Fox & Friends guest claims the FBI started Trump campaign probe without "evidence that anyone had actually committed a crime"
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The latest anti-Mueller bombshell actually amounts to a typo
President Donald Trump’s overzealous defenders at Fox News spent yesterday using a misinterpretation of a standard order from the judge overseeing special counsel Robert Mueller’s prosecution of former national security adviser Michael Flynn to speculate that Flynn’s guilty plea is on the verge of being vacated.
Flynn pleaded guilty to lying to the FBI in December and agreed to cooperate with the special counsel’s investigation into Russian interference with the 2016 presidential election. But Judge Rudolph Contreras, who accepted Flynn’s plea, subsequently recused himself and was replaced by Judge Emmet G. Sullivan, who issued an order that month directing Mueller to provide Flynn’s lawyers with any evidence they possess that is favorable to the defendant. The disclosure of this information can be required under the Brady rule, named after the 1963 case Brady v. Maryland.
That’s a huge deal, according to conservative media figures like Fox judicial analyst Andrew Napolitano, who have spent months spuriously attacking Justice Department and FBI officials for their conduct during the Russia investigation. “Why would [Sullivan] want that after Gen. Flynn has already pleaded guilty? That is unheard of,” Napolitano asked on yesterday’s Fox & Friends in a segment featuring the caption, “Will Flynn Reverse His Guilty Plea?” Napolitano then suggested an answer: “He must suspect a defect in the guilty plea. Meaning he must have reason to believe that Gen. Flynn pleaded guilty for some reason other than guilt.”
Other Fox programs picked up Napolitano’s theory over the course of the day. That afternoon, the Fox panel show Outnumbered portrayed the Sullivan order as an indication of “new questions about the circumstances” of Flynn’s guilty plea, with co-host Katie Pavlich falsely claiming that Sullivan’s order had explicitly told Mueller’s probe that “it’s very clear that you withheld some pretty important information.” And that evening, Fox host Martha MacCallum opened her show over the caption “Flynn Could Flip Guilty Plea,” discussing the order, which she described as “raising eyebrows,” in back-to-back interviews with Jonathan Turley, a law professor at George Washington University, and Napolitano. Turley argued that “it's important not to read too much into this” and suggested it’s unlikely that the order will lead to any changes in Flynn’s plea. Napolitano said Sullivan’s move was very unusual and could indicate improper coercion by the Mueller team but walked back the explicit statement he made on Fox & Friends about Sullivan’s motivation, asking of the judge, “Does he suspect some defect in Michael Flynn's guilty plea? We don't know the answer to that.”
In this latest salvo in Fox’s monthslong campaign to undermine the Mueller probe by any means necessary, the network is picking up on a theory that ping-ponged through the right-wing media over the last week.
National Review’s Andrew McCarthy and The Washington Examiner’s Byron York were the first main proponents of the notion that the Sullivan order represents a “curious” or “unusual” turn in the Flynn case. The Federalist’s Margot Cleveland added a new twist over the weekend, arguing that a revised version of the order Sullivan issued Friday suggested that Flynn was about to withdraw his guilty plea. All three pieces have been widely aggregated by other right-wing outlets, far-right trolls, and fake news websites who are all rushing to declare the Flynn guilty plea is in jeopardy.
Notably, McCarthy and York placed the same sizable caveat in their pieces: In McCarthy’s words, “It could be that this is just Judge Sullivan’s standard order on exculpatory information, filed in every case over which he presides.” But oddly, while such caveats implicitly acknowledge that the story would be much less interesting if Sullivan is among the federal judges who issue standing Brady orders for every one of the criminal cases on their dockets, neither writer seems to have actually bothered to check if that is actually his practice.
I checked, and it is. As he explained in a 2016 law review article calling for the amendment of the rules of federal criminal procedure to incorporate such disclosures, “I now issue a standing Brady Order in each criminal case on my docket, which I update as the law in the area progresses.” Thus, Sullivan’s action was not “unusual” or “curious,” but simply what he does in every single criminal case he oversees.
Napolitano and his ilk seem to have picked up the story York and McCarthy put forth, but stripped off their caveat and instead asserted as fact that Sullivan’s action must be because he suspects some sort of malfeasance from Mueller, or even because, as Napolitano suggested, Flynn was not guilty to begin with.
The Federalist’s Cleveland makes a slightly different argument. On Friday, after the publication of York’s and McCarthy’s pieces, Sullivan issued a second, slightly different order. Cleveland focuses on this second order, which she writes “added one sentence specifying that the government’s obligation to produce evidence material either to the defendant’s guilt or punishment ‘includes producing, during plea negotiations, any exculpatory evidence in the government’s possession.’” According to Cleveland, this is a big deal “because it indicates that, if the government did not provide Flynn material evidence during plea negotiations, Flynn has grounds to withdraw his plea.”
Cleveland concludes that this second order reveals that “a motion by Michael Flynn to withdraw his guilty plea based on government misconduct is likely in the works,” even though Cleveland acknowledged that even in that scenario, “the Supreme Court has never addressed the question of whether a defendant may withdraw a guilty plea if the prosecution withholds exculpatory evidence during plea negotiations.”
It’s theoretically possible Sullivan really has come to suspect some sort of improper behavior by the Mueller team. But the docket in the case provides a far simpler, more banal explanation for what is happening.
As legal blogger and attorney Susan Simpson noted in a tweetstorm about the Sullivan conspiracy theories, Sullivan explained that in December, he had accidentally entered an older version of the Brady order that he issues in every criminal case, rather than the “current version,” and was seeking to remedy that error. It’s not a bombshell, it’s effectively a typo.
The right-wing claims that Flynn’s guilty plea may soon be vacated come amid a broader, furious effort to vindicate him.
Flynn’s fierce defenses of Trump, declaration that Hillary Clinton should be locked up, and willingness to interact directly with right-wing conspiracy theorist trolls like Mike Cernovich made him a hero to the dregs of the “alt-right.” And over the last month, those conspiracy theorists have rallied behind him.
Longtime Trump adviser Roger Stone kicked things off on February 5, claiming on Infowars that Flynn’s lawyers were on the verge of filing a motion to dismiss the charges against him on the grounds that “that Assistant FBI Director Andrew McCabe told a teleconference of law enforcement officials, ‘first we fuck Flynn, then we fuck Trump.’” Stone claimed that pro-Trump outlets The Hill and Circa had confirmed that quote from McCabe, a longtime target of Trump supporters, but I found no evidence to support that. The quote does, however, appear in a March 2017 piece from the website True Pundit, which is notorious for publishing fabrications and fake news stories.
“Pizzagate” conspiracy theorist Jack Posobiec has also been a leading Flynn champion, highlighting many of the reports about the Sullivan orders to buttress the #ClearFlynnNow campaign Posobiec has been promoting all month. According to Posobiec, the campaign is needed because “Flynn was framed.”
That online campaign is part of the “increasingly bold calls for presidential pardons” Trump’s supporters are demanding for those implicated by the Mueller probe, especially Flynn, Politico reported February 19.
Meanwhile, as the pro-Trump media struggle to construct an alternate reality in which the Mueller probe is constantly on the verge of collapse, yesterday also brought the news that lawyer Alex van der Zwaan had pleaded guilty after Mueller charged him with lying to FBI investigators about other aspects of the Russia probe.
van der Zwaan -- who has worked on behalf of indicted former Trump campaign chair Paul Manafort and whose father-in-law is a Russian oligarch -- joins 18 other people and three companies who have been indicted or have pleaded guilty due to the Mueller investigation.
With less than two weeks until Election Day, conservative media figures have started pushing the idea of impeaching Democratic nominee Hillary Clinton in the event she wins the presidency. Citing her decision to use a private email server during her time as secretary of state, they say she “should be impeached” and argue congressional Republicans should leave the option on the table as they investigate her.
Their message echoes some congressional Republicans, including Rep. Bradley Byrne (R-AL), who said, “If all the things we've seen are true and they come out the way I think they will, then we should impeach her,” and Rep. Mo Brooks (R-AL), who said, “With respect to Hillary Clinton, she will be a unique president if she is elected by the public next November, because the day she’s sworn in is the day that she’s subject to impeachment because she has committed high crimes and misdemeanors.”
FBI Director James Comey, at the conclusion of the FBI probe into Clinton’s emails, said the agency had determined that “no charges are appropriate in this case.”
Radio Host Rush Limbaugh: Clinton “Is The Most Prepared To Be Impeached In Advance Of Any Presidential Candidate This Country Has Ever Had.” On the October 5 edition of his radio show, Rush Limbaugh argued that “Hillary Clinton is the most prepared to be impeached in advance of any presidential candidate this country has ever had! Hillary Clinton will be elected to be impeached,” adding, “By the way, I'm not being glib. If elected, Hillary Clinton could be impeached based on what we already know, and there's plenty more yet to be discovered. Emails and other documents that could be used in impeachment proceedings are waiting to be found like Easter eggs laid out for 3-year-olds.” [RushLimbaugh.com, 10/5/16]
National Review’s Andrew McCarthy: “Mrs. Clinton Should Be Impeached.” National Review’s Andrew McCarthy, who has spent years arguing for President Obama’s impeachment, wrote that “Mrs. Clinton should be impeached” for “mishandling classified information and withholding government records.” [National Review, 8/23/16]
Judicial Watch President: “Impeachment” Of Clinton “Is Something That’s Relevant.” Judicial Watch President Tom Fitton told NBC News that if Clinton is elected, “You’re going to still have a clamor for a serious criminal investigation of Mrs. Clinton’s conduct with respect to her emails and the [Clinton] Foundation” and “I know this generation of Republican leaders is loath to exercise these tools, but impeachment is something that’s relevant.” NBC noted Fitton has “criticized GOP lawmakers for failing to pre-emptively impeach Clinton,” and quoted him saying, “They see [the oversight process] as an opportunity in some measure to keep their opponents off-kilter, but they don’t want to do the substantive and principled work to truly hold corrupt politicians, or the administration, or anyone accountable.” [NBCNews.com, 10/26/16]
Radio Host Steve Deace: “Republicans Should Promise They’ll Impeach Hillary.” Iowa-based radio host Steve Deace said that in order “to hold on to their congressional majorities, Republicans should promise voters they’ll impeach Hillary by 2018.” [Twitter, 10/17/16]
Radio Host Mark Levin: Clinton “Must Be Impeached For High Crimes And Misdemeanors.” Radio host Mark Levin alleged that Clinton “has attempted to cover-up and obstruct her Espionage Act violations in hopes of winning this election” so she “must be prosecuted, but she won't be; if elected, however, she must be impeached for high crimes and misdemeanors in what is and will be continuing revelations about her criminality.” [Facebook, 10/22/16]
House Republicans are selectively pushing new information that long-time Clinton aide Cheryl Mills was granted a limited form of immunity in the now-closed FBI investigation into Hillary Clinton’s use of a private email server during her tenure as secretary of state. Right-wing media have seized on these efforts to falsely claim the immunity was broad and stands as proof of criminal wrongdoing, while ignoring the reasons for why the limited immunity was recommended by both the FBI and Mills’ attorney.
Former Minnesota Rep. Michele Bachmann is now advising Republican presidential nominee Donald Trump, adding to the list of Trump influencers who have peddled the right-wing media conspiracy theory that Hillary Clinton aide Huma Abedin is a “Muslim Brotherhood” operative. Bachmann, who formally requested a federal investigation into Abedin and others in the federal government, joins conspiracy theory-spouting Trump associates Stephen Bannon, Sean Hannity, and Roger Stone.
During his July 7 testimony on Capitol Hill, FBI Director James Comey dismantled several right-wing media myths about Hillary Clinton’s use of a private email server while she served as secretary of state. In his testimony about the FBI’s recommendation against pursuing criminal charges, Comey debunked flawed comparisons and corrected faulty definitions that right-wing media have repeatedly pushed.
FBI Director James Comey announced that he would not recommend criminal charges be filed against former Secretary of State Hillary Clinton for her use of a private email server. Right-wing media, echoing Republican National Committee Chairman Reince Priebus, soon baselessly accused Comey of excusing Clinton’s “gross negligence” in violation of the Espionage Act.
Right-wing media figures have been laying the foundation to allege a "scandal" and "cover-up" if the FBI's investigation into Democratic presidential front-runner Hillary Clinton's email server does not result in Clinton's indictment, thus setting her up for a lose-lose situation. Yet multiple law experts have explained that an indictment is highly unlikely.
Conservative pundits are bickering over Donald Trump's campaign, especially after National Review's "Against Trump" issue and the backlash it engendered. On one side are pundits who want to stop Trump's candidacy in its tracks. On the other are conservatives who are lauding Trump's candidacy, even if they have not officially endorsed him. Media Matters breaks down exactly who is on which side (click for the full-sized image):
The influential conservatives who penned essays for National Review urging voters not to cast their ballots for Republican presidential front-runner Donald Trump have their own histories of extremism. They have called President Obama a "racist" with a "deep-seeded hatred for white people" and compared him to a "skinny, ghetto crackhead"; termed Supreme Court Justice David Souter a "goat fucking child molester"; reportedly "helped push" Sarah Palin onto the 2008 GOP presidential ticket; and offered inflammatory Islamophobic comments.
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Media figures are exploiting the feeding frenzy over Hillary Clinton's email to engage in wild speculation, including wondering if she committed a felony. Numerous independent legal analysts have said that Clinton did not violate the law through her use of a non-government email account.
Conservative media figures hid statements from President Obama and New York Mayor Bill de Blasio condemning violent protests. Instead, they misleadingly suggested the politicians were to blame for December 20 murder of two New York City police officers by a gunman, who was reportedly retaliating against the deaths of Eric Garner and Michael Brown at the hands of police.
Figuras de los medios conservadores no mostraron declaraciones en las que el Presidente Obama y el Alcalde de Nueva York Bill de Blasio condenaban las protestas violentas. En su lugar, de manera engañosa, sugirieron que ambos políticos tenían la culpa de que un hombre armado asesinara a dos agentes policiales de la ciudad de Nueva York el 20 de diciembre de 2014, supuestamente en venganza por las muertes de Eric Garner y Michael Brown a manos de la policía.