Monthly Archives: May 2018

So, Who Killed Denis Donaldson?

Denis Donaldson, pictured outside the Co Donegal cottage shortly before he was shot dead by unknown gunmen

Readers without access beyond The Sunday Times’ paywall may be interested in reading the full story here. True bill or an attempt by PSNI/various spooks to deflect attention away from the real culprits? Problem is that the answers ‘yes’ and ‘no’ carry equal weight. But we shall see:

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May 6, 2018 Sunday
Donaldson killer ‘confesses’;
Listening device in Scottish jail ‘picked up words of murderer’ who may now be extradited to Dublin

By John Mooney

Police in Scotland secretly recorded a dissident republican confessing to the murder of Denis Donaldson, the Sinn Fein official who was shot dead by the Real IRA at a remote cottage in Donegal in 2006 after being exposed as a British spy.

The confession was recorded in a prison where the republican is serving a lengthy sentence for an unrelated offence. An eavesdropping device was planted in his cell by surveillance officers after the prisoner was granted temporary release for a weekend. A warrant to use the device had been granted by British authorities.

Detectives investigating Donaldson’s murder say they have built up a detailed picture of what happened and who was involved. The murder was initially thought to have been carried out by the Provisional IRA’s internal security department, but investigators believe four dissidents, assisted by a handful of sympathisers, were involved.

Donaldson, 55, was shot dead at a cottage near Glenties, Donegal, in April 2006, four months after he confessed to having worked for British intelligence.

He was shot four times by an assailant armed with a shotgun. The first two shots were fired through the front door of the house as Donaldson attempted to bolt it or barricade himself inside. Once inside, his killers fired two more cartridges.

A prominent dissident from Derry is believed to have directed the operation, which was carried out by three others, including the gunman whose confession was covertly recorded. Rather than being a carefully planned terrorist operation, gardai and the PSNI believe it was hastily organised after Donaldson’s whereabouts was revealed by journalists. The motive was revenge for Donaldson’s betrayal of the IRA and Sinn Fein, and the propaganda boost it gave the Real IRA, though the dissident organisation claimed responsibility for the murder only when its members became aware that gardai in Donegal had discovered their involvement.

“The dissidents thought murdering Donaldson would be a major publicity coup,” said a security source. “They were too afraid to claim responsibility for it, as those involved feared arrest or that it would provoke a clampdown from the state.”

Gardai believe Donaldson was one of the most senior Sinn Fein officials to have worked for British intelligence during the Troubles. A friend and adviser to Gerry Adams from the 1980s, Donaldson had been a senior figure in the IRA and served as Sinn Fein’s director of international affairs. He set up the party’s office in Washington and organised Adams’s first official visit to America, having previously travelled throughout the Middle East as a representative for the IRA leadership.

Donaldson admitted he was recruited by MI5 in the 1980s after compromising himself during a vulnerable time in his life, but did not specify what the vulnerability was. The PSNI and MI5 have never officially acknowledged their relationship with Donaldson to gardai, according to security sources.

Detectives investigating the murder are confident the suspect could be extradited from Scotland and charged before the Special Criminal Court in Dublin if the recording evidence is accepted by the director of public prosecutions.

The recording, in part, corroborates separate evidence from Liam McGinley, a father of six from Letterkenny, who is living under garda protection. McGinley agreed to co-operate after he was abducted, shot in the abdomen and dumped on a dirt track in the Derryveagh mountains in Donegal in 2007.

McGinley was never a member of a dissident republican group but had extensive contacts with dissidents in Donegal and Derry. Originally from Scotland, he grew up in Falcarragh and was not known to gardai as a republican sympathiser. He was shot following a disagreement with the gang who killed Donaldson. McGinley has made detailed statements to gardai outlining his knowledge of the Real IRA in the northwest, and named the paramilitaries who shot him and discussed the murder of Donaldson.


Why You Should Never Trust An FBI Man, Much Less Laud Him

A few weeks ago I reproduced an article from The New York Review of Books about the FBI in the days of its legendary and daunting leader J Edgar Hoover. The article illustrated graphically how, under Hoover’s tutelage the FBI was a reactionary and racist outfit which bugged and burgled its way across America with scant respect for the rule of law or human rights.

My purpose was to ask whether all those US liberals enthralled by former FBI Director Robert Mueller’s pursuit of Donald Trump were perhaps being carried away in their enthusiasm to down a hated president. Had they forgotten to ask whether and by how much FBI attitudes and approach to policing had changed since Hoover’s time?

Harvey Silverglate

Thanks to CB for this tip off about a piece written for the WGBH website last year by that renowned civil libertarian Harvey Silverglate, which puts some more flesh on that question via a nasty personal interaction that Silvergate had with Robert Mueller when he headed the US Attorney’s office in Massachusetts.

Full disclosure is required at this point. Harvey Silverglate became a staunch ally of those of us who resisted the PSNI-US Department of Justice subpoenas served on the Boston College oral history archive. ( Incidentally, had he still been working in Boston, Robert Mueller would have served the subpoenas.)

Harvey Silverglate took up cudgels in our cause and was instrumental in persuading the Massachusetts branch of the American Civil Liberties Union (ACLU) to back our case. So I have some gra for Harvey.

The FBI’s Robert Mueller

His article speaks for itself. I think it reveals a side to Robert Mueller’s character and modus operandi that J Edgar Hoover would both recognise and endorse. American liberals ought to be careful about giving a carte blanche to such methods, no matter how deserving the target might be.

How Robert Mueller Tried To Entrap Me

October 17, 2017

Is special counsel Robert S. Mueller III, appointed in mid-May to lead the investigation into suspected ties between Donald Trump’s campaign and various shady (aren’t they all?) Russian officials, the choirboy that he’s being touted to be, or is he more akin to a modern-day Tomas de Torquemada, the Castilian Dominican friar who was the first Grand Inquisitor in the 15th Century Spanish Inquisition?

Given the rampant media partisanship since the election, one would think that Mueller’s appointment would lend credibility to the hunt for violations of law by candidate, now President Trump and his minions.

But I have known Mueller during key moments of his career as a federal prosecutor. My experience has taught me to approach whatever he does in the Trump investigation with a requisite degree of skepticism or, at the very least, extreme caution.

When Mueller was the acting United States Attorney in Boston, I was defense counsel in a federal criminal case in which a rather odd fellow contacted me to tell me that he had information that could assist my client. He asked to see me, and I agreed to meet. He walked into my office wearing a striking, flowing white gauze-like shirt and sat down across from me at the conference table. He was prepared, he said, to give me an affidavit to the effect that certain real estate owned by my client was purchased with lawful currency rather than, as Mueller’s office was claiming, the proceeds of illegal drug activities.

My secretary typed up the affidavit that the witness was going to sign. Just as he picked up the pen, he looked at me and said something like: “You know, all of this is actually false, but your client is an old friend of mine and I want to help him.” As I threw the putative witness out of my office, I noticed, under the flowing white shirt, a lump on his back – he was obviously wired and recording every word between us.

Years later I ran into Mueller, and I told him of my disappointment in being the target of a sting where there was no reason to think that I would knowingly present perjured evidence to a court. Mueller, half-apologetically, told me that he never really thought that I would suborn perjury, but that he had a duty to pursue the lead given to him. (That “lead,” of course, was provided by a fellow that we lawyers, among ourselves, would indelicately refer to as a “scumbag.”)

This experience made me realize that Mueller was capable of believing, at least preliminarily, any tale of criminal wrongdoing and acting upon it, despite the palpable bad character and obviously questionable motivations of his informants and witnesses. (The lesson was particularly vivid because Mueller and I overlapped at Princeton, he in the Class of 1966 and me graduating in 1964.)

Years later, my wariness toward Mueller was bolstered in an even more revelatory way. When he led the criminal division of the U.S. Department of Justice, I arranged in December 1990 to meet with him in Washington. I was then lead defense counsel for Dr. Jeffrey R. MacDonald, who had been convicted in federal court in North Carolina in 1979 of murdering his wife and two young children while stationed at Fort Bragg. Years after the trial, MacDonald (also at Princeton when Mueller and I were there) hired me and my colleagues to represent him and obtain a new trial based on shocking newly discovered evidence that demonstrated MacDonald had been framed in part by the connivance of military investigators and FBI agents. Over the years, MacDonald and his various lawyers and investigators had collected a large trove of such evidence.

The day of the meeting, I walked into the DOJ conference room, where around the table sat a phalanx of FBI agents. My three colleagues joined me. Mueller walked into the room, went to the head of the table, and opened the meeting with this admonition, reconstructed from my vivid and chilling memory: “Gentlemen: Criticism of the Bureau is a non-starter.” (Another lawyer attendee of the meeting remembered Mueller’s words slightly differently: “Prosecutorial misconduct is a non-starter.” Either version makes clear Mueller’s intent – he did not want to hear evidence that either the prosecutors or the FBI agents on the case misbehaved and framed an innocent man.)

Special counsel Mueller’s background indicates zealousness that we might expect in the Grand Inquisitor, not the choirboy.

Why Special Prosecutors Are A Bad Idea

The history of special counsels (called at different times either “independent counsel” or “special prosecutor”) is checkered and troubled, resulting in considerable Supreme Court litigation around the concept of a prosecutor acting outside of the normal DOJ chain of command.

The Supreme Court in 1988 approved, with a single dissent (Justice Antonin Scalia), the concept of an independent prosecutor. Still, all subsequent efforts to appoint such a prosecutor have led to enormous disagreements over whether justice was done. Consider Kenneth Starr’s obsessive four-year, $40-million pursuit of President Bill Clinton for having sex with a White House intern and then lying about it. Special Counsel Patrick J. Fitzgerald’s 2006 pursuit of I. Lewis “Scooter” Libby is not as infamous, but it should be. Fitzgerald indicted and a jury later convicted Libby, a top aide to Vice President Dick Cheney, for lying about leaking to the New York Times the covert identity of CIA officer Valerie Plame Wilson. Subsequent revelations that there were multiple leaks and that Wilson’s CIA identity was not a secret served to discredit Libby’s indictment. Libby’s sentence was commuted. Libby’s relatively speedy reinstatement into the bar is seen by many as evidence of his unfair conviction. Considered in tandem, the campaigns against Democrat Clinton and Republican Libby raise disturbing questions about the use of special or independent prosecutors.

Yet despite the constitutional issues, the most serious problem with a special counsel is that when a prosecutor is appointed to examine closely the lives and affairs of a pre-selected group of targets, that prosecutor is almost certain to stumble across multiple actions that might be deemed criminal under the sprawling and incredibly vague federal criminal code.

In Mueller’s case, one can have a very high degree of confidence that he will uncover alleged felonies within the ranks of the inner circle of the President’s men (there are very few women to investigate in this administration). This could well include Trump himself.

I described this phenomenon long before Trump began his improbable rise, in my 2009 book “Three Felonies a Day: How the Feds Target the Innocent” (Encounter Books, updated edition, 2011).  I explained how federal “fraud” statutes were so vague that just about any action in the daily life of a typically busy professional might be squeezed into the elastic definition of some kind of federal felony. Harvard Law Professor (and, I should note, my former professor and subsequent longtime friend and colleague) Alan Dershowitz has beaten me to the punch, making the case in a raft of articles and on TV and radio that none of the evidence thus far leaked to or adduced by investigative reporters constitute federal crimes.

But Mueller’s demonstrated zeal and ample resources virtually assure that indictments will come, even in the absence of actual crimes rather than behavior that is simply “politics as usual”. If Mueller claims that Trump or members of his entourage committed crimes, it doesn’t mean that it’s necessarily so. We should take Mueller and his prosecutorial team with a grain of salt. But a grain of salt seems an outmoded concept in an age when both sides – Trump and his critics – seem impervious to inconvenient facts. The most appropriate slogan for all the combatants on both sides of the Trump wars (including, alas, the reporters and their editors) might well be: “Don’t confuse me with the facts; my mind is made up.”

Harvey Silverglate, a criminal defense and First Amendment lawyer and writer, is WGBH/News’ “Freedom Watch” columnist. He practices law in an “of counsel” capacity in the Boston law firm Zalkind Duncan & Bernstein LLP. He is the author, most recently, of Three Felonies a Day: How the Feds Target the Innocent (New York: Encounter Books, updated edition 2011). The author thanks his research assistant, Nathan McGuire, for his invaluable work on this series.

Trump’s America (continued)

May 2, 2018
By Joe Kloc

US president Donald Trump’s former personal physician, Harold Bornstein, who in medical school wrote epic poems under the pseudonym Count Harold, said that it was “black humor” that “takes the truth” in “a different direction” when he issued a medical report calling Trump a man of “extraordinary” strength who would be “the healthiest individual ever elected,” and that Trump had dictated the report to him. Bornstein, who has twice been sued for malpractice for allegedly overmedicating patients, told reporters that after he stated publicly that he had prescribed Trump the hair-growth medication Propecia, his office was raided by Trump’s bodyguard and two other men, who took all of Trump’s medical records and then forced Bornstein to take down a picture of himself and Trump together; and that he was then told he would not serve as the personal physician to the president and that Trump would instead use Ronny Jackson, a rear admiral of the Navy who had previously served as a presidential physician. Trump, who had nominated Jackson to become his veterans affairs secretary, said Jackson was “one of the finest people,” and more than 20 current and former colleagues of Jackson’s described the doctor as “despicable,” “unethical,” “the worst,” and prone to “screaming tantrums.” The White House press secretary called Jackson’s record “impeccable,” and a memo was released by the Senate alleging that Jackson maintained a “private stock of controlled substances”; “wrote himself scripts”; purchased prescription drugs for White House staff from an online supplier that was unmonitored by the government; once gave a staffer a “large supply” of the opioid Percocet; was known as the Candyman because on official overseas trips he would “go down the aisleway” of planes saying “Who wants to go to sleep?” as he handed out prescription sleep aids as well as drugs to wake staff members back up; and because he ran a so-called grab-and-go clinic from the White House in which he dispensed, without evaluating patients, controlled substances, including the prescription drug Ambien, whose side effects include hallucinations. Trump said that the accusations against Jackson were “slander” and called for the senator who publicly raised them to resign, and a former assistant pool manager in Virginia sued a lifeguard who tried to stop him from drowning himself.