As the Durham probe proceeds along relentlessly and liberal heads are exploding over the DOJ dropping charges against Mike Flynn- a small victory for us with brains- one has to ask if the key figures in this unfortunate saga will ever face jail time or so much as see the inside of the courtroom. As much as we would like to see Clapper, Comey, Strozk, and the ever-smug Brennan in orange jumpsuits, it may not be as easy as one thinks despite the obviousness of their actions.
The first problem is finding the crime with which to charge them. President Trump has described their actions, as concerns Flynn, as “treason.” Perhaps in the broad sense it is, but treason is specifically defined not in the voluminous US Code, but the Constitution and it is rather specific. Why? Most likely our Founders did not want every incarnation of Congress defining treason. Perhaps they could be prosecuted under a fraud statute but that usually involves the mail or other means of communication. Previous attempts to prosecute political corruption under a fraud statute has run into problems. In 1988, Congress tried to fix the language of the fraud statutes but unfortunately made it worse when the Supreme Court ruled in Jeffrey Skilling (of Enron fame) case that the language only applied to a financial crime like bribery or kickbacks. As a result, prosecutions under the law for political corruption were overturned.
One person, certainly more adept at legal junk than this writer, Jeb Babbin at American Spectator suggests the best available statute (18 USC 242) which criminalizes acting “…under color of any law, statute, ordinance, regulation, or custom, [to] willfully subject any person . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . .” This seems to fit Comey, Brennan and others, right? Yes, until you read further and notice a qualifier: “…“on account of such person being an alien, or by reason of his color, or race.” This statute is such a rhetorical mess, one is unsure if the qualifier has to apply or not.
Incidentally, conspiracy in and of itself is not a crime. There must be some underlying crime first. This is why the RICO statute could not be used. That involves a “pattern” and a “pattern” is defined as two or more very specific crimes mentioned in the statute. RICO does not criminalize anything; it only enhances a pre-existing crime. Obstruction of justice is intriguing since it applies to “…whoever corruptly influences…or endeavors to influence..the due and proper administration of the law under which any pending proceeding is being had before and department or agency of the United States…” The problem is there is not necessarily obstruction of justice because they were initiating and enhancing an injustice in the name of justice (investigating Trump for ties to Russia where the “evidence” was fabricated or based on bad evidence). In other words, how can an FBI investigation (Crossfire Hurricane) be an “obstruction of justice?”
We can all agree that the IC and FBI certainly abused their power, but there is no crime listed in the US Code called “abuse of power.” During the impeachment trial, Trump’s lawyer made a persuasive argument towards those ends. There is a thing called “Abuse of office,” which states:
A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she:
(a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession, assessment, lien or other infringement of personal or property rights; or
(b) Denies or impedes another in the exercise or enjoyment of any right, privilege, power or immunity.
Aha! We’ve found our “crime,” except it isn’t- it is a regulation, specifically 25 CFR Section 11.448. According to most legal scholars, the “abuse” usually entails some kind of pecuniary interest (i.e., money). Regardless, if we look further, the regulation in question is one promulgated by the Bureau of Indian Affairs which is part of the Interior Department which has nothing to do with the CIA, FBI, State Department, or DNI. As an aside, many states have “abuse of office” statutes, but the federal government does not.
It would be ironic if charges were filed for a violation of 18 USC 1001- the very statute under which Flynn was charged. The actual language applies to not only lying to the FBI, but also lying by the FBI. So when Comey went to Trump in January 2017 and told him he was not under investigation knowing he was under investigation, the FBI obviously lied. If Comey lied to Trump, the President at the time, then one can rest assured that the others lied to Congress, another investigator, an inspector general, etc. somewhere along the line. We know McCabe lied. Unfortunately, the maximum sentence under this law is only 8 years. And unfortunately, since Crossfire Hurricane was a counterintelligence operation, they could always argue that “lying” to the target of an investigation was necessary in this instance.
Supposing a crime could be found, there is now the problem of prosecution which would most likely occur in DC. Fact: the District of Columbia is composed of card-carrying “progressives” and Trump-haters. The only thing that would overcome the reams of documented evidence that could be mustered by prosecutors to use against these defendants being ignored by a jury because of bias or political animus toward Trump would be getting one of these people to flip on the others. Does anyone expect any of these people to sit in a courtroom and say, “Yes- we plotted against Trump before he was elected, then we kept it up after he was elected?” Or, “We made up the whole Trump-Russia thing and knew it was a hoax, but once we were in it, we couldn’t go back?” Fat chance of this happening. Unless the punishment demands someone “flipping,” this writer does not see it happening.
In the end, Barr and Durham, if they are even to take this route, they will have to get imaginative with the crimes available to them. They- the coup plotters- may squirm on the hook, but I am not getting my hopes up. Although I would like to see them “perp walked” in handcuffs and leg irons in orange jumpsuits and unshaven faces, I don’t think it is in the cards or the law books. It is ashamed because we all know they did wrong. The big question is what technically it was they did wrong that would stand up in a court of law.