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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

The Fruit of the Poisonous Tree and the Mueller Investigation, cont'd

A Cato podcast covering the (very flawed) charges against the Mueller investigation

A couple of weeks ago, here on the Volokh Conspiracy, I posted a refutation [here] of the charge being tossed around in some quarters that Robert Mueller's investigation is somehow so tainted by impropriety that it should be shut down as a consequence. I recently elaborated on some of those ideas for the Cato Daily Podcast with Caleb Brown, for those of you who might be interested in the matter.

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  • MonitorsMost||

    Alright David, what's going on here? Yeah, Chris Farrell was obviously wrong in his statements. But his statements were so wrong that they are not worth in-depth engagement. It would be like someone said that Trump paying Daniels falls under RICO as it constitutes the predicate act of enticement into slavery. At most, you shake your head in disbelief and walk away. You don't write a lengthy rebuttal followed up by a podcast about it.

  • David Nieporent||

    What you ignore is that the obviousness of his wrongness is obvious only to lawyers; to Trumpistas, "fruit of the poisonous tree" has become a new mantra.

  • MonitorsMost||

    Except he posted this to a legal blog and discussed it on a libertarian think-tank podcast. The audience isn't Joe Blow (or at least the platform's audience isn't).

  • M.L.||

    Obviously wrong describes a lot of what David Post writes. But I some times comment anyway.

    Anyway, I note that Post only says it is "very likely wrong" that all of the evidence is tainted. But it certainly seems possible that some or much of it may be. Government agents, Clinton lackeys, reporters, and foreign interests all got together to cook up this dossier hype and a ludicrous conspiracy theory for political purposes.

  • MonitorsMost||

    Stop trying to prove Nieporent's point. Farrell specifically claimed that none of the evidence is admissible because of the taint of bias. This is absolutely, 100% wrong. You are welcome to argue that the credibility of the evidence is compromised based on the bias of the investigators or the sources of information. But all of that goes to the weight of the evidence, not the admissibility of the evidence.

  • M.L.||

    I didn't mean that Post is wrong on this. I agree Farrell's statement is incorrect. However, there certainly could be inadmissible evidence, we don't know at this point.

  • David Nieporent||

    It's dated 5/17/17, SIX MONTHS BEFORE the FISA warrant.
    HELLO?

    Hello indeed. Do you think randomly capitalizing words makes your arguments more compelling? Hint: the first FISA warrant we know of was in October 2016. May 2017 is not six months before (or SIX MONTHS BEFORE) October 2016.

  • Elias Fakaname||

    This isn't Hihn. Just some troll is he impostor.

  • David Nieporent||

    Is this a serious comment? Is the guy who posts here an imposter, an actually different (rather than merely metaphorically different) person than the person elsewhere on the Internet?

  • David Nieporent||

    It's called emphasis, akin to verbal.

    Yes, all caps or boldface are analogous to oral emphasis -- i.e., shouting. Do you often spend half of your oral conversations with people shouting?

    And if so, do you wonder why nobody ever paid attention to you and you never accomplished anything?

  • DJK||

    Don't bother engaging. You will get nowhere. Hihn is incapable of engaging in good faith argumentation.

  • Rev. Arthur L. Kirkland||

    A conservative objecting to random capitalization? That could have been a sign for hope!

    Then I recognized that the precipitating abuse of our language was the work of someone who is not a conservative, and this was partisan sniping instead of a genuine attempt to improve communication.

  • Rev. Arthur L. Kirkland||

    Conservatives attack punctuation mostly by misuse.

    Standard English should not be a left-right divider. It tends to be an educated-ignorant divider.

  • Dan J||

    I don't have a problem with investigating what may have seemed a possible crime or a fact finding mission to discover if there is fraud, in elections, from foreign entities.
    But, despite some legal mumbo-jumbo about the legal authority of special counsel, if there ever was any question to the intent of the investigation on being a fishing expedition to find anything possible, on an intended target, to declare wrong doing or criminal intent, it is abundantly clear, now.
    I have asserted all along, assuming all along no criminal mischief on original intent of potential collusion, that the investigators would seek some way to dig through Trump and his financial dealings all the way back to when he first filed for any business incorporations, LLCs, or opened his first bank account(not limited to any any age. If trump opened a bank account when he was 16, the Mueller team will go into it).
    It is clear, now more than ever, that the investigation's intent is to attack Trump, deserving or not.

  • Dan J||

    Lesson for all: if you run for office and defeat an opponent wanted by others, in govt, they will use govt to pound you into the ground, and all those around you.
    When questions arise about Trump, Obama, or any other politicians sanity, I ask why would any sane person run for office. And, we see Gowdy exciting stage left(meaning, he might have some sanity).

  • Elias Fakaname||

    Mueller should be stopped. Also, if Russia is such an archenemy, why did the Obama administration sign off on transferring a substantial portion of out uranium reserves to them, among other things?

  • Rev. Arthur L. Kirkland||

    Any conservative who can't handle an investigation administered by Republicans appointed or considered by Pres. Trump should stock up on palpitation pills in preparation for the day when the Mar-a-Lago Hillbillies pack up the truck and vacate the premises (or when House Democrats have subpoena power).

  • Sam Gompers||

    So you concede that an FBI agents party will effect their investigation?

  • Rev. Arthur L. Kirkland||

    I suppose the use of "effect" in this context could be sound, although the sentence would be strained in other respects, and the mention of a party seems odd in any event.

  • DJK||

    Unsurprisingly, you didn't engage with the point of the comment (about it becoming a fishing expedition) and used your comment as an opportunity to comment on how stupid conservatives are. Is it any wonder that no reasonable person takes your comments seriously? Try engaging in good faith argumentation for once.

  • Rev. Arthur L. Kirkland||

    Unsurprisingly, you didn't engage with the point of the comment

    I didn't understand any point to be conveyed by that comment. What does this mean:

    So you concede that an FBI agents party will effect their investigation?

    Replacing "effect" with "affect" doesn't solve the puzzle.

    If someone wishes to explain what that was trying to ask, I would attempt to respond.

    Thank you to the person able to decipher it.

  • santamonica811||

    an FBI agents party...

    What is that? Do you mean party, as in hats and a cake? Or party, as in Rep/Dem political parties??

    And did you really mean "effect"? Or did you mean affect? (both could make sense in the sentence)

  • David Nieporent||

    Mueller should be stopped. Also, if Russia is such an archenemy, why did the Obama administration sign off on transferring a substantial portion of out uranium reserves to them, among other things?

    If you're referring to the Fox News Uranium One fake scandal, no uranium was transferred to them.

  • David Nieporent||

    Lesson for all: if you run for office and defeat an opponent wanted by others, in govt, they will use govt to pound you into the ground, and all those around you.

    Strangely, this never happened until an exceedingly corrupt person was elected.

  • damikesc||

    Over a dramatically more corrupt person the bureaucracy adored.

  • Sarcastr0||

    Trump can do no wrong, because in an alternate universe President Hillary Clinton gave Montana to Saudi Arabia or something.

  • santamonica811||

    Heh.

  • less lean eel son||

    What are you talking about?

  • Sevo||

    Michael Hihn|4.10.18 @ 8:17PM|#
    "Hey goobers. I posted the the Mueller appointment letter here, wth a link to prove my accuracy."

    You realize, you fucking imbecile, you simply posted a recursive link to the thread we are posting on and reading now?
    I thought not.

  • David Nieporent||

    Hihn apparently is the mutant offspring of Kirkland, Aldridge, and Jukeboxgrad. One track mind based on his personal monomania, combined with a habit of self-linking to things that don't prove anything other than that he's consistently wrong.

  • Rev. Arthur L. Kirkland||

    I believe we libertarians should stick together, Mr. Nieporent.

  • loki13||

    " and Jukeboxgrad."

    Now there's a deep cut.

    What, you couldn't work in London Litigator?

  • Nige||

    FRAUD!

  • Allutz||

    Another commentary on the situation that ignores what the actual problem with the current situation is:

    If the government invests this level of resources to investigate any American, they will inevitably find crimes, likely felonies. If you are a millionaire or politician, the likelihood approaches 100%. Thus, we must be convinced that such resource allocations are not biased. None of this hand waving satisfies such calls, because reality rebuts any such assertion.

  • Sevo||

    Allutz|4.10.18 @ 7:17PM|#
    "Another commentary on the situation that ignores what the actual problem with the current situation is:
    If the government invests this level of resources to investigate any American, they will inevitably find crimes, likely felonies. If you are a millionaire or politician, the likelihood approaches 100%. Thus, we must be convinced that such resource allocations are not biased."

    Which is irrelevant.
    We are not required in courts to be "innocent", we are required to be "not guilty" under the reasonable doubt standard.
    If the government invests that level of resources, it could probably find an un-paid parking ticket, and if it was near the Russian Embassy, Katy, bar the door!
    Fishing expeditions do not have to be biased to by improper.

  • Nige||

    The likelihood approaches 100% because he's someone as obviously crooked and corrupt and dodgy and sleazy as Trump but you elected him anyway quit whining when it turns out to have consequences.

  • damikesc||

    This same Justice Dept didn't see anything wrong with Hillary's handling of classified emails.

    People are noticing a dramatic double standard.

    Violence will eventually come.

  • David Nieporent||

    Well, it wasn't the same Justice Department. But in any case, not sure what that argument is supposed to mean. Hillary is a different person who did different things. Why is it a double standard to treat a different person who did different things differently?

  • santamonica811||

    Please stop using logic. It is utterly pointless.

    Now that the blog is geared to non-lawyers (well, populated by non-lawyers, anyway), it is not fruitful to make logical or law-based points in the comments. Maybe on some of Orin's 4th Amendment posts. But on something as tribal as Donald Trump??? As I've noted elsewhere; as long as he does not flop-flip on abortion (Trademark: since he already flip-flopped from pro- to anti-abortion when he decided to run for office), his supporters will never find anything terribly wrong with his words, actions, or all-around Trumpiness.

    To quote the immortal "War Games,". . . 'The only winning move is not to play.' :-)

  • Rev. Arthur L. Kirkland||

    Violence will eventually come.

    Some right-wing goobers talk about going "the full LaVoy," but most of them are all talk.

    Carry on, pansies.

  • Nige||

    I think the double standard is screaming blue murder at Hilary's minor infractions and clutching pearls at the VERY idea that nice Mr Trump could have done ANYthing untoward. Violence to the idea of the right having principles ha already been done.

  • M.L.||

    We have a team of partisan zealots on a fishing expedition, inventing crimes to take down the President.

    And the justification for this? A crackpot conspiracy theory hatched by Trump's enemies and pushed by the media, and a trash Clinton oppo research document sourced from the Russians.

    The team of partisan zealots is up to 16 attorneys now? I read that even our most important national security investigations are staffed by 4 attorneys.

  • Rev. Arthur L. Kirkland||

    I gather your perception of "partisan zealotry" covers Rod Rosenstein, Geoffrey Berman, Jeff Sessions, Robert Mueller, Andrew McCabe, and James Comey,

    Republicans who donated to, were considered for appointment by, or were appointed by Pres. Trump.

    That argument is neither persuasive nor perceptive. It seems to provide temporary relief of anxiety among conservatives, though, so we likely should expect to hear more of it.

  • M.L.||

    Why would you think it is relevant that someone has an R next to their name or was appointed by someone who did?

    You mean like the Bush family that voted for Clinton after the anointed Jeb! was humiliated? And probably initially funded Fusion GPS?

    A large portion of the Republican establishment hates Trump even more than the Democrats' fire of a thousand suns. You lefties always make the silliest arguments.

  • Nige||

    Crooked AND unpopular. This is going to work out well.

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