Senator Ted Cruz appears on Meet The Press to discuss the fiasco of the impeachment effort…. and things immediately go south.  Chuck Todd flips though page of Share Blue and Media Matters talking points while attempting to interrupt and knock down arguments put forth by Senator Cruz.

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If Senator Lindsey Graham is correct – tomorrow the DOJ Inspector General Michael Horowitz will release a much anticipated review, looking into how the FBI and DOJ used an application to the FISA court to investigate the Trump campaign. There are wide-ranging opinions about what exactly this report may, or may not, outline.

The IG review has been ongoing for 21 months.  This report is anticipated to be a culmination of that investigative effort.  The ‘tick-tock club’ of Sean Hannity, Sara Carter, John Solomon and various Fox pundits have promised the report will be the most devastating outline of gross FBI and DOJ misconduct in the history of IG review.

Additionally, a network of financially dependent social media voices, book writers, podcast pundits and Q-theorists collectively known as the ‘trusty plan group’, have predicted criminal indictments, wide-scale arrests and a shock to the DC system that will fracture the foundation of the administrative state and simultaneously drain the swamp.

Meanwhile the Lawfare group has been the most visible advocacy network for the current and former DOJ and FBI officials who participated in setting up and using the FISA surveillance system now under IG review.   The Lawfare group has stated the IG report will exonerate all of their pre and post election activity; validate the justification for their predicate efforts; and leave the ‘tick-tockers’ and ‘trusty planners’ having to reconcile to their stunned audiences how they interpreted all the data so incredibly wrong.

A review of the last three IG reports which brush up against the same DOJ and FBI network: (1) IG review Clinton email/FBI conduct; (2) IG review of McCabe/media leaks; and (3) IG review of James Comey conduct; shows the IG report on FISA is likely to come down somewhere in the middle.  ie. mistakes were made; poor judgements were evident; some unprofessional conduct was found; some lack of candor was identified; department policies were not followed; but no direct evidence of intentional wrongdoing was attributable to a coordinated political effort.

If prior IG reports are predictive we should see something akin to:

…Everyone collectively just happened to make identical mistakes, at the same time, in the same direction, together with all the administrative staff within all intelligence organizations… many of them were professionally trained lawyers… but no-one did anything wrong on purpose….

Remember the modern mantra for DOJ definitions of legality are all about “intent“.

Defining statutory violations by the intent of the violator is specifically attributable to how President Obama, AG Eric Holder and AG Loretta Lynch changed the entire enterprise of lawful application to make outcomes arbitrary, variable, changeable to the situation.

The IRS targeting wasn’t unlawful because it wasn’t intentional.  The death of four Americans due to sketchy CIA and State Dept. operations in Benghazi was not unlawful because the risky situation wasn’t created intentionally.  Hillary Clinton’s private email server with classified information wasn’t “intentional”, etcetera – etcetera, the list is long.

The nice thing about switching to definitions of lawbreaking by “intent” is the ease in arbitrary application.  Republican targets ‘intended’ to violate laws… Democrat targets, well, not-so-much.  Fluidity is a necessary oil amid a two-tiered administrative state.

If you elevate, I mean really elevate, and look at the bigger issue inside each of the examples there’s a connective thread surrounding a purposeful shift in accountability for broken laws by focusing on “criminal intent.”

“Intent”, not consequence, is now the larger shield being applied toward excusing the action of people within institutions of government and society.  Consider:

Ah yes, Hillary Clinton was not guilty or accountable because FBI Director James Comey said they couldn’t prove intent….. But the statute doesn’t require intent… But the DOJ said ignore the statute, they require it… and so it goes.

Also see years of Inspector General internal investigations culminating in the very familiar phrase: “declined to prosecute”; yup, they all surrounded intent.

Apparently anyone who breaks the law (lies) while inside the DOJ or FBI didn’t intend to… While lawbreakers (fibbers) outside the FBI/DOJ offices are intentful sons-of-bitches.

The “intent” issue extends everywhere….

Illegal alien entry, and accountability for fraud, all downplayed because there’s no proof of intent.   Walk down a pier in San Francisco and shoot a girl in the head… your honor, my client didn’t intend to do it.  The focus on intent -a specific decision made within the administration of a modern justice system- has become a shield against consequence.

It was a “mistake”…. he/she/it made “a poor decision” etc.  A pattern of obfuscation downplaying consequence and allowing those decision-makers charged with delivering accountability to withdraw or apply the rules of law based on their individual overlay of ‘intent’.

That shift is factually visible everywhere now.

The prior IG report by Horowitz [FBI bias & investigative outcome] was fraught with the application of ‘intent’ inside the inspectors explanation of absent evidence toward bias.

Each of these examples does not seem to be arbitrary, but rather connected to a more consequential decision by those in power to water-down accountability and open the doors for further abuse.

If the official didn’t ‘intend’ to do wrong, or more specifically if the people in position of delivering accountability for the wrong-doing cannot find specific intent, then the action is less-than regardless of outcome.

Consider what FBI officials were doing inside the FBI regarding media-leaks, then insert the James Wolfe example here & ask yourself how could they ever hold him accountable?

Pro Tip: They didn’t.

Following along the ideological lines we can all see how a shift to ‘intent’ can become a very serious issue within a corrupt system.

Within that system, and against that purposeful filter and determination, plausible deniability becomes the construct for intentional criminal engagement.

The illegal alien voter didn’t intend to violate the law… therefore no law was violated.  The Democrats who ballot-harvested illegal alien registration didn’t intend to violate the voting integrity statute… therefore no statute was violated.  Everyone just, well, made a mistake.

Whoopsie daisy.

A corrupt official doesn’t even need to put a finger on the scales of justice, once the scales are intentionally mis-calibrated like this.

If you wonder why there is such an overall sense of anxiety, poor conduct, lack of virtue and general unease within the recent landscape…. I would deposit the likelihood all of the unnerving instability around us is being caused by this shift away from consequence based entirely on ‘intent‘.

Brazen unlawfulness and abuses are now subject to arbitrary determinations of intent.

According to the current DOJ legal proceedings Michael Flynn the outsider intended to lie… FBI Deputy Director Andrew McCabe, the insider, didn’t:

It’s this weird mish-mosh world where changing your party registration before you defraud your investors rob the bank might just help you out if you get caught.

From all current indications FBI Director Christopher Wray is directing his organization to spend more time filling the cracks in the dam (bias training) -trying to hold back the tide of electoral anger- than they are doing actual FBI work.  Which begs the question….

….did Bill Barr purchase scuba gear?

Planning for impeachment right after the 2018 mid-term election, HPSCI Chairman Adam Schiff hired former SDNY U.S. Attorney Daniel Goldman (link).  You probably saw Goldman doing the questioning for Schiff during the first public impeachment hearing.  Around the same time in 2018 Judiciary Chairman Jerry Nadler hired Obama Administration lawyer Norm Eisen and criminal defense attorney Barry Berke (link).

In addition to changing the House rules to align with the plan, the impeachment process we have been witnessing for two months was mapped-out in the congressional lame-duck session between November 2018 and January 2019.   Today Chairman Nadler announceswho will present the impeachment file during the House hearing on Monday:

(Source Link – pdf)

According to the visible structure Lawfare Counsel Barry Berke (representing the majority) and Republican Counsel Stephen Castor (representing the minority) will make opening arguments to the House Judiciary Committee. 

Lawfare Counsel Daniel Goldman & Lawfare Counsel Barry Berke will then present the evidence for impeachment.  House judiciary member questioning will look like last week’s questioning of academic impeachment experts.

Stephen Castor – Republican minority counsel

Contracted Lawyers Barry Berke (left) and Norm Eisen (right)

Tonight President Trump travels to Florida to deliver a speech at the Israeli American Council National Summit.  The President is scheduled to deliver remarks at 8:00pm ET.

White House Livestream Link – Fox News Livestream Link – NBC News Livestream

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HPSCI Ranking Member Devin Nunes discusses his review of phone records, and how the mysteriously collected phone data that Chariman Schiff put into his impeachment report doesn’t match with his own review.

President Trump responds to today’s deadline set by House Democrats for the White House to say whether it would participate in the impeachment proceedings:

In summary:

“Nuts!”

Shortly after 6pm this evening Supreme Court Justice Justice Ruth Bader Ginsburg put a prior 2nd Circuit ruling on hold until next Friday, December 13, at 5 p.m.

President Trump went to the Supreme Court after the House Financial Services and Intelligence Committees issued subpoenas to Deutsche Bank and Capital One seeking President Trump’s tax records. In his request to the court [Read Here] Trump asked SCOTUS to block the subpoenas on the ground they go beyond the committees’ powers.

Justice Ginsburg’s order tonight gives the justices time to rule on Trump’s request for a longer stay of the lower court’s decision while he files a petition for review. Ginsburg ordered the House of Representatives to file a response to Trump’s request by 11 a.m. on Wednesday, December 11.

At their private SCOTUS conference next week, the justices are scheduled to consider President Trump’s original petition for review of a lower-court ruling that would require him to turn over tax records to the SDNY who are seeking them as part of a grand-jury investigation. The SCOTUS decision today, placing a hold on a similar House effort, essentially allows the court to receive arguments relating to the second request for tax records and contemplate the merit of both.

The first request to the Supreme Court resulted in them issuing a ruling maintaining the block against House Democrats receiving President Trump’s tax returns.  The one paragraph order [pdf here] essentially maintained the stay and requested the Trump administration to file a formal request for review by the court.   The Trump filing today is a response to that SCOTUS request:

FULL PDF AVAILABLE HERE

The underlying House case has several defects.

Attorney Ristvan previously provided a good encapsulation of the problems for the House that explains why President Trump could likely win the case:

House Oversight is one of three committees that 26USC§6103(f) requires the IRS to turn over individual returns “upon request”.

They requested (PDJT taxes for 6 years 2013-2018) long before Pelosi announced her impeachment inquiry, way before the House vote on same, to which Pelosi said Sunday, (paraphrased) “We haven’t decided to impeach. We are only inquiring about it.”

The ‘upon request’ is not as absolute as it seems. The request must still be predicated on a legitimate legislative purpose. SCOTUS has held (I skip the rulings, since previously commented on here many months ago) that there are only two valid purposes, both constrained to legislative powers expressly granted by A1§8.

1. An inquiry into making, repealing, or amending an A1§8 law.
2. Oversight of executive administration of an existing law.

With respect to (1), a legitimate legislative purpose would be reviewing real estate tax law for possible changes. BUT then, the request should have come from Ways and Means (Neal) where tax laws originate. AND, it should have included requests for tax returns from other big real estate developers also. Singling out only PDJT is a fatal defect to this purpose.

With respect to (2), after Nixon/Agnew the tax code was amended to require a special IRS audit of annual POTUS and VPOTUS returns, with the results held in the National Archive. Reviewing those special audits by IRS would be a proper Oversight and Reform legislative purpose, BUT ONLY for 2017-2018 after PDJT was inaugurated. The earlier 4 years demanded are a fatal defect to this purpose.

Both these valid points were raised by President Trump and were already on their way to SCOTUS. Now the committee is trying to ‘cure’ these fatal request defects by claiming the returns are necessary for impeachment. This raises four new issues where PDJT can also win.

1. Impeachment is not a legislative purpose within A1§8.
2. Articles of Impeachment have historically been the the province of Judiciary, NOT Oversight.
3. The demand was made BEFORE the impeachment inquiry unofficially started and cannot be retrospectively cured.
4. No tax ‘high crimes of misdemeanors’ have even been alleged. Impeachment fishing expeditions are unconstitutional.

IMO this case has the potential to set a major constitutional precedent about POTUS harassment via political impeachment. The constitutional convention minutes and Federalist #65 both make it clear why ‘maladministration’ (the original third test after treason and bribery, and which WOULD allow for political impeachment) was replaced by ‘High Crimes and Misdemeanors’. The phrase was borrowed from prior British law, has a specific set of meanings, and DOES NOT allow political impeachment. (link)

The quest for President Trump’s financial records is essentially a legislative fishing expedition in an attempt to gain opposition research for their Democrat candidate in the 2020 election.

The Supreme Court has not yet ruled on any ancillary case that touches upon the validity of the unilaterally declared House impeachment process.  The Supreme Court has not ruled on any case that touches the impeachment “inquiry”.

The issue at stake is whether the legislative branch can penetrate the constitutional firewall which exists within the separation of powers.

If the House loses the Tax case in SCOTUS (likely), and/or either HJC case in appeals or SCOTUS it will mean there was no constitutional foundation for the “impeachment inquiry” upon which they have built their original legal arguments.

♦The first case is the House Oversight Committee effort to gain President Trumps’ tax returns as part of their impeachment ‘inquiry’ and oversight.  That case is currently on-hold (10-day stay) in the Supreme Court.  Written briefs soon, arguments perhaps in early December? Outcome pending.  There is a very strong probability Pelosi will lose this case because Oversight doesn’t have jurisdiction and the case began back in February.

Ginsburg placed a hold on the order on Friday, according to Reuters. The 2nd District Court of Appeals issued a ruling on Tuesday ordering Deutsche Bank and Capital One to turn over financial documents on Trump, members of his family, and his business.

Justice Ruth Bader Ginsburg put the 2nd Circuit’s ruling on hold until next Friday, December 13, at 5 p.m. Ginsburg’s order gives the justices time to rule on Trump’s request for a longer stay of the lower court’s decision while he files a petition for review. Ginsburg ordered the House of Representatives to file a response to Trump’s request by 11 a.m. on Wednesday, December 11. (link)

Probability of loss to Pelosi 90%.

♦The second case is the House Judiciary Committee (HJC) effort to gain the grand jury information from the Mueller investigation.  The decision by DC Judge Beryl Howell was  stayed by a three member DC Appellate court.  Oral arguments were November 12th, the decision is pending. [Depending on outcome, the case could will also go to SCOTUS]

[…] the appeals court in a brief order said it would not immediately release the documents “pending further order of the court.” The court also asked the House and the Justice Department for more briefings and set a Jan. 3 date for another hearing.  (link)

Probability of SCOTUS 100%

♦The third case is the HJC effort to force the testimony of former White House legal counsel Don McGahn.  Issue: subpoena validity.  The HJC asked for an expedited ruling. Judge Ketanji Brown Jackson delivered her ruling November 25th.:

Federal District Court Judge Ketanji Brown Jackson said McGahn must appear before Congress but retains the ability to “invoke executive privilege where appropriate” during his appearance. The judge did not put her own ruling on hold, but the Trump administration will likely seek one to put the effect of her ruling on hold while it pursues an appeal. (link)

However, two days later Judge Brown-Jackson stayed her own ruling...

Judge Ketanji Brown Jackson, an Obama appointee on the district court in D.C., granted McGahn’s request for a temporary stay while she deliberates on whether to issue a lengthier one to allow him to appeal her decision.

The House Judiciary Committee, which had asked the court to enforce its subpoena for President Trump‘s former legal adviser, said it would not oppose a temporary stay. (read more)

Probability Appeal 100% – Probability SCOTUS 90%

Pelosi, Schiff, Nadler and Lawfare are now rushing toward a full House impeachment vote while simultaneously attempting to stall any judicial decision (Appeals or SCOTUS) that would undermine their manufactured impeachment authority.