witness was going to sign. Just as he picked up the pen, he looked at me and said something like: “You know, all of this is actually false, but your client is an old friend of mine and I want to help him.” As I threw the putative witness out of my office, I noticed, under the flowing white shirt, a lump on his back – he was obviously wired and recording every word between us.

Years later I ran into Mueller, and I told him of my disappointment in being the target of a sting where there was no reason to think that I would knowingly present perjured evidence to a court. Mueller, half-apologetically, told me that he never really thought that I would suborn perjury, but that he had a duty to pursue the lead given to him. (That “lead,” of course, was provided by a fellow that we lawyers, among ourselves, would indelicately refer to as a “scumbag.”)

Notice how the entrapment happened. What appeared to be an up-and-up witness at the last second, just as he was about to sign, revealed to Silverglate the information Mueller would use to prosecute Silverglate for suborning perjury – that the story in the affidavit was a lie.

Fortunately for Silverglate, he was listening carefully, not talking on the phone or surfing the internet, so he heard and was able to process what unexpectedly had been revealed. And he thought quickly enough to kick the person out of the office before the document was signed, as opposed to choosing after the signing not to use the affidavit. And all the while Mueller’s prosecutors were listening, likely ready to prosecute a civil liberties lawyer for a crime Mueller’s team created.

Silverglate then recounted a second encounter with Mueller, in which Mueller forcefully took off the table any willingness to investigate alleged FBI and prosecutorial misconduct in the Jeffrey MacDonald case, in which Silverglate was appellate counsel for MacDonald.

Silverglate concluded from his experiences with Mueller:

Special counsel Mueller’s background indicates zealousness that we might expect in the Grand Inquisitor, not the choirboy.

What other evidence is there to be suspicious of Mueller and his team? For one, the person who is his lead prosecutor, the aforementioned Andrew Weissman of Enron/Arthur Andersen infamy.

This all gives reason to be concerned about what Mueller is up to. At the end, we’ll see if these concerns are born out by the findings.

If there is solid evidence of criminality related to Russia interference in the election, and that evidence is made public, then Mueller will be vindicated. If what we see, instead, is a round-up of the usual suspects like Manafort for crimes not related to Russian interference in the election or for process crimes, then the concerns Harvey Silverglate has expressed about Mueller will be vindicated.

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