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Wednesday, March 07, 2018

But why the perjury trap works?


One interesting aspect of Russiagate is how it was propelled by the very large access to information a powerful government like the USA, and its five-eyed friends, nowadays have.

If the Intelligence apparatus doesn't look particularly efficient at thwarting terrorist plots, it at least showed itself very good at snooping on Americans engaging in apparently legal behavior. We now know that, contrary to some overexcited initial reports, Obama's FBI did not rely exclusively on the Steele dossier, nor it had to withhold, from the FISA court, its connection to opposition research funded by opponents. That's because it had material of its own to start what looks like a very wide snooping of Trump's campaign, with far consequences to Mueller's probe today:

Pervasive surveillance has shown its power perhaps most significantly in creating perjury traps to manufacture indictments to pressure people to testify against others.

Mr. Van Buren finishes the piece above with an exhortatory remark:

Don’t be lured into thinking the ends justify the means, that whatever it takes to purge Trump is acceptable. Say what you want about Flynn, Kushner, et al, what matters most is the dark process being used. The arrival of pervasive surveillance as a political weapon is a harbinger that should chill Americans to their cores.

As a matter of principle, I tend to agree with Mr. Van Buren. Yet, for all the weaknesses associated to cases manufactured over perjury traps, I keep asking myself why the people involved were so eager to perjury themselves.

What was their mindset? Why would they all lie about things they could refuse to answer anyway?

Can you mount a case where most actors perjured themselves, but were still innocent?

10 comments:

Bret said...

Clovis wrote: "...FBI did not rely exclusively on the Steele dossier..."

I didn't know that was the claim. I thought it was that they relied in part on the Steele dossier. Any reliance at all on the dossier might be problematic.

Clovis wrote: "...nor it had to withhold, from the FISA court, its connection to opposition research funded by opponents."

So you're saying it WAS disclosed to the FISA court that the dossier was funded by the Clinton campaign and others in opposition to Trump?

I wasn't aware of that. Could you provide a link? (Preferably one I find credible, i.e. not from The Monkeys Write)

Clovis asks: "Why would they all lie about things they could refuse to answer anyway?"

If you ask me enough questions, eventually I'm going to make a mistake and say something false. Prove that, and you've got me for perjury. It's pretty simple.

In the case of Flynn, Hey Skipper made an argument that was convincing to me (I realize you continue to totally disagree) where Flynn was forced into a guilty plea (after making some misstatements during questioning) in order to avoid potentially ruinous legal expenses.

And it is interesting that the new judge in Flynn's case has order Mueller to give exculpatory evidence to the defense team. Why did the defense team not ask for that in the first place? Maybe because Flynn knew he couldn't afford to fight the very well funded government and that he did slip up in some of his answers.

Clovis wrote: "I keep asking myself why the people involved were so eager to perjury themselves."

Do you have evidence they were "eager"? I'm not totally sure what you mean be that or why it matters.

Peter said...

Can you mount a case where most actors perjured themselves, but were still innocent?

All too easily, I'm afraid. Lawyers have traditionally advised their clients to shut up when the cops come calling, but the advice is more compelling when you have a huge enforcement bureaucracy with unlimited financial resources and Orwellian surveillance capabilities combined with a paranoid conspiracy mentality about subversive foreign influence. If the mere fact of declining to cooperate with the feds is taken as a subversive act under the influence of a powerful hostile adversary, the result can be Kafkaesque. Every prosecutor knows that with unlimited resources and time, he or she could put anyone in prison.

In the current tribal mentality and group think that has infected the media, I've come to seek out independent voices whatever side they are on. My favourites are Kevin Williamson on the right and Matt Taibbi on the left. They both take on the opposing side with gusto, but they will take on their own side just as mercilessly. Plus they are very good, funny writers. Taibbi smelled a rat about this whole Russia nonsense from the start and called it as Dems and leftists unable to take responsibility for their own failures. Here is his latest. It doesn't deal directly with the perjury question but it sure provides a chilling context.

Bret said...

Yeah, what Peter said. Surely that happens in Brazil all the time?

David said...

Ken White (Popehat) is very good on this (e.g., https://www.popehat.com/2017/12/04/everybody-lies-fbi-edition/). Basically, the problem with this statute, which is not perjury but rather making a false statement to a federal officer, is that the FBI can purposely create a crime that wouldn't otherwise exist.

Most importantly, there's no requirement for conviction that the FBI be fooled by the lie at all -- it's still a crime if the FBI knows from the moment it's uttered that it's a lie.

Clovis e Adri said...

Bret,


---
Yeah, what Peter said. Surely that happens in Brazil all the time?
---

Actually, it doesn't.

We have no analogue to this 'perjury trap' in our statutes, i.e. you can lie to the police (federal or otherwise) all you want, under the interpretation that you are not obliged to produce evidence against yourself.

Of course, statements in contradiction to facts established by other means won't help your case in court, but you can't be convicted solely for that behavior.


That jurisdiction also fits with a larger pattern that differentiates our culture from yours. Lies are seen as lesser offenses down here than up there, the Anglo-saxon tradition being that your word carries real weight. Down here, the police just expects people will lie.

So my questions in this post are motivated by trying to understand how this perjury thing (or 'false statement to a federal officer', as better phrased by Mr. David above) works in your justice system, and in your cultural traditions at large.

Maybe, being that a foreign tradition to me, I am taking it more seriously than US citizens would - is it possible? Because, trying to place myself in Flynn's position, I can't believe he would just mistakenly remember about his calls to the Russian embassador a couple of months before. It is not like they were asking what he ate 2 weeks ago. He knew he had a weak point concerning the Ruskies (he got money from them), and that his promise of relief towards them (while Obama slashed sanctions to their embassies) was highly unusual. That's the reason I 'continue to totally disagree' with Skipper at that point.

Clovis e Adri said...

Bret,

---
Clovis wrote: "...FBI did not rely exclusively on the Steele dossier..."
Bret wrote: "I didn't know that was the claim. I thought it was that they relied in part on the Steele dossier. Any reliance at all on the dossier might be problematic."
---
At some point, Andrew McCarthy (and Skipper down here) was hysterically denouncing the NYT for trying to rewrite the narrative with its piece on the FBI probe being motivated by Carter's comment to Australian foreign officers.

It turned out to be true.

Also, to rely in part on the dossier is not necessarily a problem. A crime is no less of a crime if denounced by your political opponents, i.e. it doesn't deny the investigation.

---
Clovis wrote: "...nor it had to withhold, from the FISA court, its connection to opposition research funded by opponents."
Bret wrote:" So you're saying it WAS disclosed to the FISA court that the dossier was funded by the Clinton campaign and others in opposition to Trump? I wasn't aware of that. Could you provide a link? (Preferably one I find credible, i.e. not from The Monkeys Write)"
---

Well, it is disappointing that you are now infected by this distressed selection of newsource too. But you can start here then.

As an example, the following excerpt is quoted directly from the FISA requirement:

"The FBI speculates that [Simpson] was likely looking for information that could be used to discredit [Trump's] campaign."



---
Do you have evidence they were "eager"? I'm not totally sure what you mean be that or why it matters.
---
I thought that was a standard figure of speech representing them as fools.

Bret said...

Clovis,

First, let me mention some stuff that shapes my attitude here. The average american commits Three Felonies a Day. Given my age and the fact that I'm probably NOT better than average, I've probably commited 50,000+ felonies in my adult life, and if I had to pay the fines and serve the jail time for those felonies, well, I'd be done for. And, indeed, the vast majority of americans would also be in jail or in deep-shit in general.

One important thing that keeps us all out-of-jail is the warrant process. Police and prosecutors cannot just start looking through our records and investigating our lives without proper warrants. Without those warrants they simply can't get the evidence (at least not easily) of my 50,000+ felonies.

I and the vast majority of other americans are at tremendous risk if our enemies only need to make up stuff or even find actual dirt on us and bring it to a prosecutor who then uses that as the basis for a warrant to collect records and prosecute us for anything they find. It's extremely important to me that only neutral parties be able to be part of such a warrant process even if the dirt my enemies dig up is perfectly accurate.

So I take an extremely dim view of any possible indiscretion in obtaining a warrant for spying on me or any ally. It had better not even be close to possibly iffy or I will absolutely reject it out of hand. And that's the case, in my opinion, of this FISA warrant. In my opinion, even if every last thing in the Steele dossier is perfectly accurate, it should never have been used for a FISA warrant because it wasn't neutral parties providing the information.

Even worse, the closer the target of the investigation is to a political process, the MORE important I feel that the government follow the rules and even ignore all but the most serious and dangerous of offenses. Otherwise, there's nothing stopping (except armed and violent revolution) the ruling party from starting investigations into all political opponents. At that point, democratic government is simply dead.

And we're past that point, I believe. Trump is somewhat of a "canary in a coal mine" in my opinion. If Trump could have transitioned to power smoothly and then transitioned away from power smoothly in 4 years (more-or-less), then I would've said the process was still working adequately. But that's not what's happening. If nothing else, his administration will be constantly hampered by elites doing everything in their power to disrupt his administration and remove him from office.

And this simply is the next step in a trend that has been going on for a long time. The smooth transition of power is simply not gonna happen anymore. And what it will eventually degrade to is simply not gonna be pleasant.

Bret said...

Clovis wrote: "...to rely in part on the dossier is not necessarily a problem."

See me previous comment. In my opinion, it's a YUGE problem.

Clovis quoted: "The FBI speculates that [Simpson] was likely looking for information that could be used to discredit [Trump's] campaign."

Uh huh. First, not nearly good enough in my opinion (see previous comment). Second, where is the Clinton campaign mentioned?

Clovis wrote: "...it is disappointing that you are now infected by this distressed selection of newsource..."

I have no interest in relying on the propaganda outlets of my enemies, thanks. I don't reject every article outta hand, but neither do I consider them a reliable source.

Clovis e Adri said...

Bret,

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Second, where is the Clinton campaign mentioned?
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You tell me that, in a campaign with only two candidates, the judge would hardly guess that one?

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I don't reject every article outta hand, but neither do I consider them a reliable source.
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I read scientific articles for a living, Bret, and I don't take them as reliable sources beforehand, so what to say of standard newspaper junk? It is beyond the point. The refusal to look at articles from any source just for the sake of deriding their printer may a good guide on how to use your time, but hinders any discussion at a forum like this.

Clovis e Adri said...

Bret,

---
In my opinion, even if every last thing in the Steele dossier is perfectly accurate, it should never have been used for a FISA warrant because it wasn't neutral parties providing the information.
---
We will agree to disagree on that one, though I guess the statutes of your country are not on your side either.


---
And we're past that point, I believe. Trump is somewhat of a "canary in a coal mine" in my opinion. If Trump could have transitioned to power smoothly and then transitioned away from power smoothly in 4 years (more-or-less), then I would've said the process was still working adequately. But that's not what's happening. If nothing else, his administration will be constantly hampered by elites doing everything in their power to disrupt his administration and remove him from office.
---

In effective terms, I don't know if it is accurate to say there was no smooth power transition. After all, he is sitting on the White House, doing everything presidents are entitled to do. The people holding public jobs that happened to disagree with him were all fired - be it the previous administration "resistants" or his own people. Furthermore, no insurrection from the military was ever arranged.

Sorry, Bret, but methinks doth protest too much :-)