Thread by @JohnWHuber

Here’s why Andrew Weismann is almost certainly the driving force behind Mueller’s embrace of a legally dubious theory of Obstruction of Justice, targeting @RuleDonaldTrump

(BIG) THREAD)

A redacted version of the Mueller report will be released on Thursday morning and “Obstruction” is likely to be at least half, and maybe even the bulk of the report. Here’s why Weissmann (and Mueller's) entire legal case is bunk.Warning: grab a coffee, this is a long one.

Mueller’s legal theory on Obstruction appears to be that Trump may have criminally violated 18 USC §1512 (c) by “corruptly...influencing” or “impeding” the FBI investigations into Flynn and Russian interference in the 2016 election

Trump’s alleged criminal acts are apparently his private comments to @Comey “hoping” he could “let [@GenFlynn] go”, firing Comey and publicly disparaging the Flynn / Russia investigations, and then the Special Counsel investigation itself as a "witch hunt"

This isn't just the view of Undercover Huber, but also that of the now Attorney General (AG) Bill Barr, in a memo he wrote on June 8 2018 to Deputy AG Rod Rosenstein

The §1512(c) “Obstruction” theory almost certainly comes from Weismann because:
1. Enron
2. Aggressive lawyering
3. First public hints of 1512 came from a Mueller leak
4. Same statute used against Manafort
5. Trusted ally needed to convince Mueller to embrace it
6. Motivation

Here's the detail on each.

Later, we'll also get into:
—Why 1512(c) is so legally dubious for Trump "Obstruction"
—Why Weissmann would be motivated to do it anyway
—Even despite it having little chance of legal success

1. ENRON
§1512(c) was enacted in Jul 2002 specifically to address actions carried out by Enron auditor Arthur Anderson.

WEISSMANN:: led the Enron task force at DOJ and personally led the prosecution of Arthur Anderson, and so has a close familiarity of that specific law

2. AGGRESSIVE LAWYERING
Using §1512(c) is untested so requires aggressively pushing the envelope of the law on “Obstruction”

WEISSMANN: uniquely qualified - illegally prosecuted Arthur Anderson, destroying the company & 85,000 jobs, later being unanimously reversed 9-0 by SCOTUS

Here's SCOTUS ripping Weissmann a new exit hole: supreme.justia.com/cases/federal/…

3. FIRST PUBLIC HINTS CAME FROM A MUELLER LEAK
First public knowledge Mueller was intending to use §1512 as the basis of Obstruction was leaked to the NY Times on Jun 2 2018, with specific attention drawn to §1512(c)

WEISSMANN: known to leak to favorite reporters (AP/Manafort)

Here’s the NYT piece: nytimes.com/interactive/20…
(If anyone thinks the Trump side leaked a delivered "by hand" letter to Mueller before the mid-terms that shows him being investigated for Obstruction and maybe about to be subpoenaed, I've got a Californian bullet train to sell you)

4. SAME STATUTE USED AGAINST MANAFORT
§1512* was used to prosecute Obstruction charges against Paul Manafort

WEISSMANN: Personally led the case against Manafort. And aggressively went after him as well forcing even his lawyers to testify against him

*Section(b)(1) and (k)

5. TRUSTED ALLY NEEDED TO CONVINCE MUELLER TO EMBRACE IT
Convincing Mueller to embrace this theory & put his reputation on the line requires a very close relationship

WEISSMANN: FBI General Counsel under then FBI Director Mueller, one of his first hires for Special Counsel team

6. MOTIVATION
We'll come back to this, Weissmann has a ton of motive.

Okay, why is 1512(c) so legally dubious for a Trump "Obstruction" case?

Now-AG Bill Barr appears to have written his June 8 2018 memo in response to the NYT leak of a week earlier, in part because of how legally dubious the Mueller/Weissmann obstruction theory outraged him so much it required him to put pen to paper immediately

AG Barr’s says Mueller’s embrace of 1512 as a basis for obstruction is “grossly irresponsible” unless there is an underlying crime of conspiracy/collusion to “obstruct

(There wasn’t, and isn’t any Collusion crime, as now admitted by Mueller)

Question: If Barr thought Mueller was being "grossly irresponsible" way back in June 2018, what do you think he thinks now, after Mueller left "Collusion" dangling through the mid terms? And now he's AG. Why did Mueller and crew pack their bags again?

Barr also eviscerates the use of 1512(c) so legally unsupportable it is “inconceivable” that DOJ could accept something so "untenable". Full memo: int.nyt.com/data/documenth…

There are multiple federal statutes for Obstruction. §1501, 1503, 1505, 1510-1513, 1516-20 – and none of them apply to this theory with Trump except §1512 (c), which has never been used for a situation like this. Barr didn't cover these in his memo. so here’s a Huber summary.

That strongly suggests that Weissmann wanted to find the crime of Obstruction, and went through every statute to find something to pin on Trump, regardless of how shaky it was

Also, §1512 (c) was originally enacted in 2002 to address Corporate Fraud (with the example case of “document shredding”) and NOT anything like the situation with Trump/Comey/Flynn. As even the @nytimes admits.

The DOJ’s US Justice Manual (JM) describes 1512 as protecting witnesses/victims or informants: “Section 1512 of Title 18 constitutes a broad prohibition against tampering with a witness, victim or informant”: justice.gov/jm/criminal-re…

§1512 requires an “Official Proceeding” for the crime to even apply (DOJ JM: “Congress limits the coverage of § 1512 to official proceedings”), with Section C the only part even theoretically applying to an FBI investigation which the DOJ agreed with in the 9th Circuit (Ermoian)

The most recent US Court of Appeals rulings (5th Circuit, 2008 and 9th, Circuit, 2013) hold an FBI investigation is NOT an official proceeding. The 9th in Ermoian was explicit:

“an FBI investigation is not an official proceeding under the [1512] obstruction of justice statute”

I can’t find ANY Federal Appeals Court that has specifically held that an *FBI investigation* is in fact, an “official proceeding” within the meaning of 18 USC §1512. None. Some have held other investigations are, but not FBI ones. Weissmann, if you're reading this, @ me dude

Bottom line: if those 5th and 9th Circuit positions hold, then it is LEGALLY IMPOSSIBLE for Trump to have committed a crime under this statute by “obstructing” an FBI investigation. He couldn't even do it as private citizen, never mind as POTUS.

Even if SCOTUS reversed the 5th and 9th (unlikely), according to the DOJ Justice Manual again, 1512(c) requires the defendant to intend “specific results, for example, preventing a witness from testifying at an official proceeding” - essentially, a form of specific intent.

Trump “hoping” for Comey to “let Flynn go” is not a specific result and cannot possibly apply as Comey wasn't a “witness, victim or informant” at the time, which is the clearly intended meaning of the statute

Back to AG Barr: if you want to take down a democratically elected President, you'd better do it with a"real crime", not a "novel", "untested", and "contested" idea cooked up by "overly-zealous prosecutors". (Weissmann - that's you, bye): npr.org/2019/03/14/703…

Okay, what motivation could Weissmann have for targeting President Trump?

WEISSMANN:
—A strong supporter of the Democrats – he donated $5,000 to Obama’s campaign, and attended Hillary Clinton’s “victory” party on election night
—Praised Acting AG @SallyQYates for defying the Trump travel ban

ALSO WEISSMANN:
—Part of the DOJ chain of custody for the Steele dossier – meeting with Bruce Ohr (effectively his unofficial “handler” after he was fired [on paper] by FBI)
—Close friends with Obama officials who could be implicated in the Trump investigation – Monaco, Ruemmler

Okay, if Weissmann lost 9-0 to SCOTUS before, why would he want to take the L again? If it's as legally dubious as I'm saying (and so is AG Barr), why would he even try it?

—If Trump could be accused of this crime by Weissmann, he could end up destroyed and forced from office (or not re-elected). If SCOTUS then finds *several years later* that Weismann overreached, would he care? Trump is out of office regardless (probably the ultimate objective)

—Arthur Anderson may have won in court but was still destroyed. Does Weismann consider that a "loss"? I doubt it. And impeachment is a political crime, not a legal one. Weissmann only needs to get the ball rolling down the hill with the accusation of the crime itself, to The Hill

—Weissmann put 85,000 people out of a job at Arthur Anderson – he only has to put 1 out of a job this time – Donald Trump. He probably considers that easy for a man of his many talents.

WEISSMANN OBSTRUCTION CHECKLIST
✔️Overall legally aggressively
✔️Familiar with Enron law
✔️Could convince Mueller to embrace it
✔️Leaker
✔️Biased
✔️Something to hide
✔️Motivated to do it

SUMMARY
—This is a very dubious legal theory of "Obstruction"
—It almost certainly came from Weissmann
—Mueller embraced it, and wasted two years on it
—AG Barr ain't havin it
—Read the Mueller report tomorrow with this in mind

/ENDS

N.B. Dem and D.C. Legal Theory:

OBSTRUCTION; Trump "hoping" for something privately with Comey, then doing nothing about it, in an FBI investigation he's the head of

NOT OBSTRUCTION: Smashing up blackberries and deleting 30,000 emails under Congressional subpoena with Bleachbit

N.B. 2

N.B 3 Mueller/DOJ leakers confirm to @washingtonpost minutes ago that the main focus of the Mueller report is obstruction of justice

https://twitter.com/mattzap/status/1118675884909707265

N.B. 4. BREAKING: AG Barr confirms in his press conference that both he & Deputy AG Rosenstein "disagreed" with the "legal theories" put forth by Mueller's team regarding obstruction of justice. And that Mueller could not find a prosecutable crime regardless of DJT being POTUS 👍

🚨🚨🚨CONFIRMED: Mueller was specifically relying on 18 USC 1512(c) for the "Obstruction of justice" investigation into Trump (Volume I, Page 160)

UPDATE: AG Bill Barr has Weissmann’s number 🎯

“We didn't agree with the legal analysis- a lot of the legal analysis in the report. It did not reflect the views of the department. It was the views of a particular lawyer or lawyers”
cbsnews.com/amp/news/willi…