Friday, May 11, 2018

In Defense of Torture

The current Senate Hearings on confirmation of President Trump's nominee for Director of CIA reminded me of an article I wrote several years ago. It is no less important today than it was then. I have added a few current comments in brackets.

Recently we witnessed Chechen rebels taking over a Moscow theater, capturing hundreds of hostages, and threatening to kill them if the intruders’ demands were not met. Let’s assume the same thing happens in the United States, but with al-Qaeda terrorists. Assume further that we capture one of the terrorists who knows the plans of his comrades, but he won’t talk. Should we use torture to force this crucial information out of him? [I mean real torture, e.g., waterboarding, sleep deprivation, ripping off fingernails.]

 "Torture" – commonly defined as "the inflicting of severe pain to force information or confession" – comes principally in two varieties: physical (e.g., the "third degree") and psychological (e.g., sleep deprivation). The literature on torture is voluminous, most commentators concluding that torture is odious and unacceptable at all times and under all circumstances, especially in a democracy [where, like here, it has been made "illegal". ]

But is it?

Some of the commentators, in their analysis and discussion of the phenomenon of torture, admit being deeply troubled by how a democracy deals with the question of torture generally, let alone in the extreme example of the so-called "ticking time bomb" situation.

Until recently the question was hypothetical. It no longer is.

There are variations on the ticking time bomb situation, but the essence is in this plausible scenario: 

A known terrorist in FBI custody whose information is credible won’t disclose where in Washington, DC, he has secreted a "weapon of mass destruction" – a nuclear bomb – set to detonate in two hours.

The Bureau is certain that the terrorist will never voluntarily reveal the bomb’s location. In two hours our nation’s capital could be wiped from the face of the earth, our government decimated, surrounding areas irredeemably contaminated, and the United States laid defenseless to unimaginable predation by our enemies.

What to do?

Accepting these facts for the sake of argument, arguendo as lawyers say, we have only two choices. Do nothing, and suffer the unimaginable consequences, or torture [really torture] the information out of the terrorist.

There are those among us – Jimmy Carter-like pacifists and Ramsey Clark-type America haters come to mind – who would probably stand by idly and endure an atomic holocaust [in the name of some suicidal principle]. But most people would doubtless opt for torture, albeit reluctantly.

These realists would be correct. They would be entitled to be free of even a scintilla of moral guilt, because torture – of whatever kind, and no matter how brutal – in defense of legitimate self-preservation is not only not immoral, it is a moral imperative.

Unknown to most Americans, one case in two different courts in the United States – a state appellate court in Florida, and a federal Court of Appeals – have, albeit implicitly, endorsed such a use of physical force, and thus of torture, if necessary to save lives. [Yes they have. Read on.]

Jean Leon kidnapped one Louis Gachelin, who was held at gunpoint by Leon’s accomplice. A ransom was arranged, a trap was sprung, and Leon was arrested. Fearing that the accomplice would kill Gachelin if Leon didn’t return promptly with the ransom money, the police demanded to know where the victim was being held. Leon wouldn’t talk.

According to the Third District Court of Appeal of the State of Florida, when Leon "refused, he was set upon by several of the officers. They threatened and physically abused him by twisting his arm behind his back and choking him (and, allegedly, threatened to kill him) until he revealed where . . . [Gachelin] was being held. The officers went to the designated apartment, rescued . . . [Gachelin] and arrested . . . [the accomplice]."

While this was happening, Leon was taken "downtown," questioned by a different team of detectives, and informed of his Miranda rights. He signed a waiver and confessed to the kidnapping. But before Leon’s trial, he sought to exclude his police station confession, arguing that it was the tainted product of the cops’ literal arm twisting, choking, and threats. (No self-incrimination issue arose from Leon having revealed the victim’s location because that information was not sought to be used against him at his trial).

The trial judge denied Leon’s motion to suppress his confession on the ground that the force and threats used on him at the time of arrest were not the reason for his confession. In other words, the conceded coercion at the time of Leon’s arrest had dissipated by the time of his confession, which the trial judge ruled had been given voluntarily.

Leon appealed. The Florida appeals court affirmed, reaching the same conclusion as the trial judge: Whatever had happened at Leon’s arrest, the coercion had dissipated by the time he’d confessed. Thus, it was proper to use Leon’s confession against him at trial.

That ruling should have been the end of Leon’s first appeal because the only question in the case was the admissibility of Leon’s confession. Yet the appeal court’s opinion went further than the facts of the case required. In language lawyers call dicta – judicial reflections in no way necessary for a decision – the appellate judge added, gratuitously, that "the force and threats asserted upon Leon in the parking lot were understandably motivated by the immediate necessity to find the victim and save his life."

Consider the implications. Even though the motive for using force, and the police’s use of it, were irrelevant to the decision, the appellate court’s 2-1 majority saw fit to give its express approval of physical and psychological coercion in this situation, so long as the product of that coercion (the confession) was not used against defendant Leon at his trial.

Lest anyone think that the dicta in this decision was an aberration, we need look only at the unanimous three-judge decision in Leon’s further appeal to the United States Court of Appeals for the Eleventh Circuit.

The facts were not in dispute. Once again, the only issue on appeal was whether the physical and psychological coercion at the time of arrest tainted the confession, or whether the coercion had, by then, sufficiently dissipated to make Leon’s confession voluntary.

First, the federal appeals court dealt with self-incrimination. As to Leon’s arrest statement concerning where his accomplice was holding Gachelin, there was no issue since the prosecution, properly, had never tried to introduce that statement at the trial. Next, whatever coercion had been used, it did not taint Leon’s later confession because, according to the court, "the totality of the circumstances . . . clearly confirms . . . that the second statement was voluntary." Therefore, that statement was both voluntary and admissible.

The federal appeal court’s ruling concerning the voluntariness of Leon’s confession completely disposed of the case. But, as with the earlier appeal, this court took the unnecessary step of including [gratuitous] dicta to the effect that the use of coercion at Leon’s arrest was "motivated by the immediate necessity of finding the victim and saving his life," and that "[t]his was a group of concerned officers acting in a reasonable manner to obtain information they needed in order to protect another individual from bodily harm or death."

All true. But, again, irrelevant to the sole question before the court as to whether the coercion used at the arrest had dissipated by the time of the confession.

Since the appellate courts, both state and federal, went out of their way to express their approval of coercion in a life-threatening situation, their dicta is noteworthy because it signals their acceptance of coercion in principle – a legitimization, as it were, [of the practice].

 If, without objection from a state and a federal appeals court (indeed, with their apparent approval), the Florida police could employ a relatively benign form of coercion to save the life of a kidnap victim, it follows that the same rationale would support actual torture (physical and/or psychological) in a ticking time bomb situation.

Once that threshold is crossed – once the principle is accepted that torture legitimately can be employed to save [innocent] lives – all that remains is the application of that principle to concrete cases. While that application could be difficult – requiring some form of probable cause, judicial oversight, and the like – the need to create such important procedural safeguards does not negate the argument that, in this country, where killers are routinely put to death for the commission of a single murder, it is neither immoral nor illegal in principle to employ non-lethal [or even lethal] torture in the name of saving thousands of innocent American lives. [Indeed, it would be immoral not to, especially because once the principle of torture is accepted the rest is only details.]


Sunday, May 6, 2018

Holzer on the First Amendment and National Security, 1991

I recently stumbled on this video of my Federalist Society presentation back in the day. Those with the patience to watch it may be surprised at what I propose. My comments begin at about 2 1/2  minutes into the video. (You can tell it's me from the voice.)

Thursday, April 12, 2018

In about a month, the Holzers' "Aid and Comfort:" Jane Fonda in North Vietnam" will begin serialization, free of charge, on

I am seeking an individual or organization with serious Internet/social media research skills to identify websites to which the formal announcement can be sent. Obviously, such websites will be found with key words such as Hanoi Jane, veterans, patriots, Vietnam War, treason, Jane Fonda, Axis Sally, Tokyo Rose; there are many others.

Remuneration will be offered.

I can be reached at Henrymarkholzer1@gmail. com. Those responding should emphasize their qualifications.

I'll appreciate recipients of this blog forwarding it to anyone else they think would interested.

Thank you.


Tuesday, April 10, 2018

When a collectivist meets a bunch of them: A few questions for Mr. Zuckerberg and our illustrious senators

1. What is a "monopoly?"
2. What are the basic elements of a "monopoly"?
3. How is a "monopoly" created?
4. Is a "monopoly" inherently immoral, unethical or, without legislation, illegal?
5. Who owns Facebook?
6. If Facebook is a "monopoly," who created it?
7. Does Facebook have a moral, ethical, and/or legal duty to serve the common good?
8. Did Zuckerberg get what he deserved at today's hearing?

9. What law(s) did Facebook break?
10. How many Facebook users read its Terms of Service?

For the record, I think Zuckerberg is a pretentious spoiled brat.

Thursday, March 8, 2018

Brownshirt American law student goons strike close to home

I have two connections with the events described in this link,

One connection is that I was a founder of the Federalist Society’s New York City chapter decades ago, and have been a member since then. The other is that an organization of which I am chairman has recently contributed a scholarship to the law school that is the subject of the article.

That’s the reason I’m posting below the incisive essay by Robert Tracinski that appeared in The Tracinski Letter a few days ago. It deserves wide distribution, not only to those of us who understand what has happened in the Academy, but more importantly to those who do not. (The italics in the author’s penultimate paragraph is mine.)

March 5, 2018
We Gave You a Pretty Awesome World, Kids, So Try Not to Mess It Up
The Parkland Kids Demonstrate Why We Shouldn't Listen to Them
by Robert Tracinski

All the reasons for refusing to allow ourselves to be led by children were summed up in the latest coronation of the Parkland kids, this time by ancient leftist Bill Maher. He invited David Hogg and Cameron Kasky on his show so Hogg could boast about hanging up on the President of the United States, and so Kasky could give us this sanctimonious little lecture: "I mean this sincerely, I really do, to all the generations before us, we sincerely accept your apology. We appreciate that you are willing to let us rebuild the world that you f---ed up." 

This sums up everything that's wrong with these kids' astroturfed ride to fame. They get flown around the country, they get invited on TV, they get puffball interviewers like Bill Maher, all because they are willing to repeat in a cloyingly self-righteous manner the message favored by their adult handlers. But not because they actually know what they're talking about. 

Let's look at their arrogant presumption that previous generations messed up the world, so that today's kids, in their superior wisdom, have to "rebuild" it. 

Start with the issues most directly at hand here. School shootings are actually down over the last 20 years. Northeastern University Professor James Alan Fox analyzed the data and concluded that mass school shootings are "extremely rare events" and that "there is not an epidemic of school shootings."
Moreover, Fox adds that "over the past 35 years, there have been only five cases in which someone ages 18 to 20 used an assault rifle in a mass shooting," meaning that the most common proposed new gun control measure would have little effect. 

Speaking of guns, you might think that without gun control, we're living in a lawless post-apocalyptic hellscape. In fact, crime is down. Murders are down. Violent crimes committed with guns are way down

This is the period in which restrictions on gun ownership have been substantially rolled back--the assault weapons ban of the 1990s was allowed to expire, and Supreme Court rulings invalidated gun bans in cities like Washington and Chicago. Americans now own about 300 million guns. So clearly, gun ownership is not causing an increase in crime rates. In fact, statisticians who looked closely at gun deaths concluded that none of the frequently suggested gun control measures would do much to reduce these numbers. 

But cite these statistics and you will be told that you cannot contradict the Parkland kids because being present at the scene of a mass shooting makes them unquestionable experts on the topic. No, really. Kasky tells us, "We've seen our friends text their parents goodbye. We are the experts." I can hear Tom Nichols grinding his teeth from here. Obviously, being an expert on guns, crime, and mass shootings requires actual knowledge and research, including the ability to read and understand crime statistics. 

This presumption that we adults have ruined the world has wider roots. Today's young people are bombarded with a lot of doom and gloom that tells them everything is getting worse, pushed onto them by people who have an interest in recruiting them as activists. 

They may be surprised to learn, for example, that in addition to crime being down, war has decreased across the globe. The number of wars and the number of deaths in wars decreased dramatically after World War II, of course, but it decreased dramatically again when the Soviet Union collapsed, almost as if Communism was an engine of global conflict. 

Along with war, extreme poverty across the world is down significantly over recent decades and especially since the Industrial Revolution

America has done especially well. Median family income in America is nearly triple what is was in 1950. The rich have gotten richer, and the poor have also gotten richer

Surely, all of this economic growth is ruining the environment. Yet according to the EPA, US GDP has grown by 253% since 1970, while emissions of "six common pollutants"--things like lead, carbon monoxide, and sulfur dioxide--are down 73%. Our air and water are about as clean as they have ever been. 

And so on. The world we older generations have given today's kids is actually pretty awesome. We can't protect them from every danger and every risk, and we can't stop every tragedy like the Parkland shooting. But by historical standards, our kids will be safer, healthier, and wealthier, and they can expect to live longer and more untroubled lives than we did, or than our parents did, or than our grandparents did. 

I can see, though, why they wouldn't realize any of this, because there are some who have a political interest in making things look worse. If you want young people to think capitalism is the cause of war--a view they hear often--you don't want them to find out that the triumph of the capitalist countries in the Cold War led to a decrease in war. If you want them to rail against "global capitalism"--I can't decide if this is a cause of the left or of the right these days--you can't have them realizing that capitalism and trade are wiping out global poverty. If you want them to think free markets are inferior to socialism, you don't want them to understand the massive increases in prosperity in free market societies, or to question the latest environmentalist panic. And if you want them to become televised activists for gun control, you have to create the impression that there is an epidemic of gun crimes and mass shootings. 

The Parkland kids have swallowed all of this, and hence their ignorant ranting to us about how the older generations have messed everything up. 

To be sure, the kids we're seeing on TV are not representative of their peers. We don't hear much about the Parkland students who don't fit the left's narrative. Instead, we're mostly getting a couple of the high-school debate club types. Once I found out that detail, it all fell into place, because we all remember the guys from high-school debate club. They weren't the smartest kids, just the most preening and self-important. 

The important point is that too many of today's young people are not being taught to see and appreciate what has made the world as good a place as it really is for them. They have no idea who designed the large and complex systems that produce the peace and prosperity they enjoy, no idea how those systems work, and no idea how much they can foul them up by knocking out pins and levers and constitutional amendments just because they're angry. 

The fastest way to mess up the world the older generations gave them is to think that they are all experts at age 17 because they read some lefty rhetoric and got "woke." You know who also thought that? The Baby Boomers. People my age--technically, I'm Gen X, but early enough in it that we never thought of ourselves that way--grew up with this. We grew up with smug Boomers like Phil Collins assuring us that, "My generation will put it right. We're not just making promises that we know we'll never keep." Spoiler alert: they didn't keep those promises, and everything turned out just fine. But now the same people who were wrong about war, wrong about poverty, wrong about capitalism, and wrong about guns want to get the grandkids to give one more shot at fixing what isn't broken. 

Then again, they also thought lame hand-puppet parodies of Ronald Reagan were really clever, so the lesson from this is to show a little humility, kids. You're still learning, and you would be well served not to be content to repeat what you learn at school, but to go do your own reading and research and listen to people who disagree with you. It's not as traumatic an experience as you have been led to believe. When you can show that you understand what's good about the world we are giving you, and you have some idea of how it got to be that way--then we'll listen to your ideas for changing it.
To be sure, the previous generations are not entirely blameless. 

We did create cable news, and for some reason none of us can really remember, we made Bill Maher famous. Sorry about that.

Thursday, March 1, 2018

Corruption, squared--and then some.

This excellent essay by Michael Ledeen--published today in PJ Media--deserves wide distribution. I urge everyone who receives this essay to read and digest it, and then pass it on. Michael's wider point, per his "bottom line" quotation, is frightening.

So that’s it?

The Russians spent some money buying Americans to demonstrate? Or just found kindred spirits online to do it free? Or, horror of horrors, Russians lied on their visa applications? Or, Americans cheated on their tax returns? Or, Americans made “false statements” to FBI investigators when, as in the Flynn debacle, the bureau had already said there were no lies?

That’s the output thus far from Team Mueller with regard to their mission to investigate whether there was Russian meddling in our presidential election in 2016, and whether Americans “colluded” with the Russians in such endeavors. So far, we haven’t seen anyone indicted for such matters, but we do see truly shocking and genuinely dangerous corruption among the investigators and the enforcers.

The corruption is widespread throughout our society; it runs from the top of the FBI in Washington to the Broward County police in south Florida. Sometimes it seems tied to payoffs and other times it’s rooted in the political corruption that we can easily see. It doesn’t require special prosecutors to show it, and it’s unquestionably the greatest threat we face. Often it takes the form of our “leaders” ignoring real crimes, and alleging “process crimes.”

That is seemingly the Mueller story. Instead of charging collusion, the Mueller team is cracking down on tax evasion. It’s the Al Capone model: when Eliot Ness couldn’t convict Capone and his mob for their terrible crimes, they got him on taxes. The Mueller charges may turn out to be legitimate, but do not fit the official mission statement nor address the serious question of Russian espionage and disinformation.

What’s going on? Reading their private correspondence, it seems that the FBI officials from James Comey and Andrew McCabe on down were primarily interested in the defeat of Trump, both before and after the election, rather than in thwarting Russians. Why? I think primarily because that was the best way to advance, although in time we may find that money was involved. There certainly is money involved in another case where the Justice Department and the FBI failed to act as they clearly should have: the Awan family, which worked for Debbie Wasserman Schultz, gained access to seemingly endless Congressional files and was paid handsomely by Wasserman Schultz and the Democratic Party. One member of the group was astonishingly permitted to leave the country with illegal amounts of cash.

Coincidentally, the Florida school massacre occurred in the congressional district of Wasserman Schultz, and the local police, under criticism for their failure to prevent the bloodletting, are facing dozens of investigations for criminal misconduct.

Lots of corruption. Hard to track it all.

The school massacre fits the pattern of inaction. There was abundant evidence the killer was going to do some terrible thing, but no preventive action was taken. Then the attack took place, and the protectors did nothing. They stayed outside. Are you surprised? Not I. It seems like only yesterday, following the bloodshed in places like Baltimore and Ferguson, that there was a mini-mass movement aimed at the cops who tried to maintain order. Cops and armed guards “learned a lesson.” Don’t intervene, and above all, don’t shoot. Anyone. You may well be punished, at a minimum you’ll likely to be prosecuted, and depending on your good or bad luck, you may be unemployed. Can you say “unpaid leave?”

So when the Florida cops stayed away, I wasn’t surprised. I’m surprised when someone does the tough, good thing.

In some cases, they’ve been ordered to stay away. 

Nearly thirty years ago, Rael Jean Isaac and Virginia Hurt wrote a very important book, Madness in the Streets, documenting the movement that made it all but impossible to place deranged people in mental institutions. But that isn’t what happened in the Broward case. The cops were called to save schoolchildren and they didn’t.

This is corruption. The cops know they are supposed to act (for a while, they were supposed to wait for the SWAT team to arrive, but that is pretty much ancient history). They don’t act, primarily because they dread the consequences of their actions. What if they make a mistake? What if they hit the wrong target and wound or kill a student, say?

Over and over again, we see the same pattern: our leaders have abundant information, but they do not act. Often they act a la the Al Capone model: don’t go after the prime targets for the damage they are doing to us, but for some violation that can be safely prosecuted.

Now go to the top: the highest levels of the FBI, the best of our best. As in Florida, our law-enforcement authorities ignored abundant evidence. We know, from public accounts, that Hillary used a private server for classified government communications. We know that President Obama was in the loop, using a pseudonym. But Obama was the president, and Hillary was in line to succeed him. So if you move against Hillary and she wins, you can kiss goodbye to that bonus, or promotion.
You know you’re supposed to find out what that private server was being used for. It’s a virtual certainty that secrets were sent and received. You’re supposed to say that to the Justice Department, which is supposed to prosecute such violations of national security. Yet, as the cops in Florida, the FBI top brass did nothing of the sort.

Why? In part, surely, because of politics (wherever you look, you find Hillary supporters). But also because the whole system is corrupt. In many ways.

Do you want a job in the next administration? Then you should shut up about such matters.  Which they (mostly) did. You don’t have to be a Democratic loyalist to behave this way. You have only to be ambitious. And once ambition, personal ambition, becomes a central driving force, all sorts of corruption is enabled.

Richard Pollock has found a strikingly high level of sexual malfeasance in Comey’s FBI, suggesting that the Hollywood pattern extends from entertainment into law enforcement. Remember that the Lisa Page-Peter Strock text messages, which have provided an unexpected window into the FBI’s anti-Trump schemes, were part of an adulterous affair. I’ll bet we’ll find plenty of sexual corruption in Broward County before it’s over. There are 66 pending cases of misconduct against Sheriff Israel’s minions. Some of them are heavy favorites to be part of the broader corruption.

Bottom line: As Machiavelli wrote, you can replace a corrupt leader or even a corrupt ruling class. But what do we do if the whole society goes rotten?

That’s our problem.

Thursday, February 22, 2018

Hanson on Mueller: What indictments should really look like!

Special counsel Robert Mueller has indicted 13 Russian nationals for allegedly conspiring to sow confusion in the 2016 presidential election. The chance of extraditing any of the accused from Vladimir Putin's Russia is zero.

Some of the Russians' Keystone Cops efforts to disrupt the election favored Donald Trump (as well as Bernie Sanders). Yet Mueller's team made it clear that the Russians neither colluded with any U.S. citizens nor had any material effect on the election's outcome.

But from here on out, there will be ironies, paradoxes and unintended consequences with just about everything Mueller does.

Is it now time to prosecute foreigners for attempting to interfere with a U.S. election? If so, then surely Christopher Steele, the author of the Fusion GPS dossier, is far more culpable and vulnerable than the 13 bumbling Russians.

Steele is not a U.S. citizen. Steele colluded with Russian interests in compiling his lurid dossier about Donald Trump. Steele did not register as a foreign agent. And Steele was paid by Hillary Clinton's campaign to find dirt on political rival Trump and his campaign.

In other words, Steele's position is far worse than that of the Russians for at a variety of reasons. One, he is easily extraditable while the Russians are not. Two, his efforts really did affect the race, given that the dossier was systematically leaked to major media and served as a basis for the U.S. government to spy on American citizens. Three, unlike with the Russians, no one disputes that American citizens -- Hillary Clinton, members of the Democratic National Committee, and anti-Trump partisan Glenn Simpson and his Fusion GPS team -- colluded by paying for Steele's work.

Mueller's team has also leveraged a guilty plea from former Trump national security adviser Michael Flynn for making false statements to FBI investigators. If the Flynn case is now the Mueller standard, then we know that a number of high-ranking officials are vulnerable to such legal exposure.

Department of Justice official Bruce Ohr deliberately omitted on federal disclosure forms the fact that his wife, an expert on Russia, worked on the Fusion GPS dossier.
Steele himself probably lied to the FBI when he claimed he had not leaked the dossier's contents to the media.

Hillary Clinton aides Huma Abedin and Cheryl Mills likely lied to FBI investigator Peter Strzok (who had also interviewed Flynn) when they claimed they had no idea that Clinton was using a private and illegal email server until the story went public. In fact, Abedin and Mills had communicated with Clinton over the same server -- as did then-President Barack Obama, who likewise denied that he knew about the improper server.

Former FBI Director James Comey likely lied to Congress when he claimed that his exoneration of Clinton came after he had interviewed her. We now know from documents that he drafted a statement about the conclusion of the investigation even before he met with her.

As far as obstruction charges go, Mueller has other possible targets. Former Attorney General Loretta Lynch met secretly with Bill Clinton on a jet parked on a tarmac in Phoenix shortly before the Justice Department closed the probe of Hillary Clinton and chose not to pursue charges against her. Comey said Lynch asked him not to use the word "investigation" when discussing the Clinton email probe. Text messages between Strzok and fellow FBI official Lisa Page suggest that Lynch knew in advance about the conclusions Comey would reach in the investigation.

What is going on?

Mueller is under enormous pressure to find collusion between the Trump team and Russia, or to find that the Trump team obstructed justice by trying to hide such collusion. But neither likely happened. Mueller was appointed at a time of national hysteria, brought on by partisan journalism based on a leaked dossier -- itself a product of a discredited British agent working with Russian sources while being paid by the Clinton campaign.

Worse still, the effort to hide the origins and the use of that dossier to obtain court permission to spy on American citizens may be a classic case of obstruction of justice.

Mueller's existential problem has been with him from the start. Due to the shenanigans of his discredited friend Comey and a rabid media, he was appointed to investigate crimes that did not exist. But if they did exist, collusion and obstruction were committed by those associated with the Clinton campaign and even by members of the Obama administration.

Investigating any possible crimes committed by members of the Clinton campaign or the Obama administration apparently is taboo, given the exalted status of both. But every time Mueller seeks to find incidental wrongdoing by those around Trump, he only makes the case stronger that behavior by those involved in the Clinton campaign and the Obama administration should be investigated.

If such matters are not treated in an unbiased manner, we are not a nation of equality under the law, but a banana republic masquerading as a democracy.

*          *          *
This essay by Professor Victor Davis Hanson--entitled "The Paradoxes of the Muller Investigation"--appeared on February 22, 2018, at He more cogently lays out potential indictments than virtually all radio, TV, and print pundits. (And he's not a lawyer!)

Ooops.............Mueller, not Moeller

I went to law school with someone named Mueller.

Turley on Mueller: Excellent analysis

Last Friday, the media was in a frenzy over the indictment of 13 Russians and a couple Russian entities by special counsel Robert Mueller. As pundits debated the significance of the indictment, an order was filed by Judge Emmet Sullivan in the U.S. District Court for the District of Columbia. The order itself was hardly noteworthy, even on a slow news day. Sullivan simply ordered prosecutors to comply with their obligations of disclosure of exculpatory evidence to the defense.

What was notable is that the prosecutors were members of the special counsel’s office and the defendant was their star cooperating witness, former national security adviser Michael Flynn. The order itself deals with the obligation of disclosure under Brady v. Maryland. Prosecutors must disclose favorable or exculpatory evidence to the defense. That might make for interesting reading by Flynn, given new disclosures that federal investigators doubted his guilt before the appointment of Mueller as special counsel.

At the outset, I am skeptical that this motion represents a clear break with the prosecution by Flynn.

Sullivan wrote a Cardozo Law Review article in 2016 that said that he changed his practices following the scandal in the prosecution of former U.S. Sen. Ted Stevens (R-Alaska). Prosecutors in that case unethically withheld evidence, which led to the throwing out of Stevens’s conviction. In his law review article, Judge Sullivan wrote, “Following the Stevens case, I have issued a standing Brady Order for each criminal case on my docket, updating it in reaction to developments in the law.”

Nevertheless, cooperating witnesses who pleaded guilty are not usually filing Brady motions. When a defendant cuts a deal with prosecutors, his sentence depends greatly on how the prosecutors view his cooperation. Moreover, in his plea, Flynn agreed to “forego the right to any further discovery or disclosures of information not already provided at the time of the entry of Flynn’s guilty plea.”

Even assuming that the court issued the order as a standard protection of a defendant before sentencing, it is interesting to contemplate how the information might impact Flynn’s view of his deal. It now appears that, before President Trump unwisely fired then-FBI Director James Comey, federal investigators had concluded that Flynn was not knowingly lying to them about his meeting in late December 2016 with Russian ambassador Sergey Kislyak, a meeting where sanctions were discussed.

Nevertheless, after Mueller was appointed special counsel, investigators zeroed in on Flynn and his son, Michael Flynn Jr., who served as his chief of staff. Flynn was rapidly drained of his savings in the investigation and pleaded guilty, reportedly to protect his son and any remaining assets.

The Flynn “information” filed by the special counsel was curious in a couple of respects. First, it did not make an express guarantee not to go after his son. Second, it did not detail the most serious allegations involving Flynn and his alleged work with surrogates of the brutal regime of Turkish President Recep Tayyip Erdoğan. This includes alleged discussions about the seizure (or “renditioning”) of Erdoğan critic Fethullah Gülen to hand over to Turkish intelligence officials. Gülen, who lives in exile in eastern Pennsylvania, was likely to be tortured and executed by Erdoğan’s henchmen. The filing was crafted narrowly to focus on his false statement and the meeting with the Russians.

In comparison with Flynn’s alleged work on turning over dissidents for possible execution, his meeting with the Russians was hardly shocking. Flynn was the incoming national security adviser, and his meeting with foreign representatives was neither unprecedented nor unlawful. Yet, acting Attorney General Sally Yates cited the meeting as the reason for her own intervention with the White House. Yates cited the Logan Act as her concern, which was hardly credible.

The Logan Act, which makes it illegal for citizens to intervene in disputes or controversies between the United States and foreign governments, is widely viewed as unconstitutional and has never been used to convict a single U.S. citizen since it was enacted in 1799. 
Yates’s pushing of a Logan Act investigation seriously undermines her credibility in the actions that she took before being rightfully fired by Trump for ordering the entire Justice Department not to defend his first immigration order.

It is not clear what Mueller revealed to Flynn about these matters before Flynn took the plea deal. Likewise, it is not clear how much of the recent scandal over the controversial FISA surveillance orders impacted Flynn. Another reason Flynn might be having buyer’s remorse is that none of the indictments, including the massive indictment last week, has alleged, let alone established, collusion with the Russians and Trump. Collusion was the original purpose of the special counsel investigation. If the special counsel were to clear Trump of collusion, it could well prompt him to issue pardons to end what he claims to be a partisan “hoax.” If Flynn were to back out of cooperation, he might strengthen his case for a pardon.

Yet, the danger of backing out of a plea can be easily seen in the expanding case against Trump’s onetime campaign chairman, Paul Manafort. Mueller has thrown every possible charge, short of ripping off a mattress label, at Manafort. Indeed, Mueller has raised mortgage fraud as a possible charge. A play for a pardon would be like putting everything on red at a Vegas roulette table: If you hit, it can be the best day of your life. If you hit.

One would hope that Trump’s aides would strongly counsel against such a move, particularly for defendants like Manafort, who faces an array of very serious (though unrelated) charges. The most obvious recipient of such a presidential action would be Flynn, who faces a questionable false-statement charge and had to sell his home to cover legal costs before finally accepting the plea.

If Flynn does feel that material evidence was withheld, he would face a tough task in walking this cat backwards. First, the view of investigators of his innocence does not prevent later investigators from reaching an opposing conclusion. Second, the general rule for plea deals is caveat emptor, or buyer beware. If you needed more evidence, you had to demand it before the deal. It is not clear if Flynn made such a demand and was not given material evidence. However, if the plea were tossed, it would release not just Flynn but Mueller.

The threat from Mueller is obvious: Break the deal, face the wheel. Flynn could be hit with an indictment with more crimes and a co-defendant in the form of his son. In the end, Flynn still has few options that seem to run the gambit from ruin to near-ruin. He is currently at near-ruin.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can follow him on Twitter @JonathanTurley.