Klassified Kapers: Hillary v. Trump
Hillary versus Trump in their Klassified Kapers. Both kept classified information at their homes, both appeared to break the law, only one may be legally punished. But which one wins the battle to have done more damage to national security than your average enemy spy?
In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, and when was it seen?
The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might be seen by locally hired cleaning staff at worst. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale.
The “what” is the real stuff of James Bond and even actual spies. A lot of things are classified, many perhaps overclassified. The Director of the National Security Archive at George Washington University estimates 70 percent of the documents he sees are overclassified. Donald Rumsfeld put it at 50 percent. Just because something is marked Top Secret does not mean the information there really is, but it still might rightly qualify as classified at the Confidential level. It would take a knowledgeable person looking at documents one-by-one to conclude which of the 7 out of 10 were overclassified.
Other times “what” is classified is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs. One of the most deeply-run intel operations against the State Department involved a Euro-ally looking for info on a competitor by listening in to third party U.S. diplomatic sites where the data was treated almost as spam.
The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth from A to B. It matters a whole lot less a month later after the whole affair has come and gone and everybody in town saw the convoy arrive.
Lastly, we have the unknown factor in judging our contest. Few countries actively harvesting intelligence are in the mood to tell anyone about it. In fact, just the opposite. Even when caught spies deny everything such that one of counter-intelligence’s main tasks after a bad guy is caught is to try and figure out what he likely gained access to, which documents or information he got. Note the “or” there because it is always information, data, which is classified, not pieces of paper. Much damage can be done with a diplomat’s hand written notes of a meeting, unmarked by a classification such as Secret, compared to a document marked Secret but containing nothing really worth keeping quiet. The marking on a document is only the drafter’s best estimate of what the information on paper really is worth. This all makes it hard to judge the relative impact of one exposure to another, but there are other ways.
So those are the ground rules, on to Hillary versus Trump!
We start the contest with raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 marked as classified. With the recent search raid, more were found such that the government recovered over 300 documents with classified markings from Trump since he left office. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary. To be fair, our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see.
In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence and completely deleted (bleached) many, many emails. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup. More on that later.
Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 were determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.
So in simple terms based on the albeit thin information available publicly, Trump wins the category for having the most raw material, classified documents, outside an officially secured facility.
In this race, the “what” is a toss-up. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton only discussed Top Secret CIA drone info and approved drone strikes via Blackberry.
But the real money-maker in the classified world is exposure, and here we finally have a clear leader. For all the noise around Mar-a-Lago, there is nothing to suggest the classified Trump held was ever exposed; in fact, information available suggests the stuff left the White House to remain boxed up inside a storage room. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s Klassified Kaper. Claims he removed classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by months. It suggests if the FBI thought classified material was in imminent danger of being exposed to one of America’s adversaries they might have acted with a bit more alacrity.
Not so with Hillary. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. As the actual Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Um, Clinton’s digital security certificate was issued by consumer-level GoDaddy.
The last bit seals it: we have a winner. Whether anyone unauthorized got a look at Trump’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no full-time physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy.
Unknown is the actual process Hillary used to move classified material to and from her server from the main State Department and other systems. If she transferred data the most likely and convenient way, via floppy disk or USB drive, then she likely compromised the State Department systems as well. Her SysAdm for the home server was a State Department Civil Service employee she hired and so suggests a link between State computer hardware and the Secretary’s own. We’ll never know, as no search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. All we can say is some intelligence officer in Moscow or Beijing was probably promoted to Colonel off this one.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
BLM License Plate Rocks Hawaii
If politics makes strange bedfellows, defending free speech sends one down some equally odd paths. The 1A and laws protecting speech exist for every thing that can be said, but end up being tested at the margins of what society tolerates in the name of free speech. A recent case in Hawaii, involving a car license plate, is a perfect example.
Like most states, Hawaii issues specialty/vanity license plates where the owner can chose his own letters or numbers. The only restrictions are the letters/numbers not be “misleading” or “publicly objectionable.” Otherwise pick your combination, pay the fee, and you have your unique license plate, such as LUV YOU. That was the plan of Edward Odquina, who runs a web site named www.fckblm.org in support of his media business that shares those same initials, Film Consulting Krav Maga BLooMberg. Odquina also elsewhere on his site claims the initials stand for Fight Communism & Knuckleheads Bitch Liberal Marxists. He also does not care much for the Black Lives Matter movement. He applied for, and was issued in 2021, a FCKBLM car license plate which he displays on his vehicle alongside a Trump 2024 placard and other patriotic insignia.
At some point the state of Hawaii claims it received unspecified “complaints,” and Odquina was ordered to surrender the plate. He refused. Until he does give in, he cannot renew his car registration and is subject to citation and seizure of his vehicle. Odquina filed a lawsuit against the county and its attorney general, claiming they infringed on his First Amendment right to free expression.
Specifically, the 23 page lawsuit claims Hawaiian authorities failed to define the terms “misleading” or “publicly objectionable.” He further holds that his application for FCKBLM was approved and the plate was issued, and that the law includes nothing in it to allow that decision to be re-reviewed if “complaints” are received even though a complaint phone line exists.
The core of the suit focuses on the Hawaii statute restricting messages allowed on personalized plates as being overly broad (a “void for vagueness” says the filing), and that the state, city, and county have all failed to adopt administrative rules to define such terms and create a process for making determinations. Instead, the suit says, the city and state have created a process allowing bureaucrats to make the determinations based on their individual and personal opinions with no recourse or remedy. The suit asks the court for an order to prevent the government officials from enforcing a ban on “misleading or publicly objectionable” license plates until new rules and procedures can be created.
“He wants to be able to express himself, which is what the statute allows, the statute allows that you can pick any six letters, up to six letters, and any combination that you want to convey a message,” said Odquina’s attorney Kevin O’Grady. O’Grady says his client disagrees with Black Lives Matter’s positions and is also using the license plate to promote his business. At issue is viewpoint (content) discrimination, when a state offers a venue, such as specialty license plates, for some groups to convey their messages, but does not permit others like Odquina to express their views. Presumably Hawaii would not object to YEA BLM.
Odquina has precedent on his side when it comes to courts striking down state and local government restrictions on laws banning offensive license plates. In 2020, a federal judge struck down a similar law to Hawaii’s in California after it was challenged by people who had been denied requests for plates.
The California case shows that that state has a much more extensive and well defined list of things that it considers misleading or objectionable compared to Hawaii, including terms with sexual connotations, of lust or depravity, or vulgar terms, a term of contempt, prejudice, or hostility, an insulting or degrading term, a racially or ethnically degrading term or is a swear word or term considered profane, obscene, or repulsive, or has a negative connotation to a specific group, misrepresents a law enforcement entity or is a vulgar foreign or slang word. The California law goes on to specify procedures for adjudicating all that, including use of the Urban Dictionary and lists of gang symbols, and for how a plate may be taken back after issuance.
Yet despite its bureaucratic thoroughness compared to Hawaii’s almost haiku-like rendering of the same intent, California lost its case. In ruling against the state, the District Court judge wrote the Supreme Court has repeatedly held “the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers.” The plaintiffs were allowed to keep their plates OGWOOLF, SLAAYRR and QUEER. BO11LUX was still rejected because the configuration “has a discernable sexual connotation or may be construed to be of a sexual nature.”
The issue is ripe for another pass by the Supreme Court. A New Hampshire court ruled in 2014 that the state couldn’t ban a plate that read COPS LIE. A Rhode Island judge ruled that a motorist had the right to display a license plate that read FKGAS. But Texas was able to bar FU COVID, NOPENIS, and CNN LIES from its vanity license plates. Then again, Maine allowed KISMYAS.
The critical finding in the California case is that license plates are to be consider private speech, a statement by the user protected by the 1A, and not an expression of government, even though they are technically government property. The court held that the government by making vanity plates available for sale gave citizens the right to consider what they say as private expression of opinion or support. The court said any restrictions on that expression must be both viewpoint neutral and reasonable. This is in contrast to the Supreme Court, which held specialty license plates are government speech, immune from First Amendment challenges, thus setting up one of the principle legal tussles Hawaii and Odquina will enjoin — whose speech is it, his or the government’s? Odquina meanwhile continues to drive around town expressing himself.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The DNI Two-Step and Trump
If you play poker with a guy named Doc often enough you learn to watch his hands carefully when it’s his turn to hold the deck. Same when the Director of National Intelligence (DNI), the Intelligence Community (IC), and the FBI sit down at the table with the American people.
The game right now is will he or won’t he; will Attorney General Merrick Garland indict Donald Trump over something to do with classified information held at Mar-a-Lago? Everyone is holding their cards tight to the vest, but the deal just passed to the DNI and the game is about to get serious. Stakes are high; in the pot is the presidency of the United States.
DNI Avril Haines said that DNI “will lead an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of the relevant documents” including those seized. She said the DNI was aiming not to interfere with the ongoing criminal investigation, to which everyone at the table had better shout “bull.” A review of potential risk means the DNI can show a pair of twos and claim they are kings. The DNI’s whole point is to interfere with the investigation, same as they did with Hunter’s laptop, Russiagate, and the Clinton server before that. The IC is as much a part of our elections now as it ever was in any other banana republic.
It works like this: using classified methods in secret to look at classified documents the DNI will come to conclusions about what might happen to the security of the United States if those documents were to fall into “the wrong hands,” i.e., the hands of their choosing and certainly a worst-case scenario.
Without revealing the documents’ contents or why those contents are so important, the DNI gets to say how bad things would be and your role as the public is to believe them and vote accordingly. Since it is a worst-case scenario game, the DNI will no doubt — without any evidence anyone but Trump saw the docs — proclaim nearly the end of the world, that pair of kings. The goal of course would most certainly be to influence the investigation or, more precisely, influence the public opinion outcome. It’s a remake of the January 2017 intelligence community assessment (another form of make it say what you want it to say document) which claimed, without evidence, that Vladimir Putin wanted to put Trump in the Oval Office. Or the 2020 IC letter claiming the Hunter Biden laptop was Russian disinformation.
Right now the DOJ has very little to prosecute on, basically that Trump held on to some (maybe) classified documents at Mar-a-Lago. Did anyone see them? Was there any chance a foreign adversary got a peek? DOJ needs more than simple possession (albeit a crime) to go after a once and perhaps future president and may not have it. The docs may never have left lock and key. Mar-a-Lago surveillance tapes may not show Boris Badenov walking in and out of frame; enter the IC.
The DNI document review itself will of course not be made pubic. In discussing which sources and methods might have been damaged it will need to be more highly classified than the original documents. We’ll never see the Review. But better than the entire document, we’ll all see the leaks, the little snippets meant to take down Trump that will inevitably leach into the New York Times and Washington Post. The IC will provide the ammunition, in carefully measured amounts, DOJ needs to make the unclassified case to the public the classified stuff they’ll never see is a big, big deal.
Conspiracy theory? Ask yourself how crime scene-like photos have already leaked from the Mar-a-Lago investigation as compared to say, the Jeffery Epstein case. Imagine a crime scene-like photo of children’s underwear strewn across the floor, stuff investigators allegedly found in Epstein’s desk. DOJ and Trump have been bickering about these documents nearly since he left office; why was the spectacular raid held just weeks ahead of the midterms?
This is by now a familiar song. Remember the role the IC played in the 2020 election in making sure Hunter Biden’s laptop and its contents would not influence Americans. As the New York Post broke the story that a laptop full of Hunter Biden’s files contained potential evidence of a pay-for-play scenario involving then-candidate Joe Biden just ahead of the presidential election, almost in real time more than 50 former senior IC officials signed a letter dutifully published by Politico claiming the emails “have all the classic earmarks of a Russian information operation.” The signers said their national security experience made them “deeply suspicious the Russian government played a significant role in this case. If we are right this is Russia trying to influence how Americans vote in this election, and we believe strongly that Americans need to be aware of this.” Small world — the U.S. spy chiefs who signed that infamously misleading letter, including John Brennan, Leon Panetta, Michael Hayden, and James Clapper, directed America’s IC while Biden was vice president.
The letter was an act of evil brilliance, the weaponization of opinion. It played off cultivated prejudices from 2016 that the Russians manipulated American elections. In fact, most of the signatories — James Clapper and John Brennan among them — had played key roles in misdirecting public opinion around the DNC-server hack and later the whole of Russiagate. Among the establishment, the meme quickly became into “the laptop is fake.”
The major difference in this case was the establishment’s willingness to actively block information. With the letter as “proof” the laptop was disinformation, the media took the handoff. Twitter locked the New York Post‘s account after the Post refused to obey Twitter’s orders to delete its own truthful reporting. Twitter even banned links to the story in direct messages. Facebook announced it would not allow discussion of the issue pending a “fact check,” which never came. Establishment media outlets labeled the laptop fake, social media blocked the news, and the public basically fell in line and voted for Joe without knowing squat about what he and his son Hunter had been up to. Many still do not.
More recent information exposes the IC plan in greater detail, to include the FBI specifically approaching Facebook and Twitter to tell them not to allow the story. Claims of not interfering with the election were fully false, with a cover up until when it seems not to matter anymore, to boot. Like the whole of Russiagate, it was all made up, and the IC worked hand-in-glove with the Democratic media to hide information. Hunter Biden’s laptop had the potential to change the outcome of the 2020 election, and everyone knew it.
So be careful when the inevitable DNI/IC leaks about how serious the whole Mar-a-Lago affair is show up. Now, after all that you wanna play another hand of poker with these guys? Sure, let old Doc here deal you in, sucker…
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump and the Special Master
The appointment of a special master is usually a case of much ado about nothing, except with Donald Trump and his war with the Department of Justice there is never “nothing.”
A special master is an independent party appointed by the court in this instance to “review the seized property for personal items and documents and potentially privileged material subject to claims of attorney-client and/or executive privilege.” In other words, the master will look at the pile of documents and other items seized by the DOJ under its search warrant and decide which ones they can keep to review and use in their prosecution, and which ones are not allowed based on the limits of the warrants and privilege. Search warrants are written to be as broad as possible in the taking from a property (in this case, anything that was part of Trump’s White House term) and special masters exist to limit under the law what can be used.
The DOJ has already acknowledged it scooped up too much; Trump’s passports have already been returned as will his tax and medical records, which have nothing to do with the question of whether or not he illegally held classified material, that potential crime being the justification for the search in the first place. While it is easy to assume naughty intentions on the part of DOJ, and there may have been, it is not uncommon for non-material things to be swept up in the physicality of conducting a search. For example, searches tend to grab any and all electronic devices to be scanned later for their contents.
But passports and tax records aside, the real issue at play with the Trump special master is privilege, those documents which fall under a special protected category and should not be available to DOJ. The first generally non-controversial category is attorney-client privilege. By law, communications between a client and his attorney, to include legal strategies, draft documents, suggested filings, etc., are hands off. The most common use of a special master is to weed out such documents clearly covered by attorney-client privilege.
In every search cases bar one (you already guessed it) the special master’s work beings and ends with rooting out those attorney-client privileged documents. However, as the first former president ever to have his property searched, Trump introduces a new category: executive privilege. In its most basic form the doctrine of executive privilege defines the authority of the president to withhold documents or information in his possession or in the possession of the executive branch from compulsory processes of the legislative or judicial branch of the government, such as search warrants. The concept evolved out of the recognized need for the president to receive tough, unbiased advice and engage in frank debate inside the Oval Office in the making of policy. Keeping this back-and-forth from Congress, the courts, and the public was seen as essential to ensuring the president always heard the tough medicine he needed to hear, undiluted so as to look good if exposed to public scrutiny. If an advisor had to worry about what he said showing up on the front pages of the New York Times, he might very well hold back or sugar coat very needed advice and consult.
Trump argues much of what DOJ seized from him falls into the category of executive privilege (he’s no stranger to the concept; Trump repeatedly and successfully asserted the privilege as president in attempts to block records and testimony from Democrats’ congressional investigations, including in the first impeachment.) Joe Biden back in May waived his own executive privilege over what Trump held, suggesting other documents with Trump do not carry executive privilege since Trump is no longer president and Joe is. DOJ seized documents and began working with them based on the assumption that former presidents had no right to executive privilege, that that ended the day they left office. But no one before Trump has ever challenged the doctrine over a search, it has never been looked at in depth by a court, and the special master is being dropped right into the middle of a debate which could ultimately end up at the Supreme Court.
The Constitution is silent on executive privilege. It evolved, rooted in the separation of powers doctrine that divides the power of the United States government into legislative, executive and judicial. United States v. Nixon, Watergate, is about as close to things came to sorting out Trump’s dilemma legally. That case established even a president has a legal duty to provide evidence of his communications with his aides when the information is relevant to a criminal case. By requiring Nixon to turn over tape recordings of private conversations he had with his aides, the Supreme Court framed how to define executive privilege in a judicial setting.
Even before the Nixon decision, however, some courts required the executive branch to provide governmental records and documents prepared for the president. In other civil cases the courts have held the applicability of the privilege should be decided on a case-by-case basis by weighing the need for justice against the proper need for confidentiality. The Supreme Court last year side-stepped the question in Trump’s bid to block White House records from the J6 committee, and Biden then waived privilege as keeper of the records, leaving it a grayer area in the law. As with Nixon, the Court held the sitting president (i.e., Nixon and Trump’s successor) is “in the best position” to make privilege determinations.
Biden’s blanket assertion that he alone can determine executive privilege as the lone executive sharpens the challenge Trump is working toward in this case: does a former president retain executive privilege? Further, does that executive privilege apply to the executive branch itself, in this case the Department of Justice? Trump’s hope is the special master will say yes, and provoke a challenge from DOJ. DOJ hopes to circumvent that challenge by appealing the appointment of the special master in the first place. The current judge has until September 15 to consider the appeal before DOJ bypasses that court for the 11th Circuit in search of a decision.
What might happen? If DOJ successfully appeals the appointment of the special master later this month, Trump will likely lose control of the records to DOJ. If the courts allow the special master, then to eventually win a court order shielding the records permanently, Trump would first have to establish that he can assert executive privilege even though he is no longer in office. Trump would then have to overcome Biden’s (and the Supreme Court’s) position executive privilege over the materials is held by the sitting president. Lastly, Trump would have to show his harm from privilege violations outweighs the government’s need for the documents in its criminal probe into the possession of classified records.
Trump’s ploy is a big ask, potentially on the Constitutional level. He has benefited so far from sympathetic judges, a situation unlikely to continue as DOJ moves its case to higher courts. It is anyone’s guess, but the odds seem in favor of Trump losing, the special master not being allowed to rule on executive privilege, and DOJ retaining most or all of the documents seized for use in its prosecution. At best Trump’s legal maneuvers will succeed in slowing down the entire investigation.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Biden Foreign Policy Update: Ukraine, China, and More
What is Joe Biden’s foreign policy? It’s a trick question, because he has no actual policy, no plan, no careful set of chess moves a step ahead of his adversary. America suffers for it.
Biden’s foreign policy initially began and ended in Afghanistan, and the disastrous withdrawal that left refugees strew around the globe, problem children still being sorted out. There were years, then months, then weeks, then days to plan the NEO — the noncombatant evacuation order — and plenty of planning books for one sitting on desks in places like Seoul.
Still the basic mistakes were made, including reducing the evacuation from several well-guarded sites (particularly American military bases being closed down) to a single semi-open civilian site at Kabul airport to allow the mobs and the enemy to concentrate, failing to negotiate an end strategy with the adversary (as was done in Vietnam and Iraq; basically let us evacuate peacefully and the place is yours a day later), having no system to prioritize boarding, and not pre-negotiating landing rights in neighbor countries that were to be used as staging areas. Instead, Biden simply sat on his hands while troops on the ground did their best to ad hoc a strategy of evacuating those who Darwin got over the fenceline. Add in breaking the cardinal rule of all NEOs, leave no American citizens behind. Biden’s follow-up to the evacuation has been to pretend it never really happened and not talk about it. America’s reputation, meh.
That leaves the multidimensional foreign policy mess in Ukraine, Biden’s other big foreign policy move. What is the Biden policy, what is it intended to achieve for U.S. interests, and what is its end game? No one can really answer those questions, a sign of real problems, particularly the lack of an end game other than childish “the other side goes home before we do.”
Biden’s failure in Ukraine is based on several fallacies. Primarily was his belief “allies” in Western Europe would band together behind the leadership of the U.S. to, well, do something against Russia. Nobody wanted actual war between say Germany and Russia, so the idea was western European allies would send weapons and participate in sanctions and this would cause Russia to withdraw. In the early days, more than six month ago now, the goal was whispered to be the fall of Putin, regime change with possibly even a new pro-western leader in Moscow, another “end of history” moment since the west squandered the first one trying to make Russia into a capitalist franchise. How’s that McD’s in Red Square we worked so hard for doing anyway?
Euro-enthusiasm was damp to begin with, perhaps for having seen a dozen American foreign policy adventures that required their urgent support turn to mud (Afghanistan was the freshest international effort to fail, preceeded by the famous Coalition of the Willing in Iraq War III of 2003) and so predictably within weeks the arms flow became mostly All-America after some token gifts of aircraft and armor from the Danes, et al. U.S. Special Forces were on the ground in Ukraine soon enough, the CIA active alongside them, and the escalation in both amount of material and sophistication of weaponry running full steam. Ukraine on the ground very quickly devolved from a NATO effort into an American one. Again.
But the biggest failure of Biden foreign policy in Ukraine was with sanctions, those economic pressure points that were to make the price of continued war too high for Putin to bear. Fears Putin would “cut off” western Europe’s gas turned out to be a joke. European gas and oil were instead simply rerouted to Paris and Berlin via Chinese and Indian resellers, and at higher prices than prewar to boot. U.S. sanctions have actually aided Russia. Though Russia’s energy exports fell by volume, Russia’s export prices have been on average around 60 percent higher than last year. About the only people actually sanctioned so far were American consumers, who paid $5.00 a gallon for gas in the spring and early summer, some dumb enough to even believe they were helping Ukraine via their small sacrifice. Europe may get their chance to help defeat Putin as energy prices may rise by 400 percent mid-winter.
France and Germany evolved the ability to talk tough and do little of substance, making quite an event out of the end of Russian energy exports via ship while quietly lapping at the pipelines like drunkards. And what demand does not fix supply steps in for. The EU reduced direct imports of Russian crude oil by 18 percent but thanks to Russian re-exporters India and others, that has little-to-no net change in Russia’s overall oil export volumes. China, too, has helped make up for the EU shortfall, re-exporting into the global market as the largest single buyer of Russian energy. Japan holds that title for as yet unsanctioned Russia coal exports. Even the U.S. itself helps out, buying unsanctioned highly refined oil products from the Netherlands and India that most certainly were made at least in part from Russia crude. It turns out Biden was unaware how hard it is to simply turn off Russian energy exports.
China imported more Russian gas in 2022 then any previous year. In the first six months of 2022, according to Chinese customs data, China bought a total of 2.35 million tons of liquefied natural gas (LNG), valued at $2.16 billion, from Russia, an increase of 28 percent year-on-year, with the value surging by 182 percent. This meant Russia surpassed Indonesia and the United States to become China’s fourth-largest supplier of LNG. Bad enough news if China was using the LNG itself to grow its economy but the LNG is being resold to Europe as a sanctions buster. As reported by the Financial Times, “Europe’s fears of gas shortages heading into winter may have been circumvented, thanks to an unexpected white knight: China.” They further note “the world’s largest buyer of liquefied natural gas is reselling some of its surplus LNG cargoes due to weak energy demand at home. This has provided the spot market with an ample supply that Europe has tapped, despite the higher prices.” Maybe no one has told Joe the bad news.
So where are Biden’s allies? The EU (…China, India, Africa, and Japan) may at times talk a great game but are hamstrung by its own energy needs. Joe Biden’s foreign policy response? To travel to Saudi Arabia to bargain away any remaining American self-respect for oil. The UN meantime saw 35 key abstentions, including much of Africa, on a symbolic get-out-of-Ukraine resolution. The head of the African Union explicitly called for the lifting of sanctions on Russia. Brazil and Mexico refuse to condemn Russia. Biden stands nearly alone claiming the liberal world order is at risk. And, um, the G-7 announced they agreed on a plan to impose a set price on Russian oil, literally not that that matters since the resell market is where the action is.
Meanwhile, as Biden makes plans to send additional sticks and stones to Ukraine, Beijing recently announced plans to waive debt owed by 17 African countries. China plans to invest a further $300 billion in the continent. China’s continues to make inroads into the “Lithium Triangle,” Argentina, Bolivia, and Chile, which account for 56 percent of the world’s lithium supply. Over the years, China has acquired a number of mines in the three countries. In the space of two years, between 2018 and 2020, China invested $16 billion on mining projects there. In an effort to further capture a monopoly in the lithium market, China is also investing in Zimbabwe, home to Africa’s largest lithium reserves, injecting $300 million into its Arcadia Lithium Mine. Elsewhere, the Solomon Islands’ new security pact with Beijing could lead to a Chinese naval base being constructed off Australia.
Meanwhile, Biden’s foreign policy expenditures involve sending $1.1 billion in arms sales to Taiwan, and spending some $54 billion on aid to Ukraine (also, the water is not drinkable in Jackson, Mississippi.) Of that expenditure to Ukraine, only half a billion is allotted to diplomacy, the rest for weapons and military and economic aid. Biden may eventually come to understand slathering money on Ukraine and antagonizing China over Taiwan have both a practical cost, and an opportunity cost. But until then, what’s next, Joe?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
China vs. U.S.: Privacy for Whom?
The New York Times ran an article on the use of surveillance tech in China. One wishes they would do the same for the U.S.
The NYT article came to some scary conclusions about autocratic China. Chinese authorities implement facial recognition tech everywhere they can, the police seek to connect electronic activity (making a call) to physical location, biometric information such as fingerprint and DNA is collected on a mass scale, and the government wants to tie together all of this data to build comprehensive profiles on troublesome citizens. The latter is the Holy Grail of surveillance, a single source to know all there is known about a person.
Should the Times (or China) wish to expand its review of invasive government surveillance technology, particularly those technologies which integrate multiple systems, it need look no further than its hometown police force, the NYPD, and data aggregated into the little-known Consular Consolidated Database (CCD) by the U.S. State Department.
Prior to 2021, when the New York City Council passed the Public Oversight of Surveillance Technology (POST) Act, citizens were left to piece together the various technologies used to surveil them based on scattered media reports. We know now the NYPD deploys facial recognition surveillance (and can retroactively employ facial recognition against video saved from one of 20,000 cameras), x-ray vans, Stingrays, ShotSpotters, and drones, among others, equipment all originally deployed in the Iraq and Afghan wars. But we still don’t know how many of these technologies are used in coordination with each other, and, as in China, that is the key to understanding their real effectiveness.
POST reporting and other sources offer some clues. The NYPD uses the smartphone-based Domain Awareness System (DAS), “one of the world’s largest networks of cameras, license plate readers, and radiological censors,” all created by Microsoft with video analytics by IBM. DAS also utilizes automated license plate reader (ALPRs) devices attached to police cars or fixed on poles to capture the license plates of all cars passing by. ALPRs can also capture photographs of cars, along with photos of the driver and passengers. This information is uploaded to a database where it can be analyzed to study movements, associations, and relationships. Facial Identification can then run photos, including from databases of arrest photos, juvenile arrest photos of children as young as 11, and photos connected to handgun permits. The system analyzes an image against those databases and generates potential matches in real-time.
Included in DAS is a translator application which helps officers communicate with community members who do not speak English, while of course also recording and storing their remarks. DAS ties in to ShotSpotter, a technology developed for the Iraq War which pinpoints the sound of gunfire with real-time locations, even when no one calls 911. This technology triangulates where a shooting occurred and alerts police officers to the scene, letting them know relevant information, including the number of shots fired, if the shooter was moving at the time of the incident (e.g., in a vehicle), and the direction of the shooter’s movement. DNA data can also be accessed, so wide-spread collection is a must. One area of activity outlined in Chief of Detectives Memo #17 instructs on how to collect “abandoned” DNA samples from objects such as water bottles, gum, and apple cores. For example, police officers are taught to wait for the suspect to take a drink or smoke, and collect the sample once a suspect throws the cup or butt away.
What is deployed in New York to aggregate sensor and bio data (including social media monitoring and cell phone locator services, which when tied to facial recognition can identify individuals, say who attend a protest, visit an AIDs clinic, etc.) will no doubt be coming soon to your town as the weapons of war all come home. The next step would be to tie together cities into regional and then state-wide networks. The extent to which information obtained from DAS is shared with federal agencies, such as immigration authorities, remains unknown. What we do know is the phrase “reasonable expectation of privacy” needs some updating.
Perhaps the largest known data aggregator within the Federal government is the innocent-sounding Consular Consolidated Database (CCD) administered by the U.S. Department of State. Originally a simple database created in the 1990s to track visa and passport issuances, the CCD is now one of the largest global databases of personal information, growing at a rate of some 35,000 records a day. The system collects data from both foreign visa applicants and American citizens to include but not limited to imagery for use with facial recognition, biometric data such as ten-fingerprint samples, home/business addresses, phone numbers, email addresses, financial information, race, gender, social security and alien registration numbers, passport information, certain Federal benefits, medical information, legal information, education information, family information, travel history, arrests and convictions, and social media indicators.
The CCD is especially valuable in that it is a database of databases, pulling together information collected elsewhere including abroad, as well as from some commercial databases and public records, and making the aggregate available both for individual search by identifiers like name, social security number or facial recognition, but also for very large scale analytic searches to identify patterns and trends. This massive pool of data is then made accessible to the Department of Homeland Security, Department of Commerce, Department of Defense, Department of Justice, Office of Personnel Management, Federal Bureau of Investigation, and “other interagency partners” to include potentially intelligence services. In addition to the State Department, information is regularly input into the CCD by the FBI, the Integrated Automated Fingerprint Identification System, DEA, ICE, IRS, DOD, Treasury, Health and Human Services (HHS), DHS, Interpol, and U.S. Marshal Service (USMS.)
Numbers of records held by CCD are not available, with the last public tallies documented in 2016 showing 290 million passport records on American citizens, 25 million records pertaining to American citizens living abroad, 184 million visa records of foreigners, and over 75 million photographs. Some 35,000 records are added to the CCD daily, so do the math given the existing tallies are up to 13 years old. As a point of comparison, Google’s database of landmark photos holds only five million records. The Library of Congress database lists 29 million books.
The New York Times article about surveillance in China is scary, showing what a vast, interconnected system is capable of doing in exposing a person’s life to scrutiny. The Chinese authorities are, however, realistic about their technological limitations. According to one bidding document, the Ministry of Public Security, China’s top police agency, believed one of their biggest problems was data had not been centralized. That Chinese problem appears well on its way to resolution inside the United States, and that is also quite scary.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Sending a Kid Off to College
I just saw my younger daughter’s schedule for law school. It is a monster, a lot of hours in the classroom along with the infamous reading burden. She emailed it to me. A couple of weeks ago she took the bus to her new city and found an apartment I may never visit. I wonder if any of the things she is bringing with her are things we bought for her when she last lived with us during high school. I doubt it.The first time we did this, sent a kid off to college, was steeped in ritual. As a family we carefully studied the list of recommended items – sheets and shower slippers, headphone for a radio or personal audio device if desired – and planned the trip in great detail. Hotels in the area, ground zero for colleges, were hard to come by when everyone went back to school the same week, so we ended up not so close to campus at a DoubleTree clone that shared a parking lot with a pretend Mexican food restaurant.
Social media was still in its infancy at the time, and so my daughter awkwardly met her roommates while I carried stuff inside like I was a KISS roadie. Standing even more awkwardly were the four sets of parents. With twelve people in a dorm room tight for four occupants everything was awkward. The dads shook hands, the moms exchanged comments about sheets and shower slippers, and no one knew what to do next.
The stalemate was broken by someone announcing there was shopping to do. Our kid was short on needed things as we had flown up, so we had a lot of toiletries to buy. I was ignorant of how many fluids were involved in her hair maintenance, for example. Others had determined buying shampoo in the CVS at home was a better idea since they were driving anyway and perhaps the Boston area had no drugstores, so they were better supplied. A quick conference among the girls suggested some common items might be purchased, such as a dorm room mini-fridge that would, promise, only have juice and not beer. Grateful for the task, we dads divided up the responsibility for buying this stuff like we were planning the Normandy invasion.
Most of the families found their way to the closest Target. Things went smoothly (we were all glad for the familiarity of it all, this is something we knew) until we got to “backpack” on the list. My daughter and her mother got into an argument, with one side defending to the death the need for a non-Target backpack. We ended up getting directions to LL Bean, where the argument continued in the face of what seemed like hundreds of life-or-death choices.
A whole summer’s full of angst over growing up and growing old poured out between my daughter and her mother. Would red be too girlish? Are college books the same size as high school books? Would kids tease her about the shape, design, strap style? Would college life be governed by the amazingly complex rules and codes of high school life where one mistake on sneaker style could lead to someone being ostracized for four years by the cool kids?
I wanted to say how those struggles to fit in in high school, especially since she was the new kid for awhile, were over, that college was different, everyone was the new kid. She’d learn it all soon enough. I was already increasingly irrelevant to her life.
It was getting ugly (and dark) outside and I tried to play my dad card and declare whatever backpack was in my daughter’s hand at the moment was the winner. But there was no way to stop it. This was something that had to burn itself out, it could not be extinguished artificially. An awful lot of thoughts and feelings were left unsaid, or maybe, more accurately, said in some sort of code translated into LL Bean stock keeping terms. At some point we settled on something and after an awful Mexican dinner came to the only mutually agreeable decision of the day – we’d drop our daughter at her dorm and everyone else would fall asleep by 9 pm.
We greeted our oldest child in the next morning to learn it was not Judgment Day. She and her roommates, even the sort of socially awkward one, had survived the night. They chatted with each other, planned to be friends-for-life, resolved a bit of push and pull over storage space, and did not become the victims of violent crime all of us parents were certain was going to happen. None of the parents exchanged more than a few glances. One of the other dad’s snagged unpacking the mini-fridge to occupy himself, and my wife folded refolded rolled folded unfolded the 17 pairs of socks we had brought. Empty notebooks, clean dorm rooms, all that hope and promise ahead stuff.
I thank whomever at the college scheduled a mandated moment of separation. The students had some sort of required welcome BBQ, no parents allowed. A couple of moms and dads mumbled about staying one more night in town and checking in the next morning, but most of us understood we were being dismissed. Unneeded. Unnecessary, but thanks!
My wife and I left. Though there seemed to have been so much to talk about on the way up I don’t think we said a word to each other for several hours but we thought long, long thoughts that day going home. Just before we reached our street, I blurted out maybe I was hungry and we could go somewhere for a sandwich, anywhere that was not our now empty house. My wife, who a) does not like eating out and b) does not like drinking and c) does not like bars announced we should in fact head to a local bar.
We did not drink much by the standards of any decent dive bar but we did not need much lubrication to bring on the tears. The waitress had likely seen patrons crying before in the place, but perhaps not commonly a middle aged couple in the middle of the afternoon whose life had just changed forever. We talked in half sentences – “We spent 18 years…” “do you remember the time…” interspersed with interrogatories along the lines of how did this all happen so goddamn fast.
At that moment, sometime in the afternoon of a late August day, the world changed again for us. For some 18 years our lives were constructed around raising kids. Everything that mattered and most things that did not (who knew a pre-teen would have opinions on what brand of ketchup to buy) was based on what we thought was best for them.
Note the “thought was best” because there were no instructions. You handle each moment on its own on your own. Then you end up in a bar on a sparkling afternoon looking up at planes overhead very happy and very sad. Nobody said any of this was going to be easy. Nobody ever explained how waving goodbye to a child knowing she was off to a good start would hurt so much and feel so sweet. Nobody said I’d cry a little bit about it all so many years later but I just did.
At home, our house empty for the first time in two decades, I saw the trees were still a gorgeous green, with just a hint of yellow, almost too little to really see, more of a feeling. I swacked a mosquito on my leg. I’m gonna really miss summer. I knew we’d all be together come next summer, but only the parental side of the equation could see the clock running. There used to be a lot more summers.
I remembered not 24 hours earlier some kid my daughter had never met stuck her head into the dorm room and said “C’mon!” as I stood there hugging her not in that room but in a million places where she had fallen down or asked for ice cream or needed a diaper changed or the causes of the Civil War explained. I didn’t hug an 18-year-old woman but a six-year-old, a 13-year-old, an infant in diapers, a two-year-old angry about being wet in the snow.
And despite my need to hold on to her for just that much more she felt closer in that moment to the anonymous roommate demanding she go out the door with her than to me and I knew how right she was to need to leave. She did not know it but I did, that the space between us was a fraction of an inch but it was a distance I would never again cross.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Prosecuting Trump
What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned about accusations you and the FBI were playing politics?
Step One appears easy, put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Ukraine, Roe) are not his issues and though Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an indictment now would be a terrible opening move. So if you’re Garland, you have some time.
On the other hand waiting until after the midterms can be dangerous if as expected the Republicans do well and take both the House and the Senate. Even with slim majorities Republicans are expected to initiate their own hearings, into Hunter Biden’s laptop and how the FBI played politics with that ahead of the 2020 election. Holding off an indictment until that is underway risks making your case look like retaliation for their case. That’s a bad look for a Department of Justice which claims it is not playing politics. It would look even worse if the Republicans try and cut you off, opening some sort of hearings into the Mar-a-Lago search prior to an indictment. Nope, if you’re Merrick Garland you are caught between a rock and a hard place.
But there is a bigger question: if you are Garland and you indict Trump, can you win? Candidate Trump is already earning a lot of partisan points claiming he is the victim of banana republic politics, and his indictment ahead of 2024 (it matters zero if he has formally announced or not, he is running of course) will allow him to claim he was right all along. An indictment will allow Trump to fire both barrels, one aimed at Garland and the other at the FBI and these, coupled with the dirty tricks a Republican investigation into the FBI and Russiagate will expose will make Trump look very right. He was the victim of partisan use of justice, and the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Merrick Garland through his indictment just reelected Trump to the White House as a sympathy candidate. The spooks call that blowback, and it is a real threat in this instance.
Any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Garland will have to address the most obvious precedent case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.
Clinton seems to have violated all three statues Trump was searched under. If the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, and after all nobody is above the law.
The other fear holding Garland back would be that of losing the case outright in court. Classified documents are typically dealt with either via administrative penalties (an officer is sent home for a few days without pay) or as part of some much larger espionage case where the documents were removed illegally as part of the subject spying for a foreign country. Rarely is a case brought all the way to court for simple possession. Most of the laws Trump may have broken require some sort of intent to harm the United States. In other words, Trump would have had to have taken the documents not just for ego or his library or as some uber-souveniers but with the specific intent to commit harm against the United States. Garland certainly does not have that.
Other factors which typically play into documents cases are also not in Garland’s favor. Despite not being kept in line with General Services Administration standards, the documents appear to have been locked away securely at Mar-a-Lago, the premises itself guarded by the Secret Service. Trump has already turned over surveillance video of the documents storage location, which presumably does not show foreign agents wandering in and out of frame. It is much harder to prosecute a case when no actual harm was shown done to national security.
Another factor in documents cases involves the content of the documents themselves. The uninformed press has made much of the classification markings, but Garland will need to show the actual content of the docs was damaging to the U.S., and that Trump knew that. Overclassification will play a role, as will the age and importance of the information itself; after all, it is that information which is classified, not the piece of paper itself marked Secret. Garland will know Trump will fight him page by page, meaning much of the classified will be exposed in court and/or the trial will move to classified sessions to shield the information but feed the conspiracy machine. One can hear Trump arguing his right to a public trial being taken away.
Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States or to obstruct some investigation he would have had to have known about? Without knowing the exact nature of the documents this is a tough prediction but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.
Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg, as part of a plea deal, will testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.
The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? Then again, if knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well.
And then what? If Garland successfully navigates the politics, if he proves his case in court, and if he secures some sort of conviction against Trump which withstands the inevitable appeal, then what? Trump’s Mar-a-Lago “crimes” are relatively minor. Could Garland call Trump having to do some sort of community service during the 2024 campaign a win? Pay a fine? It seems petty. It sure seems Trump wins politically big-picture whether he wins or loses at Mar-a-Lago. If you were Merrick Garland, what would you do?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What Three Things Matter Most in the Trump Mar-a-Lago Case? Intent, Intent, Intent
The three things which matter most in the Trump Mar-a-Lago case are intent, intent, and intent. Trump’s intent — not so much what he did with classified and/or national security documents but what he intended to happen based on his actions — will decide his innocence or guilt if the case ever comes to court. The documents themselves matter much less, and are almost a red herring.
Wholly separate from January 6 and any other legal action against Trump, the Mar-a-Lago search warrant specifies three sections of law as justification, meaning any prosecution that comes out of the documents found in the search will likely be under one or more of these, a roadmap to the possible prosecution. On the face it seems Trump is pretty close to guilty, assuming at least some of the documents found were marked as classified and his arguments that as president he declassified them are not accepted. You can see an example of the hathotic glee over this here.
But there is one more step, often overlooked in Twitteranalysis, to prove, and that is intent. The concept of intent is planted throughout American law and says in many cases (to include incitement, most tax evasion, and sedition) that you not only need to have committed some act like stirring up a crowd to violence, you had to have done it with a specific goal in mind, such as stirring them up to violence. It is intent which separates the what from the why. It’s the difference between a mistake, error, misstatement, and an actual crime. The action itself is often easy to prove, while the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Based on the laws cited on the search warrant, it is what matters most in Mar-a-Lago.
The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent — Trump’s mental objective in taking the classified document — or its equivalent:
— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says (emphasis added) “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” Intent is mentioned repeatedly throughout the law, sometimes restated as purpose, reason, and the like. This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases.
— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” says that the act must be (emphasis added) “willful and unlawful,” a standard likely of general intent. This statute also states anyone who violates it should be disqualified from holding public office, but while the issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Only Article II of the Constitution can prescribe the requirements to run for president.
— 18 U.S.C. §§ 1519, The “anti-shredding provision” imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.”
Intent as we’re (and Trump) is concerned about almost always means specific intent, as opposed to general intent. General intent means the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act’s result is irrelevant. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (U.S. v. Blair.) Merely knowing a result is likely isn’t the same as specifically intending to bring it about. (Thornton v. State.) Note that none of the laws mentioned as possible violations require the documents in question to be classified, though it would be hard to imagine prosecutors could prove something not classified could rise to the level of “injuring the United States.”
In Trump’s case, based on what we know publicly, intent might play out as follows. On the first charge, the Espionage Act, prosecutors would need to show he kept classified and/or other national security information at Mar-a-Lago with the intent to cause injury to the United States. Similar for the third charge, where prosecutors would need to show he kept classified information and/or other national security info at Mar-a-Lago with the intent to impede or obstruct an investigation. The second charge seems more geared toward general intent, that Trump kept classified and/or other national security info at Mar-a-Lago knowing it was wrong without prescribing an outcome (actus reus), such as injury to the U.S. or obstructing an investigation. All easy to say, but hard to prove in court.
Much of this is over-looked by the Twitteranalysists, who are like Southern Baptists and Satan, assuming the worst always about Trump’s intent to the point where they need not comment. For example, one Blue Check wrote “Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy?”
Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges, one and three above. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States (charge one) or to obstruct some investigation (charge three)? Without knowing the exact nature of the documents this is a tough task but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.
Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg as part of a plea deal will agree to testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.
The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? If knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well. The justice system cannot replace the electoral system in choosing the next president.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Clinton Precedencies and Mar-a-Lago Search
It always ends up back with the Clintons, doesn’t it? The laws Trump may be charged under at Mar-a-Lago appear to have been violated by both of the Clintons, yet the two were never searched, never mind charged and prosecuted. Any action against Trump must account for that to preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest.
The more obvious case involves former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.
Clinton seems to have violated all three statues Trump was searched under:
— 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases. That Clinton’s server was compromised strongly speaks to the question of injury to the United States.
— 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” is a no-brainer for Clinton, given that she destroyed thousands of emails, physical hard drives, and handheld devices.
— 18 U.S.C. §§ 1519, The “anti-shredding provision” which imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” Clinton destroyed much of the data during an investigation into her communications, satisfying intent. Her overall intent was to block FOIA requests, and might speak to intent to impede or obstruct some investigation that required the full diplomatic record be made available.
Absent a trial no one can say conclusively Clinton was guilty of what Trump is likely to be charged with, but the basic elements are there. That is not the point anymore anyway. The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, after all.
And then there’s Bill Clinton. Bill made a series of some 79 audio tapes from 1993-2001 with a historian inside the Oval Office, sometimes recording his thoughts and decision making, other times directly recording his phone calls. He kept the raw tapes himself after a book was published in 2009, actually storing them in a dresser drawer inside the White House residence. Judicial Watch sued Bill for the tapes claiming they were presidential records and had to be made available to the public through the National Archives, aka NARA, and that the Archives needed to seize the tapes. Clinton argued they were personal records outside the control of NARA.
In directly contravening what is happening with Trump, the court ruled in 2012 “NARA does not have the authority to designate materials as ‘presidential records,’ and NARA lacks any right, duty, or means to seize control of them.”
Judicial Watch argued the Clinton tapes should have been included among the presidential records transferred to the Archivist at the end of the Clinton presidency, but Bill retained them in his personal possession when he left office and refused to produce them for use by Judicial Watch nor hand them over to NARA, considering them his own property just like the underwear and socks he stored the tapes among in his dresser. Judicial Watch lost the case and never appealed, and the tapes presumably remain with the Clintons.
As with the Hillary case, any prosecution of Trump for dispossessing presidential records must address the precedent set in the Bill Clinton case, i.e., the simple assertion by Bill that the tapes were his personal property. More significantly, going forward on the Trump case the DOJ must address the court’s decision in the Bill Clinton case that “NARA does not have the authority to designate materials as presidential records, and NARA lacks any right, duty, or means to seize control of them.” In other words, for what Trump had in his possession to be government records, someone would have had to designate them as such. The court in Judicial Watch v. NARA said NARA could not make such a designation, and the FBI certainly is not legally the one to do it. Could it be the president himself designates when a record is official and when it is personal?
Sort of. It appears a president’s discretion on what are personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will. Per Judicial Watch, “under the statutory scheme established by the Presidential Records Act (PRA) the decision to segregate personal materials from presidential records is made by the president, during the president’s term and in his sole discretion… Since the president is completely entrusted with the management and even the disposal of presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”
Now to be fair there is a fair amount of case law trying to define more clearly what is a presidential record and what is a personal record. There are also mechanisms to try and resolve differences of opinion between a president and NARA. But none of those mechanisms are criminal, and none seem to involve physically seizing documents under a search warrant. It is clear the PRA does not bestow on the president the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. But NARA on the other hand cannot do so either. The battleground under the PRA is the courts, not the back rooms at FBI headquarters.
If Trump were to designate a record as personal, not presidential, and NARA disagreed, it appears the standard mechanism (as shown in the Bill Clinton case) would be to go to court to redesignate the record. Step One (as in the Bill Clinton case) is not for the FBI to seize the record acting as some Solomon-like neutral party between the president and NARA. The bottom line is Bill Clinton was able to hold on to his audiotapes as personal records, and the tapes were never seized by the FBI under threat of the Espionage Act.
Any attempts to move the Trump case forward as a criminal one will first need to explain how it differs from the Bill Clinton case. If DOJ can’t do that — as well as differentiate Trump from Hillary Clinton and her server — then they have no basis to claim they are enforcing the law without fear or favor. It will be just plain old political hackery, using the criminal justice system to defeat Trump when the electoral system will not. That’s Third World stuff, skippy.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Overclassification and Mar-a-Lago
Let’s commit a potential crime by reading this: “Every day the Iraqis turn out military communiques threatening ‘severe punishment’ against Iran.” That line is classified, albeit from 1988. It was put into the public sphere via Wikileaks but never officially declassified. Technically it remains classified even though it is a click away for anybody with internet access.
It illustrates that if there are three things most everyone in government agrees on a) there are too many classified documents classified too highly, b) no one is going to risk their neck to be the first to start classifying less and c) handling all that classified is a major problem for even those trying to do the right thing.
As former CIA and NSA Director Michael Hayden said, “Everything’s secret. I mean, I got an email saying ‘Merry Christmas.’ It carried a top secret NSA classification marking.”
In 2010 Congress passed the Reducing Over-Classification Act, which mandated several steps to improve classification practices. But in a minor act of legislative malpractice, Congress failed to define the meaning of the term “overclassification.” So it is not entirely clear what the Act was supposed to reduce.
Eight blue-ribbon U.S. government commissions have addressed the subject of overclassification, never mind literally hundreds of agency taskforces, each deeming overclassification rampant. As recently as 2017 the Information Security Oversight Office (ISOO) at the National Archives and Records Administration (NARA; the people now seeking possession of the classified documents once held at Mar-a-Lago) concluded “too much classification impedes the proper sharing of information necessary to respond to security threats, while too little declassification undermines the trust of the American people in their government. Reforms will require adopting strategies that increase the precision and decrease the permissiveness of security classification decisions and improve the efficiency and effectiveness of declassification programs.” In addition to better government, less overclassification will save money. ISOO estimates in FY 2017 the government spent $18.39 billion on security classification, while private companies spent another $1.49 billion to work with federal agencies under the National Industrial Security Program. The cost to process a Top Secret clearance is between $3,000 and about $15,000. It adds up.
The basic way documents end up (over)classified is because it is too easy to classify something, too tempting to over classify something, and nearly impossible absent being the president of the United States to declassify something. It works like this:
A junior State Department official or young Army Captain (the intelligence agencies follow a similar albeit more complex model given that they deem everything they do basically highly classified) sets out to write a report on Iran. He turns to his classified word processing network because, well, it’s Iran, and selects Confidential, Secret or Top Secret, each heading having pages and pages of definitions in Executive Order 12356 (there are some 2,865 security classification guides out there.) He’s heard his boss’ boss doesn’t have time to read anything but important stuff, so selected Secret to try and get some eye-time.
He can then select a handling guide, a designator of who among the 1.5 million Americans hold a full security clearance can actually legally read his document. Choice there include EXDIS – Exclusive Distribution Only, LIMDIS – Limited Distribution Only, NODIS – No Distribution (other than to persons indicated), STADIS – State Distribution Only, CHEROKEE – Limited to senior officials, NOFORN – No Foreign Distribution, LOU – Limited Official Use, SENSITIVE BU – Background Use Only, CONDIS – Controlled Distribution and US – US Government Only. Note the “and” as he can select more than one designator, for example, LIMDIS NOFORN SENSITIVE BU. When our drafter steps over the line into Top Secret documents or dealing with intelligence information, he gets a whole new set of handling designators, such as SCI, Secure Compartmentalized Information, that spells out a very small circle of people who may read what he has written. Information that originates with NATO or friendly foreign governments has its own set of designators. The list is not endless, but is pretty close to that in practice. The desire to limit documents to those who “need to know” can have tragic consequences, as discovered after 9/11 when it was found the CIA held data which the FBI might have used to stop the attack. Overclassification is a barrier to information sharing at its most critical junctures.
Who can make these designations? Any of 1.5 million Americans. Who can delete or downgrade a classification? In practice, the head of the originating agency or his designates (for example, the Secretary of State for State Department documents) and the President. It is easy to see the problem. Add to that that classification is done electronically while declassification is a manual, paper-based process.
There’s another problem, derivative classification. Derivative classification means the incorporating, paraphrasing, restating, or generating in new form information that is already classified, and marking the newly developed material consistent with the classification markings that apply to the source information. In other words, classified documents give birth to more classified documents when they’re quoted or used as source materials, a kind of classified snowball effect. The numbers are staggering: then-Bradley Manning leaked 251,287 classified documents from the State Department alone, covering a seven year period, an average of roughly 36,000 classified documents just from one agency, and a relatively small one at that compared to the military. It is possible to say no one can really say how many classified documents exist, though one estimate was as high as 49 million.
With so much classified, the real question is how to securely handle the tsunami. A thought experiment: imagine someone hands you a single document and says protect this at all costs. You might fold it carefully into a pocket, check to see it is there several times and hour, maybe put it in a safe at night. Now someone hands you 36,000 documents and says protect them at all costs and while you are trying to do that they keep producing additional classified documents and demanding you handle them properly. Let’s see how it worked in one personal example.
As a State Department official I wrote a personal blog, then permitted, on international affairs. I linked to one of the 251,287 documents Manning had released into the wild via Wikileaks, a short piece saying Senator John McCain traveled to Libya several years earlier to sell aircraft parts to Libyan leader Muammar Quaddafi. I had no personal knowledge of the event, building an argument against selling military spare parts to terrorists solely from the Wikileaks-hosted document.
State’s Office of Diplomatic Security charged me with mishandling classified information (the original Wikileaks doc was marked Confidential.) Arguments that I did not leak the document, did not ever physically possess the document, that media such as the New York Times, Washington Post and in my case USA Today were regularly publishing from documents marked classified by Wikileaks, and that the document I quoted from existed on the web for anyone to view were rejected by State, who referred my case to the Department of Justice for prosecution. In my defense the American Civil Liberties Union wrote “State reveals a penchant for superficially advancing national image at the cost of transparency. At its worst, it is yet another instance of the government making false claims of secrecy to avoid legal and political accountability.” DOJ refused prosecution without comment, and Diplomatic Security moved immediately to punish me internally under existing administrative procedures.
So what does all this mean for Donald Trump?
Of the thousands of documents seized from Mar-a-Lago, it is believed about 150 were marked classified. Is Trump going to jail for mishandling this classified material? Almost certainly not.
Can the classification system be twisted to create some sort of court room drama affecting him? Almost certainly yes. That decision rests with Attorney General Merrick Garland.
There is of course the elephant in the room, the possibility that during his time in office Trump declassified some of the documents, as he was able to do. Given that there is no set declassification procedures per se created by the various Executive Orders establishing the classification system, it could as easily come down to Trump’s word that he did declassify the documents against… well, no one’s word, simply a lack of evidence saying the documents were declassified. A jury could ultimately decide.
Trump could also effectively argue along the lines above that at least some of the documents were overclassified, misclassified, or no longer needed to be classified. This would take place in some forum, maybe a courtroom, paragraph-by-paragraph as most classified docs are usually delineated that way. This is very hard to envision. Remember, while there are negative consequences for improper disclosure, there aren’t for overclassification.
Trump could be prosecuted for some minor offense of mishandling classified material, highly unlikely the stuff a sitting Attorney General from one party brings against a would-be candidate from the opposing party, at least in an American democracy. Classified documents are mishandled all the time; in my own case, the government gave examples to include Agency Case No. 2005-0237, where a diplomatic courier lost 12 diplomatic pouches overseas including four bags containing Top Secret documents. A three-day suspension was mitigated to a letter of reprimand. In a second case, a confidential draft cable was found at a residence abroad. Agency Case No. 2006-002 saw a one-day suspension proposed. In each case, Security determined the classified material had been compromised. In FSGB Case No. 2005-042, an individual inadvertently left one Confidential and two Secret documents in a taxi. That individual was only proposed for a three-day suspension, subsequently mitigated to two days. Small stuff.
In the Wikileaks case, out of over 251, 287 documents released, the Department of Defense was force to conclude due to overclassification and the passage of time “no real harm” was done to the United States. DOD wrote with “high confidence that disclosure of the Iraq data set will have no direct personal impact on current and former U.S. leadership in Iraq.”
Bottom line is there unlikely to be any real smoking gun coming out of the Mar-a-Lago basement. Overclassification and the precedent it has set all but assure Trump’s security transgressions, if any, were minor and likely inconsequential.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What the Mar-a-Lago Warrant Tells Us
At first read the newly-released Mar-a-Lago search warrant reveals little, with about half its pages redacted. It does suggest two possible narratives going forward, one with severe political implications: the National Archives sicced the FBI on Candidate Trump.
The warrant does say the search was based on “a significant number of civilian witnesses” to Trump’s actions and the Twitterverse is already alive speculating who that might have been (Ivanka or a maid?) This will generate a thousand conspiracy theories as to who first told the FBI about the classified documents stored at Mar-a-Lago but in the end adds little to key questions. The warrant also includes a single line saying prosecutors requesting to search Trump’s residence had “probable cause to believe that evidence of obstruction will be found” without explaining what was potentially obstructed and how. The warrant makes clear it does not matter if the documents seized were classified, or had been declassified.
The real meat of the warrant is redacted, some 14 out of its 32 pages. We get the beginning and end but not the important middle. The warrant reiterates the sections of law of concern are 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information… with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,” part of the infamous Espionage Act of 1917. Also included is 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record” and 18 U.S.C. §§ 1519, the “anti-shredding provision” which imposes criminal penalties on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” This section of law as a possible violation is what the line had “probable cause to believe that evidence of obstruction will be found” likely refers to.
The warrant gives us the laws in question, and a slightly fuller accounting of what was found at Mar-a-Lago, including previously when Trump cooperatively allowed DOJ to remove items from his home. The warrant tell us 15 boxes taken voluntarily in May contain NDI, National Defense Information. The documents lean toward the higher end of the classified spectrum. Sub-designators include Sensitive Compartmented Information (SCI), classified information derived from intelligence sources, methods, or analytical processes, Special Intelligence (SI) meaning technical and intelligence information derived from the monitoring of foreign communications signals, and HUMINT Control System, or HCS, meaning intelligence information derived from clandestine human sources.
Redacted is the in between, the narrative portion of the warrant which links the laws potentially violated with the evidence found/to be looked for. This is especially important for the obstruction charge, which may be as simple as Trump refusing voluntary access to materials stored at Mar-a-Lago, a conclusion which would also explain the need to obtain a warrant.
Based on the visible portions of the warrant, two possible scenarios exist.
One scenario is Trump takes documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May and refuses to give up any more documents; DOJ obtains a search warrant under the above criminal codes to seize the remainder of the documents through the involuntary search in August. Trump is “guilty” of not returning his classified library books and the DOJ used the search warrant to go pick them up. The argument would be whether the documents in question qualify as “presidential records” and thus could have stayed under Trump’s control, or “government records” which should have been under control of the National Archives. Comments by Trump and one of his attorneys suggest this may be the view Trumpworld is taking of all this.
DOJ seems to be taking a different view, given the unreturned documents appear to be highly classified, and that is to criminalize Trump’s actions. The very first line of the warrant states “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA.)”
Under this scenario, Trump knowingly takes classified documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May but refuses to return the remainder; DOJ obtains a search warrant under the above criminal codes to seize the documents through the involuntary search in August both to regain possession to safeguard the material against future misuse by Trump and as evidence of his crime of illegal possession; DOJ indicts Trump, criminalizing his possession of the documents instead of seeing that as a legitimate disagreement over what qualifies as a presidential record. Obstruction charges come from the lack of cooperation in August as shown in May, necessitating the warrant and full-on field search. None of this scenario requires the documents to be classified, or is affected if Trump declassified any of them. This would be consistent with a footnote on page 21 of the warrant stating “18 U.S.C. 793(e) does not use the term classified information but rather criminalizes the unlawful retention of information relating to the national defense.” (emphasis added) In short, the Archives sicced the FBI on Trump.
Even if either of the above narratives is substantively true, this is not a slam dunk case that will end any potential Trump candidacy. In the former Trump and NARA will argue, likely via motions in front of some court, over which documents were the president’s to control and which were not, a discussion which will break down into technical chatter.
The latter scenario will generate smoke as it is a criminal matter and potential source of indictment for Trump, but absent some sort of unlikely proven criminal intent (Trump planned to give the documents to the Russians!) and in the face of claims it is all banana republics-style politicization of the judicial, will generate little fire. It is unlikely the Trump journey ends over a document dispute with the National Archives.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Mueller Report, January 6, Mar-a-Lago, and the Abyss
Dear Merrick Garland:
One of the problems with the Abyss is you often don’t realize how close you are to falling in until too late in the game. Watching the seemingly endless January 6 hearings and Mar-a-Lago search throw mud against the political wall in hopes something sticks, it is easy to forget how close we came to impeaching or prosecuting a president based on false information, and in that process wrecking our system of rule of law. Remember what was at stake — the President of the United States was accused of being a Russian agent. Then there was a backup plan to get Trump, an indictment for obstruction of justice based on obstructing a case which could only have exonerated him, based on false info as it was. It is all worth revisiting as the January 6 Committee and the FBI contemplate empty but politically juicy criminal referrals.
As we look at gaps in the January 6 story, older questions remain: why didn’t the Mueller Report say the obvious, that the Steele Dossier and all that flowed from it via Crossfire Hurricane, was based on bogus information created by a politicized FBI, that there was no Russiagate? And why didn’t Trump say the same thing, explicitly (he did deny the allegations) and call the Democrats’ bluff, exposing Russiagate in real time for what it was, a Hillary Clinton paid-for smear exercise that was allowed to get out of control? Imagine the Constitutional issues of an impeachment based on false information, especially if it had been upheld by the Senate or Trump otherwise driven from office?
Special Counsel Robert Mueller, portrayed as the dogged Javert, presented his report on Trump-Russia ties to the public in April 2019. The report tackled two broad questions: did Trump work with Russia to get elected in 2016, and did Trump obstruct justice as the FBI, the Special Counsel, and Congress sought to investigate the first question? Mueller answered questions upon presenting his report to Congress, and then disappeared from public eye. No Late Night, no memoirs, no high brow interviews.
As to the first question, Mueller was very clear “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US Presidential Election… the report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public.”
But the second question, obstruction, was left open for many of the hopeful. Mueller wrote in Footnote 1091, “A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment… Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment.” Mueller also mentioned “the conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Heard that again recently?
Just about everyone sitting left of political center read that clearly as saying even if Congress could/would not impeach and convict Trump (as the Senate was Republican controlled) they could open a case against him with DOJ that would pend during his term while he had immunity and then whack! come down on Citizen Trump the day he left office. A cardinal rule for prosecutors is to not publicize negative information that does not lead them to indict someone — “the decision does the talking.” James Comey was criticized for doing this with Hillary Clinton during the campaign. Yet most of the Report’s Volume II is just that, descriptions of actions by Trump that allegedly contain elements of obstruction. Some say Mueller wanted to draw a “road map” for a prosecution that would have to take place years separate from his Report.
Following Mueller was an amazing amount of smoke and noise regarding obstruction, but ultimately Trump was not impeached nor after he left office did anyone (SDNY, DOJ) seek to prosecute him as a private citizen for connections to Russia or obstruction. It all just faded away as impeachment over something-something Ukraine was ginned up in a hurry based on a bogus whistleblower and a non-issue quickly forgotten when the Senate righteously failed to convict Trump. We will never know how close the U.S. got to impeaching Trump for obstruction or a prosecution for the same. We do know the temptation was there.
What we know now that we did not know then is that there was no Russiagate. All the stuff of the Steele Dossier, the pee tape, the Moscow meetings, Michael Cohen in Prague, was simply made up. Everything investigated by Steele, Mueller, and the FBI never happened. It was all paid for by Clinton operatives for the purpose of smearing Trump during the campaign and after he won, in an attempt to destroy his administration and possibly drive him to resign or be ridded by the 25th Amendment.
We know know Christopher Steele, paid by the Clinton campaign (after Clinton’s denial, it took a year for congressional investigators to uncover that the dossier was commissioned by the opposition research firm Fusion GPS, working for the Democratic Party and Hillary Clinton’s campaign, paid through the Perkins Coie law firm), seems to have done no investigative work. Instead, his reputation as a former British intelligence officer was purchased to validate a dossier of lies and then traffic them to the FBI and journalists. One of Steele’s key “sources” is the now-arrested Igor Danchenko, a Russian émigré living in the United States whose trial for perjury is scheduled for this autumn (Steele was introduced to the Russian by Fiona Hill, then of the Brookings Institution. Hill would go on to play a key role in the Ukraine impeachment scam.) Danchenko completely made up most of what he told Steele about Trump-Russian collusion.
When he did not make up stuff himself, Danchenko was spoon-fed lies by Charles Dolan, a Clinton campaign regular (Fiona Hill introduced Dolan to Danchenko). Ironically, Dolan had close ties not only to the Clintons but to the Russians as well; he and the public relations firm where he worked represented the Russian government and were registered as foreign agents for Russia. Dolan is credited with, among other things, making up the pee tape. Dolan also fed bogus info to Olga Galkina, another Russian who passed information to Danchenko for inclusion in the Dossier. Galkina noted in e-mails that she was expecting Dolan to get her a job in the Hillary administration.
Mueller mentioned the Steele Dossier in his own Report numerous times, and was well aware the Dossier played a major role in the FBI investigation of Trump. Did Mueller also come to know it was bogus, fake, a fraud, campaign fodder paid for by Clinton? If so, Mueller remained silent and so much for the rule of law. Why? The FBI, internally we now know dubious of many of the Dossier and other claims handed to it by various Clintonites working undercover, stood by its justification for the full investigation. And so much for the rule of law.
“The fact pattern that John Durham is methodically establishing shows what James Comey and Andrew McCabe likely knew from day one the Steele dossier was politically-driven nonsense created at the behest of the Clinton campaign,” said Kevin Brock, the FBI’s former intelligence chief. “And yet they knowingly ran with its false information to obtain legal process against an American citizen. They defrauded not just a federal court, they defrauded the FBI and the American people.” The 2019 Horowitz Report, a look into the FBI’s conduct by the Justice Department Inspector General, also made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court.
What would have happened had some entity brought charges against Trump for obstructing an investigation itself based entirely on false information and false pretenses? At the very least all hell would have broken loose in Washington. For example, would an FBI whistleblower have emerged, concerned his beloved Bureau was about to throw its reputation away on a political assassination while the Bureau et large remained mum co-conspirators?
Would Trump have revealed the mountain of information he for some reason still holds close today? For example, Trump, knowing exactly what he ever did or did not do vis-a-vis Russia, knew the Dossier to be bogus but stuck simply with short-form denials. At what point in a Trump trial would it have come out that nearly 100 percent of the information against him came from the Clinton camp as campaign smear material? Is it even legally possible to be found guilty of obstructing an investigation that could have only found you guilty by employing fraud against you? Obstruction requires a showing of intent and how could Trump intend to obstruct an investigation he knew could not lead to anything because all the basic facts are false?
A prosecutor need also look deeply to ensure he can prove intent as necessary, that an act — perjury, for example, was done with the intent to mislead and was not simply a mistake. That’s the difference between a mistake, error, misstatement and a true lie, what it was intended to accomplish, a crime. The act is easy to prove, the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Imagine those issues being debated in a divided America during say a presidential election campaign? Rare is the challenge to peoples’ belief in the rule of law. Was the Deep State ready to go that far?
That’s the Abyss. Perhaps future historians of January 6 and Mar-a-Lago will tell us how close we really got to it.
Respectfully,
Peter
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Baby Jane, Victim Zero of the New Abortion Era, More to Come
It was sad to see the glee with which pro-choice advocates welcomed the news the ten-year-old rape victim was real. Surprisingly she lacks a nom de guerre yet, something like Victim Zero, Baby Doe or Child Jane. She went from victim to martyr to symbol within a news cycle or two. The story just received new life as Indiana has voted to ban most abortions.
We know now an illegal alien who should never have been in the United States (his status never to be talked about again of course as outside the narrative) twice raped the ten-year-old. He had been cohabitating with the child’s mother, pregnant with his child, who defended him (never to be talked about again of course as outside the narrative) as innocent even after an alleged confession. The child ended up at a local Columbus, Ohio physician right around the time the Supreme Court overthrew Roe. That’s when the exploitation of the child really began.
The local doctor never challenged Ohio’s “health of the mother” abortion exception, choosing instead to pass the case to an Indiana colleague whose first duty was not do no harm but report to the media. It is clear alerting the media that the Perfect Case had arrived by stork on her doorstep was a priority. Never mind privacy (the core of Roe v. Wade, ironically) never mind outing the victim would eventually lead to exposing her identity as the press went about their ghoulish work, what was important was to call attention to Ohio’s strict six-weeks-heartbeat-limit on abortions (the initial physician near-magically predicted the victim was six week and three days pregnant) just as Ohio codified its post-Roe laws, and draw attention to the issues of cross-state border procedures.
The victim became a political football kicked back and forth. No coincidence this case broke into the public eye just as Indiana lawmakers were poised to further restrict or ban abortion. The Indiana General Assembly convened in a special session July 25 to discuss restrictions, voting to ban most abortions.
Alongside the obvious question of why no one challenged Ohio’s “health of the mother” exception (a ten year old body would never be able to carry a baby to term safely) was the way the victim was used as an almost literary device to conjure up other post-Roe horrors. After Joe Biden mentioned the then-unconfirmed case in a speech, calls rang out for him to declare a public health emergency over abortion, a formal federal designation like a state of disaster than frees up additional funding as well as — more importantly — making headlines.
Even after Ohio’s Republican Attorney General said the child victim would have been eligible for an abortion to save her health, WaPo argued maybe she would not have been, unwilling to let a good horror story pass and allow Ohio to appear properly concerned about just the type of case its law was written for. Baby Jane would be an example, the progressives said, but not that kind of example. A bad one, you know, one showing evil not compassion. Confirming the theory, the New York Times stated the case was a “predictable result of an abortion ban” and devoted a full article to a victory lap scolding conservative media who initially doubted the veracity of Baby Jane’s case, concluding crudely “surely right-wingers, who love to accuse their enemies of pedophilia, understand that children are raped in America.”
Not discussed: just one percent of abortions are the result of rape, and less than half a percent of incest. Another survey suggests the actual numbers were 0.3 percent in cases of rape, and 0.03 percent in cases of incest. Even with underreporting, exceptions truly are just that, though you would not know it given the media surrounding the current case. The proof is the 99:1 ratio of stories about the abortion, not the rape, in Baby Jane’s case. And ectopic pregnancies, which account for between one and two percent of pregnancies and are never viable, are legally abortable in all states. Meanwhile, despite the noise about extending abortion limits, nearly half of abortions happen in the first six weeks of pregnancy, and nearly all in the first trimester. How much, really, changes post-Roe?
But as is required these days tragedy must morph into absurdity, and the most progressive commentators see the 10-year-old as a perfect excuse to warn soon crossing a state border for abortion services was likely to become illegal. Apart from the Constitution’s clear and unambiguous support for interstate commerce and movement, the House recently passing legislation affirming interstate travel for abortion, and no state has any such law on its books. Of course no one from Ohio is arrested for gambling coming home from Vegas, either. Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred.
There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion pre-Roe. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.” Nonetheless, the fear mongering persists.
One 2022 commentator wrote “this whole notion of preventing interstate travel for abortions idea is complete lunacy. How about Amtrak? Or airports? Before the train or plane leaves a red state….what? A bunch of state troopers get on board and yell “PAPERS, PLEASE,” and then look for baby bumps?” A Blue Check on Twitter added “Or they could just say women can’t travel at all…” Others chimed in “I drove from Ohio to Illinois alone yesterday. A trip I’ve made 100s of times. But yesterday I thought “I’m afraid I wont always be able to do this. What if the police stop me thinking I’m looking for an abortion since they’re illegal in my state?” and “Belly fat might get you questioned? Detained? Tested? Sniffed?”
Why stop there when it is possible to build whole arguments out of quotes from a work of fiction (or is it…?) Handmaidens Tale. A near decade after Snowden, someone is shocked to just realize “Retailers are already able to identify pregnant women by what they look at on line. Once a woman is flagged as pregnant, her whereabouts can be tracked by Google. If she starts heading for the state line the highway patrol can be notified.” But Team Progressive can fight back. One Hero of the Resistance writes “as a post menopausal woman, I can search for pregnancy related stuff every day and muddy up their data. Men can do it too.”
Don’t laugh. The Guardian reports “Many American women in recent days have deleted period tracking apps from their cellphones, amid fears the data collected by the apps could be used against them in future criminal cases in states where abortion has become illegal.” Planned Parenthood created a period tracker which only stores data locally, on the phone, where it is easily deleted, as an impediment to law enforcement seeking out persons of the future who can get pregnant.
The pattern is clear, that fear and paranoia will drive the discussion, not rational thinking. This could not come at a worse time for pro-choice advocates, just as many states are beginning the debate over their post-Roe abortion laws. Rather than base changes on carefully thought-out arguments, the arguments will be crazy all-or-nothing screeds, science fiction fears, and exploitive cases dressed up as the new norm for others to grimace sadly at and dismiss. Fears about period trackers and state lines have no more credibility than demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die, or those collecting a million signatures thinking it will cause Justice Thomas to be impeached.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Five Stages of Mar-a-Lago Grief
Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.
Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.
The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.
Denial: Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”
Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.
Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.
Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.
Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.
The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.
Maybe next time.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Nancy Pelosi Sends You Mixed Messages From WWIII
As most of America forgets Nancy Pelosi’s stirring up of tensions in East Asia last week, it is important to double-back to review what messages where actually sent by each entity involved in the spat.
Japan, who welcomed Pelosi as a conqueror following her visit to Taipei, found about half of the Chinese missiles fired over and around Taiwan as “punishment” actually landed in Japanese-claimed waters around small islands in the Pacific Ocean east of Taiwan. Japan, which sent a message of undiluted support for Pelosi’s Taiwan Adventure, found itself the recipient of a message of its own. Left undiscussed were that those islands themselves are a point of ownership contention among Taiwan, Japan, and the Philippines. But the main message is clear enough: Japan no longer has a foreign policy of its own, and is de facto an American military protectorate alongside Guam and Saipan, a model for the Philippines of the future past.
Taiwan reassured itself it is a beloved American vassal state with a visit from mom, much like a child of divorced parents who blames himself for the breakup. Minor politician and likely lame duck Nancy Pelosi went for the low hanging fruit by seeking to anger China greatly at little cost. With a constituency about one-third Chinese American back home, Pelosi has made a career out of appearing on the scene to criticize China, after Tiananmen, at various Olympiads, over Hong Kong, and hey, why do we need a specific reason 2022 edition. Knowing the way the Chinese often over-value symbolic acts, she committed one at the expense of Joe Biden and the United States, forcing Biden to get off his couch and dispatch an aircraft carrier to demonstrate he still held the majority of testosterones in the relationship. Taiwan, of course, ate up all the attention and President Tsai the chance to play at center stage for a day or two. Imagine daddy competing with mommy to give the best unnecessary present in that post-divorce race for affection — a personal visit versus your own carrier strike group for a few days. Who loves you more?
South Korea alone sent a message of strength among the nations involved in Nancy Pelosi’s magical mystery tour. Little covered in the U.S. media, South Korean President Yoon Suk Yeol skipped an in-person meeting with Pelosi in lieu of a phone call due to his being on “summer vacation” in his nation’s capital, Seoul, minutes from Pelosi’s hotel. Never mind Pelosi was the first sitting speaker to visit South Korea since Dennis Hastert stopped by Seoul in 2002. All she got was a meet with her counterpart, Kim Jin Pyo, the speaker of the National Assembly, and an agreement to support both governments’ efforts to achieve denuclearization and blah blah blah blah on the peninsula. Pelosi got the message and did not mention Taiwan once in her remarks.
Korea’s actions also drive home a big unspoken story, that all of East Asia and beyond has to figure out a dual foreign policy, one toward the U.S.-China-Taiwan scruffle, and one toward China proper, the most populous nation on earth, with a massive military, and a contender for most economically powerful country of the next decade. South Korea alone seems to understand this, snubbing Pelosi as a way of reminding the United States long after its showboating politicians go home and forget, it still has to make its way alone in a scary neighborhood. Seoul, well aware North Korea’s only substantive diplomatic relationship is with Beijing, held to the clearest and most on-point messaging of last week. It was thus no surprise that only days after Pelosi returned home top South Korean and Chinese diplomats, Foreign Ministers Park Jin and Wang Yi, pledged to develop closer relations and maintain stable industrial supply chains at a time of deepening rivalry between Beijing and Washington.
Though nowhere near as forceful in their presentation as South Korea, both Singapore and Malaysia asked Pelosi not to go to Taiwan, saying that it would force them to choose between the U.S. and China.
Despite some skillful diplomacy, China still sent a mixed message of weakness in its over-reaction and strength in its ability to throw together a coordinated response that managed to suggest it could blockade Taiwan, attack U.S. assets at sea with missiles from the Mainland, and tweak Japan, all at the same time. Extra points for its domestic propaganda campaign that, with exciting video, looked like a joint Tom Cruise-Tom Clancy production. The situation is a far cry from the 1995-1996 crisis in the Taiwan Strait, when a visit by Lee Teng Hui, who would become Taiwan’s first democratically-elected president, to his alma mater Cornell University, sparked real tensions between the US and China.
The Pelosi affair was also a chance for China to practice large scale drills which under normal circumstances would likely be seen as too provacative, a nice bonus. It may even result in a new normal, more aggressive military actions in the gray zones as hardliners in Beijing are able to point to what they got away with as signs they might have gotten away with even more militarily. As one laughing nationalist in Beijing put it when he was interviewed last week, “Thanks Comrade Pelosi”!
The U.S. message came off as uncoordinated and too confused to be called weak. Joe Biden made some remarks from his Covid sick bed, and Antony Blinken did the same rumbling around Asia himself. For all his gaffes in the past (three times making the same mistake is nearly a new policy in some minds) claiming the U.S. had some sort of obligation to defend Taiwan, Biden and his spokespeople stuck right to the script, John Kirby of the National Security Council even making headlines for his non-news reassurance to Beijing the U.S. does not support Taiwan independence. Biden for his part sent the message to China loud and clear that U.S. domestic politics mattered to him (and Nancy) a lot more than whatever China thought. Shock and awe this was not.
The American media’s message was it cannot understand world events past a second grade level, and has the attention span of a two-year-old. All the complexities of East Asia get compressed into a Super Bowl scenario, Big Blue versus Big Red, Eagle versus Dragon, in a caged death match in the Taiwan Strait. China’s carefully moderated military sparring is exaggerated into headlines worrying about a new world war, and her thrusts around Taiwan morph into “attacks surrounding the island nation” and a drill which can become a blockade at any moment. Left out of the discussion is how many military lives were put at risk due to accidents and mistakes by Pelosi’s stunting.
Also left out is what a lousy blockade surrounding the island makes for; Taiwan has no ports on its cliff face east coast and sees the majority of its commerce come from China itself. Beijing might best mine Hong Kong harbor if it wanted to hurt Taiwan economically. Meanwhile, the massive cottage industry in American think tanks and academia which regularly rises to predict imminent war over Taiwan settled back down, waiting no doubt for the rough and ready speech about reunification coming this November with the 20th Party Conference in Beijing. Will they go to war!?!?! Does Xi have a timetable in mind????
As for that short attention span, Pelosi hadn’t unpacked and done a wash at home when the media pivoted away, leaving the last of Chinese military tantrum last week to finish in a kind of void. Until next time…
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Classified Right Outta Mar-a-Lago
What is a classified document? Trump seems to have lots of them, and the FBI sure wants them back.
In the wake of my first book critical of the State Department’s Iraq Reconstruction program, Diplomatic Security began a deep dive into my life in an attempt to find something over which to prosecute me. A colleague inadvertently passed on a bit of personnel gossip via his official email to my Yahoo! account, and the chase was on.
Diplomatic Security claimed I was in possession of “classified” material at home and referred my case to the Justice Department. The email in question was simply labeled “For Official Use Only,” (FOUO) a standard tag then automatically applied to all email sent by State in the unclassified system (a wholly separate email system existed for true classified — Confidential, Secret, Top Secret — messages.) FOUO was a non-standard “classification” made up by State and was being used to pin me against the wall and force me to resign under threat of prosecution. Luckily someone familiar with classification law at the Department of Justice prevailed, and I was not charged. The so-called secret in the email, that a mutual friend thought someone’s boss was a jerk, stays safe with me to this day.
The classification system for national security documents, while designed to identify documents to protect from people without the proper clearances, including foreign intelligence officers, has been often misused over the decades. It is very easy to slap a classified label on a document — persons using the State Department’s classified email system must classify what they write as either Confidential, Secret or Top Secret. If the document does not fit those categories it does not belong on the “class system” to begin with, though this is often misused as well. State workers who use the class system almost exclusively for their work might pass on a lunch invitation via the same system to avoid jumping from computer to computer.
Many documents correctly classified on creation, such as a military convoy movement time, lose their secretness within a few hours after everyone sees the convoy rumbling down the road. The classified bit was knowing in advance the convoy would depart a certain place at a certain time and after that passed, meh. Lastly, documents are often over classified for ego purposes, the sender feeling more important if his pet project is labeled Secret as opposed to FOUO or simply left unclassified. That all said, some documents deserve their classification and more, particularly those which reveal sources and methods, say the name of our agent deep inside Putin’s inner circle. Stuff like that is rarely ever even put into writing; if the president wants to know he is usually orally briefed.
Classification can also be misused in other ways, say to “hide” a document from future Freedom of Information Act searches and delay its release. Important people like to think they do important things and rightly or wrongly most of what the president or the Secretary of State touches ends up classified at some level. Over classification thus plagues the government, slowing down the legitimate transfer of information.
Except for the president, once classified it is very hard to unclassify or downgrade a document not subject to automatic declassification. Anyone can create a classified document by slapping the word Secret on it, but very few people can later take that document and change it to unclassified. The assumption is the original classifier was correct. The biggest exception of them all is the president himself, who holds the authority to change or declassify documents. This is not done willy-nilly; there is a process to follow which leaves a decision trail and usually includes some sort of consultation with the organization (State, CIA, DOD) which originated the document. The president cannot wave his hand over a storage unit of banker’s boxes and declassify the lot. Also, the president can unilaterally authorize officials from a foreign government to receive classified national security information. It is a very broad mandate, stemming from the fact that the entire classification system is based on Executive Orders more than law. Of course there are also the questions of “legal” and “sensible” that apply to all presidential actions but the latter is up to the voters, not the FBI, to decide.
Classified documents are supposed to be stored in classified containers (safes) or spaces (up to bank-like vaults.) All these rules about classified documents are supposedly taught to you as part of being issued a security clearance, though in practice people like the president or SecState have staffers who take care of producing, storing, and disposing of classified. If a breach occurs, the first question is not nyah nyah nyah you got caught! but what level of document was exposed and how was it exposed. Did you inadvertently leave it out on your desk instead of putting it into a safe inside the guarded embassy during lunch, or did you intentionally publish it to your Instagram? Was it an out-of-date means-little document or a current list of human assets in Ukraine? How much damage was done and what was the intent? Because there’s classified, and then there’s classified, bubby. Those maximum penalties bandied about by the media would typically require a significant exposure with intent to do harm.
People inside government and the military commit security violations all the time, almost all minor and inadvertent. Punishments can be as mild as being told not to do it again, up to loss of pay and forced time off to actual loss of job and even prison. But you gotta work at it to go much further than your own boss and the security team.
We don’t know exactly what documents were found at Mar-a-Lago, and we don’t know what classification they individually held or how they were stored. We do know Trump as president had the authority to declassify any of them, something which will figure into any defense he has to make. We also know the type of document and what it contains matter a lot in any penalty which may follow the FBI raid. We also know what Trump did with the documents is critical. If they never left a dark, locked basement storage area at Mar-a-Lago and were likely not reviewed by anyone since leaving the White House, punishment will be unlikely unless politics interferes.
Since millions of government employees have at one point handled and mishandled classified, there is plenty of precedent out there on action and punishment. For example, one of the most well-known cases is Sandy Berger, former national security adviser to President Bill Clinton, who stole classified documents from a secure reading room at the National Archives. He pleaded guilty in 2005 to a misdemeanor charge of unauthorized removal and retention of classified material (via the Espionage Act, the same charge the media says Trump may face) and was sentenced to probation, community service, and a fine. General David Petraeus received only probation for intentionally sending highly classified military documents via commercial email to his lover/biographer.
Former Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Yet Clinton was not prosecuted nor penalized. Any prosecution of Trump would need to address that precedent.
All this needs to be kept in mind when evaluating the FBI raid at Mar-a-Lago. The FBI, its reputation already in tatters post-Russiagate, might also have kept it in mind before deciding to stage another likely losing full-on assault against Trump.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
They Need the Indictment to Beat Trump 2024
Get it yet? The point of the raid on Mar-a-Lago and the J6 hearings is aimed at one man. Nope, not Donald Trump, Merrick Garland. It is aimed at one end: get Garland to indict Trump for something and failing that, to indict the highest ranking person near Trump in hopes it will rub off on the near-certain-to-be Candidate.
The reason for this is that nothing else worked. Democrats pointed the full national security apparatus at Trump, with the FBI doing yeoman-like duty, and turned Robert Mueller loose with unlimited resources for a full year to find something Russian to indict Trump on, going as far as to suggest he obstructed an investigation which found him innocent. Alice in Wonderland stuff, that. After wading through reams of FBI investigative malfeasance to include but not limited to lying to get FISA warrants and accepting an obviously wholly-fictitious dossier as fact for months, Mueller could not find a single issue worthy of bringing to an actual court. So Democrats impeached Trump, twice, one of which was little more than a policy difference over a Ukraine few outside the DC Bubble cared about then but sure as hell do now. The aggressive Southern District of New York (SDNY) was unleashed on Trump’s finances and real estate work, given a grand jury to take testimony, and still came up with nothing indictable. And that is leaving aside the reality the IRS has had Trump’s full tax records for decades of audits and again came up with nothing indictable.
Dems’ whole remaining strategy for 2024 is to make people believe Trump does not support America’s democracy. Propaganda/journalism/TV hearings failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition like angry monkeys. Some goofy tax problem in a state court or empty process crime will not be enough. It is hard to imagine Trump taking with him some classified documents will be enough, despite the high-profile raid on Mar-a-Lago.
With the Democratic midterm massacre scheduled for November, Dems know they now have about 12 weeks left to indict Trump or someone near him. Republicans are already drooling over the prospect of shutting down the FBI and the J6 Headline Committee Machine and opening their own investigation into Hunter and Joe Biden’s financial tomfoolery in Ukraine and China. So it is now or never for the Last Man Who Can Trump Trump, Merrick Garland.
Garland seems a rare person in 21st century Washington, a man with a moral compass. Appointed Attorney General by Joe Biden, many Dems expected Garland to be an angry beast of a prosecutor. After all, the only reason he does not now sit on the Supreme Court (he might have saved Roe!) after being nominated at the end of the Obama administration was Republicans refused to allow him a Senate hearing. The unfairness of it all is supposed to be eating at him, and he should be out of blood to take down the Republicans once and for all by slashing Trump at the knees.
Garland instead seems lost in a kind of Jeffersonian Zen state, promising to follow the law and respect the civil liberties of all. In an interview’s worth of softball questions on NBC Nightly News, Garland sounded more like Mr. Rogers than a prosecutor atop his fiery pulpit. Yes, the DOJ is investigating Trump, et al, alongside the J6 Committee. Yes, it’s a criminal investigation, that’s what DOJ does. No, he has not decided to prosecute because all the information is not in. No, it doesn’t matter Trump is a former and maybe future president, the law is blind to that. Listeners were left waiting for him to say “And now anything else troubling you, young fella?”
The problem is despite all the cries about democracy under attack, there seems little to indict Trump over, and Garland seems to sense that. The original Great Dem Hope, incitement (often expressed as treason or sedition by pundits) is not mentioned much anymore. Among other problems, incitement requires a showing of intent — that the speaker wanted the crowd in this case to attack the Capitol not just protest there — and no witness has come up with anything remotely applicable and Trump’s own words fall far short. The idea that Trump spoke and the mob rioted seems attractive on TV (one thing followed another so they must be related, right?) but does not meet any legal test worthy of actual indictment. Merrick Garland knows that, even if Liz Cheney pretends she does not. The J6 people can pitch a criminal referral but that changes nothing for the man who has to actually decide if there is anything legally actionable he can take to court. It’s the gap on display between no standards and very high ones. It is very unclear anything Trump took with him to Mar-a-Lago would rise to the level of indictment after he blames staff and the movers for inadvertently packing the wrong stuff.
What will be left for Garland is some sort of charges of conspiracy to defraud the United States. This would have to take the form of persons planning to set in motion some sort of process which would have negated or at least scrambled the results of the 2020 election sufficiently that Trump could have claimed a victory and see what happens next. Garland is under huge pressure from the Democratic left, who know their time in power is numbered in weeks, to squish and squeeze the goofy rhetoric Trump’s lawyers were spouting into an indictment along those lines.
This indictment, if it comes at all, will probably not include Trump who, like any client, is not responsible for what his lawyers (or the movers) said or did. Instead, Trump lawyers John Eastman and Jeffrey Clark will likely bear the brunt of any legal opinions rendered, while the press and Dems try to drag the stain off them on to Trump. Both men recently were aggressively served with search warrants. Both men came up with complex schemes to negate the 2020 election, with no chance of success, just to placate their client, Trump. Eastman mumbled about old election law to “spin a yarn” the vice president might be able to exclude state-certified electoral votes based on speculative vote-fraud suspicions. Clark said even though the Justice Department found no evidence of voter fraud the fact that it was still investigating while Trump’s campaign claimed other election irregularities could be used to nudge contested states into auditing their elections.
If Garland is pressed to indict Eastman and Clark, he’ll face accusations that his jurisprudence is politically motivated. He’ll also face practical problems such as seating an unbiased jury. But if he thinks the cases will lead him to Trump, he’ll hit a stone wall. Trump’s conversations and interactions with his lawyers — the stuff that can reveal intent and state of mind — are protected by both attorney-client privilege and by executive privilege. The latter will also cover nearly every official who directly interacted with Trump. Garland could easily find himself facing a Supreme Court fight over the limits of such privilege which would run past 2024.
As for the work of the lawyer’s themselves and their possible indictment, Orwell would call what they might be accused of thought crimes. The legal advice was frivolous. It had no connection to the riots. It was never acted on. It is unclear what impact the opinions made anywhere, even their impact on Trump himself. In any normal world drafting a legal memo is hardly a crime. Yet they may yet prove just barely enough to bring an indictment against Trump’s lawyers and minimally satisfy the Democrats’ blood lust. The last hope is their indictment will stick to Trump and that — that — will dog him into defeat where everything short of shooting someone on Fifth Avenue has not. Call it a long shot.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Much Ado About Nancy Pelosi and China
China policy seems to be made by, and written about by, adults who were often beaten up on the school playground. They retain the language of bullying, and weaknesses, and standing up, and the fantasy that something would sweep in and save them from losing another days’ lunch money (maybe an aircraft carrier group?) That these people are now in control of the media, if not the House, does nothing good for anyone, especially anyone located on either side of the Taiwan Strait. American seems dumb enough to play at this game; is Beijing also?
By now we all know Nancy Pelosi, likely with only a couple of months left as Speaker of the House, decided to spend her summer vacation stirring up the entire Pacific theater for what appears to be largely her own ego. Just days after RIMPAC 2022 concluded (China sure knew the U.S. just wrapped up the largest live fire exercise of the year in the Pacific, involved a dozen nations and hundreds of ships and planes all aimed at the “Blue” team defeating the “Red” team across thousands of miles of Pacific Ocean. While the NYT editorial team was putting ice on their fat lips over in the Ron Burgundy Lounge, Beijing sure saw RIMPAC and Pelosi as part of the same) bully Pelosi shoved Joe Biden into a mud puddle and said she was going to Taipei. For those worried about “showing weakness,” mark this: Biden was too weak to tell a member of his own party to stay out of trouble when he was sick with Covid, sick with inflation, and digging an ever deeper hole in Ukraine, another war with no endgame but wait for the other side to win.
There was no great need for anyone to visit Taiwan this week. There was no crisis brewing, no event requiring anyone to stand with Taipei, support its democracy, or start wearing colored masks, not that the arrival of a lame duck Speaker would accomplish that or anything else in an quick show and tell. Nope, this mess was created by a Nancy Pelosi who wanted to show off, made worse by Joe Biden being too weak to stop her, and then exacerbated all to heck by China infusing much meaning into something that could have been shrugged off as having very little to say for itself.
Remember the advice your mom gave you on bullies? Ignore them and they’d go away? Imagine China listening to their mom on this one and announcing “We heard Nancy was going to Taipei. Neither Nancy nor Taipei are particularly important to the soon-to-be greatest economy in the world, so we’ll ignore them both.” If pressed for comment Beijing could add “But we hope Nancy chokes on her dinner” and leave it at that.
But while Nancy the Bully imagined she was standing up to Beijing the Bully, pretty soon everyone had to stand with, show up, not back down. So you have the New York Times, no stranger to losing its lunch money while being pantsed on the playground, saying “Bullies often seek tests of strengths to probe for signs of weakness. And they always read efforts at conciliation as evidence of capitulation.” The Times even quotes Sun Tzu (note to China watchers: if a pundit who does not read Chinese quotes Sun Tzu, duck, some b.s. is coming your way.) “If Beijing,” the Times continued, “had gotten its way over something as seemingly minor as Pelosi’s visit, it would not have been merely a symbolic victory in a diplomatic sideshow. It would have changed the rules of the game. Rather than avert a diplomatic crisis, it would have hastened a strategic disaster: the further isolation of a democratic U.S. ally and key economic partner as a prelude to surrender, war or both.”
So there you have it. We just barely avoided a strategic disaster, a game changer, a mere preclude to surrender or war… or both! Good golly, lucky for us Nancy landed the plane safely in Taipei.
It is time for some seriousness. China is not going to war with Taiwan. After all the smoke clears and overflights are tallied, China did only one substantive thing to punish Taiwan: China halted Taiwanese snack imports (including biscuits and pastries ahead of moon cake season) just before Pelosi’s arrival. That seems, Sun Tzu’s admonishment to try small steps before large ones aside, not something akin to war or surrender, and something unlikely to lead to violence. It actually really does not matter. Like Nancy.
Need we walk through the other 99 percent of what is going on between Taiwan and China? Between 1991 and March 2020 Taiwan’s investment in China totaled $188.5 billion, more than China’s investment in the United States. In 2019, the value of cross-strait trade was $149.2 billion. China applied in September to join the new Comprehensive and Progressive Agreement for Trans-Pacific Partnership. A week later, with no opposition voiced by Beijing, Taiwan applied to join as well. China is Taiwan’s largest trading partner. “One country, two systems” has not only kept the peace for decades, it has proven darn profitable for both sides. As Deng Xiao Ping said of this type of modus vivendi, “who cares what color a cat is as long as it catches mice.” China might one day seek to buy Taiwan, but until then what incentive would it have to drop bombs on one of its best customers? Heck, they even invited Taiwan to the Beijing Olympics Nancy Pelosi protested.
An attack on Taiwan would likely see a frightened Japan and South Korea step over the nuclear threshold and China would thus face more powerful enemies. In addition, a serious attack on Taiwan would severely damage the economy there Xi would no doubt see as part of the prize. Lastly, an attack on Taiwan would see Chinese killing Chinese, people who speak the same language and share several thousand years of culture. Pre-Covid, travelers from China made 2.68 million visits a year to Taiwan, many of which were to visit relatives. Student exchanges between Taiwan and China began in 2011, with some 25,000 Mainland kids studying on Taiwan pre-Covid. Even a “successful” attack would be near-political suicide for Xi. An invasion of Taiwan would leave the China politically isolated, economically damaged, and reputationally crippled. A failed attack could lead to a Taiwanese declaration of independence China would be incapable of stopping.
Caution is not appeasement. Every diplomatic move is not a full-spectrum weighing out of strength. Tiananmen was 33 years and a major change or two of governments ago (you still talking about that Kent State thing, bro?) Hong Kong was taken from China and colonized and exploited by the British before being returned to much the same status under Beijing. Same for Macao and the Portuguese. The U.S. fought China directly in Vietnam and Korea and that did not bleed over into Taiwan. China went nuclear and did not invade Taiwan.
Strength and weakness do not rest on a single visit by someone as close to the end of her tenure as Nancy Pelosi. Bullies are gonna bully but China and Taiwan are not in that sort of relationship; they exist in a complex diplomatic dance overshadowed by massive amounts of cross-straits commerce, investment, and travel. In every sphere outside the political and martial they grow closer together, not further apart, and much of the differences are promoted by the U.S. and an industry of “China experts” who thrive like dung beetles off the potential for conflict.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Hiroshima and Ukraine
If you think the lies spilling out of Ukraine about casualties and atrocities are shocking, on the August 6, 77th anniversary, of the nuclear destruction of Hiroshima and death of some 140,000 non-combatants, meet the greatest lie of modern history. The only nation in history to employ a weapon of mass destruction on an epic scale, against an undefended civilian population, shrugs off the significance of an act of immorality.
Beyond the destruction lies the myth of the atomic bombings, the post-war creation of a mass memory of things that did not happen. This myth has become the underpinning of American policy ever since, and carries forward the horrors of Hiroshima as generations of August 6’s pass.
The myth, the one kneaded into public consciousness, is that the bombs were dropped out of grudging military necessity, to hasten the end of the war, to avoid a land invasion of Japan, maybe to give the Soviets a good pre-Cold War scare. Nasty work, but such is war. As a result, the attacks need not provoke anything akin to introspection or national reflection. The possibility, however remote, that the bombs were tools of revenge or malice, immoral acts, was defined away. They were merely necessary and because we won in the end, justified. That is the evolved myth, but it was not the way the atomic bombings were first presented to the American people.
Harry Truman, in his 1945 announcement of the bomb, focused on vengeance, and on the new power to destroy at a button push – “We are now prepared to obliterate more rapidly and completely every productive enterprise the Japanese have above ground in any city,” said Truman. The plan put into play on August 6 — to force the Japanese government to surrender by making it watch mass casualties of innocents — speaks to a scale of cruelty previously unseen. It was fair; they’d started it after all, and they deserved the pain. Imagine that idea cut loose in Ukraine.
The need to replace that justification to one of grudging military necessity, a tool for saving lives, grew out of John Hersey’s account of the human suffering in Hiroshima, first published in 1946 in the New Yorker. Owing to wartime censorship, Americans knew little of the ground truth of atomic war, and Hersey’s piece was shocking enough to the public that it required a formal response. Americans’ imagined belief that they’re a decent people needed to be reconciled with the indecency of what had been done. With the Cold War getting underway, and with American leadership fully expecting to obliterate a few Russian cities in the near future, some nuclear philosophical groundwork needed to be laid.
And so the idea the bombing of Hiroshima was a “necessity” appeared in a 1947 article, signed by former Secretary of War Henry Stimson, though actually drafted by McGeorge Bundy (later an architect of the Vietnam War) and James Conant (a scientist who helped build the original bomb). Dr. Conant described the article’s purpose as countering Hersey’s account at the beginning of the Cold War as “You have to get the past straight before you do much to prepare people for the future.”
The Stimson article was the moment of formal creation of the Hiroshima myth. A historically challengeable argument was recast as unquestionable — drop the bombs or kill off tens of thousands, or maybe it would be millions (the U.S. regularly revised casualty estimates upwards), of American boys in a land invasion of Japan. It became gospel that the Japanese would never have surrendered, though of course surrender was in fact exactly what happened. Nonetheless, such lies were created to buttress a national belief that no moral wrong was committed, and thus there was no need for introspection by the United States.
No later opportunity to bypass reflection was missed. American presidents from Truman to Bush chose not to visit Hiroshima. The 50th anniversary of the bombing saw a moderately reflective planned exhibit at the Smithsonian turned into a patriotic orgy that only reinforced the “we had no choice” narrative. When Barack Obama became the first sitting president to visit Hiroshima in 2016, his spokespeople went out of their way to make it clear he would be looking only forward with ally Japan, the mushroom cloud safely out of sight.
American foreign policy thus proceeded under a grim calculus that parses acts of violence to conclude some are morally justified simply based on who pulls the trigger, with much of the history of the next 77 years a series of immoral acts allegedly servicing, albeit destructively and imperfectly, the moral imperative of saving lives by killing. America’s decisions on war, torture, rendition, and indefinite detention could be explained in character as the distasteful but necessary actions of fundamentally good people against fundamentally evil ones. Hiroshima set in motion a sweeping, national generalization that if we do it, it is right.
We are, in fact, able to think we are practically doing the people of Afghanistan, Iraq, Syria, Yemen, Libya, Somalia… a favor by killing some of them, as we believe we did for tens of thousands of Japanese that might have been lost in a land invasion of their home islands had Hiroshima not be killed for their prospective sins. There is little discussion because debate is largely unnecessary; the myth of Hiroshima says expediency wipes away concerns over morality. And with that neatly tucked away in our conscience, all that is left is pondering where to righteously strike next. Donbas perhaps?
America’s deliberate targeting of civilians, and its post-facto justifications, are clearly not unique, either in World War II, or in the wars before or since. Other nations, including Japan itself, added their own horror to the books, without remorse. But history’s only use of nuclear weapons holds a significant place in infamy, especially on this August 6. America’s lack of introspection over one of the single most destructive days in the history of human warfare continues, with 21st century consequences.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Who Else Is Wrongly Detained?
The rule is simple: abroad, Americans are subject to the host country’s laws and legal system, whether that be Great Britain or Russia. The Bill of Rights does not follow Americans to foreign countries, nor will the U.S. government intervene with the host country on their behalf. Try and bring some weed into Japan and if you’re caught, you’re looking at years behind bars. No matter what you were carrying would clearly be seen as a small amount for personal use back home, in Japan anything over about an ounce means you intended to sell it, and the punishment is lengthy accordingly. I should know; I spent seven years in Japan visiting American prisoners as part of my State Department job there. The top three reasons for their arrest were drugs, drugs, and drugs. Just like Stephanie Griner. I was not allowed to help you get out, or advocate for a shorter sentence.
The only exception was if you were “wrongly detained,” a new category that allows the U.S. government to actively help free those designated. It is up to the Secretary of State to make the call, as there are no set criteria. Even the total number of American so designated is murky, somewhere around 40 out of those 4,000 some Americans locked up. One of the wrongfully detained is Stephanie Griner, held in Russia after admitting she tried to smuggle in to the country a couple of vials of cannabis oil. The U.S. announced just this week it is ready to trade a real bad guy, a Russian arms dealer nicknamed the “merchant of death” for Griner (and another American, Paul Whelan, accused of having a USB drive that contained classified information.) In April, retired U.S. Marine Trevor Reed, who had been sentenced to nine years in prison, was exchanged for a Russian pilot who had been in a U.S. jail since 2010.
The problem is in looking at Griner’s case, it is very hard to see what makes her so “wrongfully” detained (as she admitted the smuggling attempt) and is being given a trial under Russian standards. Her case seems a long way from both other wrongful detentions (some we know about involve what would more readily be described as hostage situations involving terrorist elements) and other needful instances of Americans locked up abroad. Looking at just a handful of those cases it sure seems Griner benefited more from being a black, lesbian, woman athlete married to another woman in a tough midterm year than anything approaching right or wrong, never mind geopolitics that would see an arms dealer who sought harm to innocent Americans walk free.
Consider the case in Japan of U.S. Navy lieutenant and Mormon missionary Lt. Ridge Alkonis, currently locked up on a three year sentence after two people were killed in a traffic accident doctors said may have been caused by a medical episode. The U.S. has not offered to help free him. Alkonis and his family hiked Japan’s famed Mount Fuji when on the way home Alkonis blacked out at the wheel and crashed his car, with his own family inside, in a restaurant parking lot and killed two Japanese citizens. Neurologists diagnosed Alkonis with Acute Mountain Sickness, which can cause sudden fainting up to 24 hours after rapid altitudinal change.
Alkonis’ family offered an appropriate $1.65 million in compensation to the Japanese family for the loss of their two relatives, along with an apology. The Japanese family, however, uncharacteristically refused the settlement and instead demanded jail time for Alkonis. Senator Mike Lee of Utah claims Alkonis is being targeted as a proxy for American forces stationed in Japan, which remain unpopular among many Japanese who feel they receive special treatment under the law due to the U.S.-Japan Status of Forces agreement. Alkonis, for example, will serve his term in a barracks-like prison alongside other Americans, instead of the more medieval prison conditions and isolation Japanese criminals face in their own system. On the face the case certainly looks like one unfair, with an American singled out for extraordinary punishment and wrongfully detained. Why not help Lt. Alkonis, President Biden?
Or what about Marc Fogel? Fogel is “the other American” imprisoned in Russia on minor drug charges. Fogel previously taught history at the international Anglo-American School in Moscow, and was well-known and well-thought of by diplomats not only from the U.S. but also from Great Britain, Canada, and elsewhere. For the past 11 months, Fogel has languished in Russian detention centers following his August 2021 arrest for trying to enter the country with about half an ounce of medical marijuana he’d been prescribed in the United States for chronic pain after numerous injuries and surgeries. He is facing down a 14-year sentence. Like Griner, he has admitted his guilt, seeking to smuggle vape cartridges of marijuana into Russia. His trial included accusations of close connections to the American Embassy, was confused by a visa issue and his personal friendship with the ambassador, and false claims he aimed to sell marijuana to his students. It all lead to a tougher than usual sentence. The State Department has denied Fogel “wrongfully detained” status. Why not help Marc Fogel, President Biden?
If neither of those cases catch your interest, President Biden, the State Department has some 4,000 more to choose from. The point is not to see Stephanie Griner suffer, the point is to ask what makes her case special enough to warrant the designation “wrongfully detained” and the offer of a lop-sided prison swap to be made. During my State Department career I visited hundreds of American prisoners abroad, from celebrities and white collar criminals dealing with multi-millions of dollars at issue to near-homeless Americans trying to make a quick drug score. Not a single one of them felt he was “rightfully detained” in every sense; most felt their sentences were too long given the minor offense they committed. But I was under strict and standing orders not to advocate for any of them, to allow the host country process to play out as it would. What makes Stephanie Griner more special than Lt. Alkonis or Marc Fogel, Mr. Biden? Will they have to wait for some future election cycle when it is their peer group a future president seeks to impress?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Marbury v. Madison v. Joe Biden v. Abortion
Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.
Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…
The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.
The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.
If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.
Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.
Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.
If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.
The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.
The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.
That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.
As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.
Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”
That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Pelosi and China and Taiwan; Is the Domestic Political Juice Worth the Foreign Policy Squeeze?
The Biden administration is increasingly concerned about a trip to Taiwan next month by House Speaker Nancy Pelosi. They should be. The visit is pointlessly provocative for little gain. Pelosi would do well to remember the the Chinese proverb: “Always know if the juice is worth the squeeze.”
The domestic political juice is points for Pelosi from her large, pro-Taiwan, constituency back home as she runs for reelection. A third of Pelosi’s congressional district is Asian American and taking on Big China has long been a major part of her political identity. She, for example, made a public show out of meeting with pro-democracy protestors out of Hong Kong and urging a boycott of the 2022 Winter Olympics in Beijing.
The foreign policy squeeze — the negative political fall out and possible repercussions from such a visit — is extensive. When Pelosi proposed a visit in April, the Chinese responded “If the U.S. House speaker, a political leader of the United States, deliberately visits Taiwan, it would be a malicious provocation against China’s sovereignty and gross interference in China’s internal affairs, and would send an extremely dangerous political signal to the outside world.” China often fails to understand the impact of domestic politics on U.S. actions abroad, and no doubt imagines Pelosi as some sort of messager heralding a new strategic thinking out of Washington. They would likely make much of the Pelosi visit, envisioning it as a follow-on to Mike Pompeo’s March travel to the island.
Almost unique globally, the China-Taiwan-U.S. relationship exists in a kind of strategic stasis. Each side of the triangle (the U.S. side tends to speak for interested third parties like Australia, Japan, and Korea at present) talks the talk of reunification and independence, but officially the line is based on the 1979 U.S.-Taiwan Relations Act (TRA) and follow on diplomacy which states there is only one China and Taiwan is a part of it. That line, one of the cleverest phrasings in modern diplomacy, has kept the peace for 73 years through things as varied as the Vietnam War, multiple changes of power in all three entities (part of the deal is not to call Taiwan a “country”) the fall of the Soviet Union and multiple incidents and kerfuffles. It is a sturdy but not unbreakable basis for the relationship. It all speaks to the origins of the diplomatic base here, the TRA, which grew out of Mao’s threat to “liberate” Taiwan and Chiang Kai-shek’s demand for U.S. support to reclaim the Mainland by force. With the Korean War sopping up American blood in the initial phase of the three-side relationship, Washington had no desire to join what would have been a land war to rival World War II. The U.S. Cold War policy was to assure Taipei’s survival, all formalized in 1979 as the inevitable forced a change of plans and the diplomatic recognition of Beijing alongside Taiwan.
This all came to be known colloquially as “strategic ambiguity,” a policy understood by all parties (Biden gaffes to the contrary aside) to mean the U.S. doesn’t have to defend Taiwan, but it can, and probably will. The circumstances and means of defense are left unspoken. China matched this with a policy of “strategic patience”: China will not wait forever, but China also understands the time between now and forever is long. The TRA works. The Mainland has not invaded Taiwan. Despite changes in leadership from Mao to Deng to Xi, the Mainland has not invaded. Taiwan changed from a military dictatorship to a democracy, and the Mainland has not invaded. Beijing and Taipei are more politically and economically integrated than any point in modern history.
One part of the unspoken deal is that official visits between Taiwan authorities and U.S. officials (note the accepted nouns) should generally occur on a mid-to-lower level. The idea is the higher the rank of those involved, especially on the U.S. side, the more “legitimacy” is conferred on to Taiwan’s status. So today the standard is some diplomatic grumpiness out of Beijing over visits to Taiwan by U.S. Congress persons but a tacit agreement the U.S. will confine higher level visits, such as from Taiwan’s president, to American soil and only then under some pretense, such as the president refueling enroute to somewhere else, or visiting the American mainland as part of a UN trip. These things shift, grow, and recede over time, but Pelosi as Speaker is clearly tweaking China by her planned visit.
Another part of the unspoken deal is the timing of visits, and here again Pelosi is coming close to the edge of understood propriety. Not by coincidence the most sensitive period marks a holiday in both entities, October 11 (celebrated in Taiwan on October 10) the anniversary of the Xinhai 1911 Revolution, aimed at the foreign Manchu Qing dynasty. The chosen occasion is important, because Xinhai, ideologically midwifed by Dr. Sun Yat Sen, is acknowledged by both the most hardcore Communists in Beijing and the most fervent Nationalists in Taipei as the common origin point for modern China. This is drilled into every schoolkid on both sides of the Strait and forms a common vocabulary among their diplomats. Pelosi’s trip would come in the lead up to this date and the follow-on 20th national Congress of the Communist Party. During these no-go periods, Beijing is likely to respond more aggressively to perceived provocations. In particular, President Xi Jinping, who is expected to achieve an unprecedented third term as leader, second only to Mao historically, is keen not to suffer any slights in the lead-up to the conference.
In other words, the bigger the perceived political and ideological slur, the bigger the required response, and then the bigger the required counter-response and so on until someone calls it quits. Or a war starts.
That said, Pelosi is more likely to start a war in Washington as Speaker of the House than by visiting Taiwan. An invasion of Taiwan would leave the China politically isolated, economically damaged, and reputationally crippled. And ironically, a failed attack could lead to a Taiwanese declaration of independence China would be incapable of stopping. There is no rational, risk vs. gain, no reason for hostilities with or without Nancy Pelosi visiting.
It is likely Pelosi will be talked out of her planned visit, as she was once before using a case of Covid in April as the excuse then. President Biden himself on Wednesday told reporters “the military thinks it’s not a good idea right now” Pelosi travel to Taiwan, a very weak response from the lame duck president now further removed from his own foreign policy by Covid. Nonetheless, given the seriousness of the matter, among those briefing Pelosi were General Mark Milley, chairman of the Joint Chiefs of Staff. Defense, military and intelligence officials have “tried to explain the risks associated with the timing of her proposed trip,” said one administration official.
Pelosi is a smart woman; she gets nearly 100 percent of the political gain in her home constituency just by proposing the trip, and tallies an owed favor from Biden for not going. She can again “postpone” the trip, keeping the door open to placate Taiwan while keeping the door open so Beijing can feel the heat. There is no urgency, no need to be seen “standing with Taiwan” at the present moment, no chance this could be seen as “weakness” especially if U.S. diplomats explained quietly to Beijing the domestic political side they likely do not understand. In other words, Pelosi gets most of the domestic political juice for none of the foreign policy squeeze.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Negotiations Continue on Guns and Abortions
We don’t really negotiate much in the U.S. and so we’re bad at it. Even when we are forced to “haggle,” we employ rituals, like the salesperson at a used car dealership “checking with his manager” on our offers, or the dance between real estate agents that goes along with buying a house. Car offers come back from the mysterious manager as impossible, and offers on a house are just refused, no chance to talk because two layers of agents stand in the way. That’s why we cannot find any common ground on abortion and gun control. We do not know how to be reasonable.
The American style of negotiating is to demand everything and settle for nothing less. So we’re taught to make our first offer the final offer (it works a little different when the issue is simply money, then we ask for an outrageous amount and “bargain down” after the other side offers an equally outrageous small amount. Starting anywhere near your actual price is considered a sign of weakness.) We don’t like gray areas and we don’t like to feel we’ve lost out on something. So being asked to support something on its face reasonable like allowing two people in love living together in a home they co-own to marry means buying into a whole LGBTQIA2+ agenda that somehow includes forcing kids to listen to drag queens read stories aloud about sexually ambitious caterpillars and their same-sex tadpole pals. Seeking restrictions on abortion ends up cruelly forcing rape and incest victims to carry to term.
We do the same thing in broader swathes, when reporters who misuse pronouns or support the Harry Potter author are not just sidelined or argued with, but canceled, deleted, defunded, disenfranchised, literally thrown down the memory hole to just take their opinion and go away, leaving only your opinion standing. The presumption is even on the most ideological of arguments there is a clear right and wrong only. We have evolved speech to match this mindset, things like “my way or the highway,” “all or nothing,” and “in or out.”
Back in the day when I worked for the State Department every summer embassies abroad had to ask for funding for summer hires to help us catch up on clerical work. There was only so much money around and not everyone could get all they wanted. At first I did what was standard, ask for ten people knowing I only needed five, with all sorts of silly justifications I had to eventually walk back. One year I played it different. I wrote in detail what five people would do, what would not get done with only four, and why six would be a waste of personnel. That year and the ones that followed were the easiest ever; Washington and I jumped right to the meat of the problem and nobody was forced to belittle the other on the road to negotiating a compromise.
That’s what did not happen recently in overturning Roe v. Wade. Though Roe was poor jurisprudence and Constitutionally hilarious, it was the product of negotiation. First trimester abortions were basically allowed, second term were generally allowed, and third was more or less up to the states. Roe produced a workable solution to a very complex problem, uniquely American as it combined religious, moral, and Red and Blue thought into what was often falsely presented as a binary decision — abortion was legal or not. The compromises in Roe were far from perfect or widely accepted, simply the output of a beleaguered Court willing to talk about something the rest of America would not.
The problem was Roe’s supporters and opponents almost from day one set about trying to take a compromise solution and make it an absolute. States latched on to their freedom to dictate third semester rules by gleefully promoting gory end term abortions where a viable baby was aborted. There can be good medical reasons to consider this, but the issue was not presented that way, it was “a woman’s right.” Same on the other side. Clever legal tricks were deployed so that, sure, you can get a first trimester abortion, only not where clinic regulations and hospital affiliations were manipulated to make it near impossible to meet the standards. As was intended. No one was going to sit back and allow compromise to stand.
The Court itself is not immune; in combination with the gutting of Roe (another all or nothing type decision) Judge Clarence Thomas opened the door to ending Federal law allowing for same sex marriage. If you can’t have all the rights you should have none of them he seems to be saying to the Left. Specifically, Thomas was threatening Griswold v. Connecticut, a 1965 decision that declared married couples had a right to contraception; Lawrence v. Texas, a 2003 case invalidating sodomy laws and making same-sex sexual activity legal across the country; and Obergefell v. Hodges, the 2015 case establishing the right of gay couples to marry. How again are those directly related to the hyper-complex issue of abortion?
More importantly, has anything changed in society that requires a new look, something gone amiss? No, the only thing that has changed is a different side now holds a majority on the Court and wants to run with it. They have no more interest in compromise than the demonstrators massing around Justices’ homes in hopes of harassing them into compliance with the mob, or AOC on TV screaming people are going to die.
Same for gun control, the other recent Supreme Court decision. In New York State Rifle v. Bruen, the Supreme Court again swung widely. The existing law, basically saying the right to bear arms in the 2A did not automatically mean a right to openly carry arms in public, had been misused by anti-gun states. In Hawaii, for example, every single open carry permit had to be approved personally by the chief of police. Multiple chiefs over a period of recent years found no reason to approve even a single permit and in the past 22 years there have been four open carry permits issued in Hawaii; all or nothing, as if somehow not one applicant in recent memory was capable of safely openly carrying a weapon. So the response from the now-conservative Supreme Court was to do away with provisions governing carrying a weapon. The counter-response from those states who are anti-gun, such as Hawaii, is to promise to jerry-rig their laws with outrageous training requirements or exorbitant fees to somehow get around the Court’s perceived free-for-all, and to cite recent mass shootings (which had nothing to do with handguns or open carry laws) as fear-inducing excuses. Nobody sees any of the middle ground of reality.
And that is why the Supreme Court’s rulings on abortion and gun carry law resolve nothing. In the extreme progressives will simply wait it out until it is 1973 again, and the Court will have turned over to a more liberal group of jurists who will reinstate black to replace white or vice-versa. The real answer on abortion, a rough and robust debate in Congress followed by a set of compromises, or an equally rough and robust debate at the state level, will never come. Americans are not very good at negotiating and so usually pay more at the car dealer than they should. The same problems plagues us on much more serious issues regarding abortion and the Second Amendment and that ends up costing us a lot more.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
America is Full of Snot
I’m angry. I want to write that parts of American life are increasingly full of s**t, but I can’t write that word here so I’ll have to describe it. You’ll figure it out.
Dr. Jill Biden is full of s**t because she thinks she can make Hispanic people think she cares about them, you know, diversity stuff For ‘da Votes. At a Latinx IncluXion (if she can use the X, I can use the **) luncheon in San Antonio, she began by mispronouncing bodega as “bogida” (don’t check the altered White House transcript because transcripts now are full of s**t, better to see the video) and then compared members of the Hispanic community to the breakfast tacos only white people eat at Taco Bell. She even giggled a bit when laughed at, thinking she was hitting it with an audience of dumb mules.
Speaking of bodegas, in New York City a Hispanic bodega worker was charged with murder and spent six days on Riker’s Island for defending himself against an attack. A black guy and his girlfriend refused to pay for their purchase and the guy attacked the worker. The worker had a knife hidden because this wasn’t his first rodeo (emphasis on the “e” because that’s Spanish I guess) and he’d been robbed before. The video starts with the bodega clerk, Jose Alba, selling two patrons loosies, individual cigarettes’ from a pack because the patron cannot afford to buy a whole pack at once, a sign of a classy joint. The girlfriend at the window says she can’t pay after her EBT card is declined, and when Alba says something like “You have to pay” the boyfriend comes around the counter and shoves Alba, age 61, to the ground. The boyfriend knows about fighting; he’s an ex-con out on parole for assault on a cop. The boyfriend has a gang symbol, a white do-rag, hanging out of his back left pocket, something Alba being of the neighborhood, would recognize as bad news. A fight ensues and Alba stabs his assailant. Oh yeah, the girlfriend also had a knife of her own and joined in, two-on-one.
The full of s**t outcome? Manhattan’s recently-installed District Attorney Alvin Bragg helped usher in more cases being continued without bail, stating that bail was unfair to people of color which usually includes Hispanic people like Alba. Instead, Alba was charged with murder for defending himself and pounded with a $250,000 bond because the DA is full of s**t. Alba couldn’t pay it, so went to Riker’s until the district attorney’s office lowered the racist bail to $50,000 amid the growing outrage.
While NYC’s mayor vaguely stood behind his DA, one Republican gubernatorial nominee slammed Bragg’s decision to charge Alba, tweeting: “My first Day 1 action as Governor next January will be to fire Manhattan DA Alvin Bragg” because not everyone is full of s**t all the time.
But DA Alvin Bragg is. He got his job in part as part of the Black Lives Matter aftermath, pledging to cut back on cops harming young black men like the guy who assaulted Jose Alba. The problem is violence toward blacks has not decreased. Bragg’s boss, Mayor Eric Adams, slammed Black Lives Matter and anti-police activists after a recent night of bloodshed across the city that left more than a dozen people shot. “Where are all those who stated ‘black lives matter’?” Adams asked. “The victims were all black.” Three people killed and 13 others wounded in a series of shootings. Zero were shot by police officers. “The lives of these black children that are dying every night matter,” Adams said. “We can’t be hypocrites” he intoned while hypocritically full of s**t.
While Alba appears to be Hispanic, most of New York’s bodegas are operated by Yemeni’s, most recent immigrants and/or refugees from the Saudi-Yemen-U.S.-Iran war because American foreign policy is often full of s**t. Joe Biden, who as a candidate promised to make Saudi Arabia an “international pariah” over the murder of WaPo journalist Jamal Khashoggi, just finished begging the Saudis to produce more oil and thus perhaps lower gas prices in America, which Biden claims are high because of Vladimir Putin, a statement completely full of s**t like Bruce Springsteen in the “Dancing in the Dark” video level full of s**t.
Biden is by no means the first American president to struggle with the fact that American Saudi policy is full of s**t. George W. Bush enlisted Saudi Arabia as an ally in the War on Terror even though 15 of the 19 9/11 hijackers came from Saudi Arabia, ground zero for the Wahhabism which also helped create the conditions for the attacks. Barack Obama gleefully supported the Saudi-led war in Yemen to avoid a rupture in the relationship, a decision no one publicly regretted even as the war devolved into a humanitarian catastrophe. Donald Trump also embraced the kingdom in ways Biden would recognize. They’re all full of s**t.
Of course Biden’s policy of making war by proxy in Ukraine is based in large part on sanctions on Russia which are full of s**t. Sanctions were going to win the battle, forcing Russia to withdraw at the risk of her economy’s collapse, perhaps along with Putin’s own regime. The problem is that not only has that not happened, but sanctions have actually aided Russia. Though Russia’s energy exports fell by volume in reaction to American sanctions, surging prices driven by supply shortages have more than canceled out the sanctions’ effects. Russia’s export prices have been on average around 60 percent higher than last year, driven by simple supply and demand. The E.U. reduced its direct imports of Russian crude oil by 18 percent, but thanks to Russian re-exporters India and the United Arab Emirates, that has led to no net change in Russia’s overall oil-export volumes.
China, too, has helped make up for the E.U. shortfall as the largest single buyer of Russian energy. Japan holds that title for unsanctioned Russian coal imports. Even the U.S. has helped out, buying unsanctioned, highly refined oil products from the Netherlands and India that were at least in part made from Russia crude. Maybe it’s time to seize another mega yacht to show Putin who is boss, because that gambit isn’t full of s**t is it? And it is not a sign the policy is full of s**t when Biden bargains away any remaining American self-respect in exchange for oil from the MidEast.
A lot of Biden’s gas problems would go away if he allowed the U.S. to extract domestically the oil it needs, but Biden is steadfastly committed to going green. Except in Alaska, where he has shown his policy statements on energy to be full of s**t. Biden signaled in early July his new support for a controversial Alaska oil drill, issuing an environmental review that represents a key step toward starting the Willow project. Opponents say drilling would violate Biden’s pledge to rein in fossil fuels but that promise was always full of s**t anyway.
Like I said, it would be easy to explain all this if I could just write America is full of s**t but bad words are off limits. Like anyone gives a damn about the potential harm coming from using words like snot when it is seemingly OK the world is full of it. And people who give birth are known as w*men.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Solution to Racism is… Separate But Equal?!?
Schools now have affinity groups, quasi-social/political gatherings which are separated by among other things, race. You have to be black to walk in to some of them. Seems like there’s a history to this.
“Separate but equal” refers to the Supreme Court 1896 decision in Plessy v. Ferguson claiming separate rail cars for whites and blacks were equal as required by the 14th Amendment. The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular blackface stage character of the time) designed to achieve racial segregation by means of separate public facilities and services. This led to the era of the Green Book, which told blacks which hotels would allow them, as well as The Jewish Vacation Guide, which offered the same kind of advice but which we do not like to talk about much anymore. “Victims of Racism” is a pretty segregated category of its own it seems. The Court in Brown v. Board of Education ended separate but equal in that 1954 landmark civil rights case.
But a new version of separate but equal seems to be back. The goal of many progressives now appears to be more segregated spaces and more segrated paths into academia and jobs. Progressives do not oppose segregation any more, they demand it.
Jim Crow is being resurrected in schools, this time through euphemisms such as black spaces, affinity circles, affinity dialogue, and community building groups. One of my own kids was confronted as an undergrad with the problem of choosing which affinity group to join, as she fell into several different categories. Should she go with the Asians, or more broadly the POC group? Or female POC? Centennial Elementary School in Denver advertised a “Families of Color Playground Night.” The Wheeler School in Providence, Rhode Island, hosted a “meet and talk” with an actress from The Fresh Prince of Bel-Air exclusively for its Students of Color affinity group. There are events that squeeze the rules tighter, such as black women feminists only. Of course February is Black History Month in America, though people of all hues are allowed to feel bad for all of February equally. We track obsessively the “First black…” to the point where the NYT felt compelled to single out such accomplishments last year as the first black to be recognized as a pro triathlete, the first black woman to win a gold medal in wrestling, and the first black to be interred at the Panthéon in Paris.
In explaining the rationale for exclusionary events, one college newspaper wrote “Black students need events in which there are other black men and women as a means to help them feel comfortable… a safe place for black students to be black without consequence,” which with a few words replaced would be exactly the garbage coming out of the worst cracker’s mouth in 1963 Birmingham, you know, something about how it ain’t right for the races to mix. The KKK are as in favor of more color-designated spaces as BLM.
And famously we have been taught of all the people wrongly killed or injured by law enforcement, only one color of life matters. When Black Lives Matter as a slogan first began to populate social media, for about a week it was cool to say “All Lives Matter” to show you were an ally, that the cops could not get away with killing anyone yellow or white, either. “All lives” quickly morphed into a racist slogan, segregation mattering even in undeserved deaths.
The return of separate but equal is most visible today in school admissions (and Supreme Court nominations.) Separate but equal has been reimagined as offering two tracks into select schools — one of merit, usually some sort of exam, and another that tests nothing but skin color, with standards rigged to matriculate the required percentage of blacks. That the latter often results in Asians (the on-again, off-again POC) being red lined out seems to be another thing we don’t like to talk about. The rules may be changing; the Supreme Court agreed to decide whether race-based admissions programs at Harvard and the University of North Carolina are lawful.
The problems with separate but equal are many. A real danger is positioning unprepared students to fail. If you cannot show you know the subject material well enough to engage with it on a high level day one, and if you cannot show you have been willing to forego fun activities to put in the study hours, granting you a seat at some elite school via the back door will not solve anything. Imagine if the SEALS did away with their famous physical and mental tests and just picked commandos by lottery. That is what is happening through separate but equal employment programs, such as one at Morgan Stanley limited to blacks, browns, reds, and gays, or another at my own alma mater of sorts, the U.S. State Department, where I worked for 24 years
State has had a diversity problem going back to the earliest days of the Republic, when it was said to qualify as a diplomat you needed to be Male, Pale, and Yale. To fix this two centuries later, the Department created two fellowships that have been used as vehicles to recruit people of “diverse backgrounds,” who worked out to be overwhelming black people. In place are the Thomas Pickering Fellowship (run by HBCU Howard University) and the Charles B. Rangel Fellowship. Both claim entrants take the same entrance exams as anyone else, but omit that they do so after two summer internships with the State Department, including time abroad, plus assigned mentors. Fellows are also identified as such to those administering the oral exam required of all prospective diplomats. Having administered the oral exam myself, I knew I would have to justify to my boss’ boss any move to fail a Fellow before being overruled by her anyway. The programs increased the number of unwhite diplomats, as they were intended to do as a separate but equal pathway.
The problems came down the road, when black diplomats encountered the same promotion and evaluation system their white, green, and blue colleagues did (along with Hispanics and Asians, etc.) Diversity in the senior ranks of the State Department actually regressed over time. In 2008, black diplomats made up about 8.6 percent of the top ranks of the diplomatic corps. By 2020 only 2.8 percent of the same top ranks are black. The answer? It must be more racism (characterized diplomatically as “institutional barriers.”) Suggestions focused on offering blacks more fellowships to create a bigger pool, and creating special opportunities for blacks to snag better assignments (described as “promote diverse officers’ career development.”) That of course simply repeats the original sin of pushing less-prepared people upward to their point of failure. FYI: the State Department classifies most of its gender and race promotion results and does not generally release them to the public. However, data leaked to the NYT shows that only 80 black diplomats and specialists were promoted in the 2019 fiscal year, about one percent.
Then there’s this: a former diplomat described her Rangel fellowship in 2010 as “more of a stigma than an honor” as white diplomats routinely assumed Fellows qualified for the real job only because of the fellowship. Some minorities at State feel compelled to share that they are not Pickering or Rangel Fellows to avoid the fall out over separate but equal. Can it be it is all just more racism all the way down?
When I did not get into the State Department my first try, it never occurred to me the written test, which was mostly history, geography, and economics, was set up to block me because of how I looked instead of whether I knew enough about history, geography, and economics. After more education I passed essentially the same test. It never occurred to me some special channel should have been set up to advance me. It becomes kind of a mindset, almost a philosophy, that anything that doesn’t work out percentage wise must by definition be racism and can only be rectified by some kind of separate but equal track.
Separate but equal in academia and employment, as well as in black spaces and all the rest, produces nothing more than cosmetic diversity. You want XX percent of students or diplomats to be black? Fine, we’ll gerrymander the system to produce that. But given the broader lack of societal progress from affirmative admissions and actions over some decades, it just might be easier to hire actors so the group photos look “right” and let decisions be less separate and more equal. Otherwise, what message are we sending to people of one color that their accomplishments have to be set aside so a person of another color can have their place, and what message are we sending to people of all colors the only way one group can succeed is with some special track? In the end aren’t those messages just a twisted version of what separate but equal originally meant, judgment based on race?
At some point if we are committed to ending discrimination by race we need to end discrimination by race.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Wanna Be an American Idiot?
American idiot and Green Day lead singer Billie Joe Armstrong said he is going to renounce his U.S. citizenship and move to England because he is so upset over the Supreme Court overturning landmark abortion case Roe v. Wade. The singer made the comments to a crowd at the band’s show in London, specifically “F*ck America, I’m f*cking renouncing my citizenship. I’m f*cking coming here.” He called the justices pr*cks and said “f*ck the Supreme Court of America.” Can he do that? Does it make any sense?
As for making any sense, Armstrong should first check on what abortion laws look like in Great Britain. Assuming he understands the difference, Great Britain is composed of Scotland, Wales, England, and Northern Ireland. If the singer is headed toward the England, Scotland or Wales part, he’ll find most abortions limited to the second trimester, less than in seven U.S. states. In Northern Ireland, abortion is generally limited to first trimester, same as in 18 U.S. states. The case through which the Supreme Court overturned Roe, Dobbs v. Jackson, set the limit to 15 weeks, longer than Northern Ireland. So it is unclear how much moral ground Billie Joe will gain moving to the UK. He’ll need to watch out in Scotland, where clinics in Glasgow that offer reproductive health services are the focus of regular and long-running protests by anti-abortion activists, partly funded and supported by U.S. groups. You can run, Billie Joe, but you can’t hide.
But can Billie Joe simply renounce his American citizenship and move to the U.K.? You can’t just renounce your citizenship, on stage or elsewhere. You can’t tear up your passport, burn the flag or write a manifesto. It’s done by appointment only. The American government must approve your renunciation of citizenship and can say no, no matter how loudly you say yes. Of course, there are forms to be filled out.
To begin Billie Joe would need to make an appointment at the nearest American embassy or consulate. You can’t begin the renunciation process in America (sorry, purple haired radicals) but Billie Joe is already apparently in London. At the embassy Armstrong will fill out some forms. He can Google and complete, but not sign them, ahead of time if he wants one of his roadies to help: DS-4079, DS-4080, DS-4081, and DS-4082. Most of the requested information is pretty vanilla stuff, and is largely to make sure the singer understands what he is doing and the consequences of doing it.
The reason for making sure of all that making sure stuff is two-fold. One, the State Department, who handles all this, has been sued by people in the past who claim they were tricked or mislead and did not know what they were doing, and want their citizenship back. The other reason is that barring certain highly-specific situations, renouncing citizenship is a one-way street. The U.S. government considers it a permanent, unrecoverable, irrevocable, decision. Billie Joe can’t come home should some future iteration of the Supremes restore Roe.
At the embassy, one or more staff will fawn over Armstrong, then he’ll swear to and sign everything. At larger embassies, as in London, renunciations (for tax purposes) are frequent, regular parts of a day’s business, and are handled in most cases almost mechanically. The overall feeling most renunciants encounter is that of a bureaucrat more concerned with getting his paperwork in order than really caring about your life-altering decision. It is rare that the embassy official will actively try to dissuade you. There’s also a bunch of IRS stuff to do. Until it is over, you’re still an American, chappie.
After your brief appointment at the embassy all the paperwork goes off to Washington, where your renunciation is approved or denied. The embassy can but is not required to write a memo regarding your case. Those memos, when written, usually argue against approval. In an extreme version, such a memo might say “Mr. Roberts appeared unorganized in thought, and was unable at times to focus on the documents in front of him. He referred often to a Swedish dog who was guiding his actions, and stated his goal in renunciation was to assume the Swedish throne.” It happens.
No one at the embassy can approve or deny your application to renounce. That is done by someone you will never meet, located in Washington, DC. Without that approval, you remain an American citizen. Approval is formally made by issuing a DS-4083, called the CLN, Certificate of Loss of Nationality. Think of this document as an “un-birth certificate.” CLNs are processed slowly; it can several months or more for yours to be approved or denied. They are usually mailed to you. Oh, yes, one more thing. Billie Joe will have to pay a processing fee. As the world’s exceptional nation, the U.S. also has the highest fees in the world to renounce citizenship, a cool $2,350 per case, with no family discounts. By comparison, Canada charges it’s soon-to-be-former citizens only $76; for the Japanese and Irish it is free.
If Billie Joe is denied his renunciation and forced to remain an American, it would typically be for his own good, to avoid him becoming stateless and thus deportable (to where?) from the U.K. Renunciation only means as of a certain moment Armstrong stops being an American citizen. It does not automatically make him a citizen of anywhere else (that’s naturalization, done country-by-country and Britain has its own complex set of laws on becoming one of them.) With his American passport gone, Armstrong has no passport. He is thus at that moment illegally in Britain and subject to deportation. Since he is not an American (or a Greek, or a Lithuanian, or a…) he has nowhere to go, a literal man without a country. In many cases the U.S. will deny renunciation to someone who does not already possess another country’s passport and citizenship. Billie Joe, sadly, could be forced to remain an American.
This article is not legal advice for Billie Joe Armstrong or anyone else. Persons angry about Roe or otherwise considering renunciation should consult an attorney. Opinions expressed here are the author’s personal beliefs and do not represent those of any former employer.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Democracy is Doing OK
It was the July 4 holiday which brought out the worst of it, those claiming our democracy is in danger, failing, or in some cases, failed. But the holiday was just an excuse for our daily dose of doom. The blight of articles followed a familiar path, starting with some event (January 6 was the clear leader) and explaining how it was the start of fascism, comparing it one of the few historical examples allowed quotable by progressives, usually something to do with the Reichstag, and then growing that image to say, Trump standing over Lady Liberty, that kinda grin on his face.
Actually, our democracy is doing just fine. Things are working more or less exactly as they are supposed to.
The runner up to January 6 as the last gasp of democracy is the recent set of Supreme Court decisions. Centerpiece is the overturning of Roe v. Wade, a sign of democratic failing because it fully strips women of their rights and shows the Court has no respect of precedent and could overturn anything. Usually this means the end of same-sex marriage as another Democratic emote-o-point, but in some screeds reaches as far as banning inter-racial marriages and contraception. Any day now!
Slow down, kids. If you go too fast you’ll miss the scenery, in this case things working about normal. Perhaps it is necessary to remind our “democracy” is sort of like sharing crayons in kindergarten, sometimes you have to use the yucky brown one and let the other kids use the preferred red and orange. Progressives, with a lock hold on the Supreme Court for many decades, never mind the media, advertising, entertainment, and academia, grew too used to getting their way, too used to defining democracy as “expansion of rights that I favor and shrinking of those you favor.” So expanding the Bill of Rights automatically meant ignoring the Second Amendment and dilating the 14th to loop in abortions. It was easy to see it all as progress when for the most part it was just you always getting more of what you wanted.
But a real democracy shares nicely, and as voting patterns (remember when Ohio used to be a well-contested purple state? Florida always up for grabs? John King zooming the CNN Magic Map practically into voters’ backyards?) and national moods change so does the makeup and decisions of the Court. Remember back in 1896 when the Court decided in Plessy v. Ferguson separate rail cars for whites and blacks were equal enough as required by the 14th Amendment, that race was constitutionally a way to judge people? The upshot was constitutional sanction to laws known as Jim Crow (the name comes from a popular minstrel character of the time) designed to maintain racial segregation by means of separate public facilities and services.
Then in 1954’s Brown v. Board of Education the Court ignored a whopper of stare decisis and ended separate but equal as an unjust albeit long-held societal standard. Race was not constitutionally a way to judge people. Nobody is keeping score but it was 59 years of separate but equal, and 49 of Roe. People said a lot of things in 1954 when the Brown decision was handed down, but it is hard to find a genre of “end of democracy.” Indeed, enforcing Brown, even to the point of deploying Federal troops to do so under the Insurrection Act everyone was afraid of on January 6, is often cited as a high point of democracy. WHen tested, the system worked.
January 6 should be a semi-holiday, like 9/11, something worth noting every year as an example of democracy working exactly as intended. Let’s look for the undemocratic element: 1) American holds an election and not everyone agrees who won (nothing new, where do you think all those complex presidential election rules came from but past instances of disagreement?) 2) Lawful protests take place at the Capitol; 3) When a minority of protestors start trespassing, law enforcement steps in and after one terrible fatality on the ground in Ashli Babbitt, the crowd disassembles. 4) Delayed a bit, the Vice President ignores any background noise and simply carries out his Constitutional duty in the ceremonial certification of electors selected earlier. With the possible exception of the cops gunning down the unarmed Babbit, everyone did their duty, and another peaceful transfer of power took place. No tanks on the White House lawn.
To create the same climate of fear progressives more or less successful maintained during the four years of the Trump administration without blaming Joe Biden for some of the highest inflation and gas prices, and lowest stock vitality in years takes some clever word play. It exists in abundance. The Supreme Court judges (the bad ones!) become right wing extremists, not jurists. Their decision on Dobbs is based somehow on only rights that existed in 1868, and so forth. Taking away the EPA’s unilateral power to make climate change rules without full and open debate and returning that authority to Congress is somehow twisted to be both undemocratic and a sign of the apocalypse. Even Left Wing Extremist Sotomayor (exaggeration is fun!) wrote of Dobbs that the majority decision “undermines the court’s legitimacy” as if such a thing happening in a democracy — the majority carrying the day — was something extraordinary and particularly rare in its evil. But just saying things are true does not make them so.
Of course George Soros had to weigh in since we’re talking about the threat to our democracy. “There is only one way to rein in the Supreme Court: throw the Republican Party out of office in a landslide. That would allow Congress to protect through legislation the rights that had been entrusted to the protection of the Supreme Court. It is now clear that doing so was a big mistake. Congress must act.”
Now we’ll leave aside the part about Congress not acting on abortion, same sex marriage, inter-racial marriage, contraception, the EPA, and a lot of other supposed threats to democracy for decades, including when Democrats held majority power in both houses, the Court, and the Executive.
But Soros still sees a problem: “When it comes to organizing a landslide victory against the radicalized Republicans, opponents face almost insuperable obstacles. Republicans have not only stacked the Supreme Court and many lower courts with extremist judges. In states such as Florida, Georgia, and Texas, they have enacted a raft of laws that make voting very difficult.”
We’ll take Texas as an example. You can register to vote there online, which does not seem too hard given anyone who can borrow a cell phone and do it from a parking lot. You do have to present one of seven forms of ID to register and to vote, including a drivers license, a handgun permit, military ID, or others. You can’t have a decent adult night out without one of those, and several are issued by the Federal government well outside the hands of racist old Texas. In certain circumstances a utility bill or a cashed check can suffice. Not clear what’s so hard; 17 million people in Texas are registered so far, which sounds like alotta democracy is working just fine. Now, showing the same photo ID (and a vax card) just to sit down and eat a burger, that has some undemocratic overtones to it…
Soros aside, no one clings to the “democracy is dying” meme like a convert named Max Boot. Covering the gloom beat for WaPo, Boot warns “we’re in danger of losing our democracy.” He is stirred by Americans coming together to support Ukraine’s “fight for freedom” (better there then on the beaches of Santa Monica, eh Max?) “But it is dismaying,” he writes, “to see that there is no similar consensus on defending democracy at home.” The solution is simple, vote for Democratic candidates only, even if you don’t agree with them, because what could be more democratic then being told who to vote for and asked to not think about your choice. “Panic,” Max writes, “…is sometimes warranted.”
Boot supports one of the most undemocratic things possible, to demand the end of democratic institutions when their call has not gone your way. Don’t like Dobbs? Support packing the Supreme Court (what happens when Republicans regain power and re-pack it?) Don’t care for the electoral system? Demand the Constitution be damned and the popular vote given precedence. Max Boot, again, declares with the straight face of someone who must have failed eight grade civics class “There is no justice in a political system that gives Republicans six of nine Supreme Court seats even though a Republican has won the popular vote for president only once in the past 30 years. So, too, there is something deeply amiss with a Senate that gives California (population 39.3 million) the same number of seats as Wyoming (population 581,348).” “The Founders never envisioned such an imbalance between power and population,” wrote Boot in a multi-Pulitzer-winning newspaper.
Um, they actually did. It was the Founders who created our proportional representation system precisely to balance the power of big states and small ones.
Keep in mind there is a reason progressives are trying to keep people in a state of fear. Fearful people are easy to manipulate; you need only scare them to the point where they demand relief, and then provide them the way out as the final solution. A standard trick of any demagogue. “Democrats need to lean into the politics of fear,” says the NYT. So it is a natural extension of “Trump is Putin’s boy” to “let’s have a war against Putin.” Or from “some states ban abortion” to “next is a national abortion ban enacted by a Republican Congress.” Historically fear has driven any number of crusades and Crusades. The solution of course is not to be drawn in, to stop and ask yourself if something is true (“it’s hard to vote in Texas”) and react out of intellect and not emotion. Heck, if half of Germany would have thought through the Reichstag fire and not bought into fear mongering, George Soros, et al, would need a whole new go-to bad guy as they try and pre-defeat Trump in 2024.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Bidin’ His Time
The New York Times and Washington Post sent up flares last weekend on behalf of the Deep State: one way or another they said, Biden is on borrowed time. The last man standing who ended up the answer to Anyone But Trump turned out so inadequate for the job Deep State parliamentarians gave him a vote of no confidence and say he should go.
The Times wrote a scathing summary of What Everyone Knows, that Biden at 79 is a wreck; in their words the man “is testing the boundaries of age and the presidency.” He can barely walk unassisted. He has his zombie moments on stage. He is fully dependent on wife Jill to nudge him onward in public events, redirect him, get him back on the TelePrompTer and even then he will read anything there, including stage directions, Ron Burgundy-like. Not a pretty picture. It is also not a new picture, given the pass on campaigning Biden was granted by the MSM which helped hide all this during the campaign. That’s why the MSM articles are so noteworthy, they denote a change. From here on to 2024 it is OK to (finally) talk about how old and 25th Amendment-ready Biden is.
The 25th Amendment got a bad name during the Trump years, being invoked as the handy-dandy alternative to multiple failed impeachments and prosecutions, a kind of last chance to dump a seated president when all else fails politically. In fact the amendment, written after the Kennedy assassination exposed the problems of no clear line of deep succession in the Constitution in the nuclear age, provides precisely the mechanism needed in Joe Biden’s case. Biden’s wacky gaffes have strayed over the line. His clumsy and chaotic policy killed innocents in Afghanistan and embarrassed the U.S. globally. His claim “Putin cannot remain in power” in response to the Ukraine War, and that the U.S. would absolutely defend Taiwan, threatened relations with two superpowers. Aides rushed to blurt out no policy had changed and gently correct the president. Falling off a standing bike is a problem for Joe; falling off nuclear policy is a problem for America. On the face of it all Biden either needs to resign for “personal reasons” (the timing set so it does not appear tied to the latest Hunter revelations) or face the judgement of the 25th and reality, that he is medically no longer fit to carry out his role as Anyone But Trump.
There’s no need for a specific trigger; the outstanding defeat expected for Democrats in the midterms could readily serve however, or the latest polls which show Joe’s approval ratings at a Nixonian 33 percent, with 64 percent of Democratic voters saying they would prefer a new presidential candidate for the 2024 presidential campaign. Only 13 percent of American voters said the nation was on the right track — the lowest point in NYT polling since the depths of the financial crisis more than a decade ago. The Deep State does not need a reason to invoke the 25th Amendment, Joe is the reason. Biden is a good egg and a loyalist, he’ll go as quietly in 2022 as he did in 2016 when he was likely told by Barack Obama he was going to have to sit out the election to pay off the party’s blood chit and allow Hillary to run unprimaried.
Biden leaving is the easy part. What happens next?
The obvious follow-on is not much better than Biden staying in the White House until 2024 (nobody expects him to run then under any circumstances.) If Biden resigns or is moved from office under the 25th Amendment, Kamala Harris as vice president automatically takes over. Her poll ratings are as dismal as Joe’s and after 18 months in office has nothing, literally nothing, to show for it. Despite being a black woman, Harris brings little to the table; she couldn’t even beat Biden in the Democratic primaries and the identity politics she is a living symbol of have lost some of their luster. She is far too quiet on what could be her signature issue, abortion rights, tagging along with the slow motion efforts to look busy out of the White House.
The tricky thing about Joe leaving power is thus what to do with Kamala. She hasn’t done much to make her a strong candidate going forward, and she hasn’t made enough mistakes to justify nudging her, too, aside. It’s a real conundrum. Her approval rating is 15 points below where Biden stood at this stage in Obama’s first term and 11 below Mike Pence under Trump.
Right behind the Kamala problem is the, um, well, somebody problem. There is no likely Biden successor. The left-overs from the 2020 campaign, guys like Beto and Buttigieg, are just that, leftovers. Buttigieg as Transportation Secretary faces a conundrum of his own. Should he appear too competent in the role he risks being forever labeled the technocrat he is at heart, handy with tools around the office but uninspiring for the big stuff. Stumbling as Transportation Secretary, he’ll lose even the points he has for basic competence and appear more a glory seeker. Guy can’t win.
Spokesmodels like Beto have no chance in a national campaign. They look good on home ground but don’t have the intellectual meat on the bone needed to campaign effectively across 50 states, especially in a primary where they really do need to answer questions on complex farm subsidies in Iowa and drooping Social Security in Wisconsin and failed solar jobs in Ohio and critical race theory in Virginia. You can only stand there and smile so long before someone (such as Democratic primary voters in 2020) notice there’s nothing more behind the smile.
Several of the Democratic governors-in-waiting face tough re-election contests before they even think about 2024. The bottom-feeding criteria of “Anyone But Trump” is now “Anyone a bit better than Biden.”
Somewhere there are Deep State Democrats in a room wondering how they got there, especially after winning the last election. Trump has defied them multiple times, the Dracula candidate they cannot put down and must resign themselves to facing off against in 2024 without the aid of the pandemic. Biden the caretaker president was just re-elected by the MSM as a punchline, and Harris has not risen to the challenge. Their bench is thin, the issues facing the country — it’s the economy again, stupid — mostly of their own fumbling design. There are people in that room rolling their eyes and saying they have little to gain replacing Biden, and arguing that he be allowed to serve out his term. They may be right.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Is Stephanie Griner “Wrongfully Detained” in Russia?
The U.S. State Department estimates more than 3,000 Americans are imprisoned abroad, on grounds ranging from small amounts of marijuana up to murder. For all but a handful, the U.S. government explicitly states they cannot get you out of jail, tell a foreign court or government you are innocent, provide legal advice or represent you in court. The president certainly is not in the habit of making calls to the Thai government telling them to please let you go, you didn’t mean to have that baggie of Ecstasy in your underwear at Customs.
The key to getting the full force of the U.S. government on your side working for your release is to be “wrongfully detained,” a qualification which applies to fewer than 40 out of those 3,000 some Americans locked up. The U.S. recently declared Stephanie Griner wrongly detained. What does all that mean?
Near the start of the Ukraine war American WNBA star Stephanie Griner was arrested trying to enter Russia carrying vape oil which contained some sort of cannabis product illegal in Russia, entangling the U.S. citizen’s fate in the confrontation between Russia and the West. The Russian Federal Customs Service said its officials detained the player after finding vape cartridges in her luggage at Sheremetyevo airport near Moscow, and it released a video of a Griner going through airport security.
Normally Griner would be largely on her own. While the U.S. State Department visits Americans incarcerated abroad when that is possible (good luck to you if you’re popped in a country without U.S. diplomatic presence like Iran or North Korea, though the Swiss often will help out) to see to their welfare and try and maintain communications with home, the U.S. government will generally not get involved with your innocence or guilt, and will not make representations to the host government to free you. Most of us have seen Midnight Express and The Hangover. In the case of Russia, the U.S. specifically warns people like Stephanie Griner “do not travel to Russia due to the unprovoked and unjustified invasion of Ukraine by Russian military forces, the potential for harassment against U.S. citizens by Russian government security officials, the singling out of U.S. citizens in Russia by Russian government security officials including for detention, the arbitrary enforcement of local law, limited flights into and out of Russia, and the Embassy’s limited ability to assist U.S. citizens in Russia.”
Worse yet, it looks like Griner did really have that illegal substance in her possession. She just pleaded guilty in front of a Russian court. In almost every such instance she’d be on her own, but for one exception: the recent declaration by the United States that Griner is somehow “wrongly detained.”
The wrongfully detained category grew out of a realization that a small percentage of Americans arrested abroad were indeed political prisoners, arrested abroad under a country’s (unjust) laws, or were being held beyond the normal sentence or conditions for political reasons. In other words, hostages. If a person is declared “wrongfully detained” by the U.S., the rules do a 180 and the full powers of the U.S. government are used to free you.
Congress passed the “Robert Levinson Hostage Recovery and Hostage-Taking Accountability Act,” named after the American missing in Iran for over 15 years. The 2020 law establishes 11 criteria for a wrongful detention designation, any one of which can be a sufficient basis to secure the detainee’s release, including “credible information indicating innocence of the detained individual,” “credible reports the detention is a pretext for an illegitimate purpose,” “the individual is being detained solely or substantially to influence United States Government policy or to secure economic or political concessions from the United States Government,” or a conclusion that U.S. “diplomatic engagement is likely necessary.” Secretary of State Blinken must personally approve such a designation, and transfer responsibility for the case from the State Department’s Bureau of Consular Affairs (disclosure: where I worked for 22 years) to the Office of the Special Envoy for Hostage Affairs.
What is next for Griner now that she has been declared wrongfully detained? Depending on the political goals of the Russians, her guilty plea may suffice. A Russian court will impose a fine or jail sentence to be waived, and Griner can be on her way home. This is most common when the American has harmed a host country national and some public “justice” needs to be seen being done. A similar outcome often arises out of humanitarian needs, where Griner is declared in need of medical care not available in Russia and the country sends her home as an act of good will.
But given the politics of Griner’s arrest, a very likely outcome will be a prisoner exchange. The Russians are interested in the release of Viktor Bout, sentenced to 25 years in an American prison for trying to sell heavy weapons to Colombian terrorists. This would track with diplomacy just this April that lead to the exchange of Trevor Reed, a former Marine who had been held for more than two years over a bar fight, and Konstantin Yaroshenko, a Russian pilot serving a 20-year federal prison sentence for drug smuggling. Reed’s health was cited as the motivator for the swap. One problem stands in the way of Griner’s release: it would be domestically politically difficult for the U.S. to again leave behind Paul Whelan, another former Marine, arrested in 2018 on espionage charges and sentenced to 16 years in prison, for Griner.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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