Fox anchor argues “conspiring to subvert the government” isn't “treason”

Fox anchor and lawyer Gregg Jarrett: “Even conspiring to subvert the government doesn't rise to the level of treason.” After Donald Trump Jr. released emails from the campaign in which he said he would “love” to receive damaging information on Hillary Clinton from a Kremlin-linked Russian lawyer, Fox anchor Gregg Jarrett defended him, telling The Sean Hannity Show, “Under our Constitution, Americans are permitted to speak against the government, undermine political opponents, support harmful policies, even place the interests of another nation ahead of those of the U.S.” [Premiere Radio Networks, The Sean Hannity Show, 7/11/17]

May 9: Trump fires FBI Director Comey

CNN: 

Jarrett spin: “Comey deserved to be fired”

Jarrett: “Comey deserved to be fired.” “It should have happened a long time ago.” In a FoxNews.com op-ed, Jarrett defended President Donald Trump for firing then-FBI Director James Comey, saying he “deserved to be fired” and that it “should have happened a long time ago.” Jarrett pointed to Comey’s “very public news conference” in which he announced that he would not charge former Secretary of State Hillary Clinton for her handling of classified information, writing, “He usurped the authority of the Attorney General by announcing the case should be closed.” From the May 9 op-ed:

James Comey deserved to be fired.

It should have happened a long time ago. Specifically, July 5, 2016 when he held a very public news conference to announce Hillary Clinton should not be criminally prosecuted for mishandling classified information and jeopardizing national security.   

He should have been fired again when he sent a letter to congressional leaders reopening the Clinton case, knowing full well it would be made public just days before the presidential election.

In both instances Comey acted without authorization and in dereliction of his duty to follow the policies and regulations established by both the FBI and the Department of Justice. In so doing, he demeaned the work of the agency he led, damaged the integrity of the nation’s premiere law enforcement organization, and breached the public’s trust.

Comey offered a variety of excuses for why he thought extraordinary circumstances demanded him to engage in extralegal actions. But none of them can justify violating the fundamental rule of law as Comey did not once, but twice.  

Comey deserved to be fired not because he arrived at the wrong conclusion in the Clinton investigation last July. After laying out a compelling case of how Clinton repeatedly violated the law, he speculated that no reasonable prosecutor would bring such a case.

[...]

The Director of the FBI had no business making such public pronouncements. He usurped the authority of the Attorney General by announcing the case should be closed. He had no such power. [FoxNews.com, 5/9/17]

Extra Jarrett spin: Trump should appoint special prosecutor to reopen Clinton email case

Jarrett: Trump should “appoint a special prosecutor to reexamine the evidence in the Hillary Clinton email case and decide anew whether she should be criminally charged.” In the same May 9 op-ed for FoxNews.com, Jarrett asserted that Trump should “have his Attorney General appoint a special prosecutor to reexamine the evidence in the Hillary Clinton email case and decide anew whether she should be criminally charged.” Jarrett also claimed that Clinton made a “flagrant” violation of the Espionage Act and that “a jury should decide whether she belongs behind bars.” From the May 9 op-ed:

President Trump should fulfill his campaign promise to have his Attorney General appoint a special prosecutor to reexamine the evidence in the Hillary Clinton email case and decide anew whether she should be criminally charged.

There are plenty of “reasonable prosecutors” who would bring that case. Clinton’s violation of the Espionage Act was flagrant.

A jury should decide whether she belongs behind bars. [FoxNews.com, 5/9/17]

May 16: Leaked memo from Comey says Trump asked him to shut down probe into Flynn

NY Times: 

Jarrett spin: Comey obstructed justice by not reporting Trump’s actions

Jarrett: If Comey really thought Trump obstructed justice, he’s a criminal for not promptly reporting it. In a May 16 FoxNews.com op-ed, Jarrett concluded that if Comey felt Trump was actually obstructing justice by asking him to drop the investigation into fired national security advisor Michael Flynn, then Comey broke the law by not immediately reporting it. From the May 16 op-ed:

Under the law, Comey is required to immediately inform the Department of Justice of any attempt to obstruct justice by any person, even the President of the United States. Failure to do so would result in criminal charges against Comey. (18 USC 4 and 28 USC 1361) He would also, upon sufficient proof, lose his license to practice law.

So, if Comey believed Trump attempted to obstruct justice, did he comply with the law by reporting it to the DOJ? If not, it calls into question whether the events occurred as the Times reported it.

Obstruction requires what’s called “specific intent” to interfere with a criminal case. If Comey concluded, however, that Trump’s language was vague, ambiguous or elliptical, then he has no duty under the law to report it because it does not rise to the level of specific intent. Thus, no crime.

There is no evidence Comey ever alerted officials at the Justice Department, as he is duty-bound to do. Surely if he had, that incriminating information would have made its way to the public either by an indictment or, more likely, an investigation that could hardly be kept confidential in the intervening months.

[...]

But by writing a memo, Comey has put himself in a box. If he now accuses the President of obstruction, he places himself in legal jeopardy for failing to promptly and properly report it. If he says it was merely an uncomfortable conversation, he clears the president of wrongdoing and sullies his own image as a guy who attempted to smear the man who fired him. [FoxNews.com, 5/16/17]

Lawfare’s Robert Chesney: Jarrett’s argument is “nonsense” and “bogus.” Lawfare’s Robert Chesney, a legal expert on national security, wrote that Jarrett’s argument is “nonsense” and “bogus,” explaining that, of the two statutes he cited, one “does not apply” and the other “is not a criminal law at all.” From the May 17 Lawfare post:

This is nonsense.  Let me explain.

Let's start with the first of two statutes Jarrett cites: 18 USC 4. This is the general “misprision of felony” statute. It's one of the oldest crimes in the federal criminal code, I believe dating back to 1790. In its current form it provides:

Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both. [emphasis added]

There are two obvious reasons why this statute does not apply to Comey's situation.  

First, note the word “concealment.” This is a stand-alone element of the offense, not just a superfluous verbal flourish restating the point that one must report. Just look at any federal pattern jury instruction: affirmative steps to conceal are required, not just the fact of failing to report the crime. See, e.g., Lancey v. United States, 356 F.2d 407, 4010 (9th Cir. 1966) (silence alone, without affirmative act of concealment, is insufficient). There is no basis for claiming that Jim Comey took affirmative steps to conceal any alleged obstruction by Donald Trump. To argue that Comey somehow affirmatively concealed something by taking care with who got to see his memo entirely collapses this distinction, and would extend liability for misprision to just about every criminal investigator and prosecutor in this country (given how routine it is for both investigators and prosecutors to create but limit circulation of documents with evidentiary content in this sense).

Second, and more fundamentally, Jarrett's op-ed implies that the obligation to report runs specifically to Justice Department prosecutors. That's not what the statute says, however, and of course the more obvious recipients for any such notificiations (sic) would be...the FBI. Jim Comey was, of course, FBI Director at all relevant times, and deeply engaged in supervision of existing, related criminal (and probably also counterintelligence) investigations. It's more than a stretch to suggest that the misprision statute somehow creates a “two-person” requirement for knowledge of possible federal crimes, such that it is not enough for one FBI person to be aware of the possible criminal behavior. A “crooked cop” scenario would of course be different, but no one is alleging (nor could they) that Jim Comey was in cahoots with a plan to obstruct the Flynn investigation.

Third, even if misprision concerns required Jim Comey to convey knowledge of Trump's actions to others at FBI, it remains quite possible that he did exactly this.

Well, enough about misprision. It's a bogus argument. What about the other statute Jarrett cites?

I'm at a loss here.  The statute—28 USC 1361—provides federal courts with jurisdiction to issue writs of mandamus. All lawyers in the U.S. will recall the writ of mandamus from good ol' Marbury v. Madison: it is a name for an order that obliges a government official to perform some non-discretionary act. Needless to say this is not a criminal law at all, and its application here is a bit of a mystery to me. I suppose he has in mind some notion that the FBI Director has a non-discretionary obligation to contact DOJ prosecutors when there is evidence of obstruction or any other crime, posthaste, and thus one might in theory follow the path of William Marbury, filing a petition for a writ of mandamus to make the Director do so. You can see that this makes no sense in this context. [Lawfare, 5/17/17]

Extra Jarrett spin: Trump telling Comey not to prosecute was aspirational, not a threat

Jarrett: Trump’s Flynn request was basically the same as saying “I hope it doesn't rain tomorrow.” In June, Jarrett claimed that Trump’s reported comment to Comey that he hoped the director could drop the case was “an aspirational expression, hoping events will turn out well for Michael Flynn.” Jarrett added, “It's kind of like, ‘I hope it doesn't rain tomorrow.’” From the June 1 edition of Fox News’ Happening Now:

HEATHER CHILDERS (CO-HOST): Let's begin with the president's words to Comey, and in that February meeting, could they constitute obstruction of justice?

GREGG JARRETT: It depends entirely, Heather, on what the president said in the meeting. Comey wrote a memo memorializing the conversation, gave it to a couple of colleagues, who then read it to a reporter. And the memo allegedly quoted Trump as saying, “I hope you can let this go.” Well, hoping that someone will be cleared is not the same thing as directing and ordering them to end an investigation or to clear somebody. It's an aspirational expression, hoping events will turn out well for Michael Flynn. It's kind of like, “I hope it doesn't rain tomorrow.” So that's what Comey's testimony is. It probably is not obstruction.

CHILDERS: So legally, speaking of that, what does the obstruction of justice statute require, legally?

JARRETT: Well the criminal statute requires proof that somebody actually tried to influence, impede, or obstruct the due administration of justice. Importantly, it also requires one more word. It's called “corruptly,” and that last word has special meaning in the law. Supreme Court has addressed it. They defined it as -- we'll put it on the screen: “wrongful, immoral, depraved, or evil.” So again, hoping that somebody can let it go is probably too ambiguous to constitute a corrupt intent. The Supreme Court set a very high bar. It's very narrow, hard to prove.

CHILDERS: So here's the big question a lot of people are asking. If Comey thought that the president was attempting to obstruct justice, did he have a duty to report it?

JARRETT: Absolutely. In fact, under the law, Comey is required to immediately inform his superiors at the Department of Justice. Failure to do so is actually a crime in and of itself. It's called misprision of felony. So Comey is surely going to be asked by the senators, did you notify anybody at DOJ? We don't know the answer, but there's been reporting that he has done so, which may suggest he thought, “Well, the president's language may have been troubling, but I didn't think it rose to the level of obstruction of justice.” [Fox News, Happening Now, 6/1/17]

May 17: Mueller is appointed as special counsel in Russia probe

NPR:

Jarrett spin: Mueller cannot “fairly” conduct the investigation

Jarrett: Robert Mueller cannot “fairly and objectively evaluate the evidence he gathers.” Jarrett wrote that special counsel Robert Mueller, a former director of the FBI, cannot “fairly and objectively evaluate the evidence he gathers” in the Russia probe because he “has had a long and close relationship” with Comey. From a May 19 FoxNews.com article:

Robert Mueller has a serious conflict of interest that should disqualify him from serving as special counsel.

He has had a long and close relationship with someone who will surely become a pivotal witness –James Comey.

No one doubts Mueller’s sterling credentials. That is not the issue. He is eminently qualified. The problem arises in his duty to fairly and objectively evaluate the evidence he gathers.

How can Americans have confidence in the results if they know the special counsel may harbor a conspicuous bias? They cannot. The conflict inevitably discredits whatever conclusion is reached. It renders the entire investigatory exercise suspect, and it only elevates the controversy surrounding it.

For this reason, Mueller should not serve as special counsel.

[...]

Mueller’s probe will morph into an investigation of the Trump-Comey meeting to determine whether the president tried to obstruct justice. It will become a case of “he said…he said”. Which man will the special counsel believe? His good friend or the man who fired his good friend? How can Mueller fairly and impartially assess Comey’s credibility versus Trump’s?

There is also the fairness of the broader investigation to consider. It is reasonable to assume Mueller was not pleased to see Comey canned. Any animosity which the special counsel may bear could influence the course of his overall investigation into potential wrongdoing by President Trump and his associates. He may be tempted to conjure criminality where none really exists.

Even if Mueller takes pains to avoid partiality, how can anyone be assured he will succeed? Even impeccably honest people can be subject to influence in ways they don’t even recognize themselves. It is the human condition. Which is precisely why there are legal and ethical rules which demand recusal based on prior relationships.

If Robert Mueller truly embraces a fidelity to the law and all its attendant principles of ethics, then he should disqualify himself from serving as Special Counsel. [FoxNews.com, 5/19/17]

Extra Jarrett spin: “You can collude all you want with a foreign government in an election.”

Jarrett: “You can collude all you want with a foreign government in an election.” On Fox News, Jarrett claimed, “You can collude all you want with a foreign government in an election.” In a FoxNews.com op-ed, Jarrett also wrote that “colluding with Russia is not, under America’s criminal codes, a crime.” From the May 30 edition of Fox News’ Happening Now:

JON SCOTT (HOST): There's some discussion about something called the Logan Act, and the question is out there as to whether or not Jared Kushner violated the Logan Act.

GREGG JARRETT: Yeah, the Logan Act says private citizens can't interfere in diplomatic disputes. The Logan Act can't possibly apply under the law because it’s been dormant for two centuries. You cannot use a law that is dormant for two centuries. That's a violation of the law. And besides, he wasn't acting as a private citizen, as the law demands. He was acting as a government official in the incoming administration. All administrations, including President Obama, make contact with foreign governments before the president is sworn in.

SCOTT: So one of the big questions out there is did Jared Kushner -- did he essentially lie? Did he violate the law when he was filling out his security clearance form?

JARRETT: Well, it is a crime to deceive the government in filling out your security clearance form, although it's almost never prosecuted. Why? Because it's difficult to show intent [of] knowingly trying to deceive the federal government. And besides, in this particular case, he amended it just a month later, in January, before any of this became public. If he was really trying to deceive, he wouldn't have done that. So, absolutely not. He’d never be prosecuted for something like that. That would be unheard of.

SCOTT: So this story could end with a big, fat thud is what you're suggesting?

JARRETT: It could. Look, and I've said it before and I'll say it again: Collusion is not a crime. Only in antitrust law. You can collude all you want with a foreign government in an election. There’s no such statute. [Fox News, Happening Now, 5/30/17; FoxNews.com, 5/23/17]

Experts and Attorney General Jeff Sessions said collusion between Trump and Russia would be “improper and illegal.” PolitiFact noted that legal experts “said there are at least four laws” that would outlaw any possible collusion between Trump associates and the Russian government. Additionally, in his testimony in front of the Senate intelligence committee, Attorney General Jeff Sessions agreed that it would be “improper and illegal” to collude with the Russians or any other foreign government to influence U.S. elections, saying, “Absolutely.” [PolitiFact, 5/31/17; Attorney General Jeff Sessions’ testimony to Senate intelligence committee, 6/13/17]

July 11: Trump Jr. confirms he met with a Kremlin-connected lawyer for dirt on Clinton

NY Times:

Jarrett spin: Trump Jr.’s meeting was “a nothingburger”

Jarrett: “It’s a nothingburger.” Jarrett claimed that Trump Jr.’s meeting with a Kremlin-affiliated lawyer who had promised to give him damaging information about Clinton was “a nothingburger.” From the July 11 edition of Premiere Radio Networks’ The Sean Hannity Show:

GREGG JARRETT: It's a nothingburger, and yet CNN right now, as I look up on the screen, is calling it a bombshell. You know, every time Trump sneezes, they call it a bombshell.

Look, even if Donald Trump Jr. had acted on information provided by the Russian lawyer, that still doesn't constitute a crime.

Even conspiring to subvert the government doesn't rise to the level of treason.

Under our Constitution, Americans are permitted to speak against the government, undermine political opponents, support harmful policies, even place the interests of another nation ahead of those of the U.S.

Now, none of those things are happening here. Having a meeting with a Russian official is not a crime. [Premiere Radio Networks, The Sean Hannity Show, 7/11/17]