Khross wrote:
Collusion may not be illegal, but that doesn't mean that illegal things didn't happen. Conspiracy, fraud, and elections violations could very well have happened, especially if Jr. actually received substantial, material assistance from a foreign power.
This is exactly what the "collusion" is supposed to be. So far, the illegal conduct that has been discovered has been either A) before the campaign even started or B) a product of the investigation itself.
Furthermore "illegal things could very well have happened" is not a legal justification for a special counsel. Special counsels have a history of turning into open-ended fishing expeditions already; appointing one on this justification is an outright admission that it was one from the start.
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And filing false statements, as is the case with several of the required clearance documents, is a crime.
So far, the only "filing false statements" charge has been against Mike Flynn for statements about conduct that was not illegal in the first place. It is a process crime that would not have existed if not for the investigation itself.
Furthermore, filing false statements on security clearance documents is generally not prosecuted as a crime (it happens all the time; the vast majority of such instances just result in denial of clearance and sometimes not even that with enough mitigating factors), nor is it significant enough to warrant a special counsel.
And of course, filing false security clearance requests was not used as one of the justifications in the first place.
This is entirely "show me the man and I'll show you the crime" reasoning. It is not enough to merely suspect that someone somewhere in the Trump administration must have committed a crime - there must be a specific crime articulated.
By the way, as to security clearances, extramarital affairs are usually viewed very seriously in regard to clearances because of the vulnerability to blackmail, but apparently that was no barrier to entry for at least two senior people who have been revealed to have significant biases. The DOJ is in a very poor position to proceed on quibbling over security clearance paperwork in light of this and giving Hillary Clinton a pass.
As Andrew McCarthy (a former prosecutor) lays out
here, it is likely that it is impossible for Mueller to prove to a judicial standard that any crime was committed, much less that anyone is guilty of it beyond a reasonable doubt.
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Because it has been our focus, though, Mueller has gotten a free pass on a defect that would be fatal to any related prosecution theory: He cannot prove beyond a reasonable doubt that Russia is guilty of hacking the Democratic National Committee and prominent Democrats.
This doesn’t mean it didn’t happen — like the U.S. intelligence agencies, I’m assuming it did, and that Russia should continue to be the subject of intense government counterintelligence efforts. The point is that Mueller can’t prove it in court, which is the only thing for which a prosecutor is needed. If he can’t establish to the required standard of proof that Russia conducted an espionage attack on the election, it is impossible to prove that anyone conspired with Russia to do so. There is no criminal case.
Plainly, that is why Deputy Attorney General Rod Rosenstein, to appease Democrats angered over former FBI director James Comey’s firing in May, appointed a special counsel without specifying any crimes that the Justice Department is purportedly too conflicted to investigate (as the pertinent regulations require). This infirmity was papered over by calling the probe a “counterintelligence” investigation — which is not a criminal investigation but an information-gathering exercise to defend the nation against foreign threats to American interests. Rosenstein did not identify a crime because he did not have one. There are two reasons for this, but we have focused myopically on the wrong one: the fact that contacts between Trump associates and the Russian regime do not prove they conspired together in an espionage scheme. That simply shows that Mueller does not have a case. The more basic problem is that he cannot have a case. Russia’s espionage operation cannot be proved beyond a reasonable doubt, so it will never be possible to prove the Trump campaign colluded in it.
The article goes on to explain why this is the case, and the difference between an intelligence estimate and the proof required in a court of law. The most critical element however, is this:
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The intelligence agencies may have high confidence in their judgment about Russian espionage. But that does not mean this judgment could ever be proved in a criminal prosecution. In fact, the intelligence agencies’ own January 6 report on “Russia’s Influence Campaign Targeting the 2016 Presidential Election” flatly states: “Judgments are not intended to imply that we have proof that shows something to be a fact.” (Report, p. 13, Annex B, explaining “Estimative Language.”)
Let that sink in.
A comparison is in order: If a prosecutor presenting an indictment were to say, “This allegation is not intended to imply that we have proof that shows the allegation to be a fact,” the jury would say, “Not guilty.” Indeed, the judge would dismiss the case before it ever got to jury deliberations.
Now, because this nonsense was not nipped in the bud (and because the DOJ apparently does not hold its attorneys and agents to any sort of standard regarding their partisanship) we are faced with the absurdity of demanding another special counsel to investigate this one. No doubt, some problem with THAT special counsel will be found as well, and so on.
The answer here is not more investigation, it is less. Both sides need a good hard crack across the back of the head and a reminder that investigations are not there to win political victories they lost at the ballot box - and the FBI needs to be told firmly that its trust rests entirely on its officials forthrightness. FBI personnel are entitled to their political beliefs; they are not entitled to insert themselves into investigations because they think they need to protect the country from the voters.
Its a long-standing requirement in government to avoid the appearance of impropriety, and this investigation is covered in such appearance, even if Mueller himself is not. It is irrevocably tainted because its justification was improper from the outset.
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