Just today (May 23), former CIA Director John Brennan testified before the House Intelligence Committee concerning the nonexistent “collusion with Russia.” In response to a direct question from Rep. Trey Gowdy about evidence of “collusion,” Brennan admitted that he had no knowledge of “collusion” but only “contacts” between Trump associates and “officials of the Russian government.” When pressed on whether there was any evidence of “collusion” as opposed to benign “contacts” with the Russian ambassador or other US-based Russian officials in the ordinary course of political affairs, including the Presidential transition, Brennan dodged the question by stating: “I don’t do evidence.” Rather, he testified, he had merely turned unspecified “intelligence information” about “contacts” over to the FBI. But the FBI likewise has found no evidence of “collusion.”
Mr. President, the “intelligence community,” rife with Obama-era holdovers, is playing a game with you. The game is to prolong a sham investigation as long as possible until the final admission that no evidence of “collusion” or any unlawful conduct ever existed. And now, Attorney General Sessions having foolishly recused himself from the baseless “Russia probe,” Deputy Attorney General Rod Rosenstein (the Democrat you made the mistake of installing in that position) has guaranteed an indefinite prolongation of the game by appointing a “special counsel” to conduct yet another investigation of the fictitious allegation. Yet the law authorizing the appointment of a special counsel limits the counsel’s authority to the investigation of alleged crimes, of which none has been identified. So what is Mueller investigating?
The order appointing Mueller states he is authorized to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” But the very subject of the investigation is by its own terms not a crime under American law and thus not within Mueller’s authority to investigate. Mere “links” between the Russian government and associates of Trump are certainly not criminal. Moreover, as both Gregg Jarrett of Fox News and Alan Dershowitz have noted, “coordination” between Russia and the Trump campaign—for which there is no evidence—would not have been a crime under federal law even if it had occurred. And not even the looniest of the Democrat political operatives behind this circus has claimed that any Trump associate actually combined and conspired with “the Russians” to commit the crime of hacking the DNC and Podesta email accounts.
Worse, the order appointing Mueller authorizes him to investigate “any other matters that arose or may arise directly from the investigation.” As Jarrett observes, this is “the usual all-encompassing phrase which allows a special counsel to run rampant in an almost limitless direction to dig up dirt on potential targets.” Thus, “Mueller’s probe will inevitably morph into an investigation of President Trump’s meeting with James Comey and his subsequent firing of the FBI Director.” But Mueller and Comey are close friends who, as Jarrett notes, were “joined at the hip” when they worked together at the FBI, with Comey serving under Mueller as Director before succeeding him in that post. Thus, a key witness in this illimitable investigation will have his credibility assessed by his own friend and former close associate.
As this bizarre process of an endless, Hydra-headed investigation in search of something to investigate drags on, the banner headlines and breathless network commentators trumpet a succession of evidential zeros in the hope that all the zeroes will somehow add up to one and that you will be toppled from office based on nothing but legally inconsequential gossip and innuendo.
Your public relations team’s response to this farce has been weak to nonexistent. It seems that none of the people who should be defending your position has been able to make it clear that the “Russia probe” is exactly what you call it: a hoax. I have watched, aghast, as your Press Secretary—seemingly unable to speak in complete sentences or to nail down obvious points crying out to be made—is mocked, interrupted, bullied and thrown off track during shark tank “press briefings” that serve no purpose but to fuel the media’s vaporous narratives of fake scandal, concocted to undermine your Presidency.
In sum, Mr. President, you are allowing yourself to be railroaded. Yet this entire debacle could be ended quickly in your favor if you will simply wield the power of your own office by taking these measures:
First, direct the FBI, the NSA, and the CIA—whose heads all answer to you and can removed by you—to tell the public what they have been telling you, certain members of Congress and others privately: that the “Russia probe” has produced no evidence of “collusion” between you, your staff and “the Russians.” The claim that the agency heads cannot do so because the investigation involves “classified information” is simply an excuse to continue hobbling you with a phony scandal. As Chief Executive with direct authority over the Executive branch, you can declare the entire investigation declassified so that the public can be informed that it has turned up nothing after months of fruitless inquiry.
It is the height of absurdity that high government officials and members of Congress are admitting privately what they are refusing to confirm publicly, so that this charade can continue. It is even more absurd that the media are now characterizing your prior requests for such public disclosure—which should you should now make a direct order to disclose—as an attempt unlawfully to induce public officials to “deny” there is evidence when in fact they admit there is no evidence.
Under our form of government, which thus far has largely been ignored where your Presidency is concerned, these officials all answer to the Chief Executive and serve at his pleasure. Stop behaving as if you are subject to their authority and must submit to their endless fishing for nonexistent proof of nonexistent crimes.
Second, direct all Administration personnel appearing before any House or Senate investigatory committee concerning the “Russia probe” to answer all questions fully and responsively without reciting the mantra that the answer involves “classified information,” as Mr. Comey did dozens of times in dodging questions that would have revealed that the FBI’s “Russia investigation” has been fruitless. As suggested above, use your Presidential power to declassify all pertinent documents, discussions and conclusions, thereby removing the dodge. This would be the most efficient way to expose the utter vacuity of the “Russia probe.”
Third, direct the Attorney General, who answers to you and serves at your pleasure, to form a Justice Department task force, working jointly with the FBI under its new director, to investigate the numerous felonious leaks of classified information to a hostile press determined to destroy you. You are in no way bound to cede the investigation of these undeniable crimes to the discretion of “special counsel” Robert Mueller. As Chief Executive you have every right to demand the empaneling of a grand jury and the issuance of grand jury subpoenas.
Subjects of the investigation who “lawyer up” and/or invoke the Fifth Amendment would be obvious targets for possible indictment for violation of the Espionage Act and other federal statutes. The result may well be plea agreements in which one or more the leakers implicates others involved in exchange for leniency or to avoid prosecution. The mere pendency of such an investigation would end the problem of the leaks. I note that the Attorney General Sessions has not recused himself from any such investigation, but only from the ridiculous “Russia probe.”
Fourth, order the administration of polygraph examinations to any and all Executive branch employees with access to the classified information that has been leaked. Those who refuse to cooperate or fail the polygraph would also be prime targets for the AG’s task force.
Fifth, address the nation on the “Russia collusion” mythology in a carefully written speech that exposes this circus for what it is. Show the American people that the “Russia probe” is nothing but a media-generated hoax, the longest-running fake news story in the history of the liberal media, concocted as part of the “resistance” to your administration in order to prevent you from fulfilling the campaign promises you made to the nation.
To those who say you are “interfering” with the “Russia probe,” your obvious reply is that you have every right to defend yourself and your administration against an endless fishing expedition driven by rank partisan politics and a hostile media. Whatever investigation Mueller may conduct does not eliminate your First Amendment right to defend yourself in the court of public opinion—the same right enjoyed by every American.
Indeed, as Chief Executive it is within your power under the Constitution simply to order an end to all Executive branch investigations of a nonexistent conspiracy with “the Russians.” This is discussed below.
Sixth, address the nation on the firing of James Comey and your conversations with him concerning Michael Flynn.
You have nothing to fear from stating forthrightly that Comey was out of control and had to be removed. The President of the United States has no duty to cower before the head of the FBI while he searches endlessly for nonexistent “collusion with Russia.” Alan Dershowitz, no friend of yours, has candidly observed that even if Comey’s dismissal was motivated by your desire to end the “Russia probe”—which in any event has not ended with Comey’s removal—that would simply be an exercise of your constitutional authority as Chief Executive and cannot possibly constitute a crime.
As for the conversation concerning Flynn, even if you had said to Comey, in effect, “I hope you go easy on Flynn and give him a break” or had said outright “I hope you drop the investigation because he has suffered enough,” the contention that the expression of such a view is “obstruction of justice” is ludicrous. Any citizen of this country would have the right under the First Amendment to make such a petition to Comey without committing a crime. It is the sort of thing defense lawyers suggest to investigators and prosecutors every day.
Moreover, even if Comey, the classic disgruntled ex-employee, now expediently claims you “tried to influence” him, you had the right to do so by expressing your opinion as his superior and as a citizen with First Amendment rights. You obstructed nothing, and Comey reported no obstruction, as he would have done under federal law had it occurred, failing which he himself would have committed a crime.
Seventh, put the brakes on the “special counsel” express train. You must, to begin with, refuse to allow the granting of any waiver of the blatant conflict of interest involved in Mueller assessing the credibility of his own friend and associate, Mr. Comey, as a key potential witness against you and your administration respecting the non-crimes Mueller should not even be allowed to investigate in the first place. At the very least, Mueller should be disqualified as special counsel.
You should also demand identification of the alleged crime or crimes the special counsel is to investigate. If none can be specified—and none can be—you should direct an immediate end to the investigation on grounds of lack of jurisdiction under the special counsel law. Obtain the appropriate legal opinion, perhaps with the assistance of Prof. Dershowitz, and address the nation accordingly.
There is simply no legal authority for a Justice Department special counsel to rove about in a search for vague “links to Russia” and other such legally inoperative evidence. You have every right to quash a legally pointless fishing expedition financed by the taxpayers at the behest of your political opponents in order to drag you down.
Alternatively, if you decide to leave Mueller and his legally unwarranted inquest in place, do not allow yourself to lose sight of the law which makes it clear that he is not “independent” of the government, as the media have falsely implied. The Independent Counsel statute expired in 1999 after the Democrats saw that it had facilitated the impeachment of Bill Clinton resulting from the investigation by Independent Counsel Ken Starr. After the statute expired, the Office of the Independent Counsel was replaced by the “United States Department of Justice Office of Special Counsel.” This means that Mueller is actually a Justice Department employee who answers to the Attorney General, who in turn answers to you. You are not subject to Mueller, whose appointment cannot limit the President’s power to direct an end to a politically motivated witch hunt. On the contrary, Mueller is subject to you.
If you allow it to continue, Mueller’s conduct of the “Russia probe” could well degenerate, as these things do, into an exercise in justifying its own existence by finding or generating a crime where none had previously existed. This would likely involve flimsy, Martha Stewart-type indictments of people whose only offense was allegedly “misleading” Mueller or his army of investigators or allegedly “contradicting” previous statements, even though they had broken no law before Mueller’s appointment.
If this happens, you should (a) immediately pardon all those who might be indicted or are identified as targets for indictment solely on the basis of their alleged post-appointment behavior in response to the investigation; (b) pardon Michael Flynn if he is charged with any alleged crime related to “failure to disclose” perfectly legal business “ties to Russia,” which amount to far less than the Clintons’ or Mr. Podesta’s undisclosed “ties to Russia”; (c) address the American people on why you issued the pardons: to end a baseless investigation in search of a crime that was paralyzing the government with a mushrooming investigatory cloud in order to nullify the results of the last Presidential election; and (d) direct the Attorney General to inform Mr. Mueller that, as all of his “targets” have been pardoned in order to bring an end to the witch hunt, his services are no longer required.
Eighth, terminate the useless daily press briefings. Instead, provide weekly written updates and Presidential press conferences at times and places of your choosing. Address the nation on why you ended the briefings in a speech documenting the degeneration of the “mainstream media” into the propaganda arm of the Democrat Party. Cite the Harvard study that an unheard-of 98% of media coverage of your Presidency is negative.
Make the point that the media’s First Amendment freedom does not require you to assist their orchestrated effort to undo the last election and the draining of “the swamp” with nonstop biased reporting, false allegations, leaks by anonymous sources, and a parade of pseudo-scandals that amount to nothing. Remind the people that the political establishment you defeated fair and square is fighting the radical change they voted for. Tell them that you are tired of providing that same establishment with White House press facilities to conduct a propaganda war under your nose.
Lastly, bring an end to the empty threats of “impeachment” by challenging the Democrats to present their articles of impeachment, which would not be based on anything constituting an impeachable offense and would never be voted out of the House for presentation to the Senate. Your challenge will go unanswered, and, having called their bluff, you will have gained a major tactical advantage in the war being waged against you.
And a war it is. It is time that you used the full power of the Presidency to win that war instead of attempting to placate the enemy forces that surround you. In short, Mr. President, do something to defend your Presidency by using Presidential powers to dispel the media-generated cloud of legal nothingness that hangs over you, before it chokes the life out of your administration and renders your election vain, just as your enemies have planned from the moment you won the Republican nomination.
Christopher A. Ferrara, Esq.
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