Friday 8 June 2018
JOHN BATCHELOR SHOW
Co-hosts: Thaddeus McCotter, WJR, the Great Voice of the Great Lakes. Gene Marks, Washington Post Small Business columnist.
Friday 8 June 2018 / Hour 1, Block A: Andrew C McCarthy, National Review; former Assistant United States Attorney for the Southern District of New York; in re: Andrew McCabe is seeking immunity to testify before Congress (the Senate) on ______. This is a form of use immunity: if it were granted, one couldn’t use his statements before Congress against him. McCabe could later use this as an argument that the prosecutor’s case against him was tainted. Looks like a gambit to make it difficult to prosecute him for false statements. Unlikely that he’ll be invited to testify before Congress.
McCabe wrote for WaPo, I didn't do anything wrong. If that’s true, why would he need immunity before the Senate? The law is that if you assert your Fifth Amendment privilege, you have to have reason to think that good-faith answers would incriminate. At a minimum, he must be concerned about the Inspector General’s assertion that gave false statements
Friday 8 June 2018 / Hour 1, Block B: Andrew C McCarthy, National Review; former Assistant United States Attorney for the Southern District of New York; in re: Clinton emails. . . . Horowitz: Director Comey cooperated with the IG, thus read the report before he rest of us have. This may be a effort to spin. Report may run 500-600 pages. FISA abused? Strzock-Page texts. Carter Page in the news because of his meeting with Stefan Halper. . . Senate Intell Committee hasn't done very much useful; it's good at peddling info to people who aren't supposed to have it. Govt officials very irresponsible with classified information.
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LAW & THE COURTS Andrew McCabe Seeks Immunity for . . . What?
The Judiciary Committee shouldn’t give it to him.
By ANDREW C. MCCARTHY June 7, 2018 11:21 AM
Former FBI Director Andrew McCabe testifies before a Senate Intelligence Committee hearing on the Foreign Intelligence Surveillance Act (FISA) in Washington, D.C., June 7, 2017. (Kevin Lamarque/Reuters )
Timing is everything in life. House speaker Paul Ryan has decided to back Representative Trey Gowdy’s (foolish) suggestion that there was nothing irregular about the FBI’s use of an informant to investigate the Trump campaign. Ironically, Andrew McCabe, the former deputy director who was deeply involved in that investigation, picked the same time to make it known that he will not testify before Congress unless he is granted immunity from prosecution.
The Senate Judiciary Committee, to which McCabe’s lawyer made the request, should tell him “No thanks.” McCabe should be reminded that he is free to assert the Fifth Amendment privilege against self-incrimination if he believes truthful answers would put him in jeopardy, but there should be no immunity.
Besides the Russia probe, McCabe oversaw the Clinton-emails investigation after being appointed deputy director in February 2016. As the bureau’s No. 2 official, he had very broad supervisory responsibility over investigations nationally and globally. But his oversight of the Clinton case was much closer than usual for a deputy director, because the FBI took the highly unusual step of running the investigation out of headquarters. The FBI generally avoids doing that for a variety of prudent reasons, not least that its field offices across the country are removed from Washington’s intense political environment.
Of course, that is just one of countless ways in which the Clinton investigation was given highly unusual treatment.
As we discussed back in April, McCabe has been referred by the inspector general to the Justice Department and FBI for consideration of whether to prosecute him for making false statements to investigators. The false statements occurred during a probe of McCabe’s leaking of sensitive investigative information to the media. Inspector General Michael Horowitz’s 35-page report recounts that McCabe gave misleading answers on four occasions when questioned about the leak; falsely claimed that his boss, then-director James Comey, knew about and approved McCabe’s leak; and, to give himself cover, shamelessly chewed out the heads of the New York and Washington field offices over the leak that McCabe himself had orchestrated.
McCabe’s lawyer, Michael Bromwich, now maintains that, because of the criminal referral, McCabe needs immunity if he is to testify before the Senate Judiciary Committee about the Clinton-emails case. This is a stark change of position for McCabe.
Shortly before the publication of the IG’s report on his alleged false statements about his leak, McCabe penned an op-ed in the Washington Post. In it, he flatly denied the accusation of “lack of candor” — the label the FBI gives to agent misconduct that involves violating the duty of honesty, particularly in dealings with the bureau. McCabe asserted:
I did not knowingly mislead or lie to investigators. When asked about contacts with a reporter that were fully within my power to authorize as deputy director, and amid the chaos that surrounded me, I answered questions as completely and accurately as I could. And when I realized that some of my answers were not fully accurate or may have been misunderstood, I took the initiative to correct them. At worst, I was not clear in my responses, and because of what was going on around me may well have been confused and distracted.
If McCabe was being candid with the Post’s readers, then it is hard to understand how he can now represent that truthful answers to the Judiciary Committee’s questions could incriminate him. More likely, McCabe is trying to make himself non-prosecutable.
In 1970, Congress enacted the statute that empowers lawmakers to grant immunity, Section 6005 of the federal penal code. Essentially, if a two-thirds majority of the investigating committee approves, immunity is granted. (The Justice Department must get notice and can delay matters, but it cannot stop the immunity grant if the committee is determined to proceed.)
Though long accepted, congressional immunity is a constitutionally questionable concept. Criminal investigation and prosecution are executive functions, and they include decisions about whether to charge or to forfeit the power to charge in exchange for information that furthers other investigations and prosecutions. When Congress exercises this power, it undermines the Justice Department’s ability to prosecute.
It is true that, on the surface, the statute provides only “use immunity.” Technically, this does not shield the witness from prosecution; it only prevents the immunized testimony from being used against the witness — either directly (being presented against him at trial) or indirectly (as leads to locate evidence that can be used to prosecute him). In practical effect, however, use immunity can easily become transactional or even blanket immunity. It is often difficult, if not impossible, to prove that evidence purportedly unrelated to the immunized testimony was not traceable to it in some way. Consequently, if the Justice Department tries to prosecute him, the immunized witness will argue that the case is based on the immunized testimony. It is easier for a court to throw out such a case than try to sort out what is tainted and what is not.
The inspector general’s report laid out what appears to be a strong false-statements case against McCabe. And that may be just the beginning: We are awaiting what is said to be the imminent IG report on the Clinton-emails investigation, and the IG is also investigating the FBI’s conduct in the Trump–Russia investigation. We do not know if the IG will find any potentially criminal conduct in these investigations. Still, we can safely assume that McCabe hopes the Senate Judiciary Committee will grant him immunity so he can later contend that any effort to prosecute him is based on immunized testimony.
Prosecutors do not like to grant immunity. It was liberally doled out in the Clinton-emails investigation that McCabe ran, but that was an aberration — a reflection of the fact that there was no intention of charging Mrs. Clinton or anyone else with a crime.
A more normal and effective way of proceeding is illustrated by Special Counsel Mueller’s investigation: If the prosecutor has a viable false-statements case against a witness, he makes the witness understand that he is prepared to indict the witness. The witness quickly realizes that his best option is to plead guilty and cooperate (as several witnesses have in Mueller’s probe). Once this is done, if the witness proves to be dishonest, the cooperation agreement is torn up and the prosecutor can bring more charges and push for a more severe sentence. The guilty-plea arrangement, much more effectively than an immunity grant, provides the witness with a powerful incentive to cooperate fully.
The Judiciary Committee should tell McCabe that if what he wrote in his Washington Post op-ed is true, then he need not worry about incriminating himself by answering the committee’s questions. There is no reason to give him immunity at this point. Let McCabe come in and assert the Fifth Amendment privilege if that is what he chooses to do. Meanwhile, the committee should wait to see what the Justice Department does with the IG’s false-statements referral, and what the IG says in the Clinton-emails report.
Once McCabe realizes the Judiciary Committee will not give him immunity or otherwise interfere with the Justice Department’s ability to prosecute him, he is apt to become a much more forthcoming witness.
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Friday 8 June 2018 / Hour 1, Block C: Dan Henninger, WSJ editorial board and Wonder Land, in re: The Eagles — feud between them and the president looks as though it’ll go on forever. President extended the obligatory invitation to the Superbowl champions, who retorted that they wouldn't attend, so president disinvited them and had a celebratory afternoon in honor of the country and the national anthem. Now the national anthem is politicized; where does it end? . . . Media thought it could bury Trump in awful publicity, and have done a lot; but he’s a showman and is doing a very creditable job. He’s the 800-lb gorilla in every room you walk in to. . . Part of the Democratic Party have been taken over by the Democratic Left; . . . Chuck Schumer proclaimed that all the Dems had to do henceforth is disparage Trump, but that’s not quite working out. . . . Will the NFL players let this drop and get back to playing?
Friday 8 June 2018 / Hour 1, Block D: Chuck Ross, The Daily Caller, in re: Carter Page – links to Russians; conduct; going to Moscow; returning – but a FISA warrant. Crossfire Hurricane started 31 July, but on 11 July he was contacted by Stefan Halper, an informant for CIA and FBI. So whom was Halper working with (or for) on 11 July? . . . That Cambridge event now looks crucial: who started he whole set of events? Stephen Miller also was invited to the Cambridge symposium, but he’d been invited in May. Miller did not attend, had passed the invitation on to another Trump advisor. The person who sent the inv to Carter Page also invited Miller and was a student under Halper. It's Page’s name in the FISA warrant, and the topic is FISA abuse.
Within the last hours, even David Ignatius is writing of Carter Page . . . James Wolfe, now [entertaining problems with the] Senate Select Intelligence Committee. Aggressive leaks campaign. Wolf leaked [hither and yon]. Carter Page has been accused of being the Trump campaign’s main conduit to the Kremlin [which is highly unlikely; see: Carter Page’s presentations.] The most salacious and [horrible] allegations in the dossier are still wholly unverified.
Friday 8 June 2018 / Hour 2, Block A: Michael E Vlahos, Johns Hopkins, in re: How a country slips into civil war; and are we doing so? In WWI, our soldiers found themselves fighting shoulder to shoulder with Americans from all over he country – incl Italians from New York and Scandinavians from Minnesota. From this came the notion of our all having a common identity; of our all being brothers. This tended to overcome the kinship bonds that hitherto may have divided us. Saving Private Ryan, out of WWII: America took the vision that had not quite come together and put together a unified vision of itself. The knitting-together. Govt narrative was expedient – turned Germans into demons. A chaplain who, under duress, pulled out a pistol and led men into an attack . Now we can see that the Germans were continuous with the Germans in America. Germans, Swedes, Catholics – these are the kinship bonds that have best endured. The WWI success shows the elasticity: Germans in the US renounced their German history. Pershing was German, as was my uncle. Four thousand German-language newspapers in the US obligingly shut down, as did many German-language schools for children.
In the five stages leading to civil war, we are now in ”othering”: identify the other as the enemy; when Germans collapsed in WWI we embraced them as the Redeemer Nation. Later, eke Japan. The downside of othering occurs when we turn it on our compatriots. Michael will teach a course this fall at Johns Hopkins on [all this]. Kinship and Identity in the American Civil War.
Friday 8 June 2018 / Hour 2, Block B: Michael E Vlahos, Johns Hopkins, in re: Partisanship = battle lines hardening: Process of an othering that’s been in under way for some time in the US. Battle lines drawn between two very different, sectarian visions of what it means to be an America. Now we look at each other in a way emotionally similar to how we looked at Germans in WWI. This is about conduct (not rhetoric). The dynamic whereby the US splits and fissures; was happening in 1890s and was deflected; more so in the 1930s, with the Bonus Army – where the Army was sent in with sabers against our own veterans. The battle lines aren't simply ideological, but are reinforced – that is, rich elites getting richer and richer, selfishly unwilling to give that up. Ideological split combined with an elite-popular split is [very hard to reverse].
Friday 8 June 2018 / Hour 2, Block C: Gene Marks, Washington Post Small Business column, in re: Fed is on track to raise rates; but Fox Bz says, “The next recession is not far off.” I’m warning all my clients that as long as the economic numbers are [strong], rates will go up – almost double by 2020, to 3.2%. As long as the natl debt goes up . . . “Next recession will occur by autumn of 2020,” say economists. Who knows?
Friday 8 June 2018 / Hour 2, Block D: Gene Marks, Washington Post Small Business column, in re: Journal of Psychopharmacology: individual participation in a group activity is enhanced by moderate consumption of coffee just in advance. Eagles may need a little coffee. My father worshipped the Eagles. Last election, Hillary Clinton carried the vote by about 104%. Coffee-drinking is good for relations within a company; but Starbucks: took a day off for national barista training after one in Philadelphia [irrationally] called police on two Black men. Company policy became to allow anyone to use the loo, with or without purchase; which of course led homeless, noisome and deranged people to enter, linger, and drive away customers. America’s start-ups are now anemic? Big box stores – and Amazon, et al. – are badly affecting Main St America.
Friday 8 June 2018 / Hour 3, Block A: Jeff Bliss, Pacific Watch, in re: Gyn at USC seems to have abused tens of thousands of female students. A dean (now departed) on drugs. President resigns. Los Angeles Koreatown attacked by a pol who wants to throw a homeless shelter into a successful immigrants’s commercial and residential district. The unfortunate bullet train: a bridge has to be torn down and rebuilt. Forty-two thousand pounds of garbage in Seattle.
Friday 8 June 2018 / Hour 3, Block B: Terry Anderson, PERC Montana and Hoover Institution, in re: Climate change, catastrophic weather. Changing water table. How climate change affects property values; people are moving away from beachfront to higher ground: a 7% discount on Florida beachfront land. Public accepts the notion that this cannot be mitigated.
Some people push for resilience: bldg sea walls, for example; but not much confidence in govt’s ability to do that. Maybe twenty thirty years before we see a major sea rise. Markets predict, and people adapt, pretty well to conditions. Will England again be able to grow grapes, have good vineyards? – not only in England, but maybe here in Montana, Wyoming, Michigan. Fifty to eighty years out. I’ve never understood the hyperbole around these climate change debates – decades or centuries before the draconian results people are discussing. Peaches being grown in Canada.
Friday 8 June 2018 / Hour 3, Block C: Patrick Tucker, , in re: Patrick Tucker, Defense One technology editor, & author, The Naked Future: What Happens in a World That Anticipates Your Every Move; in re: AI, and its Utopian vision of maintaining defense . . . and the ability of the State to penetrate codes . . . Robots meant to deceive watchers: hiding encrypted info inside ordinary mobile devices. A major concern of Special Ops. Big conference in Tampa. In intl ops, Special Ops seize laptops, cell phones, other devices, holding treasure troves of [encryption]. Counterdigital forensics: can hide software from Special Forces. Can use host-protected area (which tells operating system how to run) – can embed it in there; like embedding a person in a wall. Also document content architecture – places not intended for file storage.
Telegram: Russian expat invented it; not a proponent of Kremlin; telegram used widely by jihadists. . . ISIS has a channel on Telegram; can't use it to plan an op. French investigators piecing together metadata? Why has the Kremlin banned Telegram in Russia? (On another hand, if you ban it, people will use it – and then the govt can read that material.)
Syria, Eastern Ukraine, China – and then NATO. [General Denis Mercier, Supreme Allied Commander, North Atlantic Council]. Need a live human to approve [AI recommendations] — unlike Russia and China who aren't as ethically punctilious. Estonia: experienced a major information attack from Russia; are at the fore of counterinformation ops against Russia. Estonians have the best understanding of techniques Russia is likely to use. Impatient with NATO’s slowness. Germany is among the most reluctant of NATO partners. [Merkel speaks Russian; Putin speaks German. —ed]
Friday 8 June 2018 / Hour 3, Block D: Patrick Tucker, , in re: Patrick Tucker, Defense One technology editor, & author, The Naked Future: What Happens in a World That Anticipates Your Every Move; in re: ZTE depended on Google and Qualcomm, and was caught trading with our adversaries. Supply chain. Huge & growing worry in US intell: chips and microelectronics in US tech. Ofc of the Director of Natl Intell – will be discussing for years. ZTE – Pres Trump astounded many with his intention to rescue ZTE; but US intell and security professionals are forbidden to use these . Tech may not be transferred to other nations in a way that might damage US security. New efforts to limit the number of Chinese grad students who may come to the US.
Friday 8 June 2018 / Hour 4, Block A: The Dead and Those About to Die: D-Day: The Big Red One at Omaha Beach, by John C. McManus
Friday 8 June 2018 / Hour 4, Block B: The Dead and Those About to Die: D-Day: The Big Red One at Omaha Beach, by John C. McManus
Friday 8 June 2018 / Hour 4, Block C: The Blood of Free Men: The Liberation of Paris, 1944, by Michael Neiberg
Friday 8 June 2018 / Hour 4, Block D: The Blood of Free Men: The Liberation of Paris, 1944, by Michael Neiberg