The Political Assassination of Donald Trump: Shots Fired
Democrats remain terrified of Donald Trump and will continue to do their worst to keep him from the ballot, where he has beaten them before. Political assassination attempts stretch from the near-comical to the deadly serious.
The most current attempt harkens back to one of the earlier ones. A handful of lawyers discovered the 14th Amendment, hidden away in plain sight inside the Constitution, actually was designed to drive Trump from the ballot. The Amendment, Article 3, states government officials who supported insurrection against the United States were not eligible for future office. Now despite that this was written to address the question of what to do with Confederate officials following the Civil War, modern lawyers have decided: a) Trump made a speech on January 6 as part of an insurrection and so b) his name cannot appear on any state ballot. Left undiscussed is who the hell are “they” to determine J6 was an actual insurrection on scale with the Civil War and not some naughty MAGA cosplay with absolutely zero chance of altering the election results, and the fact that Article 1 of the same Amendment mentions due process, of which the current legal thinking includes none.
This all reminds of the early Trump days citing of the Constitution’s Emoluments Clause, basically saying a president could not accept gifts from foreign countries (full disclosure: one of the worst Emoluments violators was eighth President Martin Van Buren, no relation.) The thinking way back in 2016 was the Founders had this scenario in mind: Trump owns some foreign hotels. Foreign people stay there. Some of the foreigners were government officials. Some tiny portion of each stay went into Donald’s pocket. Shazam! He was guilty of accepting official foreign gifts and violating the Emoluments Clause.
But that was all small change; the real money on getting rid of Trump before he was even sworn in, or handicapping his administration if he took office, was Russiagate. It was all the rage in 2016 and beyond — Trump colluded with the Russians because they had a tape of him with prostitutes doing Golden Showers. Or because he wanted to build a hotel in Moscow, one or the other. There was proof everywhere and Robert Mueller’s corpse was shocked back to life to investigate it all ahead of an impeachment-lynching party. In the end the whole thing was made up. A multi-year effort involving the three-letter agencies FBI, CIA, CNN, NBC, ABC, and CBS was based on tall tales from anonymous sources sifted into the zeitgeist by a former MI6 operative named Chris Steele. Oh, right, and Steele was paid entirely by the Clinton campaign.
The next swing at the piñata came from some little scab of a Lieutenant Colonel on the National Security Council, and some punks at the State Department, known as Impeachment 1.0. Using a cutout “whistleblower,” the cabal alleged Trump temporarily withheld arms from the Ukraine (before it became our 51st state under Joe Biden) until Kiev investigated and turned over the dirt on the Biden family. It turned out Trump did indeed temporarily withhold arms from the Ukraine (before it became our 51st state under Joe Biden) hoping Kiev would investigate and turn over the dirt on the Biden family. This is known as “foreign policy” or an “investigation.” Somehow the impeachment hinged on one transcripted phone call by Trump, so the evidence was not even in question, just how stupid the interpretation could be. Nothing stuck and the process failed to remove Trump from office.
After all that there was Impeachment 2.0 which had something to do with January 6, wasn’t finished until Trump had already left office, and did not matter because, significantly for the 14th Amendment crowd, Trump was not convicted of incitement or insurrection.
The broader problem is short of simply shooting Trump in the head, the guy never seems to go down. Every effort, and there were many, failed to get him off the ballot in 2016, cripple his administration, or drive him from the White House. Trump lost to Joe Biden in 2020 and that should have ended the matter. Trump should have taken his seat on The View and all these efforts to depose him should have faded into political history. The specific problem is that Trump never stopped running for president, and now must finally be stopped. The plan this time is to use the judiciary to achieve what it looks like the ballot box cannot, literally locking Trump in jail in hopes that from behind bars he cannot become president. There are five current efforts.
First up is Stormy Daniels again. Somehow a partisan prosecutor in a fully Democratic district managed to squeeze 34 felony counts out of this, centered on falsifying business records, which Trump is accused of doing to cover up the hush money payments to Daniels. Now leaving aside there is nothing illegal per se about “hush money,” (people receive payments all the time as part of nondisclosure agreements) this attempt to throw Trump in jail will rely on witnesses as pristine as Stormy herself, followed by stand-up guys like Michael Cohen. If the jury is at least close to fair when seated, the case has little chance of jailing Trump.
Second in line is a civil defamation case financial judgement. Four months after a jury found that Donald Trump defamed advice columnist Jean Carroll, a judge ruled still more of the ex-president’s comments about her were libelous. The decision means an upcoming second trial will concern only how much more he has to pay her. No possibility of jail time.
Next is the so-called Mar-a-Lago documents case. This centers on the former president endangering national security by mishandling classified documents after leaving office. Additionally, the case looks at how Trump obstructed FBI efforts to take back the documents. It will delve into the minutia of the classification system, and likely invoke the Supreme Court to decide how much leeway a former president has in declassifying documents. It is no small matter, legal-issue wise, as it affects not only Trump but every president to come (Joe Biden and Hilary Clinton also unlawfully had classified documents in their possession outside of the office but we don’t seem to care much about these cases.) Classification cases cases which don’t involve major espionage or spillage are usually settled by fines, as may be this one, unless the government can make a big deal about the obstruction part. A lot depends on proving Trump knew he was doing something wrong, mens rea, a tough ask with a fella like Trump who talks pretty. The matter is unlikely to result in jail time.
The Georgia election interference case, like Impeachment 1.0, seems to hinge on a single phone call, in this instance an ambiguous request by Trump to an election official to find him some more votes. Ambiguous in the sense that one reading is Trump requesting some sort of recount, while another is he is demanding the official create votes by some nefarious means. Another case of a partisan Democratic prosecutor in a fully Democratic district showing how her predecessors once rigged trials by choosing all-white juries. The new feature here is the prosecutor has come up with not only 13 felony counts against Trump himself stemming from a single incident, but also charged 18 associates, including Rudy Giuliani (once America’s mayor, how fast the looks fade) with various crimes. The implication is one of those people will turn evidence on Trump to save their own skin. The problem is that the Georgia case did not have any successful interfering; Trump still lost the state. That means the whole thing is going to bog down in conspiracy accusations — boring — and fail to capture public attention. Trump’s lawyers are also actively seeking a change of venue to get the case to more neutral jury selection territory. If they succeed, the chances of success against Trump seem slim. A guilty conclusion with some sort of fine seems likely.
The prosecution which has the greatest potential of shaping the next part of the Trump story is also likely to be the first major case heard, in March 2024, regarding Trump’s role in the events of January 6. At stake is not only a good portion of Trump’s political future, but also very serious questions about the First Amendment. What can someone legally say and do after losing an election? Of all the charges, incitement is not on the list, though it looks in part as if Trump is being held responsible for the actions of the mob. The charges focus again on conspiracy, though this time the stakes are very high, conspiracy to defraud the United States and its voters, practically a hanging offense. The J6 mob (and Trump) had no chance of overturning the 2020 election, so in some ways conspiracy is a thin thread to suspend the whole affair from. On the other hand, it may be easy to prove, especially if Mike Pence or another senior official turned evidence in their depositions and testified against Trump. The seriousness of the matter points towards jail time, as has been the case with all the other J6 defendants. It may not be the future of our democracy at stake, but it is certainly a good shot at the future of Donald Trump if the prosecution can wrap things up before the election.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Thomas “T.J.” Jefferson and Race-Based School Admissions
White parents and Asian parents are fighting over how many black students should be allowed into Thomas Jefferson High School for Science and Technology, in Alexandria, Virginia. The school, universally known as “T.J.,” is among the finest STEM high schools in the United States. Given its role as a feeder school into the upper echelons of tech in America, this is more than another culture war battle. It is not an exaggeration to say it affects national security, which is why the issue is likely to be sorted out by the Supreme Court.
From its beginnings until summer of 2020, the only way into prestigious T.J. for residents was to pass the rigorous entrance exam. Then in 2020, following the death of George Floyd, T.J. officials became concerned about their negligible number of black and Hispanic students and changed admissions standards. The test was gone, replaced by a holistic review that included “experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”
The results were as intended: without the entrance test, black students grew to seven percent from one percent of the class, while the number of Asian American students fell to 54 percent from 73 percent, the lowest share in years. The number of white students also fell, but no one seemed to care that they accounted for only 22 percent of admissions, despite being 65 percent of the county population. A group of mostly Asian American parents objected to the new plan and started the Coalition for T.J. The coalition filed a lawsuit with the help of the libertarian Pacific Legal Foundation. Instead of seeing weighting of experience factors as a way to level the playing field for underrepresented groups (or whether such a thing was even necessary) they saw racism. The experience factors were just a work-around for straight up race-based decisions.
After some action in lower courts, in May 2023 the Court of Appeals for the Fourth Circuit ruled in favor of the new admissions process, finding T.J. had not discriminated against Asian American students in its admissions policies. The appellate court, in a two to one ruling, found that there was not sufficient evidence the changes were adopted with discriminatory intent. Writing for the majority, Judge Robert King, a Clinton appointee, said that the school had a legitimate interest in “expanding the array of student backgrounds.” Too bad for the Asians, the on-and-off again minority; there’s only so many seats available at T.J. The court finding was that T.J.’s essay-based admission policy was race neutral and was not a proxy for race-based decisions. T.J. was able to make racially-motivated decisions without appearing legally to make racially-motivated decisions.
This was of course all before the June 2023 Supreme Court rulings in Students for Fair Admissions Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, which asked three questions: can race be a factor for admission, has Harvard violated Title VI of the Civil Rights Act by penalizing Asian American applicants by engaging in racial balancing, overemphasizing race and rejecting workable race-neutral alternatives, and whether a university can reject a race-neutral alternative because it would change the composition of the student body, without proving that the alternative would cause a dramatic sacrifice in academic quality or the educational benefits of overall student-body diversity. In short, can race continue to be an admission factor? The emphasis was on displacing Asian American students with black ones, which is why the Supreme Court cases saw amici filings by the Chinese American Citizens Alliance, the Asian American Coalition For Education, and the Asian American Legal Foundation. Also included was the Coalition for T.J.
The Pacific Legal Foundation now wants the Supreme Court to overturn the Appeals Court decision, arguing that T.J.’s new admissions policies disadvantage Asian American applicants. “They are, in our view, using proxies for race in order to get a racial result,” said Joshua Thompson, a lawyer for the Pacific Legal Foundation. In its filing Monday asking the Supreme Court to review the case, the Foundation argued that T.J.’s admissions plan was “intentionally designed to achieve the same results as overt racial discrimination.” Specifically referring to the Supreme Court’s June affirmative action decision, the filing said that its “guarantees might mean little if schools could accomplish the same discriminatory result through race-neutral proxies.” Is T.J. flouting the most recent Supreme Court decision?
It should be a helluva fight if the Supreme Court takes the T.J. case. In a forthcoming paper in the Stanford Law Review quoted in the New York Times, Sonja Starr, a professor of law and criminology at the University of Chicago, writes the plaintiffs are “laying the groundwork for a much bigger legal transformation” that could ban any public policy effort to close racial gaps, ultimately reverberating in “areas beyond education, such as fair housing, environmental permitting, and social welfare policies.”
In tension are the most basic of rights, that institutions should not discriminate based on race versus a more modern belief that institutions have a fundamental role to play in achieving racial balance in schools and the workplace. The Court’s decision in Harvard, et al, did not address the proxy concept, that by focusing on say essays schools could achieve racist ends by proxy means. In dissent at the Appeals Court, Judge Allison Rushing wrote the majority refused “to look past the policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result.” Judge Rushing, appointed by Donald Trump, added that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means.” She means, like T.J. is doing.
The T.J. case matters; if the Supreme Court rules for the Asian American parents’ group, that means race-neutral admissions will be the next in line to fall after the Court’s June affirmative action ruling.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump and Kryptonite
As of summer 2023 we have in America reached an amazing place politically: the Republican front-runner and very possibly the next re-president of the United States, Donald Trump, is campaigning while basically on bail in four different jurisdictions. And nobody in America cares much. Actually, Americans sort of care, but not in any way that makes more sense than not caring. In the words of another pundit, “cheer, scream, or shrug… and sip a banana republic daquiri.”
Americans, depending on their beliefs, expect and would be satisfied if Trump was either in a jail cell or the Oval Office as of January 2025. Painting with a broad brush, for Republicans, they are convinced the charges against Trump are Third World-style political warfare waged by Democrats and mean little. Democrats see Trump as a Great Satan and view the charges as the last, best (after two impeachments and Mueller) hope for our democracy. Despite accomplishing fairly little as president (the Supreme Court appointments, though impactful, were basically luck, and no LBTQ concentration camps were opened or nuclear wars started) another four years of Trump will either save us or destroy us. Friends, there is little gray area out there, and even less appetite for the reality of the cases against Trump.
So maybe it is not such a surprise that 38 percent of us feel “exhaustion” over the possibility of a Biden-Trump rematch in 2024. Some 52 percent feel either sadness or fear, or both, over the prospect. There is one area where a significant share of each party finds common ground: the belief that the country is headed toward failure. Overall, 37 percent of registered voters say the problems are so bad that we are in danger of failing as a nation, according to the latest New York Times/Siena College poll. Some 56 percent of Republicans and Republican-leaning independents said we are in danger of such failure. Around 20 percent of Democrats and Democratic-leaning independents say they feel the same way.
In the face of all this, the challenge for the judicial system to preserve faith in our democracy comes in several ways.
For example, how clear and “obvious” are the charges in each instance? There is a ever-growing distrust in public institutions, whether the government in general for failing to respond to public demands for more or less abortion rights, or the electoral system as a whole, or in this specific case, whether the judicial system can respond to what some perceive as unfair charges against Donald Trump. And make no mistake, each side sees a kind of unfairness in play; Republicans by and large see the charges as attempts to drive Trump out of the election or cripple him as a candidate while Democrats see the charges as a whole as the best of bad options, charging defamation when the real crime is rape, charging conspiracy when the real crime is the attempted overthrow of our democratic system.
Prosecutors must make the charges plain and of the “make sense” type, with no “ambitious charging.” Everything must be able to be explained and pass the sniff test to all but the most hardened opponents, whether they agree or not. This will be especially challenging for the thought crimes, the claimed conspiracies, whether Trump is somehow still guilty of something even though he not only did not overthrow the government and reverse the election, but that he had no realistic pathway to doing so. People will remember the impeachments beta, the Mueller Report, which came close to charging Trump with obstruction of an investigation which actually cleared him and found no predicate crime. The defense will try and muddle the waters and leave the public with a sense that Trump did nothing wrong really but the system was set up to get him somehow (not a hard case to make in several of the total of 90-some counts.) The more prosecutorial creativity (example, use of RICO in Georgia) and the more attempts to squeeze events into legal boxes they don’t quite fit in, the more challenge for the system to find a balance in explaining what is happening for the public to digest. Walking the public through the the minefield of ambiguity over classification in the Mar-a-Lago case is an example. Anything that is seen as partisan (conspiracy to do this, conspiracy to do that) fails the democracy in a mighty way.
Can the judicial system keep the language neutral? The most obvious partisan tells come from the language used, calling January 6 an insurrection for example. The judicial system should stick itself to neutral language and press both sides to do the same, perhaps agreeing to some terminology. Falling into the media trap of weaponizing the language is a real danger. Trump must be prosecuted based on what he did, not who he is. Acts must be on-their-face criminal, or they will be seen as political, Trump convicted of something, anything, just because he’s Trump and we need to send him to jail because all the other kryptonite failed. It’s a big ask; already the judge in his J6 trial has called those events a “mob attack” on “the very foundation of our democracy” and branded Trump’s claim the 2020 election was stolen a conspiracy theory.
Venue is important, and the system must show the flexibility to move cases to neutral venues when possible. Trying a case in a place like Manhattan or Fulton County, Georgia risks appearing to be the equivalent of an all-white jury in a 1950’s racial case. The jury pool in both states swings decidedly Democrat. Yet even then Salon decries the fact that a non-rigged jury might ruin the plan to convict Trump; “one MAGA juror can ruin it all,” they write. Both venues feature a local Democratic prosecutor (Manhattan District Attorney Alvin Bragg, Georgia’s Fulton County District Attorney Fani Willis) in a one-party jurisdiction. Would the indictments even have come down elsewhere?
Lastly, can the judicial system be seen as “timely?” Most everyone agrees the judicial system is failing on timing. Prosecutors in one batch of charges stemming from the events of January 6 want the trial to start at the beginning of the new year, ridiculously early for a case that has already produced 11.5 million pages of discovery (“Even assuming we could begin reviewing the documents today, we would need to proceed at a pace of 99,762 pages per day to finish the government’s initial production by its proposed date for jury selection,” a Trump lawyer wrote. “That is the entirety of Tolstoy’s War and Peace, cover to cover, 78 times a day, every day, from now until jury selection.” Can it all be relevant?) Lawyers for Trump instead asked a judge to push back the proceeding until April 2026, nearly a year and a half after the 2024 election and some five years after the fact when Trump will either be immune one way or another as president, or a regular on Dancing with the Stars having failed at the polls. Both political sides walk away sure the game is rigged. The other cases against Trump face similar demands to begin very soon or for lengthy delays.
They’re right in a way over at MSNBC, democracy is indeed on trial, but not in the way most people who say that mean. Instead, what is on trial is our judicial system as it struggles to answer the cornerstone question here: can the system rise above partisanship, even when partisanship is the intent of one side or both, and produce results which however reluctantly will be considered fair by the majority of Americans? A “no” answer risks further shattering of public trust in our institutions, and further polarization of our politics, if not violence. It may just be that it is not whether you win or lose in this battle, but how the game is played.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Lessons from Afghanistan for the Reconstruction of Ukraine
Though some say it is wishful thinking to be talking today about the reconstruction of Ukraine (they have to win first), it is never too early to pull out lessons learned from the last fiasco, in hopes they can be baked in to whatever eventual process is undertaken. That’s why a group of senators asked the Special Inspector General for Afghan Reconstruction (SIGAR) to put together a brief list of things not to do again in the course of rebuilding Ukraine.
SIGAR was in charge of overseeing the two-decades-long, $146 billion spend to rebuild Afghanistan. Over the course of years, in addition to the 1,297 audit recommendations SIGAR made to recover funds, improve agency oversight, and increase program effectiveness, they also made 143 sector-specific recommendations to executive agencies as part of the agency’s Lessons Learned Program. So while few people seemed to listen to them regarding Afghanistan, that doesn’t mean they had nothing to say, especially as regards to the next reconstruction program in Ukraine. As SIGAR notes, “While Afghanistan and Ukraine are very different countries with a history of facing very different threats, many of the challenges U.S. agencies faced in Afghanistan—coordinating efforts, dealing with corruption, and effectively monitoring and evaluating projects and programs—will be the same as the ones they will face in Ukraine.”
Trigger Warning: most of what SIGAR cautioned about for Afghanistan was exactly the same stuff its sister organization, the Special Inspector General for Iraq Reconstruction (SIGIR), cautioned earlier about in that war. Everything was equally ignored. It can be very frustrating to watch a whole-of-government approach to repeating one’s predecessor’s mistakes. It can be even more frustrating to have participated in it all, as I did, overseeing two reconstruction teams in Iraq while I still worked for the State Department.
Here’s a wild prediction: at some point in the future there will be a Special Inspector General for Ukraine Reconstruction (SIGUR!) which will watch the same mistakes from Iraq and Afghanistan repeated, with no one listening. Creating SIGUR has already been suggested; Senator Rand Paul back in May temporarily placed a hold on a $40 billion aid package to Ukraine, demanding unsuccessfully Congress insert a provision into the aid package creating an inspector general to oversee the distribution of the aid.
Nonetheless, there is always hope (the SIGAR people must be the most optimistic people on earth) in putting down on paper the blindingly obvious when billions of dollars and national credibility are at stake. So, from SIGAR with love, here are the seven lessons from Afghanistan for the reconstruction of Ukraine:
— Lesson 1: The U.S. government struggled to develop a coherent strategy for what it hoped to achieve in Afghanistan and imposed unrealistic timelines that led to wasteful and counterproductive programs.
Now who would think lacking a strategy and indeed any agreed-upon goal would slow things down? In Ukraine, will the goal be raising the entire country to Western European standards? Favoring the anti-Russian areas? Trying to buy loyalty in the pro-Russian areas? Or as in Afghanistan (as in Iraq, just substitute the two country names from here on out) simply spending money willy-nilly in hopes a coherent strategy might emerge in retrospect. Unrealistic timelines (variously, success before the next local election, before the next U.S. election, before the military change of command, before my tour as team leader is up…) meant most timelines were ignored. Hope they do better in Ukraine.
— Lesson 2: Lack of effective coordination—both within the U.S. government and across the international coalition—was a major obstacle to success in Afghanistan and resulted in a disjointed patchwork of ineffective efforts, rather than a united and coherent approach.
There’s that naughty word, coherent, again. In Iraq the Italian reconstruction team did not talk to never mind take direction from the Americans; they were too focused on providing commercial opportunities for their countrymen. USAID was really into schools and bridges, whereas State focused on “democracy building” such as empowering women in medieval Islamic societies via local modern drama clubs. The hope that synergy would emerge was consumed by the same thing that makes a million monkeys typing away at a million typewriters still unlikely to produce a great work of literature. And they may need all that time; reconstruction in Ukraine is expected to take decades.
— Lesson 3: Though viewed as our greatest strength, the level of financial assistance in Afghanistan was often our greatest weakness.
Like with teenagers and booze, too much money can only lead to trouble. Billions were spent with little oversight, leading directly to corruption. The money tsunami “overwhelmed the Afghan economy and fueled massive corruption from senior government officials in Kabul to low-level officials around the country. This corruption posed a critical threat to the mission.” SIGAR found “in Afghanistan, the U.S. government spent too much money, too quickly, in a country that was unable to absorb it” and warns of the same in the future Ukraine reconstruction.
Lacking a trusted banking system connected to international standard systems, business in Iraq and Afghanistan was done in cash, vast amounts of paper money brought in to the country on pallets and stored in copier paper boxes stacked alongside the safes which could not hold a tenth of the moolah on hand. It begged to be misused.
And then there was the unequal distribution of reconstruction funds. The military always had more than anyone else and so always won every discussion about what to do next. As SIGAR noted, when USAID tried to stop implementing projects in areas where they could not be monitored or evaluated, the military simply used funds from its Commander’s Emergency Response Program to implement those projects anyway—often in even less secure areas, where projects were unlikely to succeed.
— Lesson 4: Corruption was an existential threat to the reconstruction mission in Afghanistan.
This will be a massive issue in a place like Ukraine (it remains the most corrupt country in Europe excluding Russia; according to USAID, rooting out corruption in Ukraine will be a generational challenge) with its very organized crime emboldened by “lost” American weapons from the battlefield and new members with military experience. Rebuilding Ukraine means fighting graft first, claimed the Washington Post. Ukraine has “entrenched patronage networks that involve senior officials who can inhibit reconstruction and international aid by wasting assistance and damaging the government’s ability to deliver services. Combating corruption is difficult because it requires the cooperation and political will of those elites who benefit the most from it. Few cooperate willingly,” SIGAR wrote. Militia leaders, warlords, oligarchs, meh, they’re all pretty much the same problem in different headgear.
— Lesson 5: Building and reforming the Afghan security forces was hindered by their corruption, predation, and chronic dependency on the United States.
The Ukrainian military is 100 percent dependent on the United States for everything from spare parts to uniforms to strategic and tactical leadership. They have already lost the ability to fight on their own. The numbers help tell the story: over the course of two decades in Afghanistan, the United States spent an average of $375 million each month on security assistance. By comparison, the U.S. is currently spending $2.5 billion each month—nearly seven times the average monthly amount it spent in Afghanistan—on security assistance in Ukraine. Intended or not, that buys a lot of dependence.
Meanwhile, as in Afghanistan, the Ukraine’s internal security forces remain rife with corruption and require urgent reform. Ukraine’s police have been largely feared and distrusted by the people they are supposed to serve. In some areas of the country, the police have resembled “a mafia-style organization” that intimidates locals with impunity, warns SIGAR.
— Lesson 6: Tracking equipment provided to Afghan security forces proved challenging well before the government collapsed.
So much military equipment poured haphazardly into a country is sure to see some of it end up in the wrong hands. In Afghanistan, the U.S. was supplying both sides of many encounters, arms leaking out into the countryside via corruption, lack of security, and poor stock keeping. Already in Ukraine, Russian organized crime groups, local crooks, and unauthorized volunteer battalions obtained or stole weapons from Department of Defense security aid meant to arm the Ukrainian military for its defense against Russia, according to an inspector general report revealed as the result of a Freedom of Information Act request submitted by Military.com. In just a taste of what’s to come, the report shows how U.S. efforts to meet end-use goals for billions in security assistance donated throughout 2022 often failed. Little or no accountability existed on the U.S. side, allowing weapons to be diverted to criminals and opposition forces.
Another Department of Defense (DOD) report made public found employees fell short of requirements for tracking financial aid to Ukraine. The report examined how the DOD was monitoring transactions from over $6.5 billion in funding from the Ukraine Supplemental Appropriations Act through Advana software, the only authorized reporting platform. Auditors warned DOD’s subpar reporting processes, including use of systems that are unreadable by Advana, could hinder oversight and transparency (the U.S. did not properly track $18.6 billion in aid to Afghanistan, partly because it employed software systems that were either incompatible with one another or incapable of handling the volume of data received. Most projects in Iraq, millions of dollars, were tracked only via a shared Excel spreadsheet.)
— Lesson 7: Monitoring and evaluation efforts in Afghanistan were weak and often measured simple inputs and outputs rather than actual program effectiveness.
In Iraq we evaluated a program’s effectiveness like this: we increased the amount of money we spent one quarter on education by 13 percent. The next quarter we announced a 13 percent improvement in education in our area; it was simple as that.
“Oversight became an afterthought,” wrote SIGAR. “The U.S. government is poor at predicting the resources and length of time necessary to rebuild complex institutions in other countries. The timelines created by U.S. officials ignored conditions on the ground and created perverse incentives to spend quickly and focus on short-term goals. The U.S. government emphasized short-term, tangible projects where money could be spent rapidly and success claimed more immediately over less tangible but potentially more enduring, long-term programming, such as capacity building. Physical security, political stability, and immediate reconstruction needs took priority over the slow, iterative work of building good governance and the rule of law, the foundations for combating corruption.”
There are the lessons, solid suggestions each one. They were largely ignored in Afghanistan and Iraq. Think they’ll do any better in Ukraine?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Dissent Channel, Afghanistan and Confidentiality
Something quite significant in U.S. diplomatic history is going to take place — a State Department Dissent Channel message, concerning the evacuation and withdrawal from Afghanistan, is going to be shared with Members of Congress.
House Foreign Affairs Committee Chairman Michael McCaul announced his panel investigating the final days of American presence in Afghanistan will view the Dissent Channel cable. McCaul threatened to hold Secretary of State Antony Blinken in contempt if he did not provide him access to the diplomatic cable, which came from a confidential “dissent channel” that allowed State Department officials to discuss views which may be different from administration policy.
It is believed the July 2021 cable discussed concerns from the rank-and-file diplomatic staff not fully shared by senior embassy executives and management about the upcoming American pullout from the country, warning the U.S.-backed Afghan government could fall. The cable specifically advised an earlier withdrawal date than that ultimately chosen by the Biden Administration, and may have addressed the decision to conduct the entire evacuation from a single civilian airport in Kabul.
So what is the Dissent Channel and why is this particular cable so important?
The Dissent Channel was set up in 1971 during the Vietnam War era as a way for foreign service officers and civil servants at State (as well as United States Agency for International Development, the Arms Control and Disarmament Agency, and the former United States Information Agency) to raise concerns with senior management about the direction of U.S. foreign policy, without fear of retribution. The cables (formal, official State internal communications are still referred to as “cables” harking back to early diplomatic days when telegrams were used to communicate between Washington and embassies abroad) are sent to the State Department’s policy planning director, who distributes them to the secretary of state and other top officials, who must respond within 30 to 60 days. There are typically about five to ten each year. “Discouragement of, or penalties for use of, the Dissent Channel are impermissible,” according to the State Department internal regulations.
Use of the Channel covers the scope of diplomatic mission. Historical messages include a dissent over the executive branch’s decision to “initiate no steps to discipline a military unit that took action at My Lai” in Vietnam and the “systematic use of electrical torture, beatings, and in some cases, murder, of men, women, and children by military units in Vietnam.” These actions by U.S. soldiers were “atrocities too similar to those of Nazis.” Another dissent was over the “hypocritical” U.S. support of the Somoza regime in Nicaragua, bemoaning that the U.S. missed a “unique opportunity to intervene for once on the right repeat right side” of history. One older atypical dissent cable complained about having to arrange female companionship in Honduras for a visiting U.S. congressman. In the words of one now-declassified cable, “The Dissent Channel can be a mechanism for unclogging the Department’s constipated paper flow” related to employee dissent against current foreign policy actions.
What the Channel does is one thing; who gets to see it is another. Until now, dissent messages have generally been regarded as something sacrosanct not to shown to outsiders and not to be leaked. “Release and public circulation of Dissent Channel messages,” State wrote to one inquirer,” would inhibit the willingness of Department personnel to avail themselves of the Dissent Channel to express their views freely.” The messages were first withheld from the rest of government (and the public) by State under the rules which created the system, and later under the Freedom of Information Act’s (FOIA) “predecisional” Exemption 5, until the 2016 FOIA Improvement Act amendments made it illegal for agencies to use this exemption after 25 years. So sharing the Afghan dissent cable with Members of Congress, especially so soon after the administration’s evacuation policy failed in Afghanistan, is a very big deal at the State Department.
One publicized exception to how closely held dissent messages are took place in 2017 when nearly a thousand State Department Foreign Service Officers signed a five page dissent message opposing President Donald Trump’s executive order, “Protecting the Nation from Foreign Terrorist Entry into the United States,” which prohibited seven additional Muslim nationalities from entering the U.S., aka “The Muslim Ban.” As a result of an anti-Trump contingent inside generally liberal and mostly Democratic-leaning State, the message was leaked in its entirety. Even more against precedent, Trump’s spokesman Sean Spicer issued an extraordinary public rebuke to the diplomats: “These career bureaucrats have a problem with it? They should either get with the program or they can go.”
An almost-leak (a State Department official provided a draft, though the final version was not published, to The New York Times) took place in 2016 during the Trump-Clinton presidential election, after 51 Foreign Service Officers criticized the Obama administration via the Dissent Channel for failing to do enough to protect civilians in Syria in what was widely seen as an endorsement of Candidate Hillary’s pseudo-promise to put U.S. boots on the ground in Syria. Other Trump-era dissent cables not shared outside the Department called for consultations on Trump’s removal from office, and rebuked the secretary of state for not forcefully condemning the president over January 6.
To fully understand what the Dissent Channel is requires a better understanding of the State Department culture, academic in nature but frighteningly risk adverse. The academic side reflects the Department’s modern origins as being made up of those who were “male, pale, and Yale” where the tradition of loyal opposition holds sway. But it is the risk adverse side of State that tells how important internally revealing the Afghan cable is. Dissent messages are signed, no anonymous ones allowed, and while Secretary Blinken has promised to not show the names of those who signed the Afghan cable to Congress, State senior management will know exactly who wrote what.
In addition, Dissent Channel messages must still be cleared for transmission to the secretary of state in Washington at post, though there is no requirement everyone agree with the contents per se (authorization does not imply concurrence.) So one’s colleagues know who wrote what, potential dynamite in an organization where dissent is otherwise not encouraged and corridor reputation plays a deciding role in promotions and future assignments. It is a significant step to write or sign a dissent cable and despite the regulations’ admonishment that use of the Dissent Channel not be discouraged by supervisors, it is discouraged.
Nobody in Embassy Kabul who signed that dissent message, basically telling their boss the ambassador and the Biden Administration they were wrong, expected to have their opinions shown to Congress; quite the opposite. Blinken, by sharing the cable with Congress, is breaking faith with his institution and with his front line workers in a uncollegial way only imagined by them during the Trump administration. Once upon a time something like that would have called for dissent.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Disinformation, 1984-2023
Orwell, again. 1984 was prescient on so many concepts that it seems it was written for the Biden era. Underlying it all is the concept of disinformation, the root of propaganda and mind control. So it is in 2023. Just ask FBI Director Chris Wray. Or Facebook.
George Orwell’s novel explores the concept of disinformation and its role in controlling and manipulating society. Orwell presents a dystopian future where a totalitarian regime, led by the Party and its figurehead Big Brother, exerts complete control over its citizens’ lives, including their thinking. The Party employs a variety of techniques to disseminate disinformation and maintain its power. One of the most prominent examples is the concept of “Newspeak,” a language designed to restrict and manipulate thought by reducing the range of expressible ideas. Newspeak aims to replace words and concepts that could challenge or criticize the Party’s ideology, effectively controlling the way people think and communicate (unhomed, misspoke, LGBQTIAXYZ+, nati0nalist, terrorist.)
Orwell also introduces the concept of doublethink, which refers to the ability to hold two contradictory beliefs simultaneously and accept them both as true. This psychological manipulation technique allows the Party to control the minds of its citizens and make them believe in false information or embrace contradictory ideas without questioning (masks which do not prevent disease transmission are still mandatory.) The Party in 1984 alters historical records and disseminates false information through the Ministry of Truth. This manipulation of historical events and facts aims to control the collective memory of the society in a post-truth era, ensuring that the Party’s version of reality remains unquestioned (war in Ukraine, Iraq, El Salvador, Vietnam, all to protect our freedom at home.)
Through these portrayals, Orwell highlights the dangers of disinformation and its potential to distort truth, manipulate public opinion, and maintain oppressive systems of power. The novel serves as a warning about the importance of critical thinking, independent thought, and the preservation of objective truth in the face of disinformation and propaganda.
Disinformation is bad. But replacing disinformation with censorship and/or replacement with other disinformation is worse. 1984 closed down the marketplace of ideas. So for 2023.
In 2023 America the medium is social media and the Ministry of Truth is the Executive Branch, primarily the FBI. Topics the FBI at one point labeled disinformation and sought to censor in the name of protecting Americans from disinformation include but are not limited to the contents of Hunter Biden’s laptop, the Covid lab leak theory, the efficiency and value to society of masks, lockdowns, and vaccines, speech about election integrity and the 2020 presidential election, the security of voting by mail, even parody accounts mocking the president (about Finnegan Biden, Hunter Biden’s daughter.)
When asked before Congress to define disinformation, FBI Director Christopher Wray could not do it, even though it is the basis for the FBI’s campaign to censor Americans. It’s a made up term with no fixed meaning. That gives it its power, like “terrorism” was used a decade or so earlier. Remember “domestic terrorism”? That stretched to cover everything from white power advocates to J6 marchers to BLM protestors to Moms for Liberty. It just can’t be all those things all the time but it can be all those things at different times, as needed. The term “hate speech” is another flexible tool of enforcement and is why efforts to codify banning hate speech under the First Amendment must be resisted so strongly. Same for QAnon. We’ve heard about QAnon for years now but still can’t figure out if it even exists. To read the MSM, you would think it is the most powerful and sinister thing one can imagine yet seems to be imaginary, another Cthulhu. Do they have an office, an email address, a lair somewhere?
In simple words: the government is using social media companies as proxies to censor the contrary thoughts of Americans, all under the guise of correcting misinformation and in direct contrivance of the First Amendment.
How bad does it get? As part of its 2023 investigation into the federal government’s role in censoring lawful speech on social media platforms, the House Committee on the Judiciary issued a subpoena to Meta, the parent company of Facebook and Instagram, and Alphabet, the parent of Google and YouTube. Documents obtained revealed the FBI, on behalf of a compromised Ukrainian intelligence service, requested and, in some cases, directed, the world’s largest social media platforms to censor Americans engaging in constitutionally protected speech online about the war in Ukraine.
Another tool of thought control is the Foreign Intelligence Surveillance Act (FISA), which was supposed to be used to spy on foreigners but has been improperly used against thousands of Americans. Over 100,000 Americans were spied on in 2022, down from three million in 2021.
Does it sound familiar? An amorphous threat is pounded into the heads of Americans (Communism and Red Scares, Covid, terrorism, disinformation) and in its name nearly anything is justified, including in the most recent battle for freedom, censorship. The wrapper is that it is all for our own protection (Biden himself accused social-media companies of “killing people,” the more modern version of the terrorism-era’s “blood on their hands”) with the government assuming the role of knowing what is right and correct for Americans to know. The target in name is always some Ruskie-type foreigner, but in reality morphs to be censorship of our citizens ourselves (stained as “pro-Putin.”) Yet Meta CEO Mark Zuckerberg admitted the government asked Facebook to suppress true information. He said during the Covid era the scientific establishment within the government asked “for a bunch of things to be censored that, in retrospect, ended up being more debatable or true.”
Under President Joe Biden, the government has undertaken “the most massive attack against free speech in United States history.” That was the extraordinary conclusion reached by a federal judge in Missouri v. Biden. The case exposed the incredible lengths to which the Biden White House and its federal agencies have gone to bully social-media platforms into removing political views they dislike. The White House is appealing and attained a stay, hoping to retain this powerful tool of thought control right out of 1984. A victory for censorship of Americans and their thoughts could be the greatest threat to free speech in American history.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A Victory Over Social Media Censorship
In a season of good news for the First Amendment following some important Supreme Court decisions, here’s more to be happy about: a federal judge in Louisiana issued an injunction stopping Biden administration officials from contacting social media companies to block content in what could be a landmark order targeting government censorship and suppression of online postings. The judge ruled the Biden administration likely violated the First Amendment by censoring unfavorable views on social media over the course of the coronavirus pandemic, calling the efforts “Orwellian.” It was the first formal acknowledgement of a systemic program by the government to use the social media giants as proxies to censor the speech of Americans.
The injunction is a major development in the fight over boundaries and limits of speech online. With a particular emphasis on the pandemic, Biden officials worked hand-in-glove with contacts at social media outlets such as Twitter and Facebook to block both entire themes (including non-administration takes on “climate change, gender discussions, abortion and economic policy,” as well as Covid) and specific individuals. The judge said pressure went beyond aggressively encouraging the platforms to take down posts to coercion of some of the biggest social media companies by the “most powerful office in the world.” For example, at the Centers for Disease Control and Prevention, officials held “weekly sync” meetings with Facebook and emailed them offending posts for takedown. The FBI’s San Francisco field office had eight agents responsible for forwarding concerns about social media posts to seven tech companies multiple times a month.
Biden officials subject to the injunction include White House press secretary Karine Jean-Pierre, employees of the Justice Department and FBI, the State Department, the Centers for Disease Control, Health and Human Services Secretary Xavier Becerra, Department of Homeland Security Secretary Alejandro Mayorkas, Jen Easterly, who leads the Cybersecurity and Infrastructure Security Agency, and Surgeon General Vivek Murthy plus two more pages of lesser-known names. None of them may contact say Twitter and request a particular social media posting be taken down. They cannot talk to social media companies for “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.” The judge’s order also bars government agencies from communicating with some outside groups, including the Election Integrity Partnership, the Virality Project, and the Stanford Internet Observatory, to promote the removal of protected speech online.
Under the guise of preventing “disinformation” but in reality in support of a unified government line, the government exercised prior restraint, a stroke against the First Amendment. Prior restraint was also in evidence in the shadow government efforts to block anti-administration news, such as the discovery of financial crimes on Hunter Biden’s laptop and the Covid lab-leak theories. “When, in the public forum, there is speech they disagree with and does not align with their political narratives,” Missouri’s attorney general, said, referring to administration officials, “they then collude with and coerce Big Tech’s social media to take that speech down.” In short, there was so much collusion between government and social media giants as to constitute active and ongoing censorship, and it was time to reassert the First Amendment rights of Americans to a market place of ideas, not just what the government wants to peddle.
“During the COVID-19 pandemic, a period perhaps best characterized by widespread doubt and uncertainty, the United States Government seems to have assumed a role similar to an Orwellian ‘Ministry of Truth,’” the Louisiana judge wrote in his full opinion in regards to an order creating the injunction. He concluded the plaintiffs, led by Missouri and Louisiana, were likely to succeed in suing the government and issued an injunction limiting administration officials from attempting to coordinate with social media giants to remove content until the matter can be formally settled. “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” the judge said.
For at least the time being, gone are the days a Robert Kennedy post questioning vaccinations could be taken down after a phone call from the CDC, or a Joe Rogan Facebook piece suggesting Covid was a lab leak out of China be deep-sixed or shadow banned by the FBI. The Biden administration has already appealed the injunction order. They warn the injunction could undermine national security efforts, since some “censorship” was established to respond to Russian actors sowing disinformation in the runup to the 2016 election. Yet almost all the targets of federal censorship during the Biden era have been Americans. The issue has Supreme Court written all over it.
Most of the censorship practiced imposed on conservative thinking. “This targeted suppression of conservative ideas is a perfect example of viewpoint discrimination of political speech,” the judge wrote. “American citizens have the right to engage in free debate about the significant issues affecting the country… the evidence produced thus far depicts an almost dystopian scenario.” The injunction specifically cites a Biden grandchild parody account that was quickly deleted after an email from the White House director of digital strategy to contacts at the old Twitter. The judge also pointed to efforts to suppress content from Robert Kennedy and Ted Cruz. We note at one point in the past my Twitter account along with those of Antiwar.com Scott Horton’s and Director of the Ron Paul Institute Daniel McAdams’ were suspended on the same day, and only restored at about the same time under Twitter’s new management.
At the core of all this is a new term, disinformation, right out of George Orwell’s NewSpeak. Ostensibly referring to social or MSM content of dubious authenticity, the term has been further bastardized to basically mean anything contentious that one side disagrees with. The idea that the government can behind closed doors label some bit of info disinformation and demand it be taken down from social media is indeed censorship. It prevents offending ideas from reaching the public.
Over the past few years, coordination and communication between government officials and the companies increased as the federal government responded to rising election interference and voter suppression efforts after claims Russian actors sowed disinformation on social media sites during the 2016 election. Public health officials also frequently communicated with the companies during the coronavirus pandemic. Orders seem to come from the top. “They’re killing people,” Biden said in July 2021, after being asked about the presence of anti-vaccine content on Facebook and other sites.
Like so many things such as the all-consuming surveillance which affect our society, the idea of the government and social media working collaboratively to censor arose out of concerns over terrorism post-9/11, specifically that ISIS and others were using social media to recruit. Government agencies would point out offending posts and its proxies in social media would remove them. It all seemed for the good. However “the deep state planted a seed of suppression by government censorship, but that seed was fertilized, germinated and grew rapidly once President Biden took office,” Missouri Attorney General Andrew Bailey said in an interview.
It is unclear at exactly what point the government assumed editorial responsibility for “calling out false speech,” or what WaPo calls “coordination with social media.” It is unclear at what point the government felt it could climb astride the First Amendment to control what Americans read. It is unclear why social media companies would so casually hand over responsibility such that a phone call from a DOJ bureaucrat could secretly kill a line of inquiry or thought online.
There has been pushback from only one corner of social media. Elon Musk sought to make a similar case to the injunction regarding censorship with the release of internal messages detailing the debates that executives had before he took over Twitter last year. The messages he released, called the Twitter Files, offered a peek inside the company’s interaction with government and law enforcement to restrict prominent accounts. They included revelations about the internal debate at Twitter over blocking links to a New York Post article about Hunter Biden in 2020. The Files show employees (the Site Integrity Policy-Policy Escalation Support team) were tasked with suppressing the visibility of accounts or subjects deemed undesirable or dangerous, with and without government’s help, all in secret. Musk called Twitter “both a social media company and a crime scene.”
There was no stopping this censorship until now with this injunction and the litigation to follow. The ultimate outcome could help decide whether free speech and an open market of ideas has a future online, or, in the words of the NYT, “the First Amendment has become, for better or worse, a barrier to virtually any government efforts to stifle a problem.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Free Speech and Fair Play are a Bitch
If there were two lessons from the high school civics class most Americans seemed to skip that they should learn now they are: rights are for everyone and free speech sometimes protects speech you don’t like yourself. Luckily, the Supreme Court recently offered America a tutorial on both topics.
In Students for Fair Admissions, Inc. v. President & Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina the Court made the common sense ruling that discrimination of some colors of people is a poor way to fix discrimination of other colors of people. What woke mind could possibly conceive that the 14th Amendment’s equal protection under the law meant treating a large portion of the population grossly unfairly at the expense of another? Kind of a common-sense argument but one America needed to travel all the way to the Supreme Court to resolve.
Starting back with 1979’s Bakke and largely confirmed by the Supreme Court in 2003’s Grutter, America’s higher education institutions decided it was they who would fix systemic racism in America by offering preferential treatment by race, specifically, white and yellow colored students were considered less deserving of a good education at say Harvard, and had to sit out the Ivy League so that some black and brown kids could take their places. The word for this back in the day was not racism (which it was) but “affirmative action.” It would right wrongs. This “reverse discrimination” was allowed through some clever word play because its goal of a diverse student body was considered a “compelling state interest” that overshadowed other compelling interests, such as equal protection for all under the law. It was sanctioned by the Supreme Court of its day, but only as a temporary solution; Justice Sarah Day O’Conner in one of the key cases upholding affirmative action wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”
It didn’t seem to work, short or long term, in significantly changing society, if black and brown activists of 2023 are to be believed. Decades of pushing aside white and yellow kids (the former privileged because once upon a time other unrelated white people owned slaves and the latter just too damn hard working and smart) for black and brown did not seem significantly change society. There are of course individual examples, both fake (blacks or browns who would have succeeded in any system) and occasionally real, true by-their-bootstraps stories once they got that helping hand.
“When affirmative action was conceptualized, it was to right past wrongs,” one commenter said. “Then, it became sort of endless. It wasn’t just African Americans. It was Native Americans and Hispanics. And then it was women, LGBT, etc., and that wiped out the moral imperative of it a little, because diversity is not quite as strong a claim as correcting past wrongs.”
There were other problems. Letting someone into Harvard is not the same as him succeeding at Harvard. I learned that in high school too, by the way. If some program had sent me to an Ivy school at age 18 I would have failed miserably, coming out of a non-rigorous but nice enough Ohio high school where upon graduation I had neither read one classic book nor written one proper research paper. I think Harvard expects you to know that kind of thing and white as I am, I would have floundered. I’m sure they have some sort of remedial program for their unqualified students but it seems unlikely to make up for many years of half-hearted education before it. And that exposes another dirty little secret about why affirmative action failed; America is divided by class, not race (though the two overlap in a Venn diagram.)
America’s second recent high school civics lesson is you as an individual may not like everything other people use their freedom of speech to say and do; in fact, their deeply held beliefs may run 180 degrees from yours. Protip for exam time: this is the whole point of the First Amendment free speech clause and it was on display in another recent Supreme Court decision, 303 Creative v. Elenis.
The crux of the case is that one side, a web designer, wanted to know what would happen if she refused to produce a hypothetical celebratory wedding page for a gay couple, claiming her religion did not allow her to support same-sex marriage. The couple would have sued because of course they would, likely claiming as a protected class by sex in Colorado, the cake maker must be forced by the government to make the cake they wanted celebrating their nuptials. Lower courts had weighed in in favor, claiming various cake makers, florists, and web designers must be forced to practice their craft (i.e., their expression, their speech) to avoid LGBT discrimination. It was as if one side had more rights than they other and would have resulted in the government of the United States using the threat of arrest or fine to force the web designer to produce speech she was opposed to.
That’s a big no-no in a democracy, compelling speech.
Though the state can demand businesses provide goods and services to all customers in protected categories, it cannot demand individuals engage in speech proclaiming messages that they oppose, such as in web page design. In Justice Samuel Alito’s words, a win for the state of Colorado would mean some businesses that provide custom speech for customers could be forced to “espouse things they loathe.”
This all goes back to 1943’s West Virginia Board of Education v. Barnette when during WWII the Supreme Court held West Virginia could not make Jehovah’s Witness students pledge allegiance to the American flag. The decision contained arguably the most famous finding in American First Amendment law: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein.” The key finding in 303 Creative is the designer is not denying a service on the basis of status of a protected class but instead refusing to engage in speech because she disagreed with its message (Masterpiece Cakeshop failed to yield a definitive ruling and is not relevant here.)
Despite all the hub-bub, the Court correctly applied the broader civics class way of thinking in 2023, focusing on the First Amendment speech clause, and said nothing directly about the more contentious and limited religious aspect of all this, and passed on 2023’s wokist definition of discrimination. Had the recent case involved a Jehovah’s Witness’ web page and not ostensibly something to do with gay rights, you would barely have heard of the matter even though the real significance would have been about the same.
It’s easy to forget most of what you heard in high school, especially in a one-off class like civics. But common sense can get you a long ways. It is easy to write off the Court’s decision in Students for Fair Admissions as discriminatory, with only a little thought that what it did away with — affirmative action — was discriminatory as heck. Same for 303 Creative v. Elenis, which is being promoted by the MSM as anti-LGBT thing when in fact it is an example of how robust our First Amendment is. At the Founding no one could have conceived of a free speech battle between a web designer and gay clients, but that is what the First Amendment expanded to take in. The Supreme Court has not gone rogue, and democracy is not in danger. These two recent cases prove if anything the system is flexible for the times and robust in defending the most basic freedoms a democracy is built upon.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Some Leftover Questions for Hunter Biden
About two years ago during a debate with Donald Trump, Joe Biden dismissed his son’s laptop emails as disinformation, maybe from Russia. After becoming president, Joe said his son Hunter was innocent, and most recently, even after Hunter pleaded guilty to tax evasion and weapons charges, said he was proud of his son. So in terms of leftover questions, let’s start with: which part are you proud of, Joe? The video evidence of his crack use? The video evidence of his cavorting with prostitutes? The tax evasion charges, or was it the weapons charge, where Hunter lied to obtain a handgun? Well, it is pride month after all…
Joking aside, the easy-sleazy plea deal Hunter accepted (which has him do no jail time in lieu of probation) leaves begging several important questions about exactly what Hunter (and Joe, and Jim, Joe’s brother) were doing in return for millions of dollars in consulting fees. Tax evasion seems just the beginning, but let’s get very specific. For the most part, unless noted with a URL, incidents below are drawn from Hunter’s email and laptop documents (we published a dive into the laptop’s contents online in December 2020, and a deeper dive in our print edition.)
The reason we have to ask all these sticky questions is because half of Americans — including a third of Democrats — think Hunter got favorable treatment from federal prosecutors after he agreed to a sweetheart plea deal.
So Hunter, you joined the Burisma board at a salary of $83,000 a month with no obvious work duties. What was your actual job at Burisma? We ask because on April 16, 2014, while Papa Joe was vice president, he met with your business partner, Devon Archer, at the White House. Five days later, Joe travelled to Ukraine to lobby for increased fracking. Burisma was one of the few companies licensed to frack in Ukraine. Burisma made hundreds of millions of dollars from Ukraine’s new policy. Burisma paid more than $4,000,000 for your and Archer’s board memberships, including at least $1,450,000 wired directly to your accounts.
While you and Archer were serving on Burisma’s board, Ukraine’s top prosecutor, Viktor Shokin, was investigating Burisma and its owner. In his official position as vice president, Biden demanded Ukraine fire Shokin, and threatened to withdraw $1 billion in U.S. military aid if it did not do so. Shokin was fired.
While serving on the Burisma board, you and Archer sought meetings with senior State Department officials, including then-Secretary of State John Kerry and then-Deputy Secretary of State Antony Blinken. What did you guys chat about? The reason we ask is because whatever your job description read, your value to Burisma was your perceived access to the Executive Branch. Papa Joe was at least a passive participant in the scheme, maybe more than that.
Your laptop shows you, through a number of front companies, accepted money from foreign firms and moved that money to the U.S. where it was parceled out to other entities, including Joe’s brother Jim. Some of it then went back to foreign hands. It all smells bad — multi-million dollar transfers to LLCs without employees, residences used as business addresses, legal tricks from Cyprus to the British Virgin Islands. Can you explain why your fees traveled such circuitous routes? What did you pay Brother Jim for, and why did he appear to kickback some of the money you paid him?
What is this money al about, Hunter? in 2014, you received a $3.5 million wire transfer from Elena Baturina, the richest woman in Russia and the widow of Yury Luzhkov, the former mayor of Moscow. Baturina became Russia’s only female billionaire when her company received a series of Moscow municipal contracts while her husband was mayor.
But let’s move on to China, Russia and Ukraine are so depressing. The majority of the contents of your laptop are a jumbled record of your international business ventures. Outstanding in the haystack are a large number of wire transfers to and from your clients (but no evidence of what “work” you performed for those clients. Hmm.) Those with traceable addresses appear to be mostly anonymous shell companies run out of lawyers’ offices, with no employees and fuzzy public paper trails. One typical one involved $259,845 traveling on April 2, 2018 from your Hudson West III in New York to a numbered bank account held by Cathay Bank in Asia. Hudson West was created by Hunter Biden’s own law firm, Owasco, with several Chinese nationals, including a Jianming Ye associate, Gong Wendong. Ye Jianming is chairman of CEFC China Energy, who reportedly had close ties to both the Chinese government and the PLA. He’s been arrested in China on corruption charges.
Hunter, in August 2018 you also returned $100k back to CEFC in China via its own New York subsidiary LLC, Hudson West V, whose listed address was on Foxwood Road, in New York state. That address is not a business office but instead a single family home worth over $5 million. It looks like the place has new owners, but phone records suggest two people lived there when you were in business, including Gong Wendong. Money appeared to move from physical China to virtual Hunter back to virtual China in the U.S., starting and ending in accounts tied to Gong Wendong after touching base with Hunter, a potential indicator of laundering. Chinese money in China changed into Chinese money in America. Caution is needed; while what looks like American money laundering at first glance may indeed be so, or could be designed to hide the cash from the Chinese government while staying inside American law, a quasi-illegal service you possibly supplied. Is that what you were really up to, fee-for-service to the Chinese? Enquiring minds and all that, you know.
The Foxwood address also appears on millions of dollars worth of bank transfers among Cathay Bank, CEFC, and multiple semi-anonymous LLCs and hedge funds. One single transfer alone to Hudson West III on August 8, 2017 represented the movement of $5 million from Northern Capital International, which appears to be a Chinese government-owned import-export front company. What was that all about?
In addition, the house on Foxwood was the mailing address for a secured VISA card in the name of your company, Hudson West III. The card is funded by someone unnamed through Cathay Bank for $99,000 and guaranteed by someone’s checking account held by Cathay worth $450,000. Shared users of the card are you, Hunter, and Gong Wendong. The card was opened as CEFC secured a stake in a Russian state-owned energy company. Biden and others subsequently used the credit card to purchase extravagant items, including airline tickets and things at Apple stores, pharmacies, hotels, and restaurants. A Senate report characterized these transactions as “potential financial criminal activity.” Putting money on a secured VISA card in lieu of a direct wire transfer may be seen by some as an attempt to obscure the source of the money and thus allow you not to claim it as income but you didn’t do that, did you Hunter?
Jim Biden, Joe’s brother, was also an authorized user of the credit card. Jim over the years has been a nightclub owner, insurance broker, political consultant, and investor. When he ran into financial trouble having triple mortgaged his home, he was bailed out via loans from Joe and you, Hunter, and by a series of Joe’s donors. Jim also received a loan of $500k from John Hynansky, a Ukrainian-American businessman and longtime donor to Joe Biden’s campaigns. This all was in 2015, at the same time the then-vice president oversaw U.S. policy toward the country. As a senator, Joe Biden made use of a private jet owned by Hynansky’s son.
That will leave undigested the bigger tale of President Joe Biden, who ran in part on an anti-corruption platform following the Trump family escapades. While Joe Biden says he regrets meeting with the Burisma official, he did indeed take the meeting as VP. It’s always easier to apologize when caught than seek permission in advance in Joe’s world. Is that what your dad always says, Hunter?
A 2017 email chain involving Hunter brokering an ultimately failed deal for a new venture with old friend CEFC, the Chinese energy company, described a 10 percent set-aside for the “big guy,” whom former Hunter Biden partner Tony Bobulinski publicly identified as Joe Biden. Joe also took Hunter to China with him in December 2013 on Air Force 2, and met with Chinese leaders while Hunter tried to make deals on his own. It was Joe’s donors and pals who bailed out brother Jim over the years with sweetheart loans.
There is a lot more but you get the picture. A lot of appearance of improprietous malarkey from a senior statesman like your dad who should have known better. In places like China and the Ukraine, where corruption is endemic, it is assumed the sons of powerful men have access to their father. You traded on those assumptions for millions of dollars, and Papa Joe stood by understanding what was happening. Every father wants to help his son, and we can imagine you went to his dad time after time, pleading for just one more little favor to get you past your sordid past.
Joe Biden said of Hunter, “I have never spoken to my son about his overseas business dealings.” So Hunter, help us out. Explain.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Mens Re and Donald Trump
A very important point of law — mens rea — may decide how the Trump Mar-a-Lago documents case plays out, perhaps even deciding his innocence or guilt.
Section 793(e) (“The Espionage Act”) requires the government to prove that Trump knew he had National Defense Information (NDI) in those boxes at Mar-a-Lago, that Trump knew there was a government official entitled to receive the information, and also that Trump then willfully failed to deliver it to that official. That’s the standard the government has to prove in order to convict Trump, and it requires understanding what he thought at the time he kept the documents. None of this speaks to the charges of obstruction directly, except to say it will be hard to prove obstruction to a jury when there was no underlying crime.
Mens Rea is Latin, and refers to criminal intent. The literal translation is “guilty mind.” It refers to the state of mind statutorily required in order to convict a particular defendant of a particular crime. Mens rea goes to intent, your mind, your brain, when an action occurred. For example, in criminal cases the majority of crimes require intent; the prosecutor must prove that the person willfully intended to do that which he did. For example, if you punched someone in the face and you intended to do that, that’s a crime, as opposed to hitting him by accident, for example, or truly believing the action was legal and not a crime, such as in self-defense.
In Trump’s case, things are not as simple as the CNN version of events, i.e., Classified in the ugly shower room = Conviction for the Orange Man. In order to convict, the documents, classified or not, are simply a starting point. Special Prosecutor Jack Smith will need to prove Trump knew what he was doing, and did not believe what he was doing was lawful. For example, under the Presidential Records Act of 1978 (PRA) the president designates all records he creates either as Presidential or Personal Records. A former president is supposed to turn over his Presidential Records to the National Archives and Records Administration (NARA), and he has the right to keep his Presidential or Personal Records as defined by the law (there are exceptions, such as for national security information), usually for his library. It is unclear Trump’s choices follow the letter of the Act.
Trump can however claim he fully believed (even if wrongly) the boxes of material, most of which was not classified and included newspaper clippings and notes from other world leaders, are his Personal Records under the PRA. If so, did he knowingly retain NDI? Did he really think those documents “could be used to the injury of the United States” as the Espionage Act requires or did he just think of them as mementos of his time in office, his Personal Records of the four years? If he thought these boxes were his Personal Records, he may have believed that NARA simply had no right to receive them at all.
We know what Trump is likely to say about such matters at his trial. Can the special prosecutor prove different? He seems to have three avenues via which to do this, two of which are potentially weak.
What may be the strongest view of Trump’s mens rea at one point in this saga are audio tapes of him. The indictment suggests there is a tape recording of one of at least two instances where Trump showed off the documents to people without security clearances. On the tape, recorded according to the indictment with his knowledge and consent, Trump admits the document at hand is classified, and in a schoolboy-like way says he should not be showing it to a writer, a publisher, and two Trump staffers. All that could be seen as a confession of sorts that what he held was NDI, not something personal. A lot depends on that tape, its admissibility in court, and whether a Florida jury ultimately believes it literally and not as just another episode of Trump bragging.
A second possible source of mens rea which might help convict Trump are compelled statements made by his own lawyer, Evan Corcoran, in front of the grand jury and via written notes in contrivance of standard attorney-client privilege which would otherwise shield those remarks. What might the lawyer have said and how could he have violated attorney-client privilege and still have the material appear admissible in court?
The indictment claims Trump instructed his lawyers to claim falsely he did not have the documents DOJ subpoenaed, and suggesting his lawyers destroy some of the documents (“pluck it out”), or just “not play ball.” Trump allegedly spoke positively of Hillary Clinton’s legal team, which deleted tens of thousands of emails while supposedly not informing her to keep her clean. A jury might find Trump’s actions alone speak to intent, his active attempts to hide physical boxes of documents from investigators, and treat the lawyer’s statements as confirmation.
Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act (the “predicate crime”), to compel Trump’s lawyer to give evidence against their own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. Trump’s defense team will no doubt work hard to have the lawyer statements declared inadmissible, claiming without a clear finding on obstruction no crime was actually committed at that time by Trump.
The last avenue available to the prosecution to show Trump’s mens rea has some dandy complications flowering around it, and could help unravel the case to Trump’s advantage. Alongside Trump is his valet/aide, Waltine Nauta, who is charged in parallel with Trump under the Espionage Act when any rendering of reality shows Nauta simply was moving boxes around the bowels of Mar-a-Lago at his boss’ request. That’s a long way from a crime, even considering the legal looseness of the Espionage Act. But the point in charging Nauta is not to seek to convict him; the point is to get him to accept a plea or even an immunity deal to tell everyone exactly what Trump was thinking at multiple critical points in the saga. As Trump’s closest non-blood related aide, Nauta’s testimony would be compelling to a jury. If it shows Trump knowing he had done wrong keeping the documents, and that Trump actively used Nauta to try and physically hide them, that would be a pretty much slam dunk case against the former president.
The problem, besides the unknown loyalty Nauta may harbor towards Trump, is it appears DOJ leaned too hard on Nauta’s own lawyer, in an attempt to get him to persuade his client to turn state’s evidence in favor of the prosecution. Nauta’s lawyer, Stanley Woodward, alleged in a court filing that during a meeting with prosecutors about his client’s case back in November, the head of the Counterintelligence Section of DOJ’s National Security Division Jay Bratt “suggested Woodward’s judicial application [for a DC Superior Court judgeship] might be considered more favorably if he and his client cooperated against Trump.” Bratt allegedly remarked that he did not think that Woodward was a “Trump guy” and that “he would do the right thing.”
Assuming this is not simply made up (Woodward has a golden DC resume to stand behind, including a decade at Akin Gump Strauss Hauer & Feld, headquartered in Washington. It is the second-largest lobbying firm in the United States and is consistently ranked among the top law firms in the U.S.) this level of misconduct against a senior DOJ official could sink the Trump case, at the very least removing Nauta from the Trump trial as his case is thrown out of court. Woodward’s a poor candidate for accusation he made the whole thing up.
So, what was Trump thinking? Answer that and you’re a long way toward knowing the resolution of the Mar-a-Lago case.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Leave Trump Alone (Because It Does not Matter)
The narrative is set. Everything between now and November 2024, absent an actual alien intervention, is filler material.
Trump will ride his narrative to the polls, campaigning even if in hand cuffs and an ankle monitor. He is, he will make clear, the victim of a Democratic plot to weaponize “justice,” dating back to 2016 when Hillary was let off scot-free for her email shenanigans, followed by the FBI’s concocted Russiagate, two impeachments, and now a carousel of indictments. His opponent is Joe Biden, older than Yoda but presenting more like Jar Jar, crooked in cahoots with his scum bag son to hard suck bribe money out of eastern Europe. Sleepy Joe’s narrative is to count on the same FBI going after Trump with both barrels to shuffle its feet investigating him and Hunter through the election, with a final surge under the slogan “Oh who cares, I’m not Trump!” to wrap things up. It’s all a rich tapestry.
The problem is it is compelling; there is a lot of truth underneath the showmanship. There was David Petraeus, Obama’s CIA Director, who leaked secret docs to his girlfriend, and Sandy Berger, Clinton’s NSA Director, who stole secret docs. But it was Hillary who did get away with it all, at the FBI’s discretion (so much for one law for everyone) what Trump has been accused of in Mar-a-Lago. 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. 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, evidence, as well as physical phones and Blackberries which potentially held evidence — obstruction as clear as it comes. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. A server in a closet is not as dramatic a visual as boxes of classified stored in a shower room, but justice is supposed to be blind. More recently, what of Mike Pence and Joe Biden, both of whom have escaped indictment so far on similar charges of mishandling classified information. Trump voters know if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. No matter which candidate wins and loses, DOJ’s credibility is tanked.
The Stormy Daniels case, and the guilty finding in the Jean Carroll defamation case, reek of politics. Neither case would have seen daylight outside of Democratic hive New York, and neither could have held up outside a partisan justice system that permits it to ignore Jeffrey Epstein’s death in custody or a city in a crime tornado (New York in the past year reduced 52 percent of all felony charges to misdemeanors, opposite of what was done to Trump) while aggressively allowing the system to pursue a decades-old rape case of dubious propriety.
Witch hunt meet Hunter. New York District Attorney Alvin Bragg ran for office on the promise to prosecute Trump. He fulfilled a campaign promise and paid off his George Soros-connected backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies in the Stormy case.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.”
Calling it all a witch hunt is just a starting point. The point here is not innocence; it is whether the justice system is going to take fact sets and ignore one while aggressively pursuing another, risking being seen as partial and political. No matter which candidate wins or loses, credibility is tanked.
Still to come (at the least) are whatever judicial actions will emerge from the Special Prosecutor over Trump’s role in January 6, and legal action over the 2020 Georgia vote count (with another Democratic openly anti-Trump prosecutor.) Trump jokes in his stump speech nowadays every time he flies over a Blue State he gets another subpoena. He could easily head into the Republican convention to accept the nomination with multiple convictions and/or indictments on his shoulders. It won’t matter. The justice system is going to take fact sets and ignore some while aggressively pursuing others, partial and political plain as day. No matter which candidate wins, credibility is tanked. It grinds that most of the serious charges against Trump are under the hoary Espionage Act, seen by many as reviving the now-discredited trope Trump was a Russian agent.
Mostly overlooked for now is how much of the apparent evidence against Trump at Mar-a-Lago came from his own attorneys. Attorney-client privilege is recognized as one of the cornerstones of fairness in our system. In the Trump case, the Justice Department used the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel Trump’s lawyers to give evidence against their own client. Justice asserted Trump lied to his own team about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. But Trump’s supporters are unlikely to read deeply into the case law; all they’ll see is what looks like strong-arm tactics by the Department of Justice. No matter which candidate wins and loses, DOJ’s credibility is tanked.
The thing is no one has to work very hard to convince Trump supporters of the truth of what he is saying, that he is the victim. Trump support remained unmoved by the many investigations that plagued his presidency. Even during peak crises, views of him were static. Post-presidency polls continued the trend. Public opinion of Trump remains remarkably stable, despite his unprecedented legal challenges, and about half of Americans do not see his behavior as disqualifying, sharper if you divide along partisan lines. When asked if Trump’s legal troubles would impact their views of him, two-thirds of his supporters said it would not make a difference. That’s a committed bunch. Perhaps just as important, 57 percent of voters, including one-third of Democrats, said the indictment in New York earlier this year was politically motivated.
No one can say who will win in November 2024, but one loser is certain, faith in the rule of law by a large number of Americans. They will leave the polls certain the system was bent to “get” Trump, either saddened by the fall of blind justice or saddened that it did not work and Trump remined a powerful figure with a large movement behind him, either in or out of the Oval Office.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A War Like No Other in Ukraine
Joe Biden created for the U.S. a war like no other, one where others die and the U.S. simply sits back and pays the bills on a gargantuan scale. No attempts are made at diplomacy by the Americans, and the diplomatic efforts of others like the Chinese are dismissed as evil attempts to gain influence in the area (similar for Chinese diplomatic work in the Yemen war.) Biden is coming close to achieving 1984‘s goal of perpetual warfare while only putting a handful of American lives at risk. He has learned lessons from the Cold War, and already put them into play. Can we call it the Biden Doctrine yet?
Biden’s strategy is clear enough now after well more than a year of conflict; what he has been sending to Ukraine jumped from helmets and uniforms to F-16s in only 15 months and shows no signs of stopping. The problem is U.S. weapons are never enough for victory and always “just enough” to allow the battle to go on until then next round. If the Ukrainians think they are playing the U.S. for suckers for free arms they best check who is really paying for everything, in blood.
Putin is playing this game himself in a way, careful not to introduce anything too powerful, such as strategic bombers, and upset the balance and offer Biden the chance to intervene in the war directly (one can hear old man Biden on TV now, explaining American airstrikes are needed to prevent a genocide, the go-to excuse he learned at Obama’s knee.) That’s what the current escalation holds, airpower. Ukraine will find even with the promise of the F-16 it can’t acquire aircraft and train up pilots fast enough (minimum training time is 18-24 months), and next will be begging the U.S. to serve as its air force. As it is the planes are likely to be based out of Poland and Romania, suggesting NATO will pick up the high-skilled tasks of maintaining and repairing them. Left unclear is the NATO role in required aerial refueling to keep the planes over the battlefield. F-16s aside, a spin off bonus to all these weapons gifts is that the vast majority of transfers to date have been “presidential drawdowns.” This means the U.S. sends used or older weapons to Ukraine, after which the Pentagon can use the Congressionally-authorized funds to replenish their stocks by purchasing new arms. The irony that war machines once in Iraq are now on the ground in Ukraine can’t be missed.
The U.S. strategy seems based on creating a ghastly tie of sorts, two sides lined up across a field shooting at each other until one side called it quits for the day. Same as in 1865, same as in 1914, but the new factor is today those armies face off across those fields with 21st-century HIMARS artillery, machine guns, and other tools of killing far more effective than a musket. It is unsustainable, literally chewing up men, albeit not Americans. The question meanwhile of how many more Ukrainians have to die is answered privately by Joe Biden as “potentially all of them.” Anything else requires you to cynically believe Biden thinks he can simply purchase victory,
Up until now this has all been the Cold War playbook. Fighting to the last Afghan was a strategy perfected in Soviet-held Afghanistan in the 1980s. Yet what is different is the scale — since Russia invaded Ukraine, the United States sent over $37 billion worth of military aid to support Kiev’s war effort, the single largest arms transfer in U.S. history and one with no signs of stopping. A single F-16 costs up to $350 million a copy if bought with weapons, maintenance equipment, and spare parts kits.
Yet despite the similarities to Cold War Strategy 101, some lessons have been learned over the intervening years. One of America’s fail-points throughout the Cold War and the War on Terror was the use of puppet governments largely imposed or direly supported by American money and muscle. Because these governments lacked the support of the people (see Vietnam, Iraq, and Afghanistan) they were non-starters with the lifespan of fruit flies. Ukraine is different; the puppet government is the government, beholden to the U.S. for its very survival but more or less supported directly by the people for now.
The other lesson learned has to do with nation building, or rebuilding or reconstruction, whatever the vast post-war expenditures will be called in this conflict. No more straight-up governmental efforts as in Vietnam, Iraq, and Afghanistan. This time it will be all private enterprise. “It is obvious that American business can become the locomotive that will once again push forward global economic growth,” President Zelensky said, boasting that BlackRock, JP Morgan, and Goldman Sachs, and others “have already become part of our Ukrainian way.”
The NYT calls Ukraine “the world’s largest construction site” and predicts projects there in the multi-billions, as high in some estimates as $750 billion. It will be, says the Times, a “gold rush: the reconstruction of Ukraine once the war is over. Russia is stepping up its offensive heading into the second year of the war, but already the staggering rebuilding task is evident. Hundreds of thousands of homes, schools, hospitals and factories have been obliterated along with critical energy facilities and miles of roads, rail tracks and seaports. The profound human tragedy is unavoidably also a huge economic opportunity.” Earlier this year JP Morgan and Zelensky signed a memorandum of understanding stipulating Morgan would assist Ukraine in its reconstruction.
And maybe those large American companies have learned the lessons of Iraq and Afghanistan. Of the billions spent, much money was wasted on dead ends and much was siphoned off due to corruption. But success or failure, the contractors always got paid in our Wars of Terror. With that in mind, more than 300 companies from 22 countries signed up for a Rebuild Ukraine exhibition and conference in Warsaw. At the World Economic Forum in Davos, Switzerland, a standing-room-only crowd packed Ukraine House to discuss investment opportunities.
The eventual gold rush in rebuilding makes for an interesting addendum to the Biden strategy of fighting to the last Ukrainian. The more that is destroyed the more that needs to be rebuilt, and the potential for more money to pour into U.S. companies smart enough to wait by the trough for the killing to subside. But why wait? Drones operated by Danish companies have already mapped every bombed-out structure in the Mykolaiv Oblast region, with an eye toward using the data to help decide what reconstruction contracts should be issued.
So let’s put some lipstick on this pig of a strategy and call it the Biden Doctrine. Part I is to limit direct U.S. combat involvement while fanning the flames for others. Part II is to provide massive amounts of arms to enable a fight to the last local person. Part III is to transform the home government into a puppet instead of creating an unpopular one afresh. Part IV is to turn the reconstruction process into a profit center for American companies. How long the war lasts and how many die are cynically not part of the strategy. The off ramp in Ukraine, a diplomatic outcome that resets the map to pre-invasion 2022 levels, is clear enough to Washington. The Biden administration seems content, shamefully, not to call forcefully for diplomatic efforts but instead to bleed out the Russians as if this was Afghanistan 1980, albeit in the heart of Europe.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Indictments over Classified. Not Biden, and Not Pence. So Why Trump?
Donald Trump is the first president in history to be indicted for Federal crimes, in this case a series of eight charges each with multiple counts totaling 37 centering on his taking highly classified materials with him to Mar-a-Lago from the White House in January 2021. The charges also implicate Trump and a close aide, Waltine Nauta, in a conspiracy to hide the documents in whole or in part from the National Archives (NARA), the Department of Justice (DOJ), and his own legal team, and making false statements along those same lines.
Hundreds of documents are of concern, classified at the highest levels with origins at CIA, NSA, and elsewhere in the intelligence community. While leaks and speculation prior to the unsealing of the indictment suggested this was a routine Espionage Act case, i.e., you have possession of some classified documents and thus must be guilty, the indictment lays out a damming parallel set of evidence for obstruction, including a suggestion that Trump was prepared to have his lawyers shred some of the offending documents.
Though Biden’s handling of classified remains an active investigation, Mike Pence was recently absolved of any criminal intent in his own mishandling of secret paper. Many people believe the same result will come of the Biden case. What makes Trump’s case so materially different that the Special Prosecutor is prepared to throw the book at him and his aide?
The key seems to be the egregiousness of Trump’s actions coupled with his attempt to cover up his actions. Lawyers call it an “aggravating factor,” making clear the charged actions were not accidental. It looks like they may have it.
The indictment shows in great detail efforts Trump made to conceal the documents both from NARA and the DOJ, and from members of his own legal team. Dozens of boxes containing mementos and paperwork from his administration were assembled by Trump over his four years in the White House. These included, all mixed together, everything from newspaper clippings to notes from Kim Jong Un to highly secretive war plans aimed at Iran. These boxes were transported to Mar-a-Lago by commercial means, itself a violation of numerous security regulations. Within Mar-a-Lago the documents were not always kept under lock and key, at one point being piled on the stage in one of the ballrooms (a photo of this is included with the indictment; another included photo shows boxes spilling classified documents onto the floor of a storage room, and a third showing the boxes in a shower room.) There is evidence to suggest Trump instructed his staff to better hide some of the documents from his own lawyers when they undertook a search in response to a NARA subpoena, and then again ahead of the FBI search of Mar-a-Lago. This may have led to Trump losing two lawyers just hours after being indicted, as Jim Trusty and John Rowley announced they’d resigned.
Further under the heading of egregiousness, the indictment suggests a tape recording exists of one of at least two instances where Trump showed off the documents to people without security clearances. In the tape Trump admits the document at hand is classified, and in a schoolboy-like way says he should not be showing it to a writer, a publisher, and two Trump staffers. Trump acknowledging that he knew a document in his possession was still classified stands at odds with his public claims that he had declassified all the materials he took and likely removes this defense strategy from the upcoming trial.
The indictment further claims Trump obstructed the investigation into his handling of classified materials in a number of ways, to include telling his attorneys to claim he did not have the documents subpoenaed, directing his aide Nauta to move boxes to conceal them from his own lawyers, and then from the FBI/DOJ and then from the grand jury, suggesting his lawyer destroy some of the documents, claiming he was cooperating fully when he was actively concealing documents from disclosure, and submitting a false certification that all requested document had been submitted. Nauta is listed as a co-conspirator on most of those allegations, with phone records and internal surveillance tapes connecting statements made and actions taken by the two men.
Trump also appears to have used the boxes moving like a shell game to hide information from Christina Bobb, who was serving as the formal custodian of records. The indictment makes clear she did not know the statements in her attestation that everything had been turned over to the DOJ were false, and she has not been charged.
The indictment also claims Trump helped to pack boxes at the White House, which rebuts a common defense in these sorts of cases, that the retention of documents was a clerical error by staff and not intentional.
While understanding the contents of the indictment give only one side of the story and that Trump will defend himself when the case comes to trial likely in the spring, the evidence available seems significant. Trump clearly possessed classified documents outside proper storage areas, and “injury to the United States,” a requirement of the law, should be fairly easy to prove given the dramatic nature of some of the documents and the casual manner in which Trump handled them, to include showing off war plans to a writer and publisher. This part of the case follows standard lines in an Espionage Act prosecution. Trump’s actions appear to go well beyond anything Mike Pence did with his classified or anything that Biden has so far been accused of.
However, it is the charges of obstruction which are most significant in this case. One of the key elements of obstruction is proving a state of guilty mind — mens rea — and that will be the crux of the 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 obstruct some investigation? A jury might find Trump’s actions alone speak to intent, his active attempts to hide physical boxes of documents from first his lawyers and then investigators, for example.
But the joker in the deck is Waltine Nauta, Trump’s close aide who is charged alongside Trump on the obstruction and lying allegations. Nauta faces potentially decades in jail, serious time. It appears his being charged may be an attempt to get him to testify directly to Trump’s intent and state of mind, by recalling actual instructions and conversations. If Nauta accepts some sort of plea deal in return for such testimony, it is hard to see a jury letting Donald Trump off on these charges. But where things go after that, politics-wise, is anybody’s guess at this early stage.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Academic Racism By a Different Name
A decision by the Supreme Court in the case of Students for Fair Admissions v. University of North Carolina/Harvard College is due very soon. It is widely held the decision will do away with or greatly weaken affirmative action in college admissions, removing or dramatically limiting race as a criterion. But far from helping solve the festering problem of race in America, the Supreme Court decision will simply shift the battle from affirmative action to so-called “race-neutral criteria.” This is an already-in-place end run around any end to affirmative action, designed to pretend criteria such as class rank or home zip code are not racial. The theory of racial neutrality in academic decision making holds the use of such “neutral” criteria to create racially balanced classrooms is proper where affirmative action was once called into play to do the same.
At present schools may use race as an admissions criterion as long as it is not the only basis for a decision, with the implied so long as the goal is diversity (good) and not whitewashing (bad). This allowed a nation pretending to strive toward equality to instead enact the opposite, by upholding separate standards based on skin color.
The hypocrisy began with Regents of the University of California v. Bakke, a 1978 Supreme Court case which held a university violated the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 if it made admissions decisions on the “definite and exclusive basis” of race. That bit about “definite and exclusive basis” was crucial—race could be a criteria, but just not the only one.
The Court ruled that a university’s use of racial “quotas” in its admissions process was unconstitutional, but a school’s use of affirmative action to accept more minority applicants was constitutional. In this case, the university’s offense was being too clear; the University of California explicitly held 16 out of 100 admission spots exclusively for black students instead of just putting its thumb on the scale elsewhere in the process and—presto!—filling those slots with black students.
In Grutter v. Bollinger (2003) the Supreme Court upheld the University of Michigan Law School’s admissions policy, which used racial preference (bad) to promote diversity (good.) Black applicants were admitted under different standards than members of every other group. The fudge was again to say that affirmative action is constitutional so long as it treats race as one factor among many, and does not substitute for individualized review of the applicants. But Grutter in 2003 came with an interesting addendum: affirmative action was supposed to be a temporary policy, an imperfect expedient, while society worked out the larger issues. Justice Sandra Day O’Connor wrote, “We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest in student body diversity.” Some two decades later with that imperfect expedient likely to be declared unconstitutional, what comes next?
Though the expected Supreme Court decision will focus on university admission, the next battleground will likely be a high school in Northern Virginia. Thomas Jefferson High School for Science and Technology, known to everyone as “T.J.” is considered one of the best STEM high schools in the country. Until about a year ago, the only way to get in was to pass a very competitive entrance exam. Entry into T.J. meant you were a smart kid with the discipline to put in hard hours with no guarantee of success, a perfect definition of those who would also go on to succeed at MIT, CalTech, or an Ivy. However, in the aftermath of George Floyd, this was somehow not enough. As many as 73 percent of students admitted to Thomas Jefferson High School were Asian. Only about two percent of T.J. students were black. T.J.’s school’s principal said “Our 32 Black students and 47 Hispanic students fill three classrooms. If our demographics actually represented those of the county’s public schools, we would enroll 180 Black and 460 Hispanic students, filling nearly 22 classrooms.”
The answer was T.J.’s entrance exam was replaced with “a holistic review” that included “experience factors, including students who are economically disadvantaged, English language learners, special education students, or students who are currently attending underrepresented middle schools.”
In addition, spots for the top students from every public middle school in the area (several of which are predominantly black or Hispanic) were set aside, pushing more black and other non-white and non-Asian students into T.J. Ignored of course is that the term “Asian” itself is yet another racial fudge, that somehow Chinese, Thais, Japanese, Koreans, Filipinos, Laotians, Indians, Bangladeshis, et al., are part of one omnibus racial rejection pile.
It worked, for T.J.: the percentage of Asian American students dropped from 73 percent to 54 percent. The percentage of black students grew from two to seven percent while the percentage of Hispanic students grew to 11 percent from three.
Despite the obvious racially-divided results, and perhaps cleverly anticipating the Supreme Court’s upcoming decision doing away with affirmative action, T.J. is drawing the next line in the sand, claiming its criteria are racially neutral, and emphasizing the fact that admissions officers at the school are not told the race, sex or name of any applicant. Harvard is also toying with the idea of such racially neutral criteria, judging applicants in part now based on likability, courage, and kindness.
So who is kidding who here? In the face of the end of affirmative action, is racially neutral criteria just another workaround to allow schools to patch together a student body racially diverse enough to satisfy 2023’s woke standards?
Though it is uncertain the coming affirmative action decision will address racial neutrality, the courts are indeed aware of the issue. After the Supreme Court passed on the T.J. case last year (in the context of an application for emergency relief) and remanded it to a lower court, a divided three-judge panel at the Fourth Circuit federal appeals court in May allowed T.J. to continue with its revised admissions policy. But in a dissent that seemed to be addressed to a Supreme Court of some future date, Trump-appointee Judge Allison J. Rushing wrote the majority had refused “to look past [T.J.’s] policy’s neutral varnish” and consider instead “an undisputed racial motivation and an undeniable racial result,” and that the Constitution’s guarantee of equal protection “would be hollow if governments could intentionally achieve discriminatory ends under cover of neutral means.”
Just as the Supreme Court allowed discriminatory decisions by race as constitutional (“affirmative action”), the courts will soon face the question of whether so-called racially neutral criteria are constitutional. The issue is likely to come before the Supreme Court as early as this autumn, on the heels of the downfall of affirmative action.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Never Again? DeSantis and Torture
During a press conference at the Museum of Tolerance in West Jerusalem in April, Ron DeSantis was questioned about a former detainee’s claim that as a naval attorney at Guantanamo DeSantis watched as the prisoner was force fed, something the UN regards as torture. “Do you honestly believe that’s credible? It’s 2006, I’m a junior officer, do you honestly think that they would’ve remembered me?” DeSantis responded angrily.
Mansoor Adayfi, a Yemeni citizen, was held at Guantanamo Bay for 14 years, and has told news outlets that DeSantis witnessed him being force fed during a hunger strike in 2006. Adayfi in an op-ed for Al Jazeera said “As I tried to break free, I noticed DeSantis’ handsome face among the crowd at the other side of the chain link. He was watching me struggle. He was smiling and laughing with other officers as I screamed in pain.” Two former detainees, as well as defense lawyers and base officials, have told The Washington Post DeSantis had a “close up views” of disturbing incidents at the camp during his time there.
What might DeSantis have seen? In addition to Adayfi’s account, we have Imad Abdullah Hassan’s more detailed rendition, from a man who spent twelve years in Guantanamo in a cage without ever being charged with anything. A judge cleared Hassan for release, finding there was not enough incriminating evidence to justify keeping him imprisoned (779 men were held at Guantanamo since it opened in 2002, with 12 ever charged with crimes. Only two have been convicted.) Hassan’s clearance came, yet he remained at America’s off-shore penal colony without explanation or hope of release. He went on a hunger strike in 2009 in protest (the U.S. military refers to it as a “long-term non-religious fast”), and was force-fed.
Hassan unsuccessfully sued the president of the United States, claiming the conditions under which he is being force-fed at Guantanamo are torture. The lawsuit Hassan filed describes his treatment. His description matches Adayfi’s on key details. See if you’d remember things like this:
Prisoners are strapped to a hospital bed or special restraint chair for feeding.
A funnel or bag was used to channel large amounts of liquid into the tube to feed him faster. So much liquid was forced through that the second time Hassan underwent this procedure, he lost consciousness and spent two days in critical condition.
Prisoners were simultaneously force-fed laxatives causing them to defecate on themselves as they sat in the chair being fed. “People with hemorrhoids would leave blood on the chair and the linens would not always be changed before the next feeding,” said Hassan in the lawsuit. Prisoners would be be strapped down on top of others’ stool and blood for up to two hours at a time.
Hassan was at times forcibly sedated so he could be force-fed more easily. If Hassan vomited on himself at any time during the procedure, the force-feeding would restart from the beginning.
Air-conditioning was sometimes turned up and detainees were deprived of a blanket. This was particularly difficult for the hunger strikers, as they felt the cold more than someone who was eating.
Guards would bang hunger-striking prisoners’ cells every five minutes day and night to prevent sleep. Another detainee reported when he was brought back to his cell, the guards laid him on his stomach and cause him to vomit by pressing forcefully on his back.
It was all something a young naval officer would not easily forget seeing.
But bringing up the possibility that a young Ron DeSantis witnessed some of this is disingenuous. Whether DeSantis was present or not is only of interest given his likelihood of running for president. But if he was not present, he would have heard about the torture while at Gitmo, and issued legal opinions in line with it. But whether or not DeSantis wrote such opinions is of little consequence, given the number of military and civilian personnel who certainly not only witnessed torture but performed it. Their numbers stand shallow next to their bosses who created the torture regimes, legalized them, and promulgated them, men like Bush, Obama, Cheney, and Biden. If DeSantis supported torture in his role as naval attorney at Gitmo, he was among the smallest of wheels in a very large machine to do so.
Not a single American has been punished for what happened at Guantanamo, and the first should not be Ron DeSantis.
But DeSantis is not just anyone, he is one man out of hundreds of millions in the U.S. who says he wants to be president and has a decent chance of achieving just that. So instead of speculating on what DeSantis saw, let’s instead demand from him as a candidate a statement on torture itself. Knowing what he knows now, was torture the right thing post-9/11? As president, would he support torture in the future? As president, would he seek to close Guantanamo and set the thirty prisoners still there free? We know what Trump thinks about torture, know Biden as president has made no real efforts to close Gitmo or reduce its headcount. We know what a young naval officer named DeSantis did, more or less, when faced with torture by the United States of America in the name of justice for the Republic.
Later, at various points in his career DeSantis repeatedly argued that the United States was correct in imprisoning detainees outside the legal system, and after joining Congress in 2013, he became a leading voice to keep the prison open, even though few of the detainees there were ever charged and most have been released. He has described the hunger strikes as part of a jihad against the United States, and characterized claims of abuse from detainees and their lawyers as attempts to work the system. Asked about the hunger strikes, DeSantis said in an interview in 2018 that “what I learned from that… is they are using things like detainee abuse offensively against us. It was a tactic, technique, and procedure.”
DeSantis saw what he saw; with the passing of time does he still believe in what happened in Guantanamo? Vying to be Commander-in-Chief, “I was only following orders” will not be enough. In the name of never again, we need to know what would President DeSantis do.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Final Durham Report: Democracy’s Horror Show
Hillary knew. She knew her campaign paid for Russian disinformation (including the alleged pee tape accusations) to be washed through a report by former British intelligence officer Christopher Steele. She knew the information was false but could potentially allow her to win the election. Hillary lied to the FBI about all this, and lied to the American public. Such was her appetite.
The FBI knew. They knew none of the information in the Steele Report could be corroborated, and they knew most of it was false. They turned a blind eye, purposefully and with the intent to defeat Donald Trump in the 2016 election, to basic investigative and tradecraft rules to use the corrupt information to surveil the Trump campaign via the FISA court. When Trump won the election anyway, the FBI continued to use this information to assault the loyalty and viability of President Trump and ultimately tried to use the information via the Robert Mueller investigation to impeach or indict Trump.
Only one person went to jail for all this, a minor player named Kevin Clinesmith for provided false info to the FISA court. No changes are planned for the FBI. No charges are to be brought against Hillary Clinton. The Deep State came within an eyelash of bringing down an unwanted president as surely as they are believed to have done in Dallas ’63. Words were the weapon this time, not bullets.
These are the conclusions of the final Durham Report released last week. The report was written by former Connecticut U.S. Attorney John Durham, who was chosen in 2019 to examine the FBI probe known as “Operation Crossfire Hurricane.” Durham provides the only comprehensive review of what came to be called Russiagate, and shows how close to the edge our democracy came to falling into the abyss at the hands of the Deep State. It all sounds dramatic, as those terms have been bandied about so often and in so many contexts they may have lost some of their meaning. But make no mistake about it — the FBI tried to shape the 2016 election and failing, tried to run Trump out of office. If you thought the “Hunter Biden Letter,” the one signed by dozens of intelligence professionals calling the Biden Diaries potential Russian disinformation was just wrong, you should find the conclusions of the Durham report a horror show.
There was nothing true in the Steele Report, for example, this key paragraph: “Speaking in confidence to a compatriot in late July 2016, Source E, an ethnic Russian close associate of Republican US presidential candidate Donald TRUMP, admitted that there was a well-developed conspiracy of co-operation between them and the Russian leadership. This was managed on the TRUMP side by the Republican candidate’s campaign manager, Paul MANAFORT, who was using foreign policy advisor, Carter PAGE, and others as intermediaries. The two sides had a mutual interest in defeating Democratic presidential candidate Hillary CLINTON, whom President PUTIN apparently both hated and feared.”
The FBI had no intelligence about Trump or others associated with the Trump campaign being in contact with Russian intelligence beyond Steele. Despite being unvetted and uncorroborated and coming from a single source with direct political ties to Trump’s opponent, the FBI used such accusations to justify a full-spectrum surveillance operation against the Trump campaign, the first known such operation in American history. The FBI omitted the fact from its FISA application that Carter Page was in fact not a Russian agent but a paid source for the CIA who had been vetted by the Agency as loyal and reliable. They just lied and even when the lie could not be ignored the FBI lied more times to keep the surveillance application alive before the FISA court.
Durham found investigators “ignored exculpatory evidence, put too much stock in information provided by Trump’s political opponents, and carried out surveillance without genuinely believing there was probable cause to do so.” “Throughout the duration of Crossfire Hurricane, facts and circumstances that were inconsistent with the premise that Trump and/or persons associated with the Trump campaign were involved in a collusive or conspiratorial relationship with the Russian government were ignored or simply assessed away,” Durham wrote. The FBI acted “without appropriate objectivity or restraint in pursuing allegations of collusion or conspiracy between a U.S. political campaign and a foreign power.”
It could not be more clear. The FBI knew what it was doing was wrong and did it anyway because the ends, defeating Trump, appeared to justify the means. No surprise, that has been the slogan behind every democratic election U.S. intelligence agencies have overthrown overseas, so why not follow the same logic when the tools of war came home to attempt to drive the 2016 election to Hillary Clinton.
We now know that almost all of the disinformation in the Steele Report came from one man, Igor Danchenko (whom the FBI had until 2011 investigated as a Russian spy.) Danchenko also fed disinfo to a Clinton supporter and registered foreign agent for Russia, Charles Dolan (who was known to but never interviewed by the FBI) to pass on the Steele to further obscure its origin. But according to the Durham report “The failure to identify the primary sub-source [Danchenko] early in the investigation’s pursuit of FISA authority prevented the FBI from properly examining the possibility that some or much of the non-open source information contained in Steele’s reporting was Russian disinformation (that wittingly or unwittingly was passed along to Steele), or that the reporting was otherwise not credible.”
Everyone knew. The Durham Report confirms on August 3, 2016, the Russiagate allegations were briefed to President Obama, Vice President Joe Biden, and FBI Director James Comey by CIA Director John Brennan at an Oval Office meeting. None of the men briefed, and none of the agencies involved, did anything to intercede in the FBI’s efforts alongside the Clinton Campaign to manufacture collusion between Trump and Russia. Indeed, everyone allowed the falsehoods to linger into the Mueller Report and when that document concluded publicly there was no collusion between Trump and the Kremlin, pivot the same pile of falsehoods to claim Trump somehow obstructed an investigation which actually exonerated him, concluding without indictment as it did.
As for the FBI, the Durham report brutally tells us “the FBI failed to uphold their important mission of strict fidelity to the law.” That they “displayed, at best, a cavalier attitude towards accuracy and completeness.” That the Bureau “disregarded significant exculpatory information that should have prompted investigative restraint and re-examination… there were clear opportunities to have avoided the mistakes and to have prevented the damage resulting from their embrace of seriously flawed information that they failed to analyze and assess properly.” And that “senior FBI personnel displayed a serious lack of analytical rigor towards the information that they received, especially information received from politically affiliated persons and entities.” That “important aspects of the Crossfire Hurricane matter were seriously deficient.” The Report concludes “although recognizing that in hindsight much is clearer, much of this also seems to have been clear at the time.” As for recommendations, the Report states “more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of Fidelity, Bravery and Integrity are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of “Protect[ing]the American People and Uphold[ing] the Constitution of the United States.”
Without the help of the FBI Russiagate would have been nothing but a flimsy Clinton campaign scam. Thus the Durham Report offers one over-arching implied conclusion: Be skeptical of the FBI and watch accusations of collusion and foreign interference closely around the 2024 election. Treason is indeed a twisty path.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A Spectator Looks at the Durham Report
This week’s Durham Report is as close as we’ll get in our lifetimes to proof the Deep State, working in concert with the mainstream media, exists.
The final 306 page Durham Report was released this week. The report was written by former U.S. Attorney John Durham, who was chosen in the aftermath of the Mueller Report to examine the FBI probe known as “Operation Crossfire Hurricane.” Durham in this final report provides the only comprehensive review of what came to be called in total “Russiagate,” and shows how close our democracy came to failing at the hands of the Deep State. We now know the FBI took disinformation produced by the Russians and used that to justify spying on the Trump campaign. Though Durham does not go into the MSM side of Russiagate, we also now see more clearly how the media played along to press a fully-false narrative of collusion right to the precipice of impeachment or indictment.
The short summary of Durham: willingly or via incredible sloppiness, the FBI participated in an information operation designed first to keep Donald Trump out of the White House and failing that, drive him from office. The op was funded by the Clinton campaign, who paid former British intelligence officer Christopher Steele to create a “dossier,” a report based on Russian disinformation funneled to him by Igor Danchenko (whom the FBI had until 2011 investigated as a Russian spy.) Without vetting or investigating the (dis)information, the FBI used it alongside a tip from a shady Australian diplomat to open full-spectrum surveillance of Donald Trump and his associates, lying to the FISA court along the way. This was the first known time such a thing was undertaken in American political history. The goal was to show collusion between the Trump campaign and the Russian government. When that failed, the FBI pivoted into providing the bulk of data behind the Mueller Report. That Report was designed to take down, via impeachment or indictment, a sitting president and if that too failed, disempower him for much of his term. If you want to call it a soft coup attempt you would not be far off.
As for the FBI, the Durham report unsparingly tells us “the FBI failed to uphold their important mission of strict fidelity to the law.” That they “displayed, at best, a cavalier attitude towards accuracy and completeness.” That the Bureau “disregarded significant exculpatory information that should have prompted investigative restraint and re-examination… there were clear opportunities to have avoided the mistakes and to have prevented the damage resulting from their embrace of seriously flawed information that they failed to analyze and assess properly.” As for recommendations so that such a thing never happens again, the Durham Report weakly offers none and states “more training sessions would likely prove to be a fruitless exercise if the FBI’s guiding principles of Fidelity, Bravery and Integrity are not engrained in the hearts and minds of those sworn to meet the FBI’s mission of “Protect[ing]the American People and Uphold[ing] the Constitution of the United States.” There was a bias at the heart of Crossfire Hurricane that kept agents from carefully examining evidence.
Durham generously does not state the FBI acted incompetently on purpose (it is chilling however to remember FBI agents Peter Strzok and Lisa Page exchanged texts saying “Page: ‘Trump’s not ever going to become president, right?’ Strzok: ‘No. No he’s not. We’ll stop it.’”), allowing some space for beginner’s mistakes such as not vetting Christopher Steele’s sources and methods. Was it active or tacit support by the FBI? Durham does not say. It all does suggest why Robert Mueller walked so close to the edge of indictment and backed off. If his indictments did not hold up under court scrutiny, the people in charge of all this would have been exposed. Mueller was protecting his beloved FBI from the criticism Durham just laid bare. There was a bias at the heart of Mueller’s work that kept agents from carefully examining evidence.
Christopher Steele meanwhile was worth his weight in gold to Clinton: he got the FBI to launch a full-spectrum investigation that included eavesdropping, use of a honey pot dangle, and foreign agents, all of which lead to three years of Mueller and right to the door of impeachment.
Steele’s second prong was the media. Steele set himself up as a source to compliant media about the dossier without revealing to them he was the author of the document. This information loop made it appear a second entity was confirming the contents of the dossier, when in fact it was Steele surreptitiously confirming himself. It’s an old spy trick, getting inside, becoming your own corroborating source. In intelligence work, for the receiver of information, this is known as cross-contamination, an amateur error the FBI seemed OK with. The scam also generated cover for all the politicians and intelligence operatives. They could go to their bosses and say the New York Times found a source confirming what they were hearing from Steele. There was a bias at the heart of the MSM which kept journalists from carefully examining evidence.
And in the end… not much. Only one person was ever convicted of anything (a future Jeopardy! clue, “who was Clinesmith for lying to the FISA court”) and no one in the media was driven into early retirement; on the contrary, Pulitzers were awarded for reporting Russian disinformation laundered through Steele and the FBI. Hillary Clinton came within a sharp breath of beating Trump, and the information op would have played a large part in that. But the lessons learned are not for them. This time they are for us, or rather for us in 2024. We must be more skeptical of any claims of foreign collusion, more watchful of the FBI, and tougher critics of the media. We need to reject salacious gossip (ex. the pee tape) pretending to be news. We will need to spend less time debating the existence of the Deep State and more time reigning it in.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What Do You Do With the Past?
That’s me in back row of the photo of the old junior high school football team, with the dorky glasses. In an age of apologies and reparations it begs an answer: what do you do about the past?
It starts easy. The adult close to me is Mr. Hammer, the wood shop teacher. Yes, Mr. Hammer. His giggly name somehow still remains amusing to me, some 50 years later. He was a good teacher and coach, fair, even tempered, thought all the stuff we were doing mattered but not too much. I just learned from Google he was a Korean War vet (he never mentioned it) and passed away a few years ago after 24 years of teaching. I have no idea who the other coach is.
My obsession isn’t with the names anyway, it is with what happened to these people and our past. We have not kept in touch, and the last time I spoke with any of them would have been in 1978 when most of us graduated from high school. How many “did well” with life? How many are dead, or in jail, or homeless, or alcoholic? Any of them do something good for the world, maybe as a doctor or teacher? Do any of them ever wonder what happened to me?
Two boys in the front row were star players. They literally had star decals on their helmets so everyone knew, this being in an age before participation trophies. Google says one of them still lives in town but offers no clues as to what happened to him along the way, nothing on the other one. There’s another boy in the photo near the back I learned from Facebook is gay. I didn’t know him well in junior high school, but I wonder now how many of the other boys were gay. No one “came out” back then. We as a team would today be considered completely homophobic based on the language we used. Anyone who made a bad play or fumbled the ball or was even late to the huddle was a f*ggot. If you’re anywhere nearby our age group you also said that word. Everybody did.
But despite the language I am not sure we were homophobic, as we had as little idea what being gay was all about as we had then about heterosexual stuff, absent self-entertainment which likely worked the same way for everyone. This is probably the biggest change the internet brought to society. Kids stop being naive at age two now. I’m as certain the gay kid was hurt by what we all said as I am certain that he said those same words along with us. In 7th grade anything that made you stand out made you someone’s target.
After junior high, trying out for football at my high school meant being bullied by the varsity. If you were lucky they only stole your lunch and made you embarrass yourself singing to the group. Sometimes they took away our water on hot days (water during practice was rationed in this era, to toughen us up.) For others, it was caustic muscle creams smeared in your jock before practice. It went on after the coaches would mysteriously disappear during certain breaks. Adult teachers with clear responsibility to stop it, but who did nothing but encourage it, calling it initiation. I have no idea, some 50 years later, why I voluntarily participated in all this. I believe I was temporarily insane.
Very few guys quit the team, most just endured, some sought empty relief bullying others. I was in that last group, mercilessly teasing a poor kid weaker than me. I was cruel in a way I wish I hated then the way I hate it now. He was an easy target who I thought years ago was a way for me to feel better. I couldn’t beat up the varsity football team who humiliated me, so that kid was their surrogate. Nothing I have done before or after makes me more ashamed.
He’s in that picture, the kid who became the target of my bullying. It’s easier to write this if he has a name, so Ron, though of course that is not his real name which I do remember and cannot forget. We got along OK in junior high, friendly if not friends. But the high school football we went on to was struggle, not fun. The upperclassmen players bullied the younger kids like me endlessly, brutally at times.
I have not been again on that playing field in more than four decades yet I can point now to the exact spot on Google Maps where it all happened. The worst initiation the older kids had was making us fight each other. This usually took the form of whacking each other with tackling dummies, heavy canvas bags. If the big kids did not think we were fighting enthusiastically enough they would step in and continue the assault themselves. It was worse when the bags were wet.
One pointlessly humid Ohio day I was told to stand up and choose my opponent. Usually you picked a buddy with the unspoken understanding the two of you would take it easy on each other. I chose instead to fight Ron. Ron had stopped growing sooner than most of us, Ron had a good heart but wasn’t much of a fighter, Ron thought I was enough of his friend to take it easy. But I did not. Something broke inside me like a summer thunderstorm. When Ron went down I kept hitting him, right in the face with the bag, with the blood from his nose splattering to the point where even the upper class animals running the initiation stopped me. I was never made to fight again. Ron quit the team.
I didn’t stop. I said, with great encouragement from teammates, terrible things to Ron everyday at lunch. I made his life dark. He must have felt his stomach twist in horrible anticipation every day heading into the cafeteria. He tried to make peace with me despite I am sure not having a clue as to why I had become his predator but I refused to back down. The semester ended in exhaustion and I never played a team sport or trusted an authority figure again, my apolitical red pill moment. Ron sat somewhere else for lunch after Christmas break. I’ve had no contact with him since until I found him in that photo last night.
Google found him, too, I think. It looks like he’s a lawyer, made partner in his firm. He’s married. Seems to like to fish. The firm’s website lists a phone number that even now stares at me.
What do you do with the past? Do I call him, apologize, offer some sort of reparation, donate money to some anti-bullying group? Would he want that, would he accept that? Does he remember me, or was I just another forgettable part of high school that got discarded when he went on to his good college and his good law school? Does he live with what he can’t get past? Facebook says he has sons.
He must remember me, the efforts I made to hurt him had to have left some mark. What would he say to an apology? Would he, falsely but graciously accept whatever I said and get off the phone to tell his wife “Honey, you’ll never guess the odd call I had today…” over dinner? Would he listen to me a moment and then uncork decades of anger and resentment, telling me how I hurt him not only that day but forever, that these things don’t go away? Am I one of his ghosts as he is one of mine?
I talked to a psychiatrist friend, who explained the concept of amends used by Alcoholics Anonymous. Making amends is one of the last steps toward recovery, and is premised as “we may stop causing any more harm but that is not the same as repairing the damage we have already caused. We feel a man is unthinking when he says sobriety is enough.” I may have become a better man than I was on that damn football team, but I have done nothing to repair the damage I did.
You start amends by asking permission of the person you harmed. You acknowledge this is to help yourself, that you alone bear responsibility. My excuse – I bullied because I was bullied – is too easy for this task. Some things are always wrong and I should have known that, whether my society or my coaches said it was OK. It is as weak as my tormentors claiming the initiations were all part of toughening us up for the football season, and about building comradery as they too had once been humiliated as freshmen.
Amends demands I not elicit sympathy or make any excuses. I should ask for forgiveness, but not say I am sorry, no remorseful mumbling. If Ron is unable to forgive me, it is my burden. Some debts like that take a long, long time to repay, maybe until forever. You can’t rewrite the past.
The point of amends is asking my victim to help me. It is not about disguising my guilt as an apology. That is what separates amends from something like reparations, where it is the victim who benefits, often monetarily. There may be a place for that, but that place is not part of this old picture and the question about what do you do with the past that it screams at me.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jack Teixeira and Security Clearances
Air National Guard leaker Jack Teixeira had one of the highest levels of security clearance. Over five million Americans, more than the population of Costa Rica, Ireland or New Zealand, hold some type of security clearance. Can we trust them? Is Teixeira an exception, or is the process never expected to work 100 percent of the time?
A security clearance is issued by a part of the U.S. Government (Department of Defense, CIA, the State Department…) and says the holder can be trusted to handle sensitive documents and duties. At the low end this may mean a contractor can enter the Navy Yard without a body search, or at the extreme means a person will assume a completely new identity, live abroad, and conduct clandestine actions on behalf of the U.S.
Government-wide there are three basic levels of clearance: Confidential, Secret, and Top Secret. There are formal definitions, but the basic idea is that the higher you go up the ladder, the more harm and damage disclosure would create. Added to this three-tiered system are many subcategories, including Sensitive But Unclassified, for well, unclassified things that are still sensitive, such as an applicant’s social security number, Law Enforcement Sensitive and the like. Top Secret is supplemented by Sensitive Compartmented Information (SCI), often used to denote information obtained from intelligence sources. There are also many, many flavors of Special Access Programs (SAP) that require both a very high level clearance and specific permission to access just that single project, such as a clandestine operation against Iran, or the identities of spies in Syria. The military has its own lexicon of classifications.
The clearance process is largely a variation on a single note: let’s look into what this person has done in his life prior to seeking a clearance, and then try to extrapolate that into what he will do once cleared. But because, like your mutual funds, past performance is no guarantee of future success, the process is inherently flawed.
Despite the wide variety of clearances available, the process of obtaining one is similar across the board. What changes is less the process of looking into someone’s life than the granularity of the look. Most everyone seeking a clearance begins at the same place, filling out Standard Form 86, Questionnaire for National Security Positions, form SF-86. The SF-86 is mainly a very detailed autobiography, the raw material that fuels the rest of the process. Young people filling out their first SF-86 invariably end up on the phone to mom, gathering old addresses they lived at as kids, birthdays of disconnected relatives, foreign countries visited on family trips and more, a lot more: the SF-86 runs some 129 pages. Some interesting perjury bait is near the end, almost silly questions such as “Have you ever engaged in an act of terrorism?” and a follow-up requiring you to describe, in one line, “The nature and reason for the terror activity.”
After a hundred pages of names and dates the SF-86 dips into the deal breakers, the questions that weed out quickly those who are unlikely to get very far in the clearance process. Applicants are asked to self-describe financial problems, debts, drug use, gambling, drinking, mental health issues, legal troubles, job firings, and more. Whether out of duty and honor, or more likely a thought process that the agency will find out anyway and lying is an automatic disqualification, most applicants do tell the truth and disqualify themselves.
Everyone who gets past the SF-86 has some standard checks run on them. Since U.S. Citizenship is the most basic and unwavering requirement for a clearance, every applicant’s claim to being an American is verified. Every applicant then gets a run through whatever databases and electronic records can be found. The goal is to verify quickly as much of the self-provided data and to skim off the low-hanging fruit. A serious arrest record, neck-deep financial problems, and the like will be easily found. Checks are also run through the various intelligence files (a National Agency Check) to make sure while you’re applying for a job at the State Department you are not on some secret list of bad guys over at CIA. For some low-level or short-term clearances, the process can stop here and a decision is made. The time period varies, but usually is a couple of months for a background-only clearance.
For higher level clearances, including Top Secret, a full spectrum investigation is required. An investigator will visit an applicant’s home town school teachers, his second-to-last-boss, his neighbors, his parents, and almost certainly the local police force and ask questions in person. As part of the clearance process, an applicant will sign the Mother of All Waivers, basically giving the government permission to do all this as intrusively as the government cares to do. This is old fashioned shoe leather police work, knocking on doors, eye balling people who say they knew the applicant, turning the skepticism meter up to 11. The investigator will ask each interviewee to keep quiet about the interview, but typically the applicant will get a hushed phone call or email from some old acquaintance saying the Feds just knocked. Many of the contract investigators at this level are retired FBI or Secret Service people and often will present their old ID to add some gravitas to the procedure. If an applicant lived abroad, the process is tasked out to the nearest U.S. Embassy. All this on-the-street work does not come cheap. A full background investigation can run $15-20,000.
For many agencies, including the CIA and NSA and likely for a guy like Teixeira, an additional step in the clearance process is the polygraph, the lie detector, the box. The federal government polygraphs about 70,000 people a year in connection with security clearances. What portion of the polygraph process that isn’t shrouded in movie drama is classified, but the basics are simple; even Mythbusters looked into it. The process is based on the belief that when one fibs one’s body involuntarily expresses stress in the form of higher blood pressure, changes in pulse, breathing, and perspiration rate. Those things can be precisely monitored. Did you ever steal anything? No? That’s a lie — see here, your heart rate went up X percent when you answered.
Some say that the presence of the polygraph machine itself may be mostly for show, and the real nuts and bolts of the process are actually just clever manipulation and interrogation techniques as old as dirt. An awful lot of information obtained via a polygraph has nothing to do with the needles and dials per se, but the applicant’s fear of them and belief that they “work.” Polygraphers are allowed considerable freedom in style, and some get more into role-playing than others. Often the applicant will self-incriminate.
Up to this point the clearance process has been mostly the aggregation of information. Along the way some applicants might be picked off, but most applicants for a clearance end up in adjudication. And in adjudication lies the core problem in the clearance process: it relies on human judgment.
The basics of an adjudication look at vulnerabilities, and at past examples of trusts kept or violated.
Vulnerabilities are easier to determine. People betray their country’s trust for money, sex/compromise, ego or ideology. People with loads of debt or a gambling problem are more susceptible to bribes. People with records of infidelity or a pattern of poor judgment might be lured into sexual encounters that could be used to compromise them. In the bad old days when most LGBT applicants were deeply closeted, this was used as a one-size-fits-all pseudo-reason to deny them employment. Ego is a tougher one to pin down, but persons who lack self-esteem or who want to play at being a “real spy” might be tempted to become “heroes” for the other side. Ideology is a growing issue as more and more hyphenated Americans seek government work and, needing qualified language employees, more and more are recruited by the government. Will a Chinese-American’s loyalty fall to her new home or to the old country where grandma still resides?
Back in the good old days, when qualification for high level positions required one to be male, pale and Yale, these things were less of concern. Fathers recruited sons, professors noted promising students, and no one thought much about the messy range of people now sought for government work. Need fluent Farsi speakers or a surge of network engineers? You’re going to have to recruit farther afield than the country club. Agencies who used to toss back into the pond pretty much anyone without a pristine background now face unfilled critical positions. So, standards change, always have changed, and will continue to change. Security clearances just work that way.
If vulnerabilities seem sometimes ambiguous to adjudicate, the next category, trust, is actually much harder. Persons who have kept trusts extended to them, not been fired, not broken laws, paid their bills, saw to their responsibilities, are in the Nice category. Those who didn’t end up over in Naughty. The adjudication part becomes important because very few people are perfect, and very few are really bad. Most everyone falls in the middle, and so agencies must make judgment calls. The goal is to come up with a picture of the person, and then project that picture forward into what they might be like on the job. Like any human-powered process that attempts to predict the future, it is flawed. That’s how Jack Teixeira (Ed Snowden, Chelsea Manning, et al) ended up with a Top Secret security clearance.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Four Tips for My New Undergrad Classmates
I am now officially old, at least old enough to take advantage of a program at my local public university that allows me, an old person, to audit a class alongside undergrads gratis. In theory I’m supposed to add my life experiences to their learning, and they are to see in me the pleasure of learning for its own sake. I am supposed to benefit from being around their youthful vigor and all. We’ll see about all that. But I do now have a plausible explanation for the police as to why I am shirtless at a foam party alongside “adults” more than four decades my junior — I need to give back. Cross-generational communication being what it is I am treading lightly on passing out life advice (“Foam is really slippery and you lose flexibility as you age”) and felt it better to write down what I wish I could say to them between classes.
1. Go to class. Whether or not your professor takes attendance, go to class. You got out of the habit during your Zoom School days, I know. But professors have the habit of saying interesting and useful things in class, so go listen to them. If you’re concerned about grades, listening to what a professor choses to emphasize out of the reading (and do the reading) will be a big hint as to what will be emphasized on the test. Especially go to the first class and write down everything the professor says. Much of it won’t make sense, because it is about a subject you have not yet studied but months from now when you’re staring down the barrel of a final exam those ideas important enough to mention on day one will likely be a part of it. Sit up front, show some interest, ask an intelligent question or two (never “Is this gonna be on the test?” or “why do we have to study this stuff?”) and you may even develop an intellectual bond with the instructor.
2. Leave the computer in your dorm. Sitting in the back of the classroom, I look out on to a sea of Insta and other social media, Amazon pages, and the like, with sometimes (for the good students) half the small screen devoted to a Word document for notes. It is unfair to place a catalog screen designed by award-winning psychologists to attract you in competition with a Teaching Assistant in front of a class for the first time since 6th grade book reports. Unless you need to actually compute things, leave the devices back in the dorm. Take notes by hand, on paper. You’ll retain more and stay connected with the material better.
3. Learn to take notes. This is a life skill, not a college skill, so best to learn it. Notes help you remember what was said, to reconstruct the argument the professor made, to mark down what was important, to compare what showed up both in the reading and in class (it’s going to matter if it is in both places) and to help you pay attention if yes, it sometimes gets boring. Ideally your notes should resemble a term paper (and yes you can learn to write better term papers by learning to take better notes) with some sort of topic sentence followed by examples followed by a conclusion. Most times the professor will help you with this, laying out an outline of sorts on slides or on the board. Unless you’ve got a good reason not to, your notes should at the end of class look a lot like what the prof wrote — I. Causes of WWII followed by a, b, and c, listing causes such as c) Japan’s need for resources, esp. oil and rubber, followed by the conclusions the war was caused by runaway capitalism or whatever. If your notes are incomplete — “something about Germany” — you need more details. If you are always racing to keep up you may need less detail on paper and to spend more time just listening; you’re not a stenographer. Notes are not transcripts of the lecture, they are something akin to an x-ray view of the lecture. If all else fails, make an appointment to see the prof, explain your note taking problem, and ask (very politely, profs can be possessive) to see his lecture notes if possible. Compare yours to his and adjust accordingly.
4. Learn to manage time. This is also life skill, not a college skill, so best to learn it. Most high school teachers managed your time for you. They broke things down into class-size packages, lightened up a bit for Homecoming Weekend, and incessantly counted down for you to the next test. If you had to write a paper, many times they’d break that process down, demanding a reading list one Monday, an outline the next week, a rough draft by week four, etc. Rarely so in college. The syllabus issued on day one might mention a 10 page paper is due at week 14 and leave it at that. Same for reading; that fat stack of books in front of you has to be read between August and Christmas break, so you have plenty of time. You actually do not. Learn to work backwards from deadlines to day one of class, maybe even make a little calendar for yourself so you know by week three you should have some idea of a reading list for your paper, etc. This is your guide, so if by week four you do not have an outline that should answer your question about whether you can afford to stay up all night for Homecoming raves or not. Think of it partly as a bank. If you have enough hours in and are on schedule you can afford to spend a little more time away. But if you are in to deficit spending on time… think “clean as you go.” Anybody who has worked at a restaurant knows you can’t go home at night until everything is cleaned for the next day. If you clean as you go throughout the night, it is easier than starting at 2 am. It is even better to not make a mess in the first place.
Everything else: Don’t talk to the police without a lawyer present. Don’t cheat. Think before you speak. Sometimes don’t speak. Be generous if you have resources your classmates do not have. Drugs are not for stupid people. And the guy who usually sits in seat 13E, I think you’re wasting your time. And I saw the girl in front of you waiting after class for someone else, sorry, man. Maybe see you two at the foam party?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Japan in the Slow Lane
If you are one of the handful of people who really miss 2020, you’d do well to head to Japan as I did, a land where time stood still.
Everyone here (and by that I mean every single person and most children) wears a mask against the seemingly omnivorous threat of Covid. Yes, it is still here, or so we are told even before arrival where to obtain an e-visa one has to upload proof of vaccination and answer a strict list of questions, any one of which could end your trip plans should you answer “yes.”
The law (or is it social pressure? No one needed to do much to encourage Japanese people to be somehow even cleaner, and there are no Karen-sans here, they’d have nothing to yell about) requires masks everywhere all the time indoors, but almost everyone wears one inside and outside. Businesses are prepared to lend you a paper version should you have forgotten yours (no one has yet) and character-decorated cloth types go for about $10 in drug stores and the kind of random products stores Japan’s current economy seems based on.
In addition to masking, signs everywhere admonish you to keep social distance in public places. It makes sense in waiting areas where every other seat is blocked off with a sign but less so on the trains and subways where a full-body rub seems to come with the ticket. That it makes no sense makes no sense, except when you realize sensical change is not what Japan is about.
The joke is in 1985 Japan looked like the year 2000, the future. Today, on a visit in 2023, Japan still looks like the year 2000. Not much changed along the journey. If someone remakes Bladerunner the future it would seem is based on a proliferation of escalators and expansive seating/waiting areas in bank lobbies. Those building-sized video screens the L.A. of the future featured in Bladerunner no longer serve up hot geisha girl images but a silver haired couple video chatting with their stock advisor about holding instead of selling for another month.
Japan is getting too old. The child crisis which began in the go-go 1980s when having kids would have interfered with making money and taking expensive foreign trips has come to fruition, or rather anti-fruition: Japan is on the path to extinction. A third of Japanese people are over 60, making Japan home to the oldest population in the world, after somehow Monaco. It is seeing fewer births than ever before. By 2050, it could lose a fifth of its current population. That figure is closer to a reality than an estimate.
You would think such a dire situation would provoke change and in almost any other nation on earth you’d be right. But Japan does not like change and so there are no campaigns (as in Singapore) to encourage marriage, and follow-on campaigns to encourage having children. Day care is still as expensive as it is to come by, and “having someone else raise your kids” is still a stigma. Working mothers are seen as desperate (their husbands obviously a failure) or selfish.
The most obvious answer, immigration, is shunned. The fear of foreigners runs deep in Japan. “Why not admit some foreign IT people? Some senior care nurses from the Philippines?” I asked one educated Japanese. “Well, they’d stay here and this would slowly not be Japan anymore.” Barely three percent of the country’s population is foreign-born, compared to over a quarter of Americans. Thoughts on race are common enough you’d hate to label some gigantic portion of the country racists. It is the way it is, most would say, shikatta ga nai, nothing can be done. Japan does not care for change.
Covid is in a way a made-for-Japan disease, a solid excuse to slam the doors to the country shut without heaps of international scorn. At the height of the Covid mania, even foreigners with permanent residence in Japan (home, car, job, etc.) who were unlucky enough to be caught outside the country were barred from reentry for weeks. Pressure finally caused the Japanese government to reluctantly yield to reality.
So what is being done about the childless society problem? Japan is making old people more comfortable in their isolation. Where it once resisted necessary accommodations for handicapped people, escalators and elevators are now being retrofitted. Handicapped people are “others” in Japanese society and despite international pressures there was little drive to open the country up for them. The elderly, Japanese through and through, are different in a place where age is revered, even if there are fewer around to do the revering. Maybe robots will fill that gap.
You want accomodation in the meantime? In Tokyo street crossings have countdown lights so you know how much time you have to get across, plus beeping sounds and timers. There are more public toilets and benches. All the buses kneel and the new type taxis can easily accommodate walkers and wheelchairs.
To keep old people busy, there are all manner of make-work jobs waving traffic through an intersection or pointing out empty parking spots. It is in the end such a Japanese way of dealing with a problem, making massive yet superficial changes while ignoring the fundamental end-of-days scenario unfolding. If the band playing as the Titanic sunk wasn’t Japanese they should have been.
But what about _____? Fill in the blank with any current American problem and Japan seems like heaven. Homelessness? You see a few sad winos in train stations but they are silent and neat with their belongings. Crime? As close to zero as possible given 12 million people live in tight proximity to one another. Drugs? See crime, above. You can never write Japan off, but you do need to look below the surface to understand her.
The thing is people seem to like it this way. Japan has had almost no social unrest in modern times, and it has as close to a one party system in national politics as you can get without looking at that of its neighbor in North Korea.
A writer for the BBC in an otherwise thoughtful article on Japan explained that the party in power is known as the “concrete” party not only for their basic political strengths but because of their ability to devolve make-work construction projects out to the smallest voting districts, dropping in from Tokyo jobs and money accordingly.
With Japan’s non-proportional representational system, those small districts carry as much punch at the voting booth as do areas many times their population in major cities. Concrete buys votes, you see it everywhere with unnecessary bridges and tunnels, and riverbanks lined with sturdy walls that would hold back a deluge if one were suddenly to appear in the middle of nowhere. Concrete is a visible symbol of power and as it dries solid, a symbol of unchange. This is going nowhere, it’s big and heavy say the retaining walls.
But perhaps the symbology is wrong, and the solidity of concrete largess from the central party is not the right interpretation. What if we see the concrete as nothing more than superficial? Most of it poured is designed to hold back water, to keep nature in its place. But concrete works on one time scale and nature another. What if the concrete was just there to mask over a more fundamental problem, like providing extra seating areas instead of addressing the child problem?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Fixing the Security Clearance Process
How do you fix the security clearance process?
The security clearance process is not a real-time, ongoing endeavor. Instead, someone applies for a government or contractor job that requires a clearance, some sort of background check is done, and a clearance decision is adjudicated. Next case, please. Most clearances are only reviewed every five years and then investigators lean heavily on anything new or changed, and especially on the subject’s performance those five years. Even agencies that use the polygraph employ an abbreviated version of the test when renewing a security clearance. There is no 365/24/7 continuous reevaluation process. Of course records checks are done, a felony arrest properly documented might pop up, and many agencies yearly run standard credit checks and conduct random drug tests. But overall, absent something self-reported or too obvious to ignore, a clearance rides for five years, sometimes literally with no questions asked. How could it be otherwise with over five million active cleared Americans strung across the globe?
It doesn’t always work out. As happened following the process’ failure with people like Edward Snowden, Chelsea Manning, now with Air National Guardsman Jack Teixeira, much noise will be generated about “doing something” to fix the clearance process. But what?
Dramatically increasing the number and scope of on-the-street investigations as part of background checks will spiral wildly into crazy expenses and even longer waiting periods to complete clearances. It could bring the hiring process to its knees, and spawn more and more “temporary clearances,” a self-defeating act. This all with no assurance of better results due to both limitations on the whole concept (past behavior in a wholly different environment like high school may not be indicative of future intent under real-world pressures, as in the Teixeira and Manning cases) or simply human judgment errors. If done properly, such changes might even catch a few of the Teixeira’s out there, but to be honest, there are few Teixeira’s out there to begin with and most of them will be sending up obvious danger signals at work for a long time if anyone would pay attention before a clearance review catches up.
In the interest of never letting a good crisis go to waste, the Biden Administration is now reportedly planning to increase its surveillance of social media and online chatrooms, as if not understanding the internet is a very big place. It is certain that many more in government will call for more aggressive “monitoring” of employees, having them sign away basically all of their civil rights in return for a job. The government will turn its vast intelligence gathering tools further inward and end up pointlessly compiling CIA officers’ credit card receipts from Applebee’s, the web browsing habits of diplomats’ children, and so forth. In truth, a lot of that is probably already going on now anyway (the CIA and other intel agencies have had for years robust counterintelligence operations designed specifically to spy on their own spies.) But you just can’t see into a person’s head, or his heart, via his bank account.
In addition to a huge waste of money and resources, these measures will inevitably lead to more mistrust and paranoia inside government. Lack of sharing (the CIA believes things it shares with State get leaked, the Army won’t give things away to the Navy, the FBI hoards info so as to not let another part of the Department of Justice get credit for a bust, the NSA doesn’t trust anyone, and so forth) is already an issue among agencies, and even inside of agencies, and helped pave the way for 9/11.
In addition, handing even more power to security teams will also not work well in the long run. Hyper-scrutiny will no doubt discourage more decent people from seeking government work, unwilling to throw their lives open for a job if they have prospects elsewhere. The Red Scare of the 1950s, and the less-known Lavender Scares, when labeling someone gay inside government would see him fired, show what happens when security holds too many cards. James Jesus Angleton’s paranoid mole hunting at CIA, which ruined many careers, is still a sore point at Langley. No, unleashing the bullies won’t help.
As a wise man once said, cut through all the lies and there it is, right in front of you. The only answer to the clearance problem is to simply require fewer cleared people inside government.
This will require the tsunami of document classification to be dammed. In FY2009 alone, 54 million U.S. Government documents were classified. Every one of those required cleared authors and editors, system administrators and database technicians, security personnel, and electronic repair persons. Even the cafeteria personnel who fed them lunch needed some sort of vetting.
With fewer people to clear because there is less classified material to begin with, always-limited resources can be better focused. Better background checks can be done. Corners need not be cut, and unqualified people would not be issued clearances out of necessity. Processing time would be reduced. Human judgment, always the weak link, could be applied more slowly and more deliberately, with more checks and balances involved.
More monitoring won’t help and will very likely hurt. In a challenge as inherently flawed as the clearance process, the only way forward is less, not more.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Embassy Evacuation: Sudan
The American Embassy in Sudan is closed. Fierce fighting between two warring generals has led to the swift deterioration of conditions in the capital and the U.S. appears to be preparing to evacuate American staff, possibly some private American citizens. What happens when an embassy is evacuated? What happens to private Americans in-country?
The decision to close an embassy rises to the Secretary of State for approval. An embassy evacuation really is a virtual chess match that some State Department critics say is as much about political signals as it is about the safety of America’s diplomats. In cases where the United States decides to support the host government or in the case of Sudan, one faction, an embassy closure cuts off most interaction and will eliminate on-the-ground reporting. An evacuation can trigger the fall of the host government based on the perceived loss of American confidence, or may encourage rebels to attack private American citizens seen as less-protected. In that one point of having an embassy at all is symbolism, closure is without a doubt a political act. Reopening the embassy brings up all those factors in reverse.
The mechanics of closing an embassy follow an established process, with only the time line varying.
All embassies have standing evacuation procedures, called the Emergency Action Plan, that are updated regularly. A key component is the highly-classified “trip wires,” designated decision points. If the rebels advance past the river, take steps A-C. If the host government military is deserting, implement steps D and E, and so forth.
Early actions include moving embassy dependents out of the country via commercial flights. The embassy in Sudan is designated a partially accompanied post. This means that while some family members may be permitted to accompany U.S. government employees to the post, there are restrictions on who can accompany them and for how long. In addition, incoming staff can be held in Washington and existing tours cut short. Non-essential official personnel (for example, the trade attaché, who won’t be doing much business in the midst of coup) are flown out. A “Do Not Travel” public advisory (note item 8, “prepare a will”) must be issued by the State Department to private American citizens under the “No Double Standard” rule. This grew out of the 1988 Lockerbie bombing of a Pan Am flight, where inside threat info was made available to embassy families but kept from the general public.
These embassy draw-down steps are seen as low-cost moves, both because they use commercial transportation, and because they usually attract minimal public attention both inside and outside the host country.
The next steps typically involve the destruction of classified materials. The flood of sensitive documents stolen from the American embassy in Tehran in 1979 remains a sore point inside State even today. Classified materials include mountains of paper that need to be shredded, pulped or burnt, as well as electronics, weapons, encryption gear, and hard drives that must be physically destroyed. Embassies estimate how many linear feet of classified paper they have on hand and the destruction process begins in time (one hopes) to destroy it all.
Somewhere in the midst of all this, the Marines come into the picture. Embassies are guarded only by a small, lightly armed detachment of Marines. As part of their standard Special Operation Capable (SOC) designation, larger Marine units train with their SEAL components for the reinforcement and evacuation of embassies. They maintain libraries of overhead imagery and blueprints of diplomatic facilities to aid in planning. Fully combat-equipped Marines can be brought into the embassy, either stealthily to avoid inflaming a tense situation, or very overtly to send a message to troublemakers to back off. Long experience keeps Marine assets handy to the Middle East and Africa. Any evacuation out of Sudan will flow from the large U.S. military facility nearby in Djibouti, and so the Pentagon is moving more troops to the African nation to prepare for a possible evacuation of staff in Sudan. The U.S. will often coordinate its evacuation with other nations’, with friendlies such as Canada, and in places where another nation’s influence is strong, such as in Francophone Africa.
What is done to support private American citizens varies considerably (there are some 19,000 in Sudan.) The rule of thumb is if a commercial means of departure exists, private citizens must utilize it, sometimes with the assistance of the embassy. Loans for tickets can be made, convoys organized, and so forth. In cases where the major airlines refuse to fly but the airport is still usable, the State Department can arrange charters. Right now the international airport in Khartoum is the target of heavy shelling, with destroyed planes on the tarmac. Sudan’s air space is also closed.
In extreme cases only (Sudan may become such a case) the Marines conduct a Noncombatant Evacuation Order (NEO) to pull citizens out of the country using military assets. At times Americans are simply told to “shelter in place” and ride out a crisis. State will ask a neutral embassy in-country, such as the Swiss, to look after them to the extent possible if our own embassy closes.
The current guidance issued to private Americans in Sudan is dire: “U.S. citizens are strongly advised to remain indoors, shelter in place until further notice, and avoid travel to the U.S. embassy. There continues to be ongoing fighting, gunfire, and security forces activity. There have also been reports of assaults, home invasions, and looting. The U.S. embassy remains under a shelter in place order and cannot provide emergency consular services. Due to the uncertain security situation in Khartoum and closure of the airport, it is not currently safe to undertake a U.S. government-coordinated evacuation of private U.S. citizens.”
Almost always left out of the mix are the embassy local staff, the cooks, drivers, and translators. Rarely are they evacuated, and are usually left to make their own way in what can be a very dangerous environment for someone seen as an American collaborator. Some have compared this to the poor treatment military translators from Iraq and Afghanistan received trying to secure visas to the United States.
Images of an empty embassy are not what the American government looks forward to seeing spreading across social media. The pieces are in place in Sudan, waiting for the situation on the ground to dictate what happens next.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Why Hasn’t the U.S. Arrested WaPo Journalist for Publishing Classified Documents?
Why hasn’t the U.S. government arrested WaPo journalist Shane Harris for publishing highly classified documents related to the war in Ukraine and U.S. spying on its allies? The ones leaked by Air national Guardsman Jack Teixeira?
The documents contain significant revelations. Among other secrets, they show the CIA recruited human agents privy to the closed-door conversations of world leaders, reveal eavesdropping that shows a Russian mercenary outfit tried to acquire weapons from NATO ally Turkey to use against Ukraine, explained what kind of satellite imagery the United States uses to track Russian forces, and made clear U.S. and NATO have special forces on the ground inside Ukraine.
Why Shane Harris is not in jail has a long history, and a complex answer. In 1971, Daniel Ellsberg leaked the Pentagon Papers, a secret U.S. government-written history of the Vietnam War, to the New York Times. No one had ever published such classified documents before, and reporters at the Times feared they would go to jail under the Espionage Act (the same law under which Jack Teixeira is charged.) A federal court ordered the Times to cease publication after initial excerpts were printed, the first time in U.S. history a federal judge censored a newspaper via prior restraint. In the end, the Supreme Court reversed the lower courts and handed down a victory for the First Amendment in New York Times Company v. United States. The Times won the Pulitzer Prize. Ever since media have published national security secrets as they found them.
Law professor Steve Vladeck points out “although the First Amendment separately protects the freedom of speech and the freedom of the press, the Supreme Court has long refused to give any separate substantive content to the Press Clause above and apart from the Speech Clause. The Supreme Court has never suggested that the First Amendment might protect a right to disclose national security information. Yes, the Pentagon Papers case rejected a government effort to enjoin publication, but several of the Justices in their separate opinions specifically suggested that the government could prosecute the New York Times and the Washington Post after publication, under the Espionage Act.”
The Supreme Court left the door open for the prosecution of journalists who publish classified documents by focusing narrowly on prohibiting prior restraint. Politics and public opinion, not law, has since kept the feds exercising discretion in not prosecuting the press, a delicate dance around an 800-pound gorilla loose in the halls of democracy.
The closest an American journalist ever came to being thrown in jail was in 2014, when the Obama administration subpoenaed New York Times reporter James Risen. They then accused former CIA officer Jeffrey Sterling of passing classified information to Risen. After a lower court ordered Risen to testify and disclose his source under threat of jail, the Supreme Court turned down his appeal, siding with the government in a confrontation between a national security prosecution and an infringement of press freedom. The Supreme Court refused to consider whether the First Amendment implied a “reporter’s privilege,” an undocumented protection beneath the handful of words in the Free Press Clause.
In the end, the Obama administration, fearful of public opinion, punted on Risen and set precedent extra-judicially. Waving a patriotic flag over a messy situation, then-attorney general Eric Holder announced that “no reporter who is doing his job is going to go to jail.” Risen wasn’t called to testify and wasn’t punished for publishing classified material, even as the alleged leaker, Jeffrey Sterling, disappeared into prison for three and a half years. To avoid creating a precedent that might have granted some form of reporter’s privilege under the Constitution, the government set a different precedent and stepped away from the fight. That’s why Shane Harris of the Washington Post isn’t under arrest right now. For traditional media American journalists like Shane Harris, the Risen case was a turning point.
Meanwhile Wikileaks’ Julian Assange is under arrest, rotting away in his fifth year in a UK prison fighting extradition to the United States. There are complex legal questions to be answered about who is a journalist and what is publishing in the digital world — is Assange himself a journalist like Risen or a source for journalists like Sterling was alleged to be? There is no debate over whether James Risen is a journalist and whether a book is publishing. Glenn Greenwald has written about and published online classified documents given to him by Edward Snowden, and has never been challenged by the government as a journalist or publisher.
Assange isn’t an American, so he is vulnerable. He is unpopular, drawn into America’s 21st-century Red Scare for revealing the DNC emails. He has written nothing alongside the primary source documents on Wikileaks, has apparently done little curating or culling, and has redacted little. Publishing for him consists of uploading what has been supplied. The government would argue Assange is not entitled to First Amendment protections simply by claiming that a mouse click and some web code isn’t publishing and Assange isn’t a journalist. The simplest interpretation of 18 U.S.C. § 793(e) of the Espionage Act, that Assange willfully transmitted information relating to national defense without authorization, would apply. He would be guilty, same as the other canaries in the deep mine shaft of Washington before him, no messy balancing questions to be addressed. And with that, a unique form of online primary source journalism would be made extinct.
And that really, really matters. Wikileaks sidestepped the restraints of traditional journalism to bring the raw material of history to the people. Never mind whether or not a court determined disclosure of secret NSA programs which spied on Americans disclosure was truly in the public interest. Never mind the New York Times gets a phone call from the President and decides not to publish something. Never mind how senior government officials are allowed to selectively leak information helpful to themselves. Never mind what parts of an anonymous technical disclosure a reporter understood well enough to write about, here are the cables, the memos, the emails, the archives themselves. Others can write summaries and interpretations if they wish (and nearly every mainstream media outlet has used Wikileaks to do that, some even while calling Assange and his sources traitors), or you as an individual can simply read the stuff yourself and make up your own damn mind about what the government is doing. Fact checks? There are the facts themselves in front of you. That is the root of an informed public, through a set of tools and freedoms never before available until the internet created them.
Allowing these new tools to be broken over the meaning of the words journalist and publishing will stifle all of what’s left of the press. If Assange becomes the first successful prosecution of a third party under the Espionage Act, the government can then turn that precedent into a weapon to aggressively attack the media’s role in national security leaks. Is a reporter, for example, publishing a Signal number in fact soliciting people to commit national security felonies? Will media employees have to weigh for themselves the potential public interest, hoping to avoid prosecution if they differ from the government’s opinion? The Assange case may prove to be the topper in a long-running war of attrition against free speech.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jack Teixeira, Leaks, and a Matter of Trust
Despite all the precautions and double-checks, at some level it ends up a matter of trust. And in the case of Air National Guardsman Jack Teixeira, much of that trust was violated. Why couldn’t the military trust him? Why do we have to trust him?
The charging documents against Jack Teixeira, 21-year-old going on 14-year-old airman first class who is accused of leaking classified documents, indicate that he was granted a top-secret security clearance in 2021, which was required for his job as a computer network technician in the Massachusetts Air National Guard. While that may sound like an exceptional degree of access for such a junior service member, having top secret/SCI (sensitive compartmented information) clearance in that kind of job is standard. Other recent celebrity leakers were of a similar age and experience; NSA leaker Reality Winner was arrested at age 26. Edward Snowden did his leaking from the NSA and CIA in his early thirties, and Chelsea Manning was only 22 when she exposed massive amounts of State Department and U.S. military data via Wikileaks. With the exception of Winner, all worked as network engineers of some sort, sitting at the electronic nexus between the producers of intelligence and the consumers. There is no place elsewhere on the network which offers greater visibility. Think of how much water a plumber watches pass by as he fixes your pipes.
Though each leaker had all the requisite background checks, at their young ages there wasn’t much background to check. Teixeira joined the military at age 20 and so, like Manning and others, his suitability for a clearance was based mostly on what kind of kid he was in high school. It is unclear what a better clearance system would look like, but it is equally clear the current one has some holes in it. Right now things are based mostly on a matter of trust.
Teixeira violated the trust put in him in a number of ways, the most significant was the actual leaking of highly classified documents. The manner in which he appears to have obtained the documents, however, suggests other steps of breach of trust along the way. The documents as they appeared online on that Discord gaming and chat server appear to be photographs of classified documents. This makes sense; the military networks are physically isolated from the outside world and so electronic outloading secrets is near impossible. If a classified document is physically printed, as in the case of the Reality Winner leaks, a secret source code is surreptitiously embedded and can be traced back to the printer. In both Manning’s and Snowden’s cases some sort of storage device was illegally brought into the secure area, in Manning’s case a read/writable CD-ROM. What Snowden used has never been publicly disclosed though Oliver Stone’s film Snowden postulates it was some sort of media smuggled in and out via a Rubik’s Cube. Teixeira seems to have acquired classified documents printed by someone else and taken cell phone photos of them, either at work or, based on the daily detritus in the frames, at home. Teixeira was trusted not to bring a phone into his secured area and not to take documents out. He violated these trusts to try impress some online friends with the level of access he had.
Here things are on more traditional ground. Standard spy tradecraft says someone will betray their country for one or more of a fairly standard set of reasons, MICE: money, ideology, compromise and ego, with the kid Teixeira solidly on the square marked “ego.” It’s easy to screen out the drunks and gamblers and bankrupt, harder to figure out who is doing it for themselves.
But what other matters of trust were breached in the short saga of Jack Teixeira? The MSM soiled itself once again, proving to be more a tool of the state rather than a way to inform the people about what their government is up to. Most of the MSM joined with online pundits in first claiming the Teixeira documents were fakes, or at least grossly altered. When the story first appeared Reuters claimed, based on anonymous sources, that Russia was behind it. When the documents’ veracity became too obvious to ignore, the MSM switched over into claiming whatever the documents said, it was not very important, just things everyone sort of already knew (they did the same with the Snowden info.) Then despite the documents being of no great importance, when instructed from the White House briefing podium that the documents do not belong on the front pages of American newspapers, the documents were taken off line by the MSM and replaced with blurred images. Based on publicly available information, the New York Times and Washington Post tracked down the leaker before the FBI did, practically outing him on page one for the Feds. The trust between the press and its role in a democracy, and the people, was treated with the same callousness as the trust between Teixeira and the military.
As for other matters of trust, the Teixeira documents show that post-Snowden the U.S. still spies on its allies. Snowden revealed American spying in Western Europe, for example, was down to the level of listening in on world leaders’ personal cell phones, and that in Asia the entire Japanese phone system was compromised. Teixeira reveals the U.S. listens in on Cabinet-level internal discussions in South Korea, and on high-level deliberations in Egypt (who, speaking of matters of trust) appeared to be planning on selling arms to Russia while at the same time being the second largest recipient of U.S. foreign aid. The U.S. also listened in on Jordan’s Crown Prince Hussein and of course ally Ukraine. There was no trust despite public pronouncements of common goals and joint efforts.
But the biggest breach of trust revealed by the Teixeira documents is between the U.S. government and the people. The leaked documents show despite claims to the contrary, there are American (special) forces on the ground in Ukraine, catching the president in a solid lie. Other NATO forces have military personnel on the ground as well, dramatically risking wider conflict even as the president begs the American people to believe all that the U.S. is doing is passively supplying weapons to Ukraine. We also learn that any pronouncements of optimism that Ukraine may force back its Russian invaders cannot be trusted; the documents show U.S. intelligence assesses the much-vaunted spring counteroffensive by Ukraine will likely fail, and that the war writ large will continue into 2024. Not only does this show administration claims of progress to be false, it raises the possibility deeper American involvement will be necessary and likely.
It is a familiar story. The sum of the Manning leaks showed the American government could not be trusted to tell the truth about progress in the Iraq and Afghan wars (echoing the Daniel Ellsberg leaks about Vietnam known as the Pentagon Papers.) The sum of the Snowden leaks was to show the American government could not be trusted when it claimed to not spy domestically on its own citizens, or on its closest allies abroad. It becomes a sad state of affairs where we the people end up trusting leakers, people by definition untrustworthy, to accurately and completely tell us what our own government is doing behind the always happy public announcements. If the leaked documents matched the public statements there would be nothing to say, indeed, no point in leaking, for the adolescent dork or the self-styled crusader. But it never works that way.
So when we ask why we cannot trust kids like Jack Teixeira to follow the rules and earn the trust granted them, we need to look broader, at a military-government system that pretends to be based on trust while lying its pants off. That’s how Teixeira probably grew up seeing things, you can trust me.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
I’m Disgusted with the Trump Indictment
The sheer pleasure ordinary Democrats, never mind MSM personnel, got from seeing Donald Trump in court was disgusting. The “Ah, jeez, why not?” reaction when it was announced he would not be paraded as a captured curiosity, a circus freak, through a perp walk. The t-shirts that wouldn’t be made out of his mug shot, all the disappointment leavened with the glee that years of investigations finally yielded Trump in court facing criminal charges, the fruition of #TheResistance. To hear MSNBC, you’d think we were days away from the Orange Man being thrown into a van with no windows for his last ride upstate, the Orange tan and orange jumpsuit, with Orange is the New Black jokes echoing behind him, the last things he hears before being violated in the prison showers while multitudes cheer.
I’d seen all this before, in post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office. Overall, whether a former South Korean president goes to jail after their term depends on various factors, occasionally such as the evidence against them, and more significantly, the political climate surrounding them. That’s no rule of law, it is revenge. That’s the new America you’re cheering for?
And yet for all the schadenfreude turned up to 11, we’re left staring blankly at the TV and asking: is this all there is? After eight years of intense judicial and media scrutiny, after two impeachments, the January 6 coven of elders committee, Russiagate and even after the state of New York and the House finally did get his tax documents, this is it? The Teflon Don is going down over… falsification of business records? Never mind the 34 counts, that’s just stacking, an old DA trick to turn one “crime” into many and make things look more dramatic. It just seem impossible that after all this there is no debt to Putin, no tax scam, no KGB handler, just a bookkeeping error. And spare us the “Al Capone went to jail over tax returns.” Capone was a known mobster, a murderer, a man who left a long string of broken bodies alongside his wholly criminal business (and he only served eight years.) Trump may have committed a bookkeeping error. He’ll pay a fine at worst.
When you blow away the smoke, Trump is charged with only one minor crime. That stems from the allegation that money Trump paid to his lawyer Michael Cohen (continuing the call him a “fixer” just prolongs the awful Godfather references and is sooooo 2021) to in turn legally buy silence from Stormy Daniels, and for Karen McDougal’s and other stories. Trump supposedly purposely mislabeled this legally spent money as “legal fees.” The indictment instead claims it a violation of business records law because the primary purpose was to influence an election. The supposition by the DA that that was true allowed him to upgrade a misdemeanor, false business records, into multiple felony accusations. Backing all this up is the word of disbarred felon Michael Cohen, and former National Inquirer honcho David Pecker (you just can’t make this stuff up, folks) both of whom are going to swear it is all true. That Pecker supposedly was granted immunity to testify and Cohen himself has multiple law suits and a huge chip on his shoulder pending against Trump has nothing to do with nuthin’.
The problem is DA Alvin Bragg (who actually ran for his office on the promise of prosecuting Trump for… something… and is now paying off his promise to his backers) has to win the case, and that is going to be as legally tough as the case itself is legally soft.
In short, the DA has to prove a crime not even charged (the unspecified campaign finance laws, or maybe something to do with taxes, the so-called “core crime”), show a misdemeanor for everyone else is actually a felony if you’re Trump, demonstrate Trump’s criminal state of mind when this all happened (intent to defraud… who? The Trump Organization?) and do all that based primarily on the testimony of Michael Cohen and a pseudo-journalist named Pecker. Otherwise, Trump is acquitted. And while the news is chock full of articles on the threat to our democracy if Trump is found guilty, no one has been saying much about how he will be empowered if he wins. It is said if you go after the king, you should not miss.There is nothing in this case which will stop Trump from running for president, even if somehow found guilty or even serving time. His affair with Stormy, which may be offensive to some voters, has sadly been part of the public conversation around Trump for years. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case?Could things get to the point where the “rule of law” misinterpreted as a “rule of revenge” means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa for Dems? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the other party. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware.It is easy to brush this off as exaggeration, but Trump’s opponents react to his provocations and grandstanding by escalating the erosion of legal norms (see the Mueller investigation, and the impeachments.) Ask Mitt Romney, who said “The prosecutor’s overreach sets a dangerous precedent for criminalizing political opponents and damages the public’s faith in our justice system.” And don’t forget Alvin Bragg’s predecessor had almost a year to bring this case after Trump left office, but did not do so, and the Department of Justice also declined. Historians will call this all the Bragg Rule.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Clarence Thomas Takes One for the Court
Did Clarence Thomas do anything wrong in accepting gifts from a wealthy Republican, or is Thomas the victim of years of pent-up anger at the Supreme Court by Democrats? Yes.
According to an investigation by ProPublica, for more than 20 years Justice Thomas received lavish and expensive gifts, including trips on a private yacht and a private jet, from Harlan Crow, a Texas billionaire and real estate developer with a long record of support for Republican politicians. Under the ethic regulations which guide Supreme Court justices, it is not clear that Thomas had to report any of this (Thomas says the guidance he received affirmed he did not need to report any of the gifts as his angel, Crow, had no business before the Court and the trips were “personal hospitality,” a gift from a friend.)
ProPublica asserts that the Ethics in Government Act of 1978 required Thomas to report these gifts. This is most probably untrue. People do not report generally “personal hospitality,” such as Thomas’s vacations. It wasn’t until a few weeks ago that the Judicial Conference issued new guidelines saying free trips and air travel must now be reported. This was announced as a change in policy, meaning disclosure was not required in the past but would be in the future. It is as simple as that: The rules did not require reporting of trips in the past, but going forward they do.
So it appears while Thomas did not break the letter of these regulations, he certainly skirted the edge of what we’ll call propriety, the appearance of being on Harlan Crow’s extended payroll. For a guy who has lived so long in Democratic crosshairs it seemed an unwise thing for Thomas to do, even if legal. One theme of government ethics classes is you don’t have to demonstrate actual impropriety, you must avoid even the possible appearance of impropriety. Accepting lavish travel perks? Operating you own email server? Just not what regular Feds do, whether legal or not.
Thomas’ long war with the Left started with his confirmation hearings in 1991 after his nomination by President George H.W. Bush. Anita Hill, who worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, testified before the Senate Judiciary Committee Thomas sexually harassed her during that time. Her testimony ignited a national conversation about sexual harassment in the workplace and the treatment of women in the legal profession. It introduced many Americans to the vocabulary of pornography long before Bill Clinton soiled the waters (small world: Senator Joe Biden was the Chair of the Senate Judiciary Committee, which oversaw the confirmation process. Biden has faced criticism for his sexist handling of Hill’s testimony and for not allowing three other female witnesses to testify during the hearings.)
As a jurist criticism of Thomas has focused on three points. Many liberals disagree with Justice Thomas’s conservative judicial philosophy, which emphasizes originalism and strict interpretation of the Constitution. They argue that this approach leads to narrow interpretations of individual rights and protections, particularly for marginalized groups. Similarly, liberals criticize Justice Thomas for his opposition to affirmative action and other civil rights policies. They argue that his views on these issues are harmful to communities of color. Lastly, Thomas is known for being one of the least vocal members of the Supreme Court, rarely asking questions during oral arguments or engaging in public discourse about his opinions. Some liberals argue that this lack of engagement is problematic and makes it difficult to understand his reasoning on key issues. There are accusations he often has made up his mind along ideological lines before even hearing a case.
Thomas has more recently become a lightening rod for everything Democrats have come to hate about the Supreme Court, as the Court shifted rightward and decisions like Roe v. Wade went against standard liberal thinking. They see Thomas’ “corruption” as emblematic of the Court’s outsize power due to lifetime appointments, isolation from traditional Constitutional checks and balances, and virtual immunity from public pressure, making it a magnet for corruption and influence-peddling. They see Harlan Crow as having purchased direct access to one of the most influential and powerful men in America and argue that while Crow may not have a specific issue in front of the Court, he holds a generic interest in right wing causes and thus has bought himself a sympathetic judge for his broader Conservative agenda.
Things only got worse when it was discovered that Thomas’ spouse Ginni donated to Republican causes and sent texts cheering on the protests of January 6. A woman with political thoughts of her own! Nonetheless, Thomas is a man with a target on his back.
The only real check and balance on Supreme Court justices is formal impeachment and removal from the bench, so it not surprising at the first sign of impropriety Democrats like AOC have immediately called for Thomas to be impeached. It won’t happen; the standards for impeachment are high, whether what Thomas did actually qualifies is far from clear, and a partisan Congress will never go along. Only one Supreme Court justice has ever been impeached, Samuel Chase, in 1804 for alleged political bias in his judicial conduct. The Senate held a trial, but ultimately acquitted Chase of all charges. No other Supreme Court justice has been impeached since then. Justice Abe Fortas did resign over 50 years ago over money issues, ahead of a likely try at impeachment.
Some have already gone further than the expected calls for hearings and investigations. The New Republic writes “The Democrats need to destroy Clarence Thomas’s reputation. They’ll never successfully impeach him. But so what? Make him a metaphor for every insidious thing the far right has done to this country.” The magazine went on to call him the “single worst Supreme Court justice of all time. Clarence Thomas is an embarrassment to the Supreme Court and the country, and the worship of this man on the right is one of the greatest symbols of their contempt for standards, the law, precedent, and democracy.”
The hyperbole gives it away — all of this is another tempest to fill in the dead space between Orange Man Bad stories. Thomas should not be proud of his actions, but nor should he face impeachment, never mind some sort of public drawing and quartering of his reputation, over what he did. Clarence Thomas is taking one for the Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Thoughts and Prayers Because The Kids Are Not Alright
Americans ages 18 to 20 account for only four percent of the population but 17 percent of murders. The problem is not just the guns. It is the young (almost always) men who wield them. Any possible starter solution rests with the shooter, not the firearm.
There’s a pattern inside those sordid statistics, with some 70 percent of school shootings since 1999 having been carried out by people under 18. The median age of school shooters is 16. It’s our kids shooting other kids, whether because they are left out, bullied, teased, or angry at some slight or offense, it is kids killing kids. Since these killings tend to be “local,” typically the shooter and the dead share a racial and/or social-economic background, leaving “white supremacy” as a cause in the dustbin alongside blaming heavy metal records and Satanism. There have been at least 554 school shooting victims, with at least 311,000 children exposed to gun violence at school in the U.S. since the Y-in-the-road game changing Columbine High School massacre, all spread across 376 schools. The frequency of shootings has increased, with a surge of 46 incidents in 2022, the highest in any year since 1999. The safest year was 2020, when most schools were closed and parents needed only worry about Covid taking their kids.
Since it’s not the guns per se but young men who are to blame, more traditional gun control is unlikely to make much of a difference. Already under the Federal Gun Control Act (GCA), shotguns and rifles, and ammunition for shotguns or rifles may be sold only to individuals 18 years of age or older. All other firearms can be sold only to individuals 21 years of age or older. Licensed sellers are bound by the minimum age requirements established by the GCA regardless of state or local law. However, if state law or local ordinances establish a higher minimum age, the gun seller must observe the higher age requirement.
Background checks vary in quality from state to state but generally seek to prohibit sales for reasons such as a history of domestic abuse or violent felony convictions, crimes unlikely to snare the shooters just out of middle school. No background check is going to catch someone seething with rage. Checks also are at the time of purchase and gun ownership can be forever. There is the private transfer loophole that bypasses most background checks, though no evidence budding mass killers seek out this method of gun acquisition.There is also the Columbine divide that somehow factors in to kids killing kids. Pre-Columbine America saw school shootings number only approximately 300 instances in 150 years. Post-Columbine shootings number 331 in only 24 years. Something big is very wrong in America and our kids are not alright. Add in teen suicides (many involving guns; suicide is the third leading cause of teen death, with homicide in the number two position, add those together and guns are Number One), and you have more than a crisis, you have a nightmare.In the absence of Federal statistics, the Washington Post has kept records of all child-related shootings. It found school shootings disproportionately affect black children; black students make up 16.6 percent of the school population but experience school shootings at twice that rate. At schools with majority black student bodies, shooters typically target a specific person, limiting the number of people shot — and the subsequent media exposure. Mass shootings (four or more people) tend to be a white kid’s domain.But as we approach the “what should we do” portion of the discussion about guns, here is perhaps the most important statistic: in cases where the source of the gun could be determined, 86 percent of the weapons were found in the homes of friends, relatives or parents. Where else could an elementary school student get a gun after all? Federal and many state laws limit long gun sales to 18-year-olds, many setting the bar at 21. There is no evidence that gun shows are where children get their guns. They get them at home.There are two kinds of parents in these cases, those who fail to treat their guns responsibly and those who fail their children. One avenue of exploration would be much tougher penalties for adults who fail to secure their guns and ammunition, in line with penalties for selling drugs to minors or child neglect. States could consider trigger-lock or other safety oriented giveaways, and make purchasing such tools a requirement for buying a gun. Of course some people will fail to use the safety tools, either on purpose or by accident, but the process of protecting ourselves needs a long term solution in spite of short term failures.A second avenue of exploration is to expand red flag laws (Extreme Risk Protection Orders) for parents who suspect their children are headed down the wrong road to call on which would place one more hurdle in the way of acquiring weapons. Red flag laws enlist parents, gun salespeople, teachers, and peers in spotting students who should not have ready access to firearms. A red flag law allows people to petition a state court for the temporary removal of firearms from a person who may present a danger themselves or others. A judge makes the final determination.Such laws exist in 19 states and D.C. at present (14 states of those states adopted red flag gun laws after the mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida) with considerable variation. One of the most significant variations is who may petition a court to take someone’s guns away. Every state currently allows law enforcement to do so, but California is the only one which includes family members. None of the laws in place allow teachers, clergy, doctors, coworkers, or school peers, people who may well know a young man’s intent best, to petition. A Federal law which standardizes such criteria is badly needed. Basic red flag laws are judicially sound, and have, for example, been used in Florida nearly 6,000 times since 2018 and survived a state Supreme Court challenge. And Florida has had no mass school shootings since the law went into effect.Unlike laws banning whole classes of weapons (i.e., “assault rifles”) new laws focused on the shooter may be one possible path forward, at least concerning kids shooting kids at school. Advantages include:— Red flag laws allow for early intervention before an individual with mental health or behavioral issues can cause harm to themselves or others.— Red flag laws can help reduce the number of firearms in the hands of individuals who are at high risk of harming themselves or others.
— By temporarily removing firearms from individuals who are considered a danger to themselves or others, red flag laws can help increase safety for both the individual and the general public.
— Red flag laws can be effective in preventing suicides, as individuals who are at high risk of self-harm can have their firearms temporarily removed.
— Red flag laws typically require a court hearing before firearms can be temporarily removed, ensuring that individuals have the opportunity to defend themselves and that their due process rights are protected.
And so a day after a typical mass shooting, schools remain closed or on some heightened state of alert. Flags fly at half staff. People leave flowers, notes, and toys at the door. Red flag laws would seek to take guns away from kids before all that, and have been legally tested. As a potential national-level solution they do not restrict gun ownership among most adults, and barely open the Pandora’s Box of the Second Amendment. They are as apolitical as anything to do with guns in America can be and are supported by 72 percent of Americans. Protecting our kids from our kids has to start somewhere.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Third World Politics: Details of the Trump Indictment
The rule of law, which seems so precious to holier-than-thou Democrats these days, depends above all on one thing: a belief among the majority of us that while no one is above the law, the law will also be applied fairly to all those it does affect. Whether you loathe Trump or love him, you know this: what is happening now in Manhattan is unfair and inconsistent with a nation that once prided itself on believing in the rule of law. Who is still a believer today?
The previously sealed indictment shows Donald Trump was charged with 34 felony counts for falsification of business records, the only crime actually charged. The falsification of business records is normally prosecuted in New York as a misdemeanor. But Bragg’s office apparently bumped up all the charges to felonies on the grounds that the conduct was intended to conceal another underlying crime, violating election finance law (“with intent to defraud and intent to commit another crime and aid and conceal the commission thereof.”) There is more smoke than fire; no wonder the DA wanted to keep this mess sealed as long as possible and the judge won’t allow cameras in the courtroom. But specifically, how is this unfair?
Overcharging and stacking charges. Two basic prosecutorial transgressions. If anything, Trump should have been charged with a simple misdemeanor, the so-called falsification of business records for his seemingly characterizing money legally paid to Stormy Daniels and others as part of a nondisclosure agreement as “legal expenses” as well as payments to the National Enquirer to “catch and kill” a story about Trump’s alleged affair with Karen McDougal and other stories.
The overall case has no victim of Trump’s “crime,” and is basically a tempest over bookkeeping. Bumping all this up to felony charges based solely on Bragg’s supposition that the error was made with the intent to cheat on campaign finance laws is just overcharging, trying to make this all seem more important than it is.
Stacking, the second basic prosecutorial transgression, refers to a DA’s attempt to break one “crime” into as many pieces as he can (34 counts, one for each check cut to lawyer Michael Cohen allegedly for Stormy, et al) to also exaggerate the importance of it all and justify the felony upgrade.
Ignoring precedent cases to “get him.” Alvin Bragg ran for office on prosecuting Trump. He is fulfilling a campaign promise and paying off his backers. Bragg, in the words of law professor Jonathan Turley, had a “very public, almost Hamlet-like process where he debated whether he could do this bootstrapping theory [bumping misdemeanors up to felonies.] He stopped it for a while and was pressured to go forward with it. All of that smacks more of politics than prosecutorial discretion.” Indeed, if Bragg were to have looked fairly at precedent he would have run right into the John Edwards case. Edwards, a former United States Senator and 2004 Democratic vice presidential nominee, was indicted in 2011 on charges of violating campaign finance laws during his 2008 presidential campaign. The charges stemmed from allegations Edwards used nearly $1 million in illegal campaign contributions to conceal an extramarital affair during his campaign.
The government alleged Edwards received money from two wealthy donors and used it to support his mistress and their child in return for their silence. The government claimed this constituted a violation of campaign finance laws, which limit the amount of money that individuals can contribute to a campaign and require that such contributions be disclosed. Edwards maintained the payments were gifts and not campaign contributions, and therefore not subject to campaign finance laws. A jury acquitted Edwards on one count of violating campaign finance laws and deadlocked on the remaining five counts. The government ultimately decided not to retry Edwards.
Creating New Political Precedent. If this is all they found in years of obsession with destroying this man, he must be the cleanest person to ever hold office. As former Supreme Court Justice Robert Jackson observed decades ago about unfairness, “It is not a question of discovering the commission of a crime and then looking for the man who has committed it; it is a question of picking the man and then searching the law books or putting investigators to work to pin some offense on him,” something that is inherently unfair.
The law applied equally. For the nation’s sake 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. To do this, someone will have to address the case of Hillary Clinton, who maintained an unsecured private email server processing classified material. Clinton destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) kitchen. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests (a crime with the intent to commit another crime) ahead of her 2016 presidential run. The Hillary campaign and the DNC also did something naughty in paying for the Steele dossier as “legal expenses” and not campaign expenditures, and got off with only an Election Commission fine for their bookkeeping “error.”
In addition, those who claim Trump’s indictment is not unfair will also have to account for the fact that Barack Obama’s presidential campaigns in 2008 and 2012 were not found to have violated campaign finance laws and no charges were even levied. During the 2008 campaign donors were able to make contributions using fictitious names, such as “Mickey Mouse” and “Donald Duck,” and the campaign was criticized for not doing enough to prevent fraudulent donations. Another controversy involved the Obama campaign’s use of untraceable prepaid credit cards, which raised concerns about the possibility of illegal foreign contributions. No charges were ever filed.
Unequal prosecution. This concern extends past presidential politics. On Sunday, Speaker of the House Kevin McCarthy tweeted “DA Alvin Bragg is abusing his office to target President Trump while he’s reduced a majority of felonies [in NYC], including violent crimes, to misdemeanors. He has different rules for political opponents.” The DA’s tactics have led to a surge in crimes committed in Manhattan as prosecutions have fallen. Bragg claims equity demands he selectively prosecute; Bragg reduced 52 percent of all felony charges to misdemeanors, opposite of what he did to Trump.
The Future. If the standards being applied in New York hold, then while this is the first indictment of a former president it will not be the last. Every local prosecutor in the country will now feel that he has a green light to criminally investigate and prosecute presidents after they leave office. Democrats salivating over the charges against Trump will feel differently when a prominent Dem ends up on the receiving end of a similar effort by any of the thousands of prosecutors elected to local office, eager to make their bones by taking down a president of the United States (remember Jim Garrison and the JFK assassination.) Perhaps over the Hunter Biden case? Could things get to the point where the rule of law means a Republican candidate will need to stay out of blue states to avoid prosecution and vice-versa? Trump went to New York and surrendered himself voluntarily; imagine if he had stayed in Florida and fought any extradition attempt to force him to Manhattan. Now imagine an ageing Joe Biden a virtual prisoner of a Democratic safehouse in Delaware. Historians would have to call it the Bragg Rule.
If you’re curious about how that might work, just have a look at post-military dictatorship Korea where prosecuting one’s political enemies is a popular blood sport. Former President Roh Moo-hyun faced corruption allegations after leaving office in 2008, but he died by suicide before he could face trial. Former President Park Geun-hye was impeached and removed from office in 2017, and she was subsequently sentenced to 25 years in prison on charges of bribery and abuse of power. Former Presidents Kim Dae-jung and Kim Young-sam were investigated for corruption after leaving office, but they were not convicted. Overall, whether a former South Korean president goes to jail after their term depends on various factors, such as the evidence against them, and more significantly, the political climate. Is this America’s future? Ask Alvin Bragg.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Real Trump Witchhunt
Concerned the law be applied equally to all? Worried about political witch hunts? You should be, only you’re likely worried about the wrong case.
While Trump’s will-he-or-won’t he indictment saga in New York sags on, it’s a magician’s trick of misdirection. The real witch hunt and challenge to the rule of law is ongoing in the Mar-a-Lago classified documents case where the government will force one of Trump’s own lawyers violate attorney-client privilege and present evidence against his client, Trump, in regards to handling classified documents.
A federal appeals court ruled earlier this month a lawyer for Donald Trump in the investigation into his handling of classified material had to answer a grand jury’s questions and give prosecutors documents related to his legal work against his will and in violation of attorney-client privilege, which typically makes communications between a lawyer and his client private and out of the reach of prosecutors. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Trump’s effort to stop his lawyer, Evan Corcoran, from handing over what are likely to be dozens of implicating documents to investigators. He’ll have to give up what was shared once with him in confidence.
The gist of the matter is that at one point, when asked if there were any additional classified materials at Mar-a-Lago, Trump ordered his lawyers to prepare a statement stating “no,” that all classified had been turned over to the government. Based on Trump’s statement to them, the lawyers, including Corcoran, wrote to DOJ that a “diligent search” for classified documents had been conducted at Mar-a-Lago in response to a subpoena. That claim proved untrue as FBI agents weeks later searched the home with a warrant and found roughly 100 additional documents with classified markings. The Justice Department now claims Trump lied to his own attorneys in claiming no classified documents, possible crimes of fraud and obstruction in defying the government’s efforts to reclaim classified materials.
Attorney-client privilege is a legal principle that protects communications between a lawyer and his client from being disclosed to others, including the courts. This privilege is intended to encourage clients to be open and honest with their attorneys, which in turn helps attorneys provide effective legal representation. Any information or communication exchanged between a lawyer and his client is protected from disclosure, as long as it was made in confidence for the purpose of seeking legal advice or representation. This includes not only written and oral communications, but also any documents or materials shared with the attorney. The privilege belongs to the client and not the attorney, meaning that it is the client who has the right to assert or waive the privilege, as with Trump.
There’s a long history to attorney-client privilege, dating back to the ancient Roman and Greek legal systems. In the 16th century, English courts recognized the concept of legal privilege, which included the privilege of lawyers to refuse to testify against their clients in court. By the 18th century, the concept had expanded to protect all confidential communications between attorneys and their clients. In the United States, the attorney-client privilege was recognized early on in the development of the legal system. In 1810, the U.S. Supreme Court established privilege in the case of United States v. Burr. The Court held that communications made by a defendant to his attorney for the purpose of obtaining legal advice were privileged and could not be used as evidence against the defendant. Since then, the attorney-client privilege has been recognized and upheld by courts across the United States. It’s a big deal and one of the cornerstones of fairness in our system.
In the Trump case, the Justice Department is using the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel lawyer Corcoran to testify against his own client. In other words, Justice asserts Trump lied to Corcoran about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. This exception was later reaffirmed in other landmark cases, such as Clark v. United States (1933) and United States v. Zolin (1989).
There is some risk to the DOJ case if Corcoran is forced to testify while any further appeals are ongoing, as Trump has suggested he will seek a Supreme Court hearing of the matter. That opens the possibility if the Supreme Court ultimately rules the government’s arguments about the crime-fraud exception are wrong, prosecutors would be barred from using the information Corcoran provided as evidence to seek a grand jury indictment. That could serve as a basis for overturning the indictment, and make a clear case that Trump’s rights had been stomped on.
“Prosecutors only attack lawyers when they have no case whatsoever,” according to the Trump campaign. That said, DOJ seems to have little to worry about. Trump has an uphill battle. One of the precedent cases, Clark v. United States, involved a criminal defendant, Samuel Insull, who was accused of mail fraud and other crimes related to his business activities. Insull had consulted with his attorney, Frank Clark, and had given him documents and information related to his shady business dealings. During Insull’s trial, the government sought to introduce evidence that Insull had given false information to Clark, and argued that the attorney-client privilege did not apply because the communications were made in furtherance of a crime. The trial judge allowed the evidence to be admitted, and Insull was ultimately convicted.
As a final act, for now, Trump’s objections and request for a stay in proceedings were overruled by the Appeals Court of the District of Columbia. DOJ Special Counsel Jack Smith will obtain key documents from the lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year; it is unknown if Corcoran will also be required to testify further before the grand jury. Trump’s only hope now is to have Corcoran hand over the documents and testify, then seek a hearing before the Supreme Court, and see through that the testimony rescinded and the government’s case fall apart.
If Trump lied to his own attorneys it is unclear that constituted a prosecutable crime. He has certainly not been charged with that. Things are further complicated by the fact that Trump has not been indicted or charged yet with any crime at all in connection with the documents. It’s a chilling development; attorney-client privilege had to yield to a fishing expedition via Corcoran’s testimony and records, evidence that the attorney may have been used to advance a crime. This can have significant legal consequences, as it allows the other party to use the previously confidential information against the client in court. See if you feel that’s what is intended by what we are increasingly call in quotation marks, “the rule of law.”
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