The hearings to extend Mueller's term clearly did not hold

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Smearing Robert Mueller

Sean Hannity and others are blaming the special counsel for one of the F.B.I.’s worst scandals. But there is no evidence to back up their charges.

https://www.nytimes.com/2018/04/18/opinion/ro...licit.html

By Nancy Gertner

Ms. Gertner is a retired federal judge.
April 18, 2018

Was Robert Mueller, the special counsel, complicit in one of the worst scandals in the F.B.I.’s history — the decades-long wrongful imprisonment of four men for a murder they didn’t commit?

This question, which has been raised before, is being addressed again — this time by some of President Trump’s most ardent supporters on the right, especially Fox News’s Sean Hannity but also Rush Limbaugh and others. My friend Alan Dershowitz, the retired Harvard Law School professor, has also weighed in.

In an April 8 interview with John Catsimatidis on his New York radio show, Mr. Dershowitz asserted that Mr. Mueller was “the guy who kept four innocent people in prison for many years in order to protect the cover of Whitey Bulger as an F.B.I. informer.” Mr. Mueller, he said, was “right at the center of it.” Mr. Bulger was a notorious crime boss in Boston, the head of the Winter Hill Gang, and also a secret source for the F.B.I.

There is no evidence that the assertion is true. I was the federal judge who presided over a successful lawsuit brought against the government by two of those men and the families of the other two, who had died in prison.

Based on the voluminous evidence submitted in the trial, and having written a 105-page decision awarding them $101.8 million, I can say without equivocation that Mr. Mueller, who worked in the United States attorney’s office in Boston from 1982 to 1988, including a brief stint as the acting head of the office, had no involvement in that case. He was never even mentioned.

The case wasn’t about Whitey Bulger but another mobster the F.B.I. was also protecting, the hit man Joseph Barboza, who lied when he testified that the four men had killed Edward Deegan, a low-level mobster, in 1965. Mr. Barboza was covering for the real killers, and the F.B.I. went along because of his importance as an informant.

But the evidence — or rather, lack of it — hasn’t stopped the piling on against Mr. Mueller, particularly by Mr. Hannity. In a March 20 broadcast, he said, “Robert Mueller was the U.S. attorney in charge while these men were rotting in prison while certain agents in the F.B.I. under Mueller covered up the truth.”

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He returned to this theme on April 9, noting the Catsimatidis interview with Professor Dershowitz, and said: “Four men went to jail. Mueller was involved in the case. Two of them died in jail. They were all later exonerate.



He made the same case two days later on a show that was promoted by a tweet by President Trump — “Big show tonight on @seanhannity.” Mr. Hannity laid out his case for “Deep State crime families trying to take down the president,” including the “Mueller crime family.”

Among Mr. Hannity’s accusations: “During Mueller’s time as a federal prosecutor in Boston, four — four men wrongfully imprisoned for decades framed by an F.B.I. informant and notorious gangster Whitey Bulger, all while Mueller’s office looked the other way.”

Rush Limbaugh added his own variant on April 13. “The men would have been cleared but Mueller and the prosecutors withheld evidence from the court,” he said, adding, “Thirty years in jail, four innocent people, from the man of impeccable integrity inside the establishment swamp.”

The record simply doesn’t support these assertions. As I explained in my decision, because of the gravity of the accusations made by the imprisoned men, I analyzed the evidence “with special care in order that the public, and especially the parties, could be fully confident of my conclusions.”

That said, I was unsparing in my criticism of the F.B.I. and Justice Department officials who were responsible for this wrongful imprisonment. I named names where the record supported it. I resoundingly condemned the government in an unusual court session in which I read my conclusions.

Mr. Mueller is mentioned nowhere in my opinion; nor in the submissions of the plaintiffs’ lead trial counsel, Juliane Balliro; nor in “Black Mass,” the book about Mr. Bulger and the F.B.I. written by former reporters for The Boston Globe.

Mr. Barboza, like Mr. Bulger and one of Mr. Deegan’s killers, Vincent Flemmi, was in the Top Echelon Criminal Informant Program started in 1961 by J. Edgar Hoover. The program, as I noted in my opinion, “was strictly confidential, which not only meant that its existence would be kept secret from the general public and other divisions within the federal government, but also from state law enforcement agencies.”

Mr. Barboza’s F.B.I. handlers, Dennis Condon and H. Paul Rico, and their superiors, knew that Mr. Barboza had perjured himself and that he was protecting Mr. Flemmi, but they withheld that information from state prosecutors because of his importance as an informant and to protect the informant program.

They continued to withhold the truth during commutation hearings for the men; each time the F.B.I. could have disclosed Mr. Barboza’s lie, it did not. In fact, the agency lobbied against clemency.

Much has been made about an assertion made by Michael Albano, the former mayor of Springfield, Mass., who served on the Massachusetts Parole Board in the 1980s. He has said repeatedly that he saw a letter from Mr. Mueller, written during the period while he was in the United States attorney’s office in Boston, opposing the release of one of the four men.

But no copy of that letter has ever been produced, and Mr. Dershowitz now says in a statement that several days after making his remarks on the Catsimatidis show, The Boston Globe “revealed for the first time to my knowledge that no such letter has been found. I never repeated the allegation after that.” Still, he said, “further investigation seems warranted, since absence of evidence is not conclusive evidence of absence, especially in government files.”

Perhaps. But an accusation of such gravity demands more. I found no such letter from Mr. Mueller in the commutation files in the court record. Neither did the lead trial lawyer for the plaintiffs, Ms. Balliro, who has a complete copy of the parole board files of all four men, which were produced in response to a subpoena before the trial. Other letters from federal prosecutors are in those files. But there was nothing from Mr. Mueller.

It wasn’t until the late 1990s that another federal judge, Mark Wolf, held hearings that revealed the F.B.I.’s refusal to inform the United States attorney in Boston that Mr. Bulger and his confederate Stephen Flemmi, brother of Vincent, were informants. In a report by the House Committee on Government Reform, which looked into the F.B.I.’s use of secret informants, the only reference to Mr. Mueller was a favorable one. He offered, as F.B.I. director, to work with the committee to reform the agency’s informant practices.

When Mr. Hannity and others say Mr. Mueller was responsible for the continued imprisonment of those four men, they are simply wrong — unless they have information that I, Ms. Balliro, the House investigators and the “Black Mass” authors did not and do not have. If they do, they should produce it. If they don’t, they should stop this campaign to discredit Mr. Mueller.