The Sussmann Indictment Reads Like Overts Acts In Furtherance of a Conspiracy - Because That's What It Is.

It does not take 27 pages to allege a "false statement" charge -- 

but it does if you are alleging a conspiracy to create 

false documents to influence a federal investigation.

by Shipwreckedcrew via Substack

What to make of the indictment by Special Counsel John Durham of former Clinton Campaign attorney Michael Sussmann, a one-time partner in the go-to-for-all-legal-needs Democrat Party law firm of Perkins Coie?

Typically, a “false statement” indictment will consist of a brief description of how the federal investigators came to ask the question, the answer given by the defendant which is alleged to be false, and what a truthful answer would have been. 

If you want an example of what a typical such indictment might look like, it’s right there in Sussmann indictment — read paragraph 46:

That is all one needs for a single count indictment charging a defendant with a violation of 18 U.S.C. Sec. 1001. That paragraph tells the defendant the date and location of the offense and the specifics of the offense conduct. 

Paragraphs 1 through 44 were not necessary to charge Sussmann. That makes what Durham returned a “speaking indictment.” It discloses information in a public document that would not otherwise be known if the indictment set forth only facts needed to meet the requirements of due process.

A “false statement” charge does not require a litany of factual allegations regarding the conduct and statements of the defendant and numerous third parties over the course of weeks or months leading up to the making of the false statement. In over 30 years of practice as both a federal prosecutor and a defense attorney specializing in federal cases, I’ve never before seen anything remotely resembling the Sussmann indictment in a single count “false statement” case.

John Durham is far too serious of a career prosecutor, with a very long and established record of meticulous investigation and preparation, to have rolled out an indictment in this fashion if he was intending to wrap up the remainder of his work with a report to the Attorney General.

I’m going to save for another story a comprehensive look at what Durham has alleged in paragraphs 1 through 44. The allegations take my thinking in many different directions at the same time. There are probably a dozen or more “strings” hanging off the facts he has alleged — some legal and some more in the “court of public opinion.” 

I waited four days to publish this first piece, spending much of that time going back over the entire “Alfa Bank” story since it first broke in late October 2016, less than 2 weeks before the election. Trying to understand the new information in the indictment against the backdrop of what was uncovered about the original story in 2016 and 2016 — and then cross-referencing the timeline and actors against what is now known about Crossfire Hurricane and the Mueller Special Counsel Investigation — is a task worthy of a book. 

But rather than attempt to make that effort here in one Herculean task, I’m going to address issues that seem meaningful based on everything I’ve read, and roll them out one at a time as I can work through them. 

In my view, some of the “hot takes” coming from folks without a working understanding of the process will not age well and I would caution you to take them with a “grain of salt.” For example, the guys at Powerlineblog initially judged the indictment as insignificant but now seem to be changing their view.

I’ve seen many questions raised on social media about why it has taken Durham so long to get to this point if this is the best he was able to come up with. The answer to this question becomes evident when you read the indictment with an eye towards the source material for some of the allegations set forth.

It is certainly true that Durham cast his net of grand jury subpoenas for email communications far and wide based on the number of individuals and entities identified — not necessarily by name — in the indictment. When a prosecutor seeks emails that are more than six months old, he only needs a grand jury subpoena with does not require a showing of “probable cause”. 

The sourcing for some of the factual details set forth in the indictment explains at least one cause for why it has taken Durham so long to get to this point. Among the documents referenced in the indictment are billing records and emails of Perkins Coie. I’m confident these were not simply handed over to Durham when he sent a grand jury subpoena to the firm. I’m confident there was a fierce battle over whether Perkins Coie had to produce these records as they involve attorney-client communications and attorney work-product information, both of which would typically be insulated from disclosure to a grand jury. 

But you can see from the allegations of the indictment how vital the records were to laying the foundation for the charge — the billing records and emails show Sussmann was working for the “Tech Executive-1” and the Clinton Campaign when he met with FBI General Counsel James Baker on September 19, 2021. 

There are a couple angles to this issue, some of which I have covered on Twitter. 

First, as part of this fight, I believe it’s highly likely that Durham suggested to the Perkins Coie law firm that the firm itself might be — or is/was — a “target” of the investigation. Sussmann and “Campaign Attorney-1” — presumably Marc Elias based on the description — were doing legal work for firm clients as part of their employment when that legal work crossed the boundary into criminal conduct as alleged with regard to Sussmann at least. 

Any corporation can be subject to criminal liability for crimes committed by managers or employees performing work within the course and scope of their employment. One way a corporation can seek to avoid criminal liability is to cooperate completely in the government’s investigation into the suspected criminal conduct of the employees. 

There is a 

DOJ policy on the question of when a business entity should itself be a target of criminal prosecution, and how it might help itself avoid being charged. Among the “Factors to be Considered” are the following:

• the corporation’s willingness to cooperate, including as to potential wrongdoing by its agents;

• the corporation’s timely and voluntary disclosure of wrongdoing;

• the corporation’s remedial actions, including, but not limited to, replacing responsible management, and disciplining or terminating wrongdoers;

• the adequacy of the prosecution of individuals responsible for the corporation’s malfeasance.

One way a business organization is tested with regard to these factors is the timing and extent of cooperation the corporation provides to the government investigators:

Thus, when the government investigates potential corporate wrongdoing, it seeks the relevant facts. For example, how and when did the alleged misconduct occur? Who promoted or approved it? Who was responsible for committing it?… If a corporation wishes to receive credit for such cooperation … then the corporation … must disclose the relevant facts of which it has knowledge.

… A corporation is an artificial construct that cannot, by definition, have personal knowledge of the facts. Some of those facts may be reflected in documentary or electronic media like emails, transaction or accounting documents, and other records. Often, the corporation gathers facts through an internal investigation…. Whichever process the corporation selects, the government's key measure of cooperation must remain the same as it does for an individual: has the party timely disclosed the relevant facts about the putative misconduct? 

Given that Marc Elias departed Perkins Coie in a very public manner on August 22, 2021, opening his own law firm with approximately 10 other Perkins Coie attorneys who left with him, and that Michael Sussmann was on leave from the firm until offering his resignation on the day of his indictment, it seems possible that Perkins Coie “passed” the test of “replacing responsible management, and disciplining or terminating wrongdoers.” 

It might very well be the case that Perkins Coie — the law firm — did not engage in any protracted fight on its own behalf with the Durham investigation over the firm’s business records. But that would not have been the end of the battle. 

The indictment alleges that the DNC, the Clinton Campaign, and Tech Executive-1 were all clients of the Perkins Coie firm for whom Sussman and others did legal work. To one degree or another, the Attorney-Client and Attorney Work-Product privileges would have applied to many/most of the records that Durham references in the indictment. The “privilege” belongs to the clients. Waiving privilege in order to show cooperation with Durham was not something that Perkins Coie could do on its own — the clients had the legal right to assert the privilege and attempt to keep the records out of Durham’s hands. 

In no universe I can imagine would the DNC, Clinton Campaign, and/or Tech Executive-1 have waived Attorney-Client privilege and allowed Perkins Coie to turn over privileged documents and communications. 

You might wonder how such a battle might play itself out in the courts without anyone knowing it was taking place. I haven’t seen this question posed, but unless you have worked inside this process the answer is not obvious.

This indictment was returned in the District of Columbia. But it has been reported that Durham had more than one grand jury convened, including one across the Potomac River in the Eastern District of Virginia. Depending on where activity making up his investigation took place, he could have grand juries in other districts as well — such as maybe the EDNY or SDNY. 

A grand jury subpoena for Perkins Coie records could have originated from any district where Durham had a grand jury convened. Any fight over compliance with such a subpoena would have taken place in the district of the grand jury issuing the subpoena. Given the total silence about this aspect of the investigation until just recently, my guess is that a fight over Perkins Coie documents did not take place in the District of Columbia. 

Disputes over the production of documents to a federal grand jury — and I was involved in just such a matter earlier this year — take place behind closed doors. Pleadings filed by each side are not part of the court’s public docket, and hearings are conducted in closed proceedings. 

The age of COVID makes this easier as attorneys don’t even come to the courthouse for hearings. To conduct a hearing the court simply issues a notice and password for a Zoom meeting or some other videoconference. Only the attorneys and court personnel are part of the call. All references to the dispute — including the outcome and the Court’s order — are sealed.

Appeals from district court orders are handled in the same fashion when it comes to fights over grand jury records — everything is done under seal and out of public view.

On what basis then was it likely determined by a court that the attorney-client privilege did not apply and Perkins Coie had to disclose the records? That is the proverbial “$64,000 Question” that we won’t know the answer to for some time. But the most likely justification for ordering production of the records to Durham was the “crime-fraud” exception to the Attorney-Client privilege. 

Simply stated, the exception applies when the communications or records at issue involve a future crime or fraud under consideration or a crime or fraud that is currently underway and continuing. The focus of the inquiry is on the client’s intent, not the attorney’s intent. The attorney-client privilege will be negated by the crime-fraud exception regardless of whether the attorney is aware of, or involved in, the client’s crime or fraud.

Noteworthy is the fact that the exception only applies, and records or communications are not protected by the privilege, if the CLIENT is engaged in planning future crimes or frauds, or is seeking legal assistance in ongoing crimes or frauds. 

That means that if Durham obtained privileged records on the basis of the crime-fraud exception, whatever court sustained his subpoena would have done so because Durham demonstrated to the court’s satisfaction that the Clinton Campaign and Tech Executive-1 were themselves engaged in the criminal conduct along with Sussmann, their attorney. 

And maybe the DNC too. Think about that.

The Federal Rules of Criminal Procedure allow grand jury materials obtained as part of an investigation in one federal judicial district to be made available to investigators and prosecutors involved in another investigation in a different judicial district. The fact that the Perkins Coie records might have been obtained by a grand jury outside the District of Columbia does not limit the use of those records, and they could be used by a grand jury in the District of Columbia. 

Buried in the indictment was a reference I first pointed out on Twitter — I have not seen any Tweet that noted it earlier than I did — what is a likely indicator of another investigation in a different judicial district.

42. On or about February 8, 2017, SUSSMANN met with two Agency-2 employees …at a location outside the District of Columbia…

The indictment goes on to allege that at this meeting Sussmann repeated the same false statement to these two individuals that he made to the FBI in September.

If this second misrepresentation is to be charged by Durham as another “false statement”, such a charge would be in an indictment obtained in the federal district court for the location where it was made — outside the District of Columbia.

It is entirely possible — more likely probable — that fights over Durham’s grand jury subpoenas have taken place in a federal district court other than the District of Columbia. 

Final note for this first article — and as a tease for the second one I have in mind — venue for a conspiracy charge can be had in any federal judicial district where any act in furtherance of the conspiracy occurred. 

What that means is that it does not matter if most of the conduct involved in a conspiracy that Durham might charge hereafter took place in the District of Columbia. Any overt act in furtherance of the conspiracy, taken by any conspirator, provides a basis for venue of a criminal indictment in the federal district court where the act took place. 

My supposition from all I’ve read is that “Agency-2” referenced in the Indictment is likely the CIA. CIA Headquarters is located in Langley, Virginia. That location is in the Eastern District of Virginia. Any criminal act at or near the CIA Headquarters would be “outside the District of Columbia” as noted in Paragraph 42 above.

There is no obvious purpose for this specificity or a reference to a second false statement other than to suggest another overt/criminal act by Sussmann which takes the conspiracy outside the District of Columbia and extends the timeline for the continuing existence of a conspiratorial agreement into early 2017 — at least.

X22, Stew Peters Show, and more-Sept 21

 

Evening. Here's tonight's news.

The Bidenization of America

Those responsible for the elevation of this regime still cling to the theory that the dangers of reelecting Donald Trump justified drastic, unconstitutional means to install an alternative.

by Conrad Black for American Greatness

Day by day, as the Biden Administration crashes into utter shambles and a cloud of dust reminiscent of 9/11, the Bidenization of America becomes more stark and horrifying. 

I can remember no more pitiful words from a senior American government official in 65 years than Secretary of State Anthony Blinken’s complaint that the Taliban government in Kabul was disappointing in its lack of “inclusiveness.” (To be sure, that is not all it lacks, and that could hardly have been a surprise.) 

Nor can I think of any diplomatic initiative by a senior American government official more certainly doomed to ludicrous failure than environment ambassador John Kerry’s recent trip to China requesting the collaboration of the People’s Republic in this administration’s hell-bent-for-leather assault on what it is trying to identify as climate change. 

Completing this unprecedented trifecta of total foreign policy failure is the revelation in the New York Times, of all places (and for which it deserves credit, given the Times‘ full-body immersion in Biden’s election), that the opening cannon in Joe Biden’s “over the horizon” reassertion of America’s righteous presence in Afghanistan was not the drone-killing of two ISIS “planners” of outrages, but rather the killing of 10 complete innocents, including seven children.    

Welcome to the New Tower of Babel 

China has made it clear that the quality of water and air in their country is of no concern to anyone but the Chinese. They remember that the Western powers and Japan had no consideration for environmental impacts while they massively industrialized, and only conveniently thought of such admirable concerns when they had completed their industrial development. Only then environmental matters could be raised as an obstruction to those nations rising to compete with the West economically. 

The Chinese, like the Indians, also have never hesitated to assert the view—widely held among the large and growing ranks of climate change skeptics or at least dissenters from extreme eco-solutions—that the whole projection of climate as a frightening and planet-destructive development is bunk. That claim may be too dismissive, but it is a stronger argument than the Kerry-Biden-Obama horror movie of our climate’s “existential crisis.”  

Bidenization may be defined as a conspicuous and humiliating failure in every major area of government activity. This catalog of disasters is too well-known to readers to require a long telling but it is notable that there is no precedent for a United States administration being uniformly consistent in turning every major public policy area to disaster. COVID-19 was the great ally of the Democratic campaign: the rabidly Democratic national political media bashed it like a piñata and terrified and shut down the country, inducing the greatest economic downturn since the Great Depression; while blaming it all on Trump’s contempt for “science.” Even a vaccine would have to be distrusted and avoided if it was sponsored by Trump, Biden and Kamala Harris said; this is the same vaccine that the administration is now attempting to coerce all Americans to accept.  

Now the messaging is a Tower of Babel and very few members of the public know what the administration’s position is. It seems to wish to vaccinate the whole population and at the same time to require the whole population to mask and observe social distancing as if it had not been vaccinated. 

There are legitimate concerns about vaccination, especially with regard to any long-term negative effects it may have. The evidence about masks is conflicting. Instead of leading, the administration is sinking into a quagmire and losing credibility, as have the principal scientists it has always admonished us to follow slavishly. 

The best course is to require vaccination of all people above the age of 65 and others with noted vulnerabilities. The administration should stop debasing itself before the corrupt teachers’ unions and leave it to parents to decide the best course for their children. But it is incapable of taking any actions except constitutionally exceptionable measures that seem likely to be ineffectual, and those incrementally.

Institutionalizing Failure

 The southern border, which the homeland security secretary assures us is “closed” but privately says is “unsustainable” and where the president said the problems were “seasonal” and would abate during the summer, is now almost completely open to unprecedented masses of illegal migrants from all over the world, with no regard to their suitability to reside in the United States and no ability even to test them for COVID. It is an open artery only slightly plausibly explained by the Democrats’ desire to admit so many foreigners while they shed the requirement of citizenship to vote, that they become electorally immovable, and this horrifying sequence of institutionalized policy failures becomes permanent.

Violent crime rates continue to rise, and there are storm signals everywhere over the economy. The United States increased its money supply by 25 percent in the last year; it is impossible to restrain inflation under those circumstances and hourly wages are already rising at a rate of 7.5 percent annually. 

It is also impossible to expect in these circumstances any lenders to advance loans at interest rates beneath the rate of inflation, and given the current federal public debt of $29 trillion, it is obvious that any significant rise in interest rates will create a fiscal and monetary crisis, unprecedented in the history of the country at least since President Jackson revoked the charter of the Bank of the United States in the 1830s. Recourse to expanded quantitative easing will raise the rate of increase of the money supply and therefore of inflation. The Bowden model of vast deficits to spread money around the public can never keep pace with the rate of inflation that such fiscal incontinence causes.        

Economics is essentially half psychology and half grade-three arithmetic, and this administration has shown no competence at either. The only way out of the impending economic disaster is a return to Reaganomics: keeping a rod on the back of inflation by raising supply and reducing welfare costs by cutting taxes and promoting full employment and economic growth. Both of these are still rising because of the hugely successful Trump tax cuts that have been so hideously misrepresented by the Bidenizers. 

As the realities of contracting employment, especially in the energy industry, that would be caused by the enactment of the $3.5 trillion “Human Infrastructure” bill before the House of Representatives sink in, there is declining likelihood that this fiscally insane Hail Mary pass will, in fact, pass. 

Everything is going in the wrong direction. The military high command now stands accused, at least in the press, of acts verging on treason during the late Trump Administration. The conduct of the chairman of the Joint Chiefs of Staff, Mark Milley, has incited the inference that he has been grossly insubordinate and in more recent events in Afghanistan indicate that he is also thoroughly incompetent. If this was entirely the president’s gig, some of the senior officers would have resigned. If it wasn’t chiefly the president’s gig, he would have fired some of them.  

Those responsible for the elevation of this regime are still clinging to the theory that the dangers of a second Trump term justified drastic, including apparently unconstitutional, means to install an alternative regime. This appears not to be working out. But those responsible for defaming and sandbagging the former president and for assisting in the possible theft of the election and then the almost totalitarian attempt to stamp out any question of the election’s integrity feel no remorse. The antics of all these people are claimed to be justified by the necessity of ridding the country of the former president. 

The supreme irony of this terrible crisis is that it may be that only the restoration of the former president can resolve the disastrous condition of the country for which Biden and the Bidenizers are entirely responsible. 

Covid Lockdowns Signal the Rise of Public Policy by Ransom

 Covid Lockdowns Signal the Rise of Public Policy by Ransom

Ben O'Neill -R Moses.org

Public commentator Amanda Marcotte is “incandescent with rage”—her words—with those who refuse to be vaccinated against covid-19.1 She wants to get back to her spin class, and the unvaccinated are ruining it for her. Lockdowns and other restrictions on gymnasiums have either closed them or required masking during training sessions, and the result is that Marcotte is unable to enjoy her spin class at the gym, so she has had to cancel and exercise at home. In attributing where the blame for this predicament lies, she is unequivocal: “[B]y refusing to do the right thing, the unvaccinated are stripping freedom and choice from every other American who got vaccinated. We stand by helplessly watching restrictions pile back on and our freedoms dissipate, all to protect those who won’t protect themselves.”

This statement is indicative of a relatively new phenomenon in public commentary, which is a general support for the rise of what I call “public policy by ransom.” Public policy by ransom occurs when a government imposes a behavioral requirement on individuals and enforces this by punishing the general public in aggregate until a stipulated level of compliance is attained. The method relies on members of the public and public commentators—like Marcotte—who will attribute blame for these negative consequences to recalcitrant citizens who fail to adopt the preferred behaviors of the governing class. In the weltanschauung that underpins this type of governance, government reactions to public behaviors are “metaphysically given” and are treated as a mere epiphenomenon of the actions of individual members of the public who dare to behave in ways disliked by public authorities.

It is important to note that the phenomenon of public policy by ransom should not be confused with the mere occurrence of bona fide conditionalpublic actions undertaken by government. There is nothing inherently wrong with governments forming their policies conditional on the behavior of the public, and changing policies when public behavior changes. Indeed, public policies on pandemics and vaccination clearly should be informed by public behavior relating to those issues—governments must make choices about proposed pandemic restrictions and these choices should be informed by relevant factors.2 While there is scope for legitimate argument over reactive restrictions on the unvaccinated or maskless, what has emerged as an ominous mode of thinking in this atmosphere is the reflexive attribution of blame to recalcitrant members of the public for any subsequent negative consequences imposed on the public by government policies. If the government chooses to impose a negative consequence on the public—even conditionally on the behavior of the public—that consequence is a chosen policy of the government and must be viewed as a policy choice.

There are two main diagnostic signs that indicate when the mode of governance has gone beyond legitimate conditional policy formulation and has entered the domain of public policy by ransom. The first sign is when there is evidence that policy formulation is motivated by a desire to punish noncompliance with behavioral prescriptions for its own sake, rather than optimizing the response to the problem at issue. For example, in a recent cabinet meeting of Israeli ministers, health minister Nitzan Horowitz was caught on tape (prior to the meeting) explaining to his fellow ministers that although certain public movement restrictions lacked any good epidemiological or public health basis, they would nonetheless assist in incentivizing people to get vaccinated in order to alleviate public restrictions.3 The second sign is when governments (and related public commentators) encourage the public to view their own policy responses to behaviors as immutable, and to therefore view individual members of the public as causally responsible for negative impacts from government policies. Such ominous thinking is on display among many public commentators, who view restrictions imposed by governments as an unavoidable consequence of public behavior. Journalist Celia Wexler claims that covid vaccine sceptics are “ruining the return to normal,” and her emotional reaction is somewhat similar to that of Marcotte. She says that “[e]xperts recommend using soft skills of listening and empathizing to persuade holdouts to get vaccinated. But instead our hearts are hardening. Every day, more of us are supporting mandates and penalties.”4 (Observe here the attitude of some commentators who present themselves as models of tolerance: to such people, listening and empathizing are desirable, but only as a means to manipulate behavior; similarly, mandates and penalties are undesirable, but must be the ultimate result if people do not conform to desired behavior by choice—thus do people self-indulge as models of tolerance and charity even while advocating odium and mandates against those they seek to coerce.)

Of course, some readers may take the view that, while it sounds a bit nasty, a little bit of public policy by ransom is a necessary expedient to deal with a major public health problem, even if it means trampling on some of the norms and niceties of governance under ideal conditions. If one accepts public policy by ransom under this expedient view, then it is worth observing that if this general method of governance is accepted, in principle, it allows governments to impose any behavioral mandate they desire on the public and attribute any negative consequence to noncompliant members of the public. Since governments control the imposed consequence of noncompliance, they have unlimited capacity to soften or strengthen negative consequences imposed on the general public. For such reasons, this mode of governance can be viewed as an ideal way to begin installing a government-mandated “social credit system.” A number of articles have highlighted the use of the covid-19 pandemic response to strengthen the existing social credit system in China,5 but others have also noted that such a system is rapidly emerging in the Western world.6

One interesting political and juridical aspect of public policy by ransom is that it degenerates the rule-of-law and bypasses the ordinary legal requirement to mandate or prohibit public behaviors explicitly by legislation or regulation (with the various attendant safeguards of this process). Under the approach of public policy by ransom, to impose their preferred mandates governments need only use (existing) broad regulatory powers to open or shut parts of society on an ad hoc basis, according to their own assessment of behavioral compliance; irate public commentators and social media demagogues then do the rest, and a form of de facto mandatory public behavior is born. Under this mode of governance, the press briefing becomes the new legislature, the words of ministers and their public relations spokesmen become the new laws of the land, and the Twittersphere and media join the police as adjuncts of the new constabulary.

A secondary aspect of public policy by ransom that is noteworthy is that it has remarkable parallels to certain well-known modes of justification for domestic violence. “See what you made me do!” becomes the explanatory approach of public officials quizzed on public policy choices, as citizens are left cowering in the corner with bruises. Perhaps the most striking similarity between these two phenomena is that they both involve the attribution of causal responsibility to initial behavior that causes those in power to respond with coercion, and so blame for negative outcomes lies not with those who impose those outcomes, but those who caused them to do so. “If you don’t have dinner on the table when I come home, I’ll go crazy on you and the kids, and it’ll be your fault!”

Critics of this analysis will presumably respond that the parallels I am highlighting here are not analogous to present circumstances, since the negative consequences imposed by lockdowns, mask mandates, etc., are all genuine epidemiological and public health requirements to deal with the consequences of public behavior. But of course, that is precisely the question at issue, and it is precisely here that one identifies clear examples of public policy by ransom. As discussed above, in Israel, the health minister has more or less admitted to his colleagues that various aspects of the government’s imposed “green card” system are not justifiable on epidemiological grounds, but are useful as a means of social control and “incentivization” of the unvaccinated. This is the nature of public policy by ransom—the imposition of negative outcomes on society for its own sake, as a means of social control.

All of these aspects of public policy by ransom are ominous developments in the thinking of the commentariat. It is likely that some have not fully thought out the implications of this mode of governance, and the unlimited power of coercion it entails to advance any behavioral agenda preferred by the government of the day. As a thought experiment, it is instructive to consider how some of these public commentators might react to the following circumstance. Suppose that a religious conservative government, lamenting the loss of nationalist and religious cultural norms in their country, decided to impose their behavioral preference that all students and workers in the country should start their day by saluting the flag (of whatever country they are in) and swearing homage to God at their morning meeting/assembly. To encourage this behavioral push, they simultaneously impose a policy to ban the functioning of public restaurants, bars, and theatres, until they can verify 80 percent compliance with their behavioral preference. One can easily imagine the kind of fig leaf of political justification that would attend this policy connection—e.g., that the continued operation of public social spaces represents a danger to society unless citizens hold good public morals for strengthening the nation. How might our high-minded public commentators react in such a case? Would they lament that their “hearts are hardening” for those who refuse to comply? Would they be “incandescent with rage” at those who are “refusing to do the right thing”? Would they complain of those unruly ne’er-do-wells who refuse to make the required nationalist/religious invocations and thereby ruin society for the rest of us? Of course, to ask these questions is to answer them—they wouldn’t, because theirs is a purely mercenary approach, and they don’t share the behavioral goals in this hypothetical case.

Like pandemics before it, one hopes that the covid-19 pandemic will subside, whether this be through vaccination, natural herd immunity, or some exogenous good fortune. What will our society look like when that happens? Will we be “back to normal”? Will our public and commentariat preserve any residual instinct for respecting the autonomy of the individual? Will our mode of governance have degenerated so far that it has become acceptable for public authorities to hold the public to ransom? Only time—and the actions of individuals who respect personal liberties—will tell.

• 1. Amanda Marcotte, "It’s Okay to Blame the Unvaccinated—They Are Robbing the Rest of Us of Our Freedoms," Salon, Aug. 12, 2021.
• 2. Libertarian arguments on the legitimacy or illegitimacy of compulsory vaccination (for whatever little influence these arguments have in public policy formulation) hinge on an assessment of whether the absence of vaccination causes such an “unacceptable risk of harm” that fraternization with others by nonvaccinated people can properly be regarded as a rights violation (see J. Bernstein, "The Case against Libertarian Arguments for Compulsory Vaccination," Journal of Medical Ethics 43, no. 11 (2017): 792–96). This assessment hinges in turn on an assessment of the risk of harm from the disease, the efficacy of the proposed vaccination, and the risk of any attendant side effects. While this leaves open the possibility of compulsory vaccination in extreme cases, suffice to say libertarians place a high bar on such an assessment, and they are cognizant of the ease with which arguments for an “unacceptable risk” can be made in the heat of an emergency, a fortiori when there is a strong incentive for emotional or politically motivated decision-making affected by social-desirability bias.
• 3. T. Staff, "Health Minister on Hot Mic: Some COVID Restrictions Are to Incentivise Vaccines," Times of Israel, Sept. 13, 2021; "Caught on Hot Mic, Israeli Health Minister Says ‘Green Pass’ Not Based on Epidemiology," Jewish News Syndicate, Sept. 13, 2021.
• 4. Celia V. Wexler, "Covid Vaccine Sceptics Are Ruining the Return to Normal. We Have No One to Blame but Ourselves," NBS News THINK, Aug. 8, 2021.
• 5. L. Khalil, "Digital Authoritarianism, China and Covid," (Lowy Institute) Analyses, Nov. 2, 2020; Adam Knight and Rogier Creemers, "Going Viral: The Social Credit System and COVID-19" (unpublished manuscript, last modified Jan. 19, 2021), PDF; Larisa Brown and Philip Sherwell, "China Uses Cover of Covid to Expand Big Brother Surveillance and Coercion," The Times (UK), Apr. 25, 2021; A. Bernot, A. Trouth-Goik, and S. Travaskes, "China’s ‘Surveillance Creep’: How Big-Data COVID Monitoring Could Be Used to Control People Post-pandemic," The Conversation, Aug. 31, 2021.
• 6. Rich Acello, "Would a Government-Backed Social Credit Scoring System like China’s Ever Fly in the US?," ABA Journal, Aug. 1, 2020; L. Hollis, "Coming Soon: America’s ‘Social Credit’ System?," Minot Daily News, June 30, 2021; R. Clark, "We Need to Act Now to Block Britain’s Social Credit System," The Spectator, July 24, 2021; K. Tate, "Coming Soon: America’s Own Social Credit System," The Hill, Aug. 3, 2021; T. Hinchcliff, "COVID Passport Mandates Are Fueling Authoritarian Social Credit Systems, Digital Identity Schemes," The Sociable, Aug. 3, 2021.

The FBI’s Incurable Rot

The bureau is an institution with no shame, no remorse, 

and no accountability. There’s no fix for that.

by Julie Kelly for American Greatness

The incurable incompetence, corruption, and moral rot of the Federal Bureau of Investigation was on full display last week.

Within a 24-hour period, some of America’s toughest female athletes recounted to a Senate committee their painful tales of how the FBI ignored evidence that team doctor Larry Nassar was a sexual predator, and a powerful attorney who colluded with the FBI to concoct one of the most animating chapters of the Trump-Russia collusion fiction was indicted for lying to federal officials.

Overlap in the two cases is more than ironic, it’s illustrative: Michael Sussman, a lawyer for Perkins Coie, the law firm that was working on behalf of the Hillary Clinton campaign, met with the FBI’s general counsel in September 2016 to plant a false story about Donald Trump’s financial ties to a Russian bank. That same month, the Indianapolis Star broke the story of how Nassar, the longtime physician for the USA Gymnastics team, had sexually abused several female gymnasts. One victim filed a lawsuit after the FBI refused to investigate complaints made to at least two FBI field offices in 2015 and 2016. 

But the FBI at that time was too preoccupied with protecting Hillary Clinton to deal with a monster who had systematically raped nearly 300 female American athletes. (As Lee Smith recently noted, the FBI “has been used for a quarter of a century as the place to clean up the Clintons’ dirt.”)

Months before the 2016 presidential election, the FBI, led by James Comey, used its unchecked authority to sabotage Donald Trump. Meanwhile, elite American athletes, including Olympic gold medalists, could not get the bureau’s attention while a sexual abuser continued his rampage. Local FBI agents passed the buck and allegedly falsified reports; one agent reportedly tried to shake down a USA Gymnastics official for a job with the organization.

The FBI’s political game-playing came with irreversible human cost. According to an analysis by the New York Times, at least 40 women and girls, including some of the youngest victims, were assaulted by Nassar between July 2015, the first contact with the FBI, and September 2016. Had the Star not published its exposé of Nassar that month, which finally prompted some action by the FBI, who knows how long his depraved predation would have continued?

“If they’re not going to protect me, I want to know, who are they trying to protect?” McKayla Maroney, a two-time Olympic medalist and one of Nassar’s most frequent victims, asked the Senate Judiciary Committee on September 15.

Maroney may or may not be surprised to learn the agency assigned with protecting the most vulnerable is actually in the business of protecting the most powerful.

Nasser Was Not an Outlier

FBI Director Christopher Wray, hired by President Trump in 2017, publicly apologized. The “fundamental errors” made in the Nassar case, Wray told the judiciary committee, would not happen again as long as he’s head of the agency. “I want to make sure the American people know that the reprehensible conduct . . . is not representative of the work that I see from our 37,000 folks every day.” The rank-and-file, Wray insisted, perform their jobs with “uncompromising integrity.”

But Wray is wrong to claim that the Nassar case is an outlier. From the top of the command chain down, the FBI has trashed its reputation through a series of scandals. It’s not just the alarming texts between spousal cheats Peter Strzok and Lisa Page; the ambush of Lt. General Michael Flynn in the White House; Comey’s use of the shady Steele dossier to set up Donald Trump; or Andrew McCabe’s lies to his own FBI investigators.

It’s not just the other set of “errors”—17 to be exact—found in the FBI’s four unlawful FISA applications on former Trump campaign adviser Carter Page. Or the official email doctored by a top FBI lawyer cited as evidence on one of the applications. Or the fact that no one in the agency has gone to jail for perpetrating one of the greatest frauds in history on the American people.

As seen in the alleged plot to kidnap Michigan Governor Gretchen Whitmer, lowlifes populate the FBI’s rank-and-file. Richard Trask, the special agent in charge of the investigation, was arrested in July for physically assaulting and choking his wife after attending a swinger’s party. Trask was fired this month; he faces numerous criminal charges. Prosecutors decided not to use Trask as a witness after his social media account revealed numerous anti-Trump posts, including calling the president a “piece of shit.” 

Defense attorneys in the Whitmer case asked the judge to delay trial for 90 days as they investigate the conduct of at least a dozen other FBI agents involved in the conspiracy. The FBI gave one informant $24,000 and a new car for his services.

Wray brags that every FBI field office is participating in the Justice Department’s “unprecedented” investigation into the breach of the Capitol. But reports of how his agents have handled more than 600 arrests do little to support Wray’s assurances of professional “integrity.” Defendants have been subjected to pre-dawn raids conducted by dozens of armed agents using military-style vehicles. I spoke with the spouse of one defendant who told me agents interrogated her about what cable news channel she watched, her views on illegal immigrantion, and who she voted for in 2020.

The FBI raided the home of an Alaska couple then handcuffed and interrogated them in separate rooms for hours until investigators realized they had the wrong suspects. A 69-year-old man in New York City suffered a heart attack as FBI agents raided his apartment with a television news crew standing by; the man never was charged. FBI agents arrested a Florida man in front of his wife and young daughter, who asked why officers were “locking daddy’s hands.” Casey Cusick was charged only with misdemeanors for entering the Capitol on January 6.

Agents seized as evidence a Lego set of the Capitol building during the raid of Robert Morss, an Army ranger with three tours in Afghanistan. Far from nefarious intent, Morss had the Lego set to use with his students as a substitute high school history teacher. (He was fired after his arrest.)

And those are just a few stories.

No Accountability

Wray picked up where Comey left off, allowing his agency to be part of Democratic Party political spin. He recently issued a “threat assessment” on QAnon and disclosed that the FBI so far has arrested at least 20 “self-styled QAnon adherents” related to the Capitol breach investigation. Wray designated January 6 as an act of “domestic terror” and his agency regularly tweets out the faces of “most wanted” Trump supporters who were at the Capitol on January 6.

Infuriatingly, Wray fired only one agent involved in the Nassar fiasco—and the man was fired the week before the Senate hearing, six years after he first interviewed Maroney. “Someone perhaps more cynical than I would conclude it was this hearing here staring the FBI in the face that prompted that action,” Senator Richard Blumenthal (D-Conn.) said to Wray.

But what ails the FBI cannot be solved with a few firings. It cannot be solved with more congressional oversight or threats to cut federal funding. The moral rot that infects the agency from top to bottom renders the agency unsalvageable. 

“This conduct by these FBI agents . . . who are expected to protect the public is unacceptable, disgusting, and shameful,” Maggie Nichols, the gymnast who first reported Nassar’s crimes to the FBI, told the committee.

Her description, however, applies to the entire FBI—an institution with no shame, no remorse, and no accountability. There’s no fix for that.