Inflation climbed at the fastest pace in 40 years across the economy, driven in large part by higher energy prices themselves driven in large part by Joe Biden’s energy policy toward Russia and inability to use obsequiousness get OPEC to pump more oil (while leasing less federal land for oil and gas drilling than any president since the end of World War II.) The last time inflation reached over nine percent was 1981 when Ronald Reagan took over from Jimmy Carter. Fueling the inflationary jump was the energy index, which rose 7.5 percent compared to a year ago and contributed nearly half of the overall increase in inflation. That index includes prices for fuel, oil, gasoline and electricity, and it’s up 41.6 percent for the year, the largest 12-month increase since April 1980 under President Jimmy Carter. The consumer price index was 9.1 percent higher earlier this summer than last. There are fears sources of strength in the economy — like the labor market and consumer spending — won’t be enough to fend off another recession. Yet the Fed may need to work more forcefully to slow the economy by raising interest rates, which the central bank has done multiple times this year already. Biden called on Americans to sacrifice, especially at the gas pump, to help win the war against Putin in Ukraine.
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Archive of "Democracy" Category
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.
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.
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.
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.
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.
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.
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.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Trump Indicted
What would you have done if you were Alvin Bragg? Would you have indicted Donald Trump? Or would you have walked away, concerned about accusations you as a Democrat were playing politics, and more concerned the indictment would somehow help the man you are trying to take down? You don’t play with such fire around a guy like Trump casually.
At Bragg’s insistence, Trump was indicted by a Manhattan Grand Jury on Thursday. The actual charges will not be announced until Trump is arraigned before a judge, likely in about a week. The charges will however be based around Stormy Daniels, who allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. She willfully violated the NDA to revive her career and profit selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, Trump’s now disbarred former lawyer Michael Cohen, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of New York business records law (a misdemeanor) and Federal campaign finance law (potentially a felony.) If this all sounds complicated, it’s because it is. No wonder even the Washington Post labeled this a “zombie case.” It is also the weakest case in the universe of legal troubles around Trump.
But there is a bigger question: if you were Bragg, can you win? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, prosecuting a Federal case locally in Manhattan? Candidate Trump, surrounded by an aura of legal invincibility, is already earning partisan points claiming he is the victim of banana republic politics, and this indictment will allow him to claim he was right all along. Trump will fire both barrels, one aimed at Bragg, the other likely at Biden (who he will accuse of playing a role.) He was already the victim of partisan use of justice, as the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Alvin Bragg through his indictment just reelected Trump to the White House as a sympathy candidate. CIA spooks, no strangers to manipulating elections abroad, call that blowback, and it is a real threat in this instance.
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. Bragg will have to address the case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries. She operated the server out of her New York (!) home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState 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.
In addition, those who claim Trump’s indictment is not political in nature will also have to account for the non-actions against the Obama campaign. 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.
There is also the case of John Edwards. 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. Sound familiar?
Specifically, 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.
The other fear which should have held Bragg back is that business records mismanagement and even campaign finance violations are typically dealt with either via administrative penalties and fines (Trump will not go to jail for any of this.) Most of the laws Trump may have broken require some sort of intent to do wrong. In other words, Trump would have had to have taken the steps with Stormy not just for ego or his presidential library or as some crude souvenir of virility but with the specific intent to commit harm. Proving a state of guilty mind — mens rea — will be the crux of any actual prosecution. What was Trump thinking at the time. “It should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.
The final questions are probably the most important: Bragg knows what the law says. If knowing the chances of a serious conviction are slight, why would he take the case to court? Then again, if knowing the chances for a serious conviction are slight, why would he have gone to the Grand Jury at all, his predecessor and the Department of Justice having passed on this case. No one is above the law, but that includes politics not trumping clean hands jurisprudence as well.
If Bragg successfully navigates the politics, if he proves his case in court, then what? Trump’s “crimes” are minor. Could Bragg call Trump having to pay a fine or even do some sort of community service during the 2024 campaign a win? It seems petty, as even a conviction would not disqualify Trump’s bid for the White House (Eugene Debs ran for president while locked up.) Controversy is home turf for Trump; he is clearly again the center of attention and the dominant figure in his party. It sure seems Trump wins politically big-picture whether he wins or loses at court. If you were Alvin Bragg, how would you answer accusations of the weaponization of the legal system to advance a political agenda?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The Revenge of Stormy Daniels?
Convicting Donald Trump for some sort of crime connected to his alleged affair with porn star Stormy Daniels means taking the word of that porn star and a guy like Michael Cohen, serial liar and convicted felon, over the word of someone many people think has the disposable morality of a porn star and the trustworthiness of a serial liar, Trump himself. That’s likely going to be up to a Manhattan jury if the long-rumored indictment comes through. Next for any of this to matter Trump would have to be reconvicted in the court of public opinion, something that has largely already passed as the rough details of Trump and Stormy’s relationship (financial and otherwise, though Trump denies having an affair with Daniels) have long been chewed over by everyone from law reviews to late night comics. About the only people who really think the walls are closing in, again, are in the cheap seats of blue check Twitter.
Goodness help us, here’s the rest of the raw material of this criminal caper. Trump may soon be indicted on some sort of campaign finance law violation. This means Manhattan district attorney Alvin Bragg for the State of New York (Federal prosecutors have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. A grand jury setting means Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time, and thankfully, no hoary Godfather references to it all in the media. The old joke is you can indict a ham sandwich if the DA is any good, and if Trump is indicted that motto holds true here. Indicted means only the case moves on to the next stage ahead of a possible trial anyway.
Stormy Daniels, a porn star whose very NSFW antics are all over the internet, has sex with a businessman. She then takes more money to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later runs for president, she willfully violates the NDA to revive her career. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred lawyer, a felon himself, violates attorney-client privilege to claim on his word the NDA payoffs (inherently legal) were actually complex technical violations of campaign finance law. And, oh yeah, most of this naughtiness happened way back in 2006, before Trump was even president. That’s the basic case to bring down Citizen Trump in the ultimate act of political revenge. Fuhgettaboutit!
It will be interesting in a stop-and-stare-at-a-car-wreck kinda way to see how DA Bragg presents his case. Problem One is that with paying money as part of an NDA is not illegal; lawyers regularly obtain (here’s a fill-in-the-blanks NDA) discreet resolutions of issues threatening the interests of their clients (“settlements.”) Without admitting guilt, money is paid from Party A to Party B in return for Party B dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs and Michael Cohen a “fixer.”Problem Two for Bragg is any criminality must come from twisting a not uncommon occurrence into a violation of a campaign finance law. When Trump had sex with Stormy he was just another philanderer. However, a few years later Trump became a philandering presidential candidate, and that money shifted, maybe, from a legal NDA payoff to something akin to a campaign contribution. The what in this case (money for silence) is clear. It is the why that matters most.So Problem Three, and it is a big one, is intent. You have to intend to violate campaign finance laws, not make a mistake or just act like a sleaze. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, to spare Trump’s marriage from new embarrassment, but “for the principal purpose of influencing an election” amid everyone already knowing Trump was a serial philanderer. If the whole was primarily for the purpose of hiding Stormy from voters instead of hiding Stormy from Trump’s wife and kids, then the money was essentially a campaign contribution and whole new set of laws kick in. But “it should be clear,” said the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.”Thus Cohen’s testimony does not prove Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny that and no jury can say weighing one man’s word against another, especially these mooks, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating. If a liar like Cohen is your only witness on Trump’s intent, you really have no witnesses.There’s more. Problem Four is prosecutors also have to connect Trump directly to the payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. They do potentially expose Trump to another crime, falsifying business records, a misdemeanor in New York.They are receipts for a crime only because Cohen says they are. Under direct questioning when he testified before Congress, Cohen claimed unfortunately there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them claiming it was a retainer fee. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat Trump Organization CFO. That means the checks would be used to implicate personally a person who did not sign them. If this all sounds complicated, it’s because it is.Problem Five, for Stormy’s payoff to be illegal, it will also be necessary to determine the money came from campaign funds. If it was Trump’s private money, even private money he donated to his own campaign, there is likely no case. Even if the money is shown to be campaign funds, illegality is based on the $2,000 donation limit imposed on the supposed “giver,” Michael Cohen in this case who has already been convicted, a limit which does not apply to the candidate himself. The payment is also not a donation if it was made for an expense that would have been paid even if there were no campaign, like hiding an affair from your wife.And so what? There is nothing to stop Trump from running for president if he is under indictment, or even found guilty and 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. Anyone who has wanted to see Stormy in the buff has done the requisite searches. Trump is not former Democratic vice-presidential nominee John Edwards, who was found guilty in 2012 and withdrew from the race. Edwards was accused of illegally arranging for two wealthy supporters to pay $925,000 to keep his pregnant mistress out of public view during the campaign. This all is no knock-out blow for 2024. Trump’s spokesperson said in a statement, “The Manhattan District Attorney’s threat to indict President Trump is simply insane.” You literally cannot embarrass Trump into quitting. The Dems are going to have to beat Trump another way.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
The People v. Donald Trump
Here are six things to think about ahead of any indictment and arrest of Donald Trump:
1 – What is Trump going to be indicted for? Trump may soon be indicted on a campaign finance law violation. This means Manhattan district attorney Alvin Bragg (Federal prosecutors seem to have long signed out of the cheesy political revenge fantasy business) has convinced a grand jury there is enough evidence to charge Trump with the crime. Since this was a grand jury, Bragg faced no opposition in laying out his case, as the not-quite-a-defendant is not represented. So no cross examination, no motions to suppress evidence, no hammering away at Michael Cohen as perhaps the least credible witness of all time. The old joke is a clever DA can indict a ham sandwich, and if Trump is indicted that motto holds true here.
2- But I thought this was all about Trump having an affair with some porn star? Stormy Daniels allegedly had sex with Trump in 2006, which he denies, and which she and Michael Cohen once also denied. She then took money in 2016 to sign a nondisclosure agreement (NDA) to keep silent. Sensing an opportunity when the businessman later ran for president, she willfully violated the NDA to revive her career and profit off selling her story to the National Enquirer. Meanwhile, when faced with jail time for all sorts of dirty deeds, the businessman’s now disbarred former lawyer, a felon himself, violated attorney-client privilege to claim on his word the NDA payoffs were actually complex technical violations of campaign finance law. If this all sounds complicated, it’s because it is. No wonder even the Washington Post labels this a “zombie case.”
3 – So the problem is the hush money paid in 2016? Not really but sort of. Paying money as part of an NDA is not illegal; lawyers regularly obtain discreet resolutions of issues threatening the interests of their clients. Without admitting guilt, money is paid from Party A to Party B in return for dropping all future claims, agreeing to never mention something again, handing over documents or photos, whatever you’d like. It happens all the time, and in fact is the dirty little secret which keeps sexual harassment alive and well. Wealthy men pay women to remain silent under NDAs. It does not change the legality of all this even if the media calls those payments hush money or payoffs. The what in this case (money for silence) is clear. It is the why that matters most. The why also affects any potential sentence; Trump lying would be a misdemeanor if it is proved that all he did was falsify his business records. But it could be a felony if prosecutors can prove that the falsification was tied to another crime and that’s where campaign finance laws come in.
4 – The case, if it ever goes to trial, will hinge on intent, what Trump intended the money to do for him, according to Cohen. One has to intend to violate campaign finance laws. Any illegality comes from the supposition by Michael Cohen that he can speak to Trump’s intent, that the NDA was not, say, merely to spare Trump’s marriage some new embarrassment, but “for the principal purpose of influencing an election.” If the purpose was hiding Stormy from voters instead of hiding Stormy from Trump’s wife, then the money could be seen as a campaign contribution and whole new set of laws kick in. But “it should be clear,” says the New York Law Journal, “Cohen’s plea, obtained under pressure and with the ultimate aim of developing a case against the president, cannot in and of itself establish whether Trump had the requisite mental state.” If DA Bragg has other key witnesses beyond Stormy and Cohen he has not signaled as such.It’ll be up to a jury to decide if Cohen’s testimony proves Trump knew the payments made to Stormy were illegal. Prosecutors would have to prove that willingness by Trump alongside proving his principal goal was to influence the election. If this ever reaches court, Trump will simply deny everything and it would be a rare jury that says weighing one man’s word against another, especially these knuckleheads, eliminates all reasonable doubt. Felons testifying out of self interest make poor witnesses. Michael Cohen pleaded guilty to eight criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen will face questions of personal bias, given his own multiple lawsuits against Trump. He will face questions about whether he received a benefit from prosecutors, early release from prison, for cooperating.5 – Seems like an awful lot rests on what the jury “believes” versus what can be proven. Trump need only introduce doubt to prevail here. But that’s not where the jury question will first come up. Trump’s lawyers are already hinting they will demand a change of venue, that by this time everyone in New York either loves or hates Trump (mostly hates, going back to the 1980s) and it will be impossible to seat an impartial jury in Manhattan. Moving the whole show to say Pittsburgh or Seattle will only increase the circus-like atmosphere and will add to Trump’s public-facing argument that this is all unfair.6 – Trump denies the affair. So how do we know he paid Stormy to keep quiet about the sex? DA Bragg will need to do some heavy lifting to connect Trump directly to the NDA payment. The check for $35,000 from Trump to Cohen, which was supposedly part of $135k paid to Stormy Daniels, Michael Cohen displayed at his 2019 Congressional hearing and ten others alleged to exist do not show what the payments were for. The checks do not have Stormy’s name on them. Cohen simply claimed they were part of his reimbursement for “illegal hush money I paid on his behalf.” The check(s) are not receipts; they could have been for anything. That Cohen denied everything until 2018 when he changed to confessing everything will feature in any Trump trial.Under direct questioning before Congress, Cohen claimed there was no corroborating evidence. He said he sent fake invoices to Trump only for “legal retainer fees,” so don’t bother with the invoices as evidence because Cohen now says he lied on them. The checks total over $400k, because supposedly Trump rolled Cohen’s fee and bonus into the amount, so we just have to take his word for it $135k of that money was for Stormy. Cohen said some of the checks were signed by Don, Jr. and the felony-convicted tax cheat former Trump Organization CFO Alan Weisselberg. That means the checks would be used to implicate personally a person who did not sign them.If this case comes to trial, Trump’s side will drag its feet at every step, hoping to push the verdict past the 2024 election. There is nothing to stop Trump from running for president if he is under indictment, or even if somehow found guilty and serving time. His affair with Stormy has been part of the public conversation around Trump for years and is well-digested by voters. There are elements here which would cause a reasonable man to call this overcriminalization, an act of political revenge, an attempt to derail the Trump campaign by the DA in New York. Would Trump garner more sympathy votes than those he might lose running as the first-ever indicted presidential candidate? Will voters object to a district attorney in New York trying to play kingmaker in the 2024 election, taking the vote out of the voter’s hands? Isn’t arresting political opponents a Third World thing? Playing with fire around Trump is never a good idea.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Fahrenheit 11/9: Rewatching the Michael Moore Movie from 2018
I rewatched Michael Moore’s Fahrenheit 11/9. The 2018 film is mainly a screed about all the bad things Trump was going to do as president. Time is a cold mistress: basically nothing Moore said four years ago about what was going to happen actually happened. Moore was wrong about Trump’s ties to Russia, Moore was wrong about Trump being the last elected president because he would seize total power, and Moore was wrong about the lasting impact of the progressive heroes of that year, the Parkland High School survivors.
Sorry to get ahead there. You do remember the mass shooting in a Parkland, Florida high school, right? A handful of “survivors” were insta-made into media sensations. Barack Obama supposedly personally wrote the Time magazine cover story saying they had “the power to insist that America can be better” we’re lead to guess he himself did not have.
In his film Moore portrayed the kids were examples of the anti-Trump force sent by the universe as a balancing mechanism, and that the power of activism was America’s only chance to remain a democracy. I can’t do justice to the hyperbole of Moore’s narration; you would think by listening these kids had the power to raise the dead simply by amassing RTs on Twitter. A good chunk of the movie is just Moore staring at the kids at work changing everything by being online, the filmmaker’s expression somewhere between pedophile on the playground fence and a proud dad.
Back in his heyday, there was a meme among businesspeople “Michael Moore just walked into your office. What do you do?” The answer back when was to lawyer up, call security, etc. Today the proper response would be to tell Mike sorry, you’re not hiring, and offer him a bottle of water if he’ll leave quietly. Moore created a style of documentary journalism where facts don’t matter if the conclusion (in this case, “guns and orange man bad”) is righteous enough. He forgets that in his earlier movies this sort of worked only because his generous abuse of facts and the actual conclusion were often close enough to one another, as in Roger and Me, Bowling for Columbine, and Fahrenheit 911.
But it is almost painful to watch him in this movie, claiming how the Parkland kids organized the massive March for Our Lives in Washington on March 24, 2018 all by themselves without asking them how a few high school kids in Florida secured marching permits from the notoriously persnickety Washington DC bureaucracy and National Parks Service, how they secured the massive security bonds and insurance needed, arranged stage construction, Porta Potties and sound reinforcement, set up security, ran an international media campaign, and so forth, all from study hall. Taking over the National Mall is not something you do by saying “Alexa, tell me how to take over the National Mall.” Moore thinks he’s fooling the rubes in ignoring such things when in fact he’s taking a dump on his subjects, setting them up to be blown over by the lightest of questions.
Moore himself is a thing to be pitied. You see him in this movie, hunchbacked and obese, searching the country for old-school Bernie-style liberals to champion. He doesn’t realize the parade passed him by sometime during the George W. Bush era and he comes off like some 80s hair metal band playing Holiday Inns with only one original member on stage. He gets caught up in his own narratives, in this film an extended side story about how the water is still bad in Flint, Michigan which ends up inadvertently highly critical of Saint Barack. His wandering call for Bernie to re-emerge walks dangerously close to admitting Hillary Clinton engineered that political castration. Moore awakens about half way through the movie aware who he is really criticizing for the most part and quickly pivots to more familiar ground, an extended lip syncing of a Trump speech to some iconic Leni Riefenstahl Nazi propaganda footage of Hitler.
In the case of the Parkland kids, by refusing to let them off the pedestal Moore in the end exposes them as the media-hungry fakes they are, or, to be generous, were made to be. A major scene shows kiddie activist David Hogg using Twitter to cancel a male candidate for some minor state seat in Maine and engineer his replacement with a woman. We don’t know anything about either candidate, only that Hogg did it with Twitter during fourth period (Moore assures him on camera it’s OK to fail his psych class to accomplish global-level change) and this is what the future is going to be.
The problem is the movie was made in 2018 and we can judge Moore’s vision of the future. Nothing really happened. The Parkland kids misunderstood, and Moore celebrates, emotional manipulation, weaponized self-pity, and claims to victimhood are not action. Gun laws are pretty much the same post-Kids, and who can count the number of mass shootings since Parkland? Apart from lip service by the Democrats, there is no effective gun control legislation on the stove. Yes, yes, conversations were started and awareness was raised, but Moore falls into the same naïve hole the Parkland kids live in, mistaking noise and political stunts (like being Michael Moore) for real change.
Moore of course will never make a follow-up film, but here’s what it would contain if someone else ever did.
Emma González is famous for standing in silence at a lectern for a little over six minutes to commemorate how long it took for 17 people to be killed during the shooting. In 2018, Madonna, the Michael Moore of the pop industry, even sampled Emma’s voice for an album. González later advocated for Joe Biden, thoughtfully tweeting “a vote for Donald Trump is a vote for fascism.” Today she has become a hollow woke caricature. She’s changed her first name to “X” because “I don’t want people thinking that they’re my friends just because they know my name.” X is pursuing a degree in activism, with classes such as Manifestos, Alternatives to Capitalism and Socialism, Post-Colonial Literature; and Theory, Black Social and Political Thought, and Global Politics/Radical Comics at the prestigious New College of Florida in Sarasota. How do we know all this? X is back in the media for the first time in almost four years, pimping a movie on the Jimmy Fallon show about the her of almost four years ago.
David Hogg was the skinny white Parkland kid with the Brylcream hair and oddly triangular face. He was raptured out of the swamps of Florida to attend Harvard after the shooting. In addition to promoting the same film as X, Hogg also started a semi-defunct pillow company in 2021 to challenge Donald Trump ally Mike Lindell and his My Pillow company. The Hogg pillow company quickly amassed more than 80,000 Twitter followers but not so many sales. The whole thing was so egregiously awful that Cameron Kasky, a fellow Parkland survivor, attacked Hogg, saying “To those of you who marched, donated, lobbied, and called for change… I’m so sorry this is what it turned into. This is embarrassing. Welcome to America, everything ends up a grift.”
And right, be sure to check out the merch on the March for Ours Lives website. The #MarchForOurLives “Stop Gun Violence” T-shirt is about as likely to help stop gun violence as it is likely to stop a bullet for the wearer. And for the record, Colin Kaepernick, who makes a cameo in Moore’s movie, has seen his own net worth grow to some $20 million via paid endorsements for McDonald’s, Jaguar, Electronic Arts, and MusclePharm. Moore’s film was originally funded by everyone’s favorite carnivore, Harvey Weinstein. Michael Moore himself owns nine homes and is worth $30 million, a helluva way to help redistribute wealth, to himself.
Michael Moore should take his inspiration for his next film from that Parkland Kid statement, “Welcome to America, everything ends up a grift.” It’s the only true statement in this whole mess. It was never about actually doing something about guns, it never is. It’s about getting a free ride into Harvard, pimping a documentary, starting an odd pillow business. It is all always about profiting personally from victimhood, the retirement strategy of most Americans under 40 today, and of Michael Moore.
What was intended by Moore in 2018 as a rallying point, a radical film to drive young people into the streets to defeat National Socialism, looks just a few years later like another contribution to a generation’s cynicism. How many heroes pumped by the media — Robert Mueller, James Comey, Michael Avennati, and Michael Moore come to mind — need to implode before young people figure out the grift and turn away. Now that might be the start of the movement Michael Moore imagines he’d be the guy to lead.
Fahrenheit 11/9 is irregularly available on Netflix. Scroll past the Pride section, Black Stories, and Marginalized Voices down to the part that might be labeled “Stuff You Can At Least Tolerate When Your Friends Come Over and No One is Talking to Each Other.”
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Section 702 and Why Should You Fear It
You’ve been warned — a fight over the U.S. government’s ability to spy on its own citizens is coming to Congress. Section 702 is up for renewal again in December.
Section 702 grew out of an illegal post-9/11 program called Stellarwind exposed by NSA whistleblower Tom Drake. It refers to a provision of the United States Foreign Intelligence Surveillance Act (FISA) that was enacted in 2008. It authorizes the U.S. government to collect the communications of non-U.S. persons located outside of the United States for the purpose of obtaining foreign intelligence information. But the program also allows for the incidental collection of information about U.S. persons who may be communicating with the targeted foreigners. Section 702 was renewed by Congress in 2018 with the passing of the FISA Amendments Reauthorization Act. This reauthorization extended the authority for Section 702 for another six years, through December 31, 2023, hence the looming fight.
The reauthorization included some modifications to the program, including new reporting requirements and limitations on the use of information obtained under Section 702 in certain types of legal proceedings. The law also included some new privacy protections, such as the requirement for a warrant to search for and use information related to U.S. persons in certain cases. The latter only applies to the FBI, which is required to obtain a court order to review anything that comes up in response to queries using American identifiers that are purely for a criminal investigation with no link to national security. Oh yes, that’s right: Section 702, which was written to stop another 9/11, is widely used by domestic law enforcement as part of regular police work.
But the most controversial aspect of the law remains the “Three Hops Rule.” If you are speaking with a foreigner outside the U.S. by phone, then that makes everyone else you speak with, American or not, eligible for monitoring. That’s one hop. Everyone they talk to is also eligible, that’s two hops, and so forth. The number of people subject to legal surveillance under Section 702 thus grows geometrically every time someone sends an email, like some sick version of the old game Six Degrees of Kevin Bacon. Suddenly one communication sweeps in many, often unrelated, persons, and the Fourth Amendment’s right to privacy is reduced to dryer lint because no warrants are generally needed and little if any oversight is applied. The scooping up of American communications is now (who says the Feds have no sense of humor) referred to as “incidental collection” even though it is quite purposeful.
The two things, three hops and Section 702, were never intended to be used together but certainly are. Technological advances, primarily the internet and fiber-optic lines, made foreigners’ messages available on domestic U.S. networks — the routing of a communication from Beijing to London passes through America. Since the Reagan years, the NSA, with the help of communications companies, has been able to vacuum up in bulk, without targeting anyone, messages that both originate and terminate abroad as they travel across American networks.
The potential for abuse is underscored by the scale of all this in an age when almost all of our communications are electronic (including phone calls) and when hubs of communication (Google and email providers, most of whom cooperate directly with the government to collect and hand over your data, as exposed by NSA whistleblower Edward Snowden) concentrate more and more of what we say, read, watch, and buy into fewer nodes to tap. In 2021, there were more than 230,000 foreign targets of Section 702 warrantless surveillance (that number multiplied by the three hops rule, of course.)
In contrast, the government obtained FISA court warrants to eavesdrop on about only 300 Americans or noncitizens on domestic soil. Proponents of Section 702 argue obtaining warrants for all those foreigners would sharply curtail the intelligence the government is able to gather. Applying for court orders requires time and resources, and then there are those nasty legal and evidentiary standards to be met. Because everything is highly classified, absent whistleblowers, public oversight is limited. One declassified audit showed the FBI misused the system for routine employment checks and other unauthorized sneak peeks. The FISA court, in an example of what passes as oversight, criticized the FBI for “widespread violations” of rules intended to protect Americans’ privacy but still signed off on the program’s continuance.
“Section 702 allows mass warrantless surveillance of individuals’ communications, including Americans. It embodies a long history of government overreach and abuse, including the most recent oversight report released in December 2022, which found that the FBI conducted numerous unlawful searches for Americans’ information,” Kathleen McClellan of ExposeFacts.org told The Spectator.
One idea being floated is to separate the collection of raw material from the query process, i.e., actually using the material. A revised Section 702 would continue to allow mass monitoring, but before the NSA or FBI, et al, could search that collected date for Americans by identifier (name, Social Security number, etc.) they would need a warrant to show probable cause. Something like this change might be the key to seeing Section 702 reauthorized, as House Judiciary Committee members focus on civil liberties while members of the Intelligence Subcommittee tend to be more supportive of surveillance powers. The fear-mongering ducks are already being lined up. General Paul Nakasone, head of the NSA and Cyber Command, said 702 powers have helped the U.S. government stop planned terrorist plots and cyber espionage campaigns before they happen. “702 provides a critically important capability to the intelligence community as we face rising challenges from China and Russia, as well as threats from terrorism, cyber actors, and others,” Senate Intelligence Chair Mark Warner claims.
Congress is expected to rely heavily on the advice of the U.S. Privacy and Civil Liberties Oversight Board (PCLOB), an independent executive branch agency led by a bipartisan group of five presidentially nominated and Senate-confirmed Board Members. The Board is examining significant changes to the operation of the 702 program since their Report on the Surveillance Program Operated Pursuant to Section 702 of the Foreign Intelligence Surveillance Act (2014) in order to provide an accurate description of the current program. The Board’s review covers selected focus areas for investigation, including but not necessarily limited to, U.S. person queries of information collected under Section 702, and ‘Upstream’ collection [data handed over from communication providers.] The Oversight Project also includes reviewing the program’s past and projected value and efficacy, as well as the adequacy of existing privacy and civil liberties safeguards. The changes made to Section 702 on the last renewal go-round in 2018 drew heavily from this report, a good indicator the PCLOB may influence the 2023 renewal process as well.
The bad news is most of the Fourth Amendment protections of Americans’ privacy disappeared in the aftermath of September 11, all in the name of fighting terrorism. There seems no question Section 702, one of the Fourth Amendment-busting laws, will be renewed. The hope for civil libertarians and privacy advocates alike in salvaging some rights lies in marginal changes to the law along the line of PCLOB recommendations to limit use of Americans’ identifiers as query terms and to force NSA and others to disclose more of the extent of the program’s use.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Jimmy Carter’s Gettysburg Address
The word malaise, a general feeling of uneasiness whose exact cause is difficult to identify, should be starting to creep in to discussions. It’s a word, albeit like most everything these days, politically-loaded, after its use by President Jimmy Carter in 1979 to describe the country he could not figure out to how lead.
Carter’s specific use of the term focused on the energy crisis, when OPEC and the Iranian Revolution monkeyed with America’s oil supply and Americans could not simply buy as much cheap gas as they wanted for their huge cars. It can sound trite, but it was a crushing blow to the American spirit, as somebody got the best of us while we stood aside hopeless. But Carter saw something much deeper than lack of cheap gas was wrong. Not just an oil shortage to manage, but a recession of hope, a crisis of confidence that someone would have to lead America out of. He perceived we were tired, worn down, unable to come together in common purpose to fix something. He was right then; how about right now?
It would be interesting to hear what Carter thinks about Joe Biden and 2023, where lots of things don’t work well. Flights don’t fly. Inflation returned. Gas is expensive in ways 1979 never could have imagined. Supply chain problems mean Americans are since WWII rationing getting used to hearing “We don’t have any and aren’t sure when we will.” Under/unemployment plagues us as Covid tore the wool off many Americans’ eyes about how little meaningless jobs for sub-living wages contributed to their piggy banks or their sense of self-worth.
There appears no definitive end to Covid, with little hope the economic devastation caused by mismanaged restrictions will ever be addressed. There is a declining sense Covid is a problem that can be managed as it has been in much of the world (see Europe, especially Scandinavia.) The conclusion is no one is really in charge who cares. Economic inequality has risen to where there are two systems, one for the wealthy and one for most of the rest of us, for everything. Education, healthcare, travel, shopping, how you are treated by the law, and where you can eat or entertain yourself. Diseases of despair, suicide, alcohol, and drug overdoses, drive a drop in our life expectancy. America is the only developing nation with a rising maternal death rate. We suffer on average more than one mass shooting a day. Is there anyone who can claim, in the American tradition, that our lives are getting better?
Looking for leadership, Americans come up short. The best our system could produce last election was two geriatric candidates. Biden has done little to move the nation past Covid, instead choosing to stand there as it petered out in most places. He hid behind our national exhaustion with Afghanistan to not suffer a greater political defeat over the botched Gotterdammerung in Kabul. His open borders policy created a massive humanitarian crisis, and a growing political one as an unknown number of immigrants play a version of the Squid Game to flood America. The Border Patrol reports 200,000 encounters with migrants along the U.S.-Mexico border this summer, with some of the highest monthly totals since Bill Clinton was president.
The president can’t even exercise leadership over his own party, and it appears his signature infrastructure bills and social spending initiatives are more symbolic than transformational. In the background, police reform legislation failed, and most defunded departments have been refunded to face down rising crime. “Disappointed” is likely the term most Biden voters would be apt to use.
America alongside all this has become a deeply cynical place. We once were to the annoyance of most of the world an endlessly optimistic place. We didn’t always know how to solve problems but we were confident we would solve them. Now we take for granted AOC and the media would be at the border for the Trump Kids in Kages spectacular but missing when an even worse situation unfolds on Biden’s watch. We roll our eyes when the media tells us what we’re hearing isn’t what we’re hearing but “Let’s Go, Brandon” instead. MSM will print any Trump gossip but not one actual Hunter Biden email.
All of this bleeds over into how we interact with each other. Never mind the street fights over whether black lives matter, or the hand-to-hand combat on planes, in restaurants, and at Walmart. We don’t discuss things, never mind disagree because we don’t just hate ideas, we hate the people who hold those ideas. When we run out of big issues we discover microaggressions. We enjoy as classist blood sport how businesses care so little about their employees they’ll fire them if a Karen among us makes a scene. We video everything in hopes of settling matters by embarrassing someone virally.
Carter was a decent man, if a poor politician. Seen the latest front-page Carter Center scandal? Hear about the six figure fees former president Jimmy Carter pulls in from shady foreign companies? Maybe not. Many feel Carter has been a better ex-president than he was a president. His Carter Center focuses on impactful but unglamorous issues such as Guinea worm disease. When Carter left office, the disease afflicted 3.5 million people. Now it’s expected to be only the second disease, after smallpox, to ever be eradicated worldwide. Until about yesterday Carter still donated a week of his time yearly to Habitat for Humanity. Not a photo-op, Carter goes out without the media in tow and hammers nails. Carter also tirelessly monitors elections in nascent democracies, lending his stature as a statesman to that work over 100 times. Summing up his own term in office, Carter said “We never dropped a bomb. We never fired a bullet. We never went to war.” That was the last time since 1977 a president could make that claim.
Jimmy Carter’s “Crisis of Confidence” malaise speech, delivered from the Oval Office on July 15, 1979, has since become to many a symbol of Democratic defeatism. The speech was controversial at the time because it was seen as overly pessimistic and critical of the American people. However, in retrospect, many people view the speech as a courageous and honest assessment of the problems facing the country. But how prescient was Carter in 1979? The seeds he saw being planted have now grown to sad, desperate fruition. What he said then might well describe where we are now:
“There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.
“All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our… problem.”
For all he foresaw in his ferocious tenderness towards America, Carter failed to find a way to lead, and in 1980 suffered complete election defeat at the hands of someone who promised he would. As Carter did not create fully the malaise he spoke about, Biden alone certainly did not create the current malaise in America. But his failures, far too many in too short a time, have not helped fix it. Cheering on Ukraine is not the same as cheering for America. Without Jimmy Carter’s Gettysburg address, telling us where we are and what we have to do, we might forget that.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Ukraine is America’s Afghanistan More Than Russia’s
The thinking in Washington goes like this: for the “low cost” of Ukrainian lives and some American dollars, the West can end Putin’s strategic threat to the United States. No Americans are dying. It’s not like Iraq or Afghanistan ’01-’21. This is post-modern, something new, a clean great power war, Jackson Pollack for war. Getting a lot of foreign policy mojo at little cost. It’s almost as if we should have though of this sooner.
Um, we did. It didn’t work out past the short run and there’s the message. Welcome to Afghanistan 1980’s edition with the U.S. playing both the American and the Soviet roles.
At first glance it seems all that familiar. Russia invades a neighboring country who was more or less just minding its own business. Russia’s goals are the same, to push out its borders in the face of what it perceives as Western encroachment on the one hand, and world domination on the other. The early Russian battlefield successes break down, and the U.S. sees an opportunity to bleed the Russians at someone else’s bodily expense. “We’ll fight to the last Afghani” is the slogan of the day.
The CIA, via our snake-like “ally” in Pakistan, floods Afghanistan with money and weapons. The tools are different but the effect is the same: supply just enough firepower to keep the bear tied down and bleeding but not enough to kill him and God forbid, end the war which is so profitable — lots of dead Russkies and zero Americans killed (OK, maybe a few, but they are the use-and-forget types of foreign policy, CIA paramilitary and Special Forces, so no fair counting them.) And ironic historical bonus: in both Afghanistan 1980s and Ukraine, some of the money spent is Saudi. See the bothersome thread yet?
Leaving aside some big differences that enabled initial successes in Afghanistan, chief among which is the long supply lines versus Ukraine’s border situation, let’s look at what followed early days.
Though NATO countries and others sent small numbers of troops and material to Afghanistan, the U.S. has gone out of its way to make Ukraine look like a NATO show when it is not. Washington supposedly declared support for Ukraine to preserve and empower NATO (despite the fact that Ukraine was not a member.) Yet, to keep Germany on sides in the Russian-Ukraine war, Washington (allegedly) conducted a covert attack on Germany’s critical civilian infrastructure that will have lasting, negative consequences for the German economy. Seymour Hersh reported the Nord Stream pipeline connecting cheap Russian natural gas to Europe via Germany was sabotaged by the United States. An act of war. The destruction of an ally’s critical infrastructure, and no doubt a brush back pitch carefully communicated to the Germans alongside a stern warning to stay put on sanctions against energy trade with Russia. It’s a helluva thing, blowing up the pipeline to force Germany to color inside the lines NATO (actually the U.S.) laid out. This, in addition to the U.S. treating NATO countries as convenient supply dumps and little more, shows that NATO will emerge from Ukraine broken. One does also wonder if the future of Europe is at stake why the greatest concern is expressed in Washington and not Bonn or Paris.
As with Afghanistan, there are questions if we Americans will ever be able to leave, about whether Colin Powell’s “Pottery Barn” rules applies — you break it, you bought it. President Zelensky, portrayed in the West as a cross between Churchill and Bono, in actuality was a comedian and TV producer who won the 2019 Ukrainian presidential election. Zelensky’s popularity was due in part to his anti-establishment image and promises to fight corruption and improve the economy. He was also aided by his portrayal of a fictional president in a popular TV show, which helped to increase his name recognition and appeal to young voters.
Zelensky was preceded by the Ukrainian Revolution, also known as the Euromaidan Revolution, which began in late 2013 as a series of protests in response to then-President Viktor Yanukovych’s decision to reject an association agreement with the European Union and instead pursue closer ties with Russia. The protests grew in size and intensity, with demonstrators occupying the central Maidan Nezalezhnosti square in Kiev, demanding Yanukovych’s resignation and new elections. In February 2014, the situation escalated when Yanukovych’s security forces cracked down on protesters, resulting in violent clashes that left dozens dead. This led to Yanukovych fleeing the country and a new government being formed in Ukraine. The revolution also sparked tensions with Russia, which subsequently annexed Crimea and supported separatists in eastern Ukraine. None of those problems goes away even if the Russia army retreats to its pre-invasion borders. The notion that there is nothing going on here except a rough land grab by a power-made Putin is shallow and incomplete.
What’s left are concerns about the level of corruption in Ukraine, and the U.S.’s role in addressing it. Despite the U.S. providing significant financial aid to Ukraine, there have been reports of corruption and mismanagement of funds. Some have argued that the U.S. has not done enough to address these issues, and has instead turned a blind eye in order to maintain its strategic interests in the region. America’s history with pouring nearly unlimited arms and money into a developing nation and corruption is not a good one (see either Afghanistan, 1980s or ’01 onward.) Corruption can only get worse.
A great fear in Afghanistan was arms proliferation, weapons moving off the battlefield into the wrong hands. Whether that be a container of rifles or the latest anti-aircraft systems, an awful lot of weapons are loose in Ukraine. In the case of Afghanistan, the real fear was for Stinger missiles, capable of shooting down modern aircraft, ending up in terrorist hands. The U.S. has been chasing these missiles through the world’s arms bazaars ever since, right into the Consulate in Benghazi. It is worse in Ukraine. America’s top-of-the-line air defense tools are being employed against Russian and Iranian air assets. What would those countries pay for the telemetry data of a shoot down, never mind actual hardware to reverse engineer and program against? There are no doubt Russian, Chinese, Iranian and other intelligence agencies on the ground in Ukraine with suitcases full of money trying to buy up what they can. Another cost of war.
It is also hard to see the end game as the demise of Putin. This would mean the strategy is not fight until the last Afghani/Ukrainian but to fight until the last Russian. The plan is for that final straw to break, that last Russian death, to trigger some sort of overthrow of Putin. But by whom? Trading Putin for a Russian-military lead government seems a small gain. Look what happened the last time Russia went through a radical change of government — we got Putin. In Afghanistan, it was the Taliban x 2.
History suggests the U.S. will lose in a variety of ways in Ukraine, with the added question of who will follow Putin and what might make that guy a more copacetic leader towards the United States. As one pundit put it, it is like watching someone play Risk drunk.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
A 2022 to Remember, Ukraine Edition
Looking back at 2022, at what did and did not happen, really tells us what was important, hindsight and all that.
Things that Did Not Happen in 2022
Joe Biden did not explain why the U.S. is at war in Ukraine.
Any nuclear war.
Regime change in Russia.
Ukraine winning the war.
The Russians running out of missiles, men and tires.
No American diplomacy has been tried to conclude the war in Ukraine.
Things That Did Happen in 2022
Among the things causing the greatest pain are the highest gas prices ever recorded in the United States, topping $5 a gallon across the country at one point. Gas purchases on their own may make up only a relatively small portion of most families’ budgets, but the spike in gas, oil and diesel prices has left businesses with higher costs that will force them to raise prices on their customers and pull back on new investments. It risks a slowdown in consumer spending, as households cut back on other expenditures. Energy is so crucial to the functioning of the economy broadly that the price increases bring along higher prices in many other sectors, only adding to inflation. Meanwhile, U.S.-imposed energy sanctions have played to Russia’s favor economically as oil prices rose. Things may come to a head as winter sets in in Germany and that natural gas from Russia is missed. But that is a domestic German problem the U.S. is likely to simply poo-poo away (once economic powerhouse and U.S. competitor Germany showed its first negative foreign trade imbalance since 1991, a nice bonus for America.) Things got so loose that “someone” needed to blow up the Nordstrom 2 pipeline to make the point with Germany that it may have to do without Russian energy to maintain the fiction sanctions will bring an end to war.
There can be no denying the greatest rise in food prices since May 1979, during the Carter administration. The biggest price rises were in the most basic of goods: egg prices soared 39.8 percent, flour 23.3 percent, milk rose 17 percent and the price of bread jumped 16.2 percent. Chicken prices jumped 16.6 percent, while meat rose over six percent. Fruits and vegetables together are up 9.4 percent. Overall, grocery prices jumped 13.5 percent. And don’t look for relief eating out; restaurant menu prices increased 7.7 percent. Eating at home is the answer, even though rent is up over seven percent. Why is everything so expensive? Food prices are affected by global events, such as the war in Ukraine, which affects the costs of wheat and other core commodities. Prices are biting above their weight because of the largest decline in real wages in four decades, since, you guessed it, the Carter days.
Declines across the stock market have affected not only those who invest or passively hold stock in 401(k)s but the parent companies they work for and shop with. This time last year, January 3, the first day of market trading in 2022, looked like just another day in a stock rally that began when Barack Obama was still president. The S&P 500 hit a record high. Tesla rose 13.5 percent and came close to its own all-time peak. That day turned out to be the end of a market that for over a decade had gone mostly in one direction, the S&P 500 rising more than 600 percent since March 2009. The S&P 500 began the year’s final trading session of the year almost 20 percent below where it was at peak. The year overall was the worst annual performance since when the housing crisis in 2008 took down the market. Central banks drove markets this year because of inflation, which was also pushed by energy prices and massive spending in Ukraine.
There’s some good news to add to the economic dullness and dismalness. NPR reports 70 percent of Americans polled support continuing a range of economic and military assistance to Ukraine. Those polled also supported the statement “that they might have to pay higher gas and food prices if we continue to assist Ukraine,” and said “we should stick with Ukraine for as long as it takes rather than urge them to cede some territory to create a cease-fire.” And the Blackrock investment firm has agreed to help rebuild Ukraine after peace breaks out. Blackrock already coordinates Ukrainian investment in the U.S.
Oh, and there’s more that happened in 2022 to remember. Many large cities experienced their worst crime waves since the 1990s. Covid remains a part of life. The southern border is a mess. Diseases of despair, suicide, alcohol, and drug overdoses have driven a drop in our life expectancy. But we’re not gonna blame all that on Biden, too?
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
What is Title 42?
Title 42 is a clause of a 1944 Public Health Services Law which allows the U.S. government to prevent the entry into the country of individuals during certain public health emergencies, in this case asylum seekers who are sent to wait out their years of processing in Mexico, not in the United States, during Covid.
But to really understand Title 42 you have to understand what is happening at the southern border and what has happened with asylum claims. At play are potentially millions of aliens flooding into the United States. America’s asylum laws, meant to help the most vulnerable, have instead become a clogged backdoor for routine economic migrants. Title 42 was a very small step by the Trump administration toward restoring asylum to its correct role in American immigration policy. Biden seeks to go back to the “everybody in” system with all the consequences.
Asylum recognizes a person persecuted by his own country can be offered residence and protection by another country. The actual conditions vary considerably across the globe (the U.S. considers female genital mutilation grounds for asylum while in many nations it is a desired practice). But in most cases, asylum is offered to people who face a well-founded fear of persecution if sent home on account of their race, religion, nationality, political opinion, or social group. The definition of those five protected grounds have also varied greatly based on shifts in American domestic politics. Since 1994, for example, LGBT status has been, and remained under Trump, a possible claim to asylum. Domestic violence was granted consideration as grounds under the Obama administration, only to be rolled back under Trump.
But the reality of 2022 is the asylum system evolved into a cheater’s backdoor, a pseudo-legal path to immigration not otherwise available to economic migrants. They lack either the skills for working visas or the ties to qualify for legal immigration under America’s family reunification system. So they walk to the border and ask for asylum, taking advantage of previous administrations’ look-the-other-way “solution” to their ever-growing numbers. Affirmative asylum claims, made at ports of entry, jumped 35 percent pre-Covid.
It worked — for them. A Honduran on the border who says he simply came for a job is sent back almost immediately. However, should he make a claim to asylum, the U.S. is obligated to adjudicate his case. Since detaining asylum seekers and their families while the processes play out is expensive and politically distasteful (kids in cages!) until recently most asylum seekers were instead released into American society to wait out their cases. They then became eligible for work authorization when their cases extended past 150 days. The number of pending cases pre-Covid was 325,277, more than 50 times higher than in 2010.
Eventual asylum approval rates for all nationalities over the past decade average only 28 percent. Yet even after they’re denied, applicants can either refile as defensive asylum claims or disappear into the vast underground of illegals. Simply making a claim to asylum is often enough to live and work in America. Trump tried to change that with Title 42. Basically due to the possibility of flooding the country with Covid-positive asylum seekers, the threat of disease was invoked as a reason/excuse to keep the asylum seekers out of the U.S. while their cases drag on and on. Some asylum seekers and their families were detained at the border as a deterrent rather than released into society. But public outcry over caged families and the massive costs in housing and feeding sent the Trump people looking for another way to implement Title 42.
The change was for the Trump administration to negotiate for asylum seekers to wait out their processing times not in American society or an American detention facility, but in Mexico, through a program called the Migrant Protection Protocols. People at the border make their asylum claims, and are then nudged a step backward to wait for an answer in Mexico. The Department of Homeland Security also established an agreement with Mexico to accept all Venezuelan nationals who cross the border seeking U.S. asylum.
Title 42 stopped some 2.4 million would-be immigrants. The Biden administration now seeks to return to the old pre-Trump system, whereas asylum seekers would generally be set free inside the U.S. to go somewhere and wait out their processing. Nascent implementations of this system fell flat; U.S. Immigration and Customs Enforcement (ICE) estimates they already “lost” 150,000 migrants due to Biden admin’s lack of processing. These people are simply at large and likely forever will be within American society. As David Frum wrote approvingly at the time, “if liberals won’t enforce borders, fascists will.”
Biden’s administration tried to end the Title 42 policy this past April in court, but a Louisiana judge ruled proper administrative protocol must be followed to formally lift the program. Lower courts then issued a stay on ending Title 42 until December 21, extended now by the Supreme Court, and traffic backed up at El Paso and other prominent crossing points. Meanwhile, for those who are crossing now, the expulsion of migrants has continued while the protracted legal battle plays out among the government, migrants represented by the ACLU, and now, a group of 19 GOP-led states seeking to intervene in the case.
The states have argued that they will suffer “irreparable harm” if Title 42 ends and migrants stay in the U.S. for longer periods of time. Between 9,000 and 14,000 people are expected to cross the southern border each day after Title 42 ends (border crossings are now at around 7,000 a day.) The coalition of GOP attorneys general requested the court push back the Dec. 21 end date pending deliberations on an appeal. Migrants are waiting in Mexico, hoping Title 42 will be overturned and they can cross and stay in America. The final decision will likely lie with the Supreme Court.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Leadership and Security Standards
Leadership, real leadership, requires setting an example. As far as security is concerned, the leader of the Federal government, Joe Biden, earns an F– for security. His setting of a double standard for the handling and secure storage of classified materials drives home once again (Hillary, Trump, you out there?) that one set of rules applies to those on top and another to those underneath.
I am a retired State Department official who held a Top Secret clearance without incident for some 23 years. Not once did I violate my promise in return for access to the classified material I was privileged to see did I break the rules. I never left anything out on my desk, never took home a piece of paper, never brought a classified cable on the train to read on my commute. Even when I wrote my whistleblowing book We Mean Well about Iraq reconstruction I was meticulous in not including anything remotely classified, even insisting the publisher hire an ex-CIA lawyer to vett the manuscript. Most everyone around me over the years of service took the promise as seriously. It was our job to, in the extreme, keep boxes of classified documents out of our garage.
I still remember Day One of my service at State, when some very serious people told us we had two jobs, to protect classified and our regular tasks (economic reporting, passports issuance, run the motor pool, whatever.) Notice the order: a mess-up on the job is usually correctable locally. A failure to protect classified can have global implications.
To understand why this was far from dramatic, understand how intelligence operations work. Intelligence gathering is waiting. It means collecting pieces and waiting, sometimes for years, for the picture to expose itself. No detail is too small if handled properly, and things of no use to the host country service can be horse traded to another intel service elsewhere. So we were taught to push aside the oft-cited excuse that something was over-classified, or would not matter. It mattered.
The other thing is intel services know people are creatures of habit. If they leave classified documents in accessible places once, they are likely to do it again. They and the places their Corvette travels are worthy of additional attention.
Every instance of a security breach, however minor, is followed up on inside agencies who work with the data. At an Embassy, for example, at the end of the day one is responsible for clearing away classified materials and securing them properly. Later in the evening but before the cleaning crews start in, a Marine or someone designated by the Security Officer walks through the entire building desk by desk, looking for stray documents. If one is found, it is seized and secured, replaced with a note saying what happened and requiring the owner to report first thing to the security office.
What happens next depends on a variety of factors. Minor first offenses get off with a warning. More serious missteps — multiple documents, higher level stuff, repeated offenses — are met with a range of possible punishments including a three day suspension. People who still don’t get the message are subject to loss of their security clearance and in the extreme, job termination. It is not so much that people are fired all the time (they’re not) but sitting there getting your butt chewed out by the Security Officer you understand what happens next is on a continuum of punishment. It focuses the mind wonderfully.
The element emphasized in these discussions with the Security Officer is responsibility, one’s personal responsibility to secure all classified. Your desk, your responsibility. Biden’s excuse — that he did not know there was classified material at his old office, in his home library, or in his garage — reeks of a fourth grader trying to claim his dog ate his homework. The “I didn’t know” line is the antithesis of leadership and the opposite of the call to personal responsibility every other Federal employee is supposed to follow.
For those who insist there is a space between a low-level Fed like me worried about securing a piece of paper and the President, literally drowning in the stuff, one must remember that Biden is supposed to be a leader. The correct answer would be “As vice president I had a lot of help packing out of the White House, and it looks like someone inadvertently put classified materials in a box which ended up in my new unsecured office. Nonetheless, I am responsible for what happened and take full responsibility.”
We’ll pause for a moment while you catch your breath from laughing. Of course neither Biden nor any other important person in government would ever say such a thing, actually taking non-wishy washy personal responsibility for some wrongdoing. Biden instead has listened to his lawyers and not the people and won’t even ask what documents were found. That’s not what modern leaders do, and that above all is the double-standard at play here today. This is a not a document scandal, it is a leadership one.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
Classified for You, Not Me
Without double-standards would we have any standards for classified information left at all?
President Biden said Tuesday he was “surprised” to learn in November his lawyers found classified documents in his former office at a Washington think tank. Biden’s lawyers discovered a cache of classified documents as they packed up his former office at the Penn Biden Center for Diplomacy and Global Engagement. The tone of the MSM seems to be boys will be boys, and since Biden is being so cooperative with classification authorities after being caught red-handed and after being allowed to hide the story until post-midterms, maybe this has nothing in common with Trump’s cache of classified documents at Mar-a-Lago. Or Hillary’s cache on her private e-mail server. Could there be a double-standard?
Biden had some/several/a bunch of classified documents while Trump had thousands so that’s different. Yes, on Sesame Street four is bigger than three, but with classified documents it is not a meaningful difference. The law is clear each document is a violation, and there are no discounts for having under a certain number. One classified document is enough to seek indictment. But let’s not forget about Hillary, who was allowed not only to carry over 33,000 subpoenaed documents in the form of emails out of secure spaces on her server, but to delete them. Imagine if Biden reported he and his team simply deleted whatever they had found, never mind if Trump had had a bonfire.
Biden’s documents were safe inside a locked closet. Classification law is extremely clear how documents must be stored, specifying for example, how many minutes a safe is expected to withstand against an attempt to cut it open. In the case of the Secure Compartmentalized Information (SCI) level docs Biden, Trump, and Hillary held, details are written into law and regulation as to what type of room, with what type of door, they are to be stored in. “Closet” does not find the definition whether it is at Biden’s place, Mar-a-Lago or Hillary’s home housing her email server.
Nobody saw the documents. Maybe it wasn’t to standard, but they were kept under lock and key. No blood, no foul. Sez who? The reason all those laws and regs regarding classified exist are to safeguard the documents absolutely, so instead of arguing whether the cleaning crew would have had access to them or not, one can say “U.S. Marines guard these documents in the equivalent of a bank vault deep inside the White House 24/7, that’s who sez so. With Hillary, the question of illicit access begs for a starting point, because the end point, an unclassified, insecure out-of-the-box email server connected to the internet itself meant any hacker with moderate skills, including those assigned to attack her official trips to China and Russia, presumably had full access.
Biden’s documents were just old briefing notes, nothing so important. If the documents were labeled Top Secret or SCI when created then that was their classification, no matter what we think of the contents today. The law is clear arguing the level of classification after getting caught is not a viable strategy, and retroactive classification is not an option. “The documents were not important even though they were classified” is simply not a defense after getting caught. It sounds a lot like the infamous “nuclear weapons” docs Trump had were briefing documents as well. News reports state the nuclear documents dealt with the capabilities of one specific country, and thus were likely part of Biden’s broader briefing package ahead of meeting that nation’s leader, or ahead of weighing in on what U.S. opinion might be on an issue concerning nuclear weapons proliferation.
Biden cooperated with the Justice Department and National Archives and Trump Didn’t. It is almost always taken into account at sentencing whether the perp cooperated with law enforcement, and sometimes a reduced sentence is in order. But there is nothing in the law (any law) which says if you cooperate after getting caught whatever you did was not a crime. And again look at Hillary — her response to accusations was to electronically shred (Bleachbit) all the documents in her possession and then destroy the hardware they had been stored on. And no brownie points to a MSM who seem to be trying to present Biden’s cooperation as sign of responsibility — after the fact, of course.
Maybe some of the documents were not clearly marked classified. This one is included for historical purposes because Hillary made such a claim; Biden and Trump have not. Documents are given a classification based on their content and the sources of that content. The marking itself (e.g., Secret) just sums up what there is to say about the content itself. If you remove the Secret moniker by retyping things (as appears the case with Hillary) or just tearing off that part of the document, it does not change the classification.
A matter of trust. Apparently the Justice Department is just going to take Biden’s word that all is well, and all the classified has been found. Something along the same lines with Hillary. Trump of course saw his own home raided by the FBI, armed with automatic weapons, in a frantic search for more evidence, and the alleged documents splayed on the floor and photographed like TV drama crime scene evidence. In the Biden and Hillary cases, it appears the lust for evidence is not quite as strong. We’ll note the Biden documents were found the day before the midterm elections, when the story would have been political dynamite, and held until two months later when they were presented as a nothing burger. Why did the Biden Justice Department hold the news so long? Why did they wait until Republicans announced a possible Church-style investigation to show how cleanish everyone’s hands are, cooperating and all?
Fun Fact. Presidents are allowed to declassify any document while in office, and Trump has issued a disputed claim that before leaving office he declassified all the documents the FBI found when it searched Mar-a-Lago in August. The same privilege of broad declassification does not apply universally to Vice Presidents (Biden’s classified documents are from his time as VP) or Secretaries of State.
The next move lies with Attorney General Merrick Garland, who will decide what if anything is to be done about Joe Biden improperly storing highly classified documents at a think tank while holding no public office. Garland’s predecessor filed no charges against Hillary. Garland himself appointed a Special Prosecutor for the Trump case. Arguments the Biden and Trump cases are different ignore that those differences seem to have no meaning in the law itself and are superficial, appearing to be a big deal to those uninformed as to how classification works, a false unequivalency. Transparency? Timeliness? Garland seems oblivious to the concerns of the newly-elected Republican Congress that a full-on witch hunt is in play to defeat Candidate Trump prior to any election, using the criminal justice system to defeat Trump when the electoral system will not.
Given the real, lawfully meaningful similarity among the three cases, where will the standards of justice fall this time? As a nation of laws, need we test so often who is above the law? The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it is partial and political. Any further action against Trump must address why Hillary was not searched and prosecuted herself, and if so, why not Biden as well. Fair is fair, after all.
Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.
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