The President Cannot Be Impeached Without a Crime (Part Three)

by Robert Emmett Murphy, Jr.

a. ignored warnings before
b. failed to act during
c. misled the American people after

Only the first of these has any baring on reality, but NBRA is insists on dragging out of them all here, continuing the Republican obsession of re-beating the long dead horses of conspiracy and cover-up.

“(1) failing to adequately secure the US Consulate and the CIA annex in Benghazi”<

The State Department Accountability Review Board released its report on Benghazi in December 2012. It condemned State Department officials in Washington for ignoring the Embassy’s requests for more guards and safety upgrades, and for failing to adapt security procedures to a deteriorating security environment. “Systemic failures and leadership and management deficiencies at senior levels within two bureaus of the State Department … resulted in a special mission security posture that was inadequate for Benghazi and grossly inadequate to deal with the attack that took place.” Similar harsh criticism was rendered by the Senate Committee on Homeland Security and Governmental Affairs.

Then Secretary of State Hillary Clinton accepted full responsibility and implemented all the recommendations. It was established over eight (and perhaps soon to be nine) investigations that the Ambassador Chris Steven’s requests for more security were dismissed by persons in the State below the rank of Secretary, and that Clinton never saw these requests.

You may remember that Representative Darrell Issa’s Committee did publicly accuse Clinton have having seen those “cables” (actually e-mails) and having signed off on them in contradiction of her sworn testimony, so they essentially accused her of perjury. But it was quickly and definitively established that Issa’s conclusions were based on incompetent investigation and completely wrong. To date, he has not apologized for that.

So how are there the grounds for impeachment– “Treason, Bribery, or other high Crimes and Misdemeanors”–when it is established that these were non-criminal acts of incompetence by people other than Obama?

(Interestingly, I can find no reports of the CIA annex ever being denied requested increased security. As the annex was essentially a military outpost, and more secure than the Embassy, I suspect that part of the charge was something the NBRA pulled out of their asses.)

“(2) failing to send a response team to rescue embattled US citizens in Benghazi”

A conspiracy theory that has been repeatedly waved around, shot down, and then raised again. From the State Department Accountability Review Board report, “The Board members believe every possible effort was made to rescue and recover Ambassador Stevens and Sean Smith.” But later Fox News reported that the “CIA chain of command” ordered the rescue squad from the agency’s Benghazi annex to “stand down.” A bold statement considering the report was explicit, “The departure of the Annex team was not delayed by orders from superiors.”<

Issa attempted to make the case that a “stand down” order was issued in his second round of Hearings in May 2013, but was unable to do so. Aircraft that it was said could have been called into action were in fact too far away to respond. There was a Special Forces unit that wanted to respond but was told not to, but the team was not, in fact, not planning on responding to either the Embassy or the Annex, but rather to secure an airstrip for evacuation; and the reason they were told to wait was entirely rational and defensible, their Commander had no intelligence on the situation they would have been entering. Issa’s “whistleblower” witnesses,  Mark Thompson, Greg Hicks, and Eric Nordstrom, were critical of the Administration on many counts, but offered no evidence to support the allegation of a “stand-down” order, and never said “stand-down order” in their testimony, though the questions directed to them were peppered with the phrase.

“(3) lying to the American people about why the US Consulate and the CIA annex were attacked in Benghazi”

This refers to the original narrative put forward by the Administration that there were spontaneous demonstrations in reaction to the Muslim-degrading film, “The Innocence of Muslims,” and that the terrorists were either members of the spontaneous demonstration (Susan Rice’s version on the talk-show circuit) or that an organized terrorist group used the demonstrations as cover (the version given by almost every other member of the Administration).

That narrative was wrong, there were no demonstrations outside the Libyan embassy (though there had been many, often violent, elsewhere in the Middle East, that same day), but the story was based on the information provided to the Administration by the CIA. The wrong narrative was corrected in less than  fourteen days, and there has never been one shred of evidence indicating that the errors were deliberate. There is in fact enormous evidence that the Administration was indeed operating in good faith and on received information.

Issa has repeatedly claimed otherwise (April 2013 “Administration willfully perpetuated a deliberately misleading and incomplete narrative that the attacks evolved from a political demonstration caused by a YouTube video…after a White House Deputies Meeting on Saturday, September 15, 2012, the Administration altered the talking points to remove references to the likely participation of Islamic extremists in the attacks. The Administration also removed references to the threat of extremists linked to al-Qa’ida in Benghazi and eastern Libya….The Administration deflected responsibility by blaming the IC [intelligence community] for the information it communicated to the public in both the talking points and the subsequent narrative it perpetuated.”), but each and every time, his committee’s “evidence” has proved as empty as that of Hillary Clinton’s implied perjury (the talking points, for example, were altered by the FBI, CIA or both, to “prevent compromising an ongoing criminal investigation” and “so as not to tip off al-Qaida as to what the U.S. knew, and to protect sources and methods,” as testified to by former CIA Director David Petraeus, then Acting Director Mike Morell, Director of National Intelligence James Clapper, and National Counterterrorism Center Director Matthew Olsen, in closed-door sessions with Congress).

“(4) hiding from the media and congressional investigators the Central Intelligence Agency personnel and other wounded US citizens who were on the ground in Benghazi by scattering them throughout the United States, forcing them to adopt new identities and subjecting them to monthly polygraph tests.”

There have been some substantive-seeming reports that CIA employees have faced unusual pressure to not speak to the media, but what that really means is that they were under unusual pressure to keep them from doing something that is illegal anyway.

F&F grew out of an earlier “gun-walking” operation called Wide Receiver (2006 to 2008), which was run entirely out of ATF Tucson and Mexico City Offices, apparently without close oversight by higher-ups in the agency. Straw men made purchases in controlled buys, but were not immediately arrested. The delays in the arrests were supposed to facilitate building strong cases and provide greater intell on the networks.

F&F itself started in 2009, and was not initially intended to be a resurrection of Wide Receiver.  According the Inspector General’s report, though high-ranking members of DOJ, ATF, and FBI were involved in the implementing of the program, the gun-walking part was not in the original operation plan. That part came to be when the local ATF Office in Phoenix, apparently acting on it’s own initiative, chose to mimic the tactics of Wide Receiver. This decision coincided with when the first indictments from the earlier program were just about to be realized.

It was not until 2010 that F&F was expanded into an interagency Strike Force operating directly under DOJ control. DOJ became aware of the gun-walking then, and it became increasing controversial within both ATF and DOJ, but DOJ attorneys were hesitant to arrest the straw-buyers until stronger cases could be built (it is notoriously difficult to convict a straw-buyer). Wiretaps were employed to aide in evidence gathering, and this tactic was said to have additionally delayed the completion of the operation.

Intelligence gathering on the networks was also considered a priority. From the IG’s report, “We did not find persuasive evidence that agents sought to seize firearms or make arrests during the investigative stage of the case and were rebuffed by the prosecutor…. We found that the lack of seizures and arrests was primarily attributable to the pursuit of a strategic goal shared by both the [Phoenix] ATF and the U.S. Attorney’s Office — to eliminate a trafficking organization — and the belief that confronting subjects and seizing firearms could compromise that goal.”

The scandal exploded after U.S. Border Patrol Agent Brian Terry was murdered with one of the walked-guns on December 14, 2010. This led directly to the shutting of the operation, which was officially terminated January 25, 2011.

A second Inspector General’s report in 2012 found “no evidence” that Attorney General Holder knew about F& F before early 2011. It also found no evidence that higher officials at the DOJ had authorized or approved of the tactics used in the F&F investigations.

If there is no evidence of high-level involvement in the operation in the agency itself, how does NBRA make the case that Obama “authorized and permitted” it? Moreover, this was a buy-and-bust/intelligence operation that went horrifically bad, but no one has put forward any evidence, or even a convincing allegation, that any of the law enforcement professionals involved engaged in any criminal behavior, and therefore, this falls short of the “High crimes and Misdemeanors” test.

Article 4:

“He has authorized and permitted confidential income tax returns information from the Internal Revenue Service to be provided to unauthorized individuals, organizations and agencies.”

This is not the IRS scandal that made national headlines (that’s Article 5). This concerns confidential IRS filings by the National Organization for Marriage that improperly appeared to the public on the internet.

In April 2012, the Huffington Post and the Human Rights Campaign, NOM’s fiercest antagonist, posted documents indicating GOP presidential nominee Mitt Romney gave $10,000 to the anti-gay marriage group. Huff, the journalistic beneficiary of the illegal action, stated that a low-level  IRS employee had been duped into releasing the documents by someone who fraudulently claimed to work for NOM. Former NOM chairwoman Maggie Gallagher is on record accepting this version of the facts (and being royally pissed about it). But the current chairman, John C. Eastman, testified to the House Ways and Means Committee that “This wasn’t a low-level error in judgment; it was a conscious act to reward a prominent Obama supporter while punishing an opponent.”

The problem is that Eastman, who is a Constitutional Law Professor at Chapman University, has not put forward any evidence to support his claims. Huff is in a better position to know what happened, and tells a different story. To accept Eastman’s claims is paramount to saying that Obama is the secret puppet-master behind the Anonymous Hacktivist collective.

Article 5, the bigger IRS scandal.

Before I get in to the specific charges leveled by NBRA, I have to ask–is there a really a scandal here?

The Citizen’s United decision, in crippling Campaign finance law, created a situation where a certain type of tax-exempt not-for-profit could be used for unlimited and untraceable funding for Campaign ads, usually attack ads, that a candidate could not be held accountable for. There were very few anti-corruption rules left, and only a few small units within the IRS were empowered to enforce them.

The decision came just before the 2012 Presidential Campaign was about to gear up. The IRS knew that they were about to be overwhelmed by a tsunami of applications by political groups that wished to enjoy the newly loosened rules for 501 (c)(4) organizations which were tax-exempt, allowed to keep their donors anonymous, and allowed to engage in certain types of political activism/campaigning. The IRS had every reason to believe that many of these soon-to-be-arriving applications would be intended to facilitate illegal activity. Profiles of which groups should receive extra scrutiny needed to be drafted, and as it turns out, those profiles kinda sucked.

Initial reports had described the targeting exclusively on conservative groups with terms such as “Tea Party” in their names. This raised the possibility that the groups were being targeted for political reasons, a tactic that past Presidents had employed even though it is explicitly illegal, and in fact was similar to one of the charges against Nixon in the Articles filed against him. The IG’s investigation determined that though the profiling was clearly improper, it did not seem ideologically motivated, merely incompetent, but not many people believed that.

A Congressional Investigation was opened to establish, among other things, who was the highest ranking person aware of this improper profiling, and were any close enough to the Administration to indicate Obama may have ordered it.

The whole narrative changed when acting IRS commissioner Danny Werfel testified that the IRS also scrutinized and challenged groups with names that included “Occupy” and “Progressive.” IRS documents released by House Democrats supported his testimony. What happened was that the original IG investigation was spurred on by Conservative groups complaining they were being targeted, so that’s all the investigators looked for. In a statement from the IG, “We did not review the use, disposition, purpose or content of the other BOLOs [Be On the Look Out directives]. That was outside the scope of our audit.”

It still must be made clear, the improper targeting was still inequitably distributed. The BOLOs were based on key words. Russell George of the IG testified, “In total, 30 percent of the organizations we identified with the words ‘progress’ or ‘progressive’ in their names were processed as potential political cases. In comparison, our audit found that 100 percent of the tax-exempt applications with ‘Tea Party,’ ‘Patriots,’ or ‘9/12′ in their names were processed as potential political cases during the timeframe of our audit.”

But it still remains that no matter how incompetent and improper the IRS profiling was, it was also reactive to very real crisis, as the agency was not irrational in their belief that they were facing a upsurge in fraud that they didn’t have the resources to properly inhibit. Also, too date, no evidence has linked the Administration to the improper polices.

“(1) the head of the Internal Revenue Service tax-exempt organization division, Lois Lerner, admitted during a telephonic press event that illegal targeting occurred, then invoked her Fifth Amendment right and refused to answer questions before Congress about the targeting out of fear of self-incrimination.”

Though the NRBA didn’t make their point clearly, they seem to be implying that Lerner was part of a cover-up for the Administration. But no evidence of this has been uncovered by the investigating Committee. Also Lerner, is facing possible termination for her lack of cooperation. I should also add that she has not yet been accused of not cooperating with the IG, only not cooperating with a hostile Committee chaired by venal and incompetent Issa. Under normal circumstances she would have every right to invoke the Fifth. Finally, and perhaps most importantly, the Committee did have the power to grant her a limited immunity, from criminal prosecution but not Agency discipline, to compel her to testify. I am suspicious of the Committee’s failure to do so; I see it as an indication that they are far more interested in generating heat than light.

“(2) two other career Internal Revenue Service employees stated that they acted at the behest of superiors in Washington — Carter Hull, a retired Internal Revenue Service Attorney and Elizabeth Hofacre, an employee of the Cincinnati IRS office which oversaw tax-exempt applications (3) Carter Hull stated that he was directed to forward the targeted applications to, among others, one of only two political appointees in the Internal Revenue Service Chief Counsel William Wilkins.”

These two are actually interesting.

Elizabeth Hofacre didn’t implicate the Administration, she only stated that her office did reach out to the IRS Washington headquarters for help on the investigations, which maybe (and I stress that word “maybe”) indicates that the higher echelons of the Agency should’ve realized what was going on earlier than they said they did. The person Hofacre implicated was Carter Hull, who has no Administration connections that anyone knows of.

Hull, in turn, implicated his superiors. He testified that his superiors told him in August 2011 that the Chief Counsel’s Office, led by William Wilkins, would need to review some of the first applications the agency screened for additional scrutiny. If Hull, already implicated by Hoface, is being truthful; and if these reviews can be shown as proof of that person’s within the Chief Counsel’s Office being knowledgeable, or even more seriously directing, the improper policy; and if additionally, that hypothetical action by that office could then be tied directly to Wilkins himself, that would be tantalizing. You see, Wilkins is one of only two IRS officials that are Presidential appointees.  Definitely resolving these three “ifs” would be the first glimmer of possible evidence of Administration knowledge, which would then potentially become the first glimmer of possible evidence of Administration involvement.

But there’s a long chain of “ifs” in between this juncture and that destination.

Click here to view Parts One and Two of Robert Emmett Murphy, Jr.’s “Impeachment” series:

The President Cannot Be Impeached Without a Crime (Part One)