• Archive of "Trump" Category

    Why Trump Will Win

    January 31, 2024 // 21 Comments »

    Gloom consumes America. Some 73 percent of respondents say the United States is on the wrong track, the highest portion since 1989, when that polling question was first asked. In similar polls, there’s been a prolonged downward trend in Americans’ satisfaction with the direction of the country, from a peak of 71 percent in 1999 to just 22 percent today. Biden’s 39 percent approval is the lowest of any president running for a second term a year out from the election. Inflation hit 8.9 percent. The cost of rent and food rose two or three times as much as incomes.

    So who believes Joe Biden and his running dogs in the liberal media when they say things are actually OK? What tiny 28 percent of America are they talking to? A whole intellectual industry developed to support Joe, making excuses why the dumb Americans in the heartland don’t see how well Bidenomics has left things for them. The industry has come up with three explanations. See if they make sense.

    It’s the Media, Stupid. This is part of a bigger problem, presupposing most of the American interior is made of dummies who believe everything they hear on places like Fox, part of an outrage industry. Never mind kitchen table economics, it’s all in your head, idiot.

    Referral Syndrome. This hypothesis comes from the Wall Street Journal, which speculates Americans see so many mass shootings, so much immigration chaos, so many overdose deaths, and proxy wars they simply feel bad about everything (which, economy aside, does not bode well for the incumbent.) So when pollsters ask their views on the economy, they get a negative response, because people just feel overwhelmingly negative.

    Fatalism. Pretending the economy is just dandy wouldn’t be complete with some candy from Paul Krugman. The New York Times’ resident soothsayer claims all is well if only you could see things from the perspective of a rich, white, Nobel prize-winning New Yorker who writes gibberish for a living. Krugman also postulates Trump supporters who believe Biden stole the 2020 election are so apocalyptic that they skew the whole nation’s outlook.

    While the inflation rate may be declining somewhat, the cost of food, rent, and transportation is still higher than pre-COVID levels. Affordable housing kills in most areas. The problem for Joe is these are not problems of perception, they are disasters surrounding hard-core home economics. We’re left with the conclusion maybe the economy really is treating the bulk of non-coastal Americans poorly, the ones who could not sell burgers or clean hotel rooms via Zoom during the pandemic and the ones for whom high mortgage interest rates mean the difference between a home of their own and barely scraping by to pay the (rising) rent. It is these people who will vote Trump, or stay home, but are unlikely to vote for the Biden record on the economy. It is not perception, it is reality. People know when they can afford to feed the kids and pay the rent and when they cannot.

    In this environment, for the first time since President Grover Cleveland in 1892, voters face the choice of basically two incumbents, two candidates running on their recent performance in the White House. One was president during a time when wages rose faster than inflation, when the stock market was standardly strong, when home loan rates were accessible, and one wasn’t. But it is more than dollars and sense which will see Trump win in a fair election. It is his understanding of the America that he rode to victory in 2016, and came close to using to win in 2020.

    Think of Hillbilly Elegy if you want to take the shortcut. Or as another pundit put it, “Trump rode a wave of pessimism to the White House — pessimism his detractors did not share because he was speaking about, and to, an America they either didn’t see or understood only as a caricature. But just as with this year, when liberal elites insist that things are going well while overwhelming majorities of Americans say they are not, Trump’s unflattering view captured the mood of the country.” Trump’s thesis may be truer today than it was the first time he ran on it — polls show most young people never expect to earn what their parents do now, and deaths of despair continue to rise. People tend to notice when they are doing better in an economy, and when they are not.

    Immigration under Trump was simple, and matched a large number of Americans’ thoughts: we may have enough.  As Trump said, “A nation without borders is not a nation at all. We must have a wall. The rule of law matters!” Yet under Biden a pattern of curtailment, thought once labeled racism is now edging toward policy in sanctuary cities: we may have enough. Biden in a way should be thanked for drawing such a stark contrast between his immigration policy and Trump’s, and what the coastal elite minority hold true and what the majority of inner Americans likely believe and will express by voting for Trump.

    They understand that wall hyperbole aside, enforcing one’s borders is a requirement of nationhood. Check out the shelters and sidewalks of Manhattan and Chicago, where it is obvious Biden’s immigration policy is a failure. Trump’s message was crudely delivered but astonishingly accurate, at least to those willing to see through the former to the latter. Call him a bigot, or a racist, or a fascist, but he was right about controlling the border. In fact, every other country in the world does so for itself.

    In the broader picture, there are a lot of people who believe immigrants threaten jobs and security. They believe we should bring our troops home from places like Iraq and let other nations such as Ukraine fend for themselves. They believe Hunter and Joe Biden sold influence to Ukraine and China and they believe a deep state exists. They want education but don’t want college to be free to those who won’t repay their loans. They believe welfare encourages people to stay home, and social security won’t be there for them. They want to own guns. And though they are the base, they not alone. Trump’s backing from white, college-educated Republicans doubled to 60 percent over the course of last year.

    And outside the MSM no one is buying the “end of democracy” argument. The simplest counter argument is that if Trump does not believe in the system, why is he following its rules and campaigning? Wouldn’t a wanna-be dictator, you know, act more dictatorial? Same for J6. Wouldn’t a proper insurrection, as opposed to a protest march that morphed into a tantrum of sorts, have some path toward success? Yet the J6 “insurrectionists” simply walked back out of the Capitol building on their own, and their supposed leader, Trump, did the same with the White House two weeks later. If that was a potential ending of democracy event, it was a pretty lame one.

    If Trump wanted to be a dictator he had four fine years to implement that and he did not and anyone willing to think about it knows that. Rednecks amuck in the Capitol for an hour or two is not the same as tanks on the Ellipse and anyone willing to think about it knows that. If anything the use of lawfare to jail or drive an opponent off the ballot seems as undemocratic as anything else. Like supporting the blue line on J6 and decrying it over George Floyd, hypocrisy is an ugly thing to build an election strategy around.

    Trump’s voters look for America and see Brazil. Their detractors blame the Electoral College, or talk radio, or redneck ignorance, or Putin. Trump’s win in 2016 and likely win in 2024 inexplicable? Try again.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    It’s the Economy Again, Stupid

    January 26, 2024 // 10 Comments »

    One of the most succinct campaign slogans of the modern era came out of the 1992 Clinton campaign: “It’s the Economy, Stupid” picking up on feeling Americans were less concerned with the incumbent’s apparent foreign policy success (remember Desert Storm?) than the nation’s changing economy. Clinton spun  his personal concern for voters’ well-being off this, with the catchphrase “I feel your pain.”

    Things seem headed for some sort of through-the-looking glass style repeat in 2024, as the incumbent is hoping to sell voters on the strength of the economy when they are more than skeptical. Bidenomics’ thrust seems to be “The Economy is OK Unless You’re Too Stupid to Notice.”

    Bidenomics, the word itself the meddling of two of the incumbent’s vulnerabilities: he is Joe Biden, age “the crypt keeper” and the economy is just fine if  you don’t look at it. Not much can be done with the first liability, but the second opens the door for Donald Trump to run on a populist version of the economy that could leave Biden looking uninformed and out of touch.

    The economic world of Joe Biden is best characterized by the New York Times, acting nearly as his spokesperson that things are bright if only you were not so stupid as to be looking at the wrong numbers. So Bidenomics calls out how in 2020 the average wage of workers who still had a job shot up, without talking about how those who laid off, disproportionately service workers. Growth in wages for everyone was then held down because those low-wage workers were being rehired. Biden fanboy Paul Krugman actually went as far as writing in the Times “Until recently I thought everyone — well, everyone following economic issues — knew this.” Stupid voters, not keeping up with the Times. “There are two big questions right now about the U.S. economy,” says Krugman. “One is why it’s doing so well. The other is why so many Americans insist that it’s terrible.”

    A dumb line of reasoning seems to attract progressives. One coined the term “vibe-cession” last year to describe the gap between the common perception and cherry-picked economic indicators. Others insist it’s poor perception and political polarization that are mostly to blame. Then there is good old social media and its whack misinformation, reinforcing the “bad economy belief.” A former Federal Reserve economist quoted by, of course, the Times, wrote that a “toxic brew” of human bias for negative information and the attention economy lead to consumer pessimism. If only those rednecks who don’t subscribe to the New York Times could see the view from up there.

    The problem down here is economic reality, off limits in Bidenomics. Start with inflation. Things cost more, with some of the highest jumps in inflation-driven prices in decades (excepting the pandemic, there hasn’t been a year with average annual inflation above four percent since 1991.) But even after years of the Fed raising interest rates (see mortgages, below) inflation coming down does not fix the everyday problems of Americans. “Inflation” as economists define the term is nearly meaningless to most voters, because it excludes food and energy prices, two significant parts of any household budget. To include those parts of most voters’ lives, you’re looking for the Consumer Price Index, which includes everything but which rarely appears in feel-good tales of the Biden economy. Even then watch the magician’s hands closely; prices at the pump are down more than 30 percent since their peak last year but still up considerably since Biden took office. Some 74 percent today say they’re at least somewhat worried that the cost of living will climb so high that they will be unable to remain in their community.

    Now about those mortgages. As the Fed raised interest rates to buffet inflation, loan costs rose in kind. Average monthly payments on a new home jumped to $3,322 in the third quarter of the year, data from real estate investment firm CBRE shows. It means it has risen 90 percent since the final quarter of 2020 — just before Biden took office in January 2021 — when it was $1,746. Home ownership is becoming a unattainable dream to many Americans as average monthly mortgage payments are now nearly double what they were when Biden took office. Interest rates above seven percent and soaring house prices mean buyers are facing one of the least affordable markets in recent memory.

    The low unemployment Biden touts does mean more Americans are working but says nothing about mediocre wages, underemployment, and those forced into two or more jobs to make ends meet. A  Blueprint/YouGov poll on the economy found just seven percent of respondents were principally concerned about the availability of jobs, while 64 percent were most worried about prices. Bidenomics, of course, famously focuses on jobs created. Even then the numbers are slippery; the vast majority of this touted job growth comes from restoring job losses from the pandemic. Check instead the broader unemployment rate that includes underemployed and discouraged workers, nearly twice as high at seven percent as Bidenomics claims. And watch claims of rising wages — most rises have been negated by inflation growing at an even faster pace.

    Perhaps most significantly among economic perceptions is voters’ view of the future. A poll from March found that just 21 percent of respondents felt confident life for their children’s generation will be better, matching the record low since this question was first asked. In 1990, 50 percent of those asked felt life would be better for their kids. The national debt, which was $5.7 trillion when Bill Clinton was in office, has reached $33 trillion. This constitutes a form of intergenerational theft; rising interest costs will eventually require higher taxes or cuts in federal programs or both.

    Food prices are up almost six percent under Bidenomics. Some 59 percent of parents will spend more than $18,000 per child on child care in 2023. The overall average manufacturer’s suggested retail price of  new vehicles in the 2023 is $34,876, 4.7 percent higher than last year. Average annual health insurance premiums increased seven percent in 2023. The average family premium has increased 22 percent since 2018.

    The Biden people have it just 180 degrees wrong; perception does matter and is not “wrong.” And it does not matter that some of the economic effects listed here are not Joe’s “fault.” Past experience shows the guy in the Oval Office takes credit or accepts fault for what happened on his watch, at least in most voters’ minds. This is because while a few economists are voters, very few voters are economists. What the economy feels like at the checkout, at the end of the month, at the pump, matters most and will drive voting choices. So a recent poll found just two percent of registered voters said economic conditions are “excellent,” with only 16 percent saying they were “good.”  A majority of voters already trust Trump more than Biden on the economy. You just can’t tell the voters they are wrong, all is actually well, when it is not. Bill Clinton called it in 1992, Donald Trump will surely emphasize it this year but Joe Biden hasn’t heard it yet in 2024 with the election only about ten months away: it’s the economy stupid.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Evening in America and It’s Raining Hard

    January 11, 2024 // 16 Comments »

    It’s evening in America. How might what we see affect the presidential election?

    Pessimism: There is pessimism about the future, as a majority of Americans now believe the next generation is likely to have a lower standard of living. A Wall Street Journal poll found just 21 percent of respondents felt confident life for their children will be better, matching the record low.

    Inflation: For more than two-thirds of voting age Americans, 2023 was by far the highest inflation of their adult lifetimes. Higher prices means less spending power. A recent poll on the economy found just seven percent of respondents were principally concerned about the availability of jobs, while 64 percent were most worried about prices. What’s the White House concerned about? Jobs, not prices, even to the point where one of its unofficial spokespersons, Paul Krugman of the New York Times, has created a genre for his column scolding Americans for not seeing how great the economy really is. Things are going well for some; the richest one percent grabbed nearly two-thirds of all new wealth, worth $42 trillion, created since 2020, almost twice as much money as the bottom 99 percent of the population. If the economy is expanding, fewer people are benefiting from it. Averages may look good, but the median numbers, not so much. Why, Bidenomics seems to ask, can things be bad when so many people now work two or even three jobs?

    Crime: Only 20 percent of registered voters feel that “things in the country these days are under control,” compared with 66 percent who feel that things are “out of control.” Out of control how? According to Gallup, 28 percent of households reported that they had been hit by crime, up from 20 percent in 2020. Some 63 percent of Americans describe the crime problem as “extremely” or “very” serious, the highest Gallup ever recorded, and 56 percent say there is more crime in their area than a year ago, also a record high.

    It has gotten to the point where several businesses near the location where George Floyd died are suing the city of Minneapolis for a lack of policing. The lawsuit accuses police of blocking off the area, called “George Floyd Square,” for over a year with concrete barriers, which turned the area into a hotspot for violent crime. Criminals know “the area lacks police protection,” the lawsuit alleges, and businesses are seeking $1.5 million in damages. As with many school resource officers, the cops left George Floyd Square in response to community complaints about over-policing. Downtowns are hollowing out again, as businesses close in response to unabated smash and grab and mass shoplifting campaigns carried out in front of prosecutors unwilling to act. Albeit in part Covid-related, more than two percent of New York City tax payers fled the state, mostly high net worth individuals/taxpayers.

    Drugs: Deaths from drug overdoses almost doubled from 52,404 in 2015 to 106,699 in 2021. Efforts to halt the flow from China of precursors used to make fentanyl have been limited, from blandly bellicose and provocative statements about Taiwan’s future, to asking Beijing very nicely to stop exporting.

    Deaths of Despair: Life expectancy in the United States has recently fallen for three years in a row—a reversal not seen since 1918 or in any other wealthy nation in modern times. In the past two decades, deaths of despair from suicide, drug overdose, and alcoholism have risen dramatically and are still rising. Anne Case and Angus Deaton, who first sounded the alarm about deaths of despair, explain the overwhelming surge on the social and economic forces making life harder for the working class.

    Health: The U.S. now has a lower average life expectancy than Japan, driven by an increase in death rates in young and middle-aged adults 25 to 64. Besides Japan, life expectancy is also lower than Canada, the UK, Iceland, Hong Kong. Also Iran, China, Algeria, and Cuba, not the usual peers the U.S. claims. Guns account for about half of the suicides committed by young people and the majority of homicides. So while firearms play a large role, clearly there’s a mental health crisis fueling it. Mental-health-related visits among children, teenagers, and young adults surged between 2011 and 2020, from 4.8 million to 7.5 million.

    The bottom line is our young people are less likely to reach age 20 than most around the world, including Syria. Only 23 percent of American youth are eligible to serve in the military due to being overweight, using drugs, or having mental and physical health problems. The U.S. drags the global lower-middle, clustered in infant mortality statistics which place it as peers to Bulgaria, Romania, and Serbia, and well below Canada, Japan, and most European countries. Those numbers reflect broad averages from within the United States. When you look at America by race, black infant deaths are more than twice those of whites, about what most Central American countries suffer.

    Education: The educational harm caused by the coronavirus pandemic has been “devastating,” according to a recent survey of 26 million K-8 students by researchers at Stanford, Johns Hopkins, Dartmouth, and Harvard. The researchers also found the pandemic “exacerbated economic and racial educational inequality.” The average “U.S. public school student in grades 3-8 lost the equivalent of a half year of learning in math and a quarter of a year in reading.” In New York City there are 119,300 homeless students in the public school system who depend on school for three meals, a shower, medical care, and handout clothing in addition to reading and writing (math scores are also down.)

    Guns: Americans ages eighteen to twenty account for only four percent of the population but 17 percent of murders. 86 percent of the weapons came from the homes of friends, relatives, or parents. Some 70 percent of school shootings since 1999 were carried out by people under eighteen. The median age of school shooters is sixteen. There have been at least 554 school-shooting victims, with at least 311,000 children exposed to gun violence at school in the U.S. since the Columbine High School massacre, all spread across 376 schools. Black students make up 16.6 percent of the school population but experience school shootings at twice that rate. The frequency of shootings has increased, with a surge of forty-six incidents in 2022, the highest in any year since 1999. The safest year was 2020, when most schools were closed and parents needed only to worry — mostly pointlessly, it turned out — about Covid taking their kids.

    War and Defense: Overseas a period of relative calm has been replaced by an era of proxy-type wars that appear to many Americans to be as pointless as they are expensive. The fights in Ukraine and Gaza draw hundreds of billions of dollars in “aid,” leaving many Americans wondering if their taxes are too high given what appears to be the easy availability of such massive amounts of money. Politically the war-weary American population knows we are one bad decision away from entering both conflicts, unless you want to count Special Forces in Ukraine and naval action against Iranian-Houthi targets as us being “already in.” There is a feeling of unsettlement — are our sons and daughters going back to war so soon after the disastrous ending of twenty-some years in Afghanistan? At what point will the troops come home and the money come home to assist Americans in their struggles? At $877 billion in defense spending per year, the U.S. outspends the next ten nations on the list (China, UK, Japan, etc.) The U.S. has more bases abroad than any other country. Our post-9/11 wars caused 4.5 million deaths, and displaced up to 60 million people. What for?

    Immigration, healthcare costs, war talk with Iran, nuclear gamesmanship with the Russians, it’s a long story. But as they say economics (education, etc…) is only complicated when talking to an economist. About 70 percent of all voters do not want Biden to run, including 51 percent of Democrats polled. Against the likely Republican nominee, Biden already trails by four points or more in swing states.

    So, who are you voting for?

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Trump’s Plan for the Deep State (Project 2025 and Schedule F)

    December 15, 2023 // 6 Comments »

    They just won’t stop. The same day we wrote about media exaggeration of Trump’s second term plans to “seize power,” the New York Times comes out with an end-of-days Trump Apocalypse story — “Trump Has a Master Plan for Destroying the ‘Deep State.’” Their version of term 2.0 reads like an AI-generated text of Mein Kampf. But what might Trump really do his second term? Don’t worry, it’s all good unless you like the Deep State.

    To start, Trump will not repeat a mistake from term 1.0, and will quickly fill his political appointee positions with allies. This sounds like a shocker until a) you realize this is what every new president does and b) Trump was roundly criticized in term 1.0 for not filling the ranks fast enough and thus somehow endangering America. Very likely never expecting to win, and not being a lifetime pol, Trump took office without a bench team, without a folder of thousands of resumes from party loyalists and think tank exiles looking for work. In Biden’s case, he finished the task fast by basically picking up most of the under-employed Obama administration hacks and those still grouchy because their promised Hillary Administration jobs never materialized.

    Trump this time seems more prepared. Every president has some 4,000 appointed positions to fill. Every president fills these with loyalists, party hacks, or in the case of jobs like ambassadorships, wealthy donors as payback. In the case of term 2.0, in addition to the usual suspects, the Heritage Foundation has been compiling and vetting some 20,000 resumes. The chosen should come through that process enthusiastic to carry out the peoples’ will having elected Trump, and are unlikely to form the core of a Deep State “resistance” as during term 1.0. You can submit your resume online. To ensure all these appointees are ready to go to work on Day One, Heritage is also offering an online course to train them up for the task. You can also apply to enroll online. The thousands of jobs which need to be filled are listed in the Plum book, alongside the expected salary, everything from Secretary of State to Member of the Morris K. Udall Scholarship and Excellence in National Environmental Policy Foundation. This initiative and most of the others comes from the Heritage Foundation’s2025 Presidential Transition Project 2025.

    Also in planning is the implementation of changes to Schedule F, which shields stay-in-place-forever Civil Servants from political influence. Unfortunately what was intended in good faith to create a merit system inside a government where civil servants’ allegiance was owed to the public and not the White House, ended up as a bubble of invincibility around many who do their work slowly and without interest. Though the Executive Order was written during the chaotic end of term 1.0, high on a Trump policy list for term 2.0 would be implementing these changes to Schedule F. The action would convert as many as 50,000 civil servant positions (still leaving about two million Federal civilian positions untouched) into political appointees, allowing deadwood to be cut away and jobs filled with people in line with the administration’s goals. Action, rather than nonaction, is the goal. If actually seen to fruition, this would be the most profound change to the civil service system since its creation in 1883. Impact might be greatest in institutions like the Department of Justice, which the liberal media fears will be weaponized by Trump to go after Biden and others in the same way the Mueller investigation, two impeachments, and multiple indictments have dogged Trump since leaving office.

    Aside from personnel changes, it is Trump’s policy plans that scare the liberal media the most, having worked themselves into a froth in term 1.0 by mislabeling everything from immigrant holding centers (“concentration camps”) to mob violence (“insurrection to overthrow the government of the United States at the People’s House” and all that.) Project 2025 has a long policy section, dealing with the issues department-by-department. Here’s a look at what they have in mind for the Department of State as an example. State under Obama/Hillary had morphed into the Department of Nice, working full time for women’s and LGBT rights, climate change and just about everything but making America great. It was a center of “the resistance,” grinding out dissent cables on matters outside its own purview, such as domestic immigration policy and war plans for Syria.

    According to Plan 2025, Trump should remake the Department into a tool of his foreign policy instead of the adversary it was during term 1.0 (see the scuttling of rapprochement with North Korea.) High on the list is to “focus on core diplomatic activities, and stop promoting policies birthed in the American culture wars. The United States should focus on core security, economic, and human rights engagement… and reject the promotion of divisive policies that hurt the deepening of shared goals.”

    More broadly, “there is a tug-of-war between Presidents and bureaucracies— and that resistance is much starker under conservative Presidents, due largely to the fact that large swaths of the State Department’s workforce are left-wing and predisposed to disagree with a conservative President’s policy agenda and vision. It should not and cannot be this way. A major source, if not the major source, of the State Department’s ineffectiveness lies in its institutional belief that it is an independent institution that knows what is best for the United States, sets its own foreign policy, and does not need direction from an elected President.”

    Other State-centric policy goals will be the freeze all in-process negotiations for review, conduct a comprehensive cost-benefit analysis of U.S. participation in all international organizations, and refocus policy on China, Venezuela, Iran, Russia, and North Korea. This will be done in conjunction with internal housekeeping, specifically to “develop a reorganization strategy. Despite periodic attempts by previous Administrations (including the Trump Administration) to make more than cosmetic changes to the State Department, its structure has remained largely unchanged since the 20th century. The State Department will better serve future Administrations, regardless of party, if it were to be meaningfully streamlined. The next Administration should develop a complete hypothetical reorganization of the department—one which would tighten accountability to political leadership, reduce overhead, eliminate redundancy, waste fewer taxpayer resources, and recommend additional personnel-related changes for improvement of function. Such reorganization could be creative, but also carefully review specific structure-related problems that have been documented over the years.” In other words, heads will roll in a staid, uncreative bureaucracy already on record as opposing most of Trump’s foreign policy goals and with an agenda of its own.

    The final set of clues as to what a Trump administration 2.0 policy might look like rests in Heritage’s 180-day Transition Playbook, which includes a comprehensive, concrete transition plan for each federal agency. The Playbook will provide the next President a road map for doing that. You can read it all in eye-numbing detail (they’re not kidding, even the Consumer Financial Protection Bureau gets its own road map to Trumpism.)

    It is possible Trump and his advisors won’t pay a whit of attention to Project 2025 and its recommendations, and may discard most of the 20,000 resumes Heritage hopes to pass on during the transition period following the 2024 election. Still, if you are looking for clues as to what might follow in Trump 2.0, getting the policy wonk-level view from documents such as Project 2025 may be as good a place to start as any. But read it dispassionately; it is a serious to-do list for transitioning a liberal government structure to one flavor of a conservative one. There should be no fear democracy will disappear from these shores in the process.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Trump and the First Amendment, Both on Trial, Again

    December 9, 2023 // 4 Comments »

    No former president has challenged the limits of freedom of expression like Donald Trump. At times rude and always overbearing, Trump has tested the boundaries of what can be called political speech. Here’s the latest.

    The most significant challenge to the First Amendment came during Trump’s penalty phase trial for fraud, based on his over-valuing his properties in New York to obtain favorable loan rates. Trump muscle-tussled there with the presiding judge, Arthur Engoron and, oddly, his law clerk seated beside him on the bench. Already upset over what he felt was the clerk’s overextended involvement in the trial (to include whispering in the judge’s ear) Trump seized on a vanilla selfie photo of the clerk with Democratic Senator Charles Schumer to taunt her with the phrase “Schumer’s girlfriend” and insinuate as a Democrat the clerk was inherently biased against Trump.  In the way things work in 2023, these fifth grade-level slurs plus a few Trump complaints online about Engoron himself being biased morphed into “threats” somehow. Engoron went as far as to suggest Trump was sending attack messages to his MAGA army (“targeting”) and that lives were in danger.

    In retaliation Judge Engoron slapped a gag order on Trump, later extended to his attorneys as well. The order prohibited Trump from commenting on the trial, out loud, in the press, or on social media, and specifically said the law clerk was off-limits. Trump paid little attention to the order and was fined twice, for a total of $15,000, for violating it. Trump called Engoron an “extremely hostile” judge. His lawyers said there was evidence of “tangible and overwhelming” bias. Trump’s lawyers then filed a lawsuit against Engoron challenging his gag order as a violation of the First Amendment.

    Lawyers for Engoron argued he and his staff received hundreds of anti-Semitic calls and letters. They blamed Trump’s comments about Engoron and the clerk for amplifying his supporters’ anger toward them and said the clerk is “playing Whack-A-Mole now trying to block her phone number.” “It’s not that Mr. Trump has directly issued threats to the staff and Judge Engoron, it’s that what he’s said has led his constituents” to make threats, the lawyers argued, comparing the potential effect to the January 6 riot and a violent attack on Nancy Pelosi’s husband. “That is not political speech. That is threatening behavior and it should be stopped,” Engoron’s lawyers argued.

    The appeals forum which heard the case disagreed, particularly about the part saying what Trump was engaged in was not political speech. Judge David Friedman of the state’s intermediate appeals court issued a temporary stay suspending the Engoron gag order and allowing the former president to speak freely about court staff while the longer appeals process plays out. Friedman questioned “Engoron’s authority to police what Trump says outside the courtroom. He also disputed the trial judge’s contention that restricting the 2024 Republican front-runner’s speech was necessary or the right remedy to protect his staff’s safety.”

    Another gag attempt was also struck down last month, after the judge overseeing Trump’s Washington J6 case briefly paused a gag order she had imposed on him. Trump reacted to this three times in three days, calling Special Counsel Jack Smith “deranged.” Twice he weighed in about the deposition testimony of his former chief of staff, Mark Meadows, who could end up a witness at the trial. These moves prompted Smith’s team to ask the judge, Tanya Chutkan, to reinstate the gag order. She put the order back in place, though it has been frozen again as a federal appeals court considers whether Judge Chutkan properly imposed it in the first place. That temporary suspension left Trump free of all of the gag orders placed on him.

    Long term, a federal appeals court panel appeared poised to significantly narrow the gag order imposed against Donald Trump by the J6 judge Chutkan. The three-judge D.C. Circuit Court of Appeals panel raised concerns the order — which bars Trump from criticizing witnesses, prosecutors, and courthouse staff — created murky restrictions stifling the former president’s right to push back against his detractors, particularly in the heat of the campaign.

    What at first seems novel — it happened mostly on social media!– and soooooooooo Trump — the insults, the elementary school-quality teasing — was in fact at the core of what the First Amendment is all about. Political speech is among the most protected forms of speech, more so political speech critiquing the government. In fact not novel at all, Trump was engaged in the most basic form of expression designed to be protected by the First Amendment.

    Judge Engoron, standing in for King George here, played the role of evil government perfectly. He chose to use the power of government, the gag order, etc., to stop Trump (who claims the trial is political persecution in the first place) from criticizing the government, in the guise of his court, and then doubled-down by extending the order to Trump’s lawyers, and then triple-downed the whole mess saying the gag applied 24/7 to those named, all way beyond the limited point of a gag order (proper use is almost always to shield important information from a jury to not prejudice a case.) A gag order should enhance democracy by protecting the right to a trial by jury, not run rough shod over it silencing the political speech of someone on trial.

    The hardest thing sometimes to accept about the First Amendment is it often protects speech you don’t like made by people you don’t like, in this case Trump, who is presumed crude and guilty by some half of the electorate. This idea is captured in the quote”I disapprove of what you say, but I will defend to the death your right to say it,” often attributed to Voltaire, and apparently missing from both Judge Engoron’s and most undergraduates’ education. Those who bleat support for Israel/support for Palestine has no place on campus fall squarely into the same narrow box as Engoron, wanting to block speech which personally threatens them but does not rise to the level of threat established by the Supreme Court, or offends them, somehow believing the First Amendment does not protect “hate speech.” While speech might be offensive — or even feel threatening — to some people, to others “it is an expression of a political opinion, an unfiltered reaction to a recent event, or an attempt to rally support for a cause. The freedom to share provocative ideas and spark robust debate about political issues is essential to democracy, social justice, and progress.”

    That’s exactly what Trump is doing, criticizing his trials and their participants in real time via press conferences and especially social media, all protected by the 1A. Victory Trump, victory First Amendment.

     

     

     

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    Posted in Biden, Democracy, Trump

    Apocalypse Trump

    November 28, 2023 // 17 Comments »

    One of the fads in the liberal media is for Trump horror stories, Apocalypse Trump, should he be re-elected as president. Like political porn, there may be no real point to all this other than to titillate, although there could also be an underlying strategy try and con the proles into not voting Trump in 2024. Either way, it’s worth reading the horror tales just to laugh at what the writers’ imagine a second Trump term might be like.

    The Los Angeles Times gets you the inside baseball the action with an article headlined “Trump promises vengeance and power grabs if he wins in 2024. Here’s the plan.” Save yourself the trouble of looking; there are no named sources to almost all of these descriptions of Trump 2.0, though they are presented as certainties. The Times begins with Inauguration Day, stating as fact “anticipating widespread protests against his second term, Trump and allies reportedly are drafting plans to invoke the Insurrection Act in his first hours back in the White House — thereby confirming the expected protesters’ likely point: Trump is a danger to liberty and constitutional governance.” The author doesn’t seem to remember how the Insurrection Act, last used in 1992 to quell riots in L.A., did not end liberty and/or the Constitution. But it wasn’t Trump you see, so OK!

    And that’s just one of many MAGA plans in the works, as the Washington Post reported, all aimed at making good on what the writer feels is Trump’s central promise of the 2024 campaign: retribution. According to the Post, Trump allies are “mapping out specific plans for using the federal government to punish critics and opponents,” even naming individuals to be investigated and prosecuted. Ironic prose given Trump  is neck deep into five legal battles, two with the Federal government, since he left office, and that the FBI was used even while he was in office to spy on him in an effort to prove he was a Russian spy.

    It is also ironic Trump has all these plans to use the judicial system against his enemies. First of course because declaring himself something of a dictator you’d think Trump could bypass all that innocent until guilty stuff that bogs down trials and just kick in doors. More important, why would Dictator Trump bother with “justice” at all? After all, writes the Los Angeles Times, “His obnoxious outbursts this week in his New York civil trial over financial skulduggery [sic] were just the latest evidence of his disdain for the law and the judicial system. And we haven’t even gotten to his three criminal trials for seeking to overturn Biden’s election and making off with government documents. No one — not witnesses, prosecutors or judges — is immune from his attacks and the death threats that follow.” Jen Psaki separately warned MSNBC viewers if Trump regains office he would “unravel the rule of law as we know it.” Jamelle Bouie of the Times warns “it looks an awful lot like a set of plans meant to give the former president the power and unchecked authority of a strongman.”

    Ah, death threats. One cornerstone of Apocalypse Trump is he controls a zombie army of MAGA believers that he can direct against adversaries — “targeting” in the words of one judge. Another reason to question his “planned” use of the court system. Why not just release the hounds? After all, why not make good on his claim under the Constitution’s Article II, “I have the right to do whatever I want as president,” made when everyone was saying Trump was a Russkie spy. Nonetheless, the system it is. Trump has vowed to appoint a special prosecutor to “go after” President Biden and his family. The Washington Post reports Trump told advisers he wants the Justice Department to investigate his former chief of staff, John Kelly, and former attorney general Bill Barr, as well as his ex-attorney Ty Cobb, and former Joint Chiefs of Staff chairman General Mark Milley. Trump also talked of prosecuting officials at the FBI/Justice Department.

    Here’s how it will work, using justice to commit unjust acts. The Post, to the rescue to the confused, says “To facilitate Trump’s ability to direct Justice Department actions, his associates have been drafting plans to dispense with 50 years of policy and practice intended to shield criminal prosecutions from political considerations.” The Post quotes “It would resemble a banana republic if people came into office and started going after their opponents willy-nilly,” said Saikrishna Prakash, a constitutional law professor at the University of Virginia who studies executive power. “It’s hardly something we should aspire to.”

    If irony was water we’d all have drowned by now.

    It wouldn’t be a party unless The New York Times weighed in. They succinctly state “Donald J. Trump and his allies are planning a sweeping expansion of presidential power over the machinery of government if voters return him to the White House in 2025, reshaping the structure of the executive branch to concentrate far greater authority directly in his hands. Mr. Trump intends to bring independent agencies under direct presidential control.” He’ll do this by “stripping employment protections from tens of thousands of career civil servants, making it easier to replace them if they are deemed obstacles to his agenda. And he plans to scour the intelligence agencies, the State Department and the defense bureaucracies to remove officials he has vilified as ‘the sick political class that hates our country.’” The New Republic wrote an article headlined “Inside Trump’s Fascist Plan to Control All Federal Agencies if He Wins.” Tom Nichols wrote in the Atlantic there are “plans for a dictatorship that should appall every American.”

    And let’s not forget everyone’s favorite Apocalypse Trump subject, immigration. There, according to the New York Times, Trump is conjuring up “sweeping raids, giant camps and mass deportations,” claiming “If he regains power, Donald Trump wants not only to revive some of the immigration policies criticized as draconian during his presidency, but expand and toughen them.” Trump supposedly plans to ban people from Muslim-majority nations and reimpose a Covid-era policy of refusing asylum claims based on his feeling migrants carry other infectious diseases like tuberculosis. He plans to deputize local police officers and the National Guard voluntarily contributed by Republican-run states to carry out sweeping raids. And to get around any refusal by Congress to appropriate funds, Trump would redirect money in the military budget.

    Are you not entertained? That may be the only purpose of the Apocalypse Trump genre, garnering clicks. It stands then to reason that to keep the snowball rolling the claims toward the Apocalypse, the tall tales, need to become increasingly dramatic, topping yesterday’s dopamine hit. Do a quick Google search using the phrase “Trump will seize control” to see the latest, as well as some greatest hits. These types of stories were popular during Trump 1.0, putting words into his mouth and distorting those that came out, assigning nefarious intent to even the simplest Executive Order. A favorite fretted over Trump seizing control of the FEMA emergency broadcast system and the whole Internet to disseminate propaganda and control his minions. NBC News helpfully uncovered the fact “Trump can’t use FEMA’s wireless alerts to send personal messages” a question which apparently had not come up previously in the 80-odd-years the original Cold War system has been in place.

    A second driver of all this “journalism” is a desperate attempt to convince on-the-fence voters to not vote for Trump. After all, the Los Angeles Times made their intent for this advocacy pretty clear: “Too many voters are disengaged, grumpy that their choice seems to be coming down to Trump vs. Biden. As if those choices were comparably distasteful when, in fact, one is vanilla and the other is nitroglycerin.” The idea here is to use the tools of the media to scare the proles into not voting for Trump for fear of bringing on the end of Constitutional government in the United States. You’d think people would be tired by now with these “sky is falling” pronouncements but apparently you’d be wrong given the sheer bulk of them, and the crazier-than-last-time feel most have.

    The possible effectiveness of this strategy assumes most Trump voters, for gosh sakes 50 percent of the entire country, are too dumb to see what is right in front of them, fascism itself. But since Trump has not been kind enough to write out a Mein Kampf-like manifesto of all the dastardliest deeds he intends to do, America’s liberal media is doing it for him. No mind Trump is the only recent president not to start or join a new war; he is a war monger. No mind Trump tried to restart relations with North Korea via old-fashioned diplomacy; we are on the verge of nuclear disaster. No matter the state of the economy or decisions on Covid which resonate well in hindsight, he is clownishly wrong. No mind Trump has participated according to the law in every legal action against him, he does not believe in the rule of law. Oh, and former Trump lawyer Michael Cohen is so scared about what will happen in Term 2.0 he is planning to leave the country, so there is an upside.

     

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    Posted in Biden, Democracy, Trump

    What the Hell is Trump Doing in Court?

    November 8, 2023 // 15 Comments »

    It was a busy day in court for Donald Trump.

    In Washington on October 25 Special Counsel Jack Smith asked the court to reinstate a temporary gag order, this time with jail as the penalty, after Donald Trump called former White House chief of staff Mark Meadows (and by extension former allies who have cut deals in his election interference case elsewhere in Georgia) a weakling and coward if he agreed to testify in exchange for immunity. Trump had been under a earlier gag order which barred him from disparaging prosecutors, court staff, and potential witnesses in a pattern that the court filing called “targeting.” The fear was that Trump was calling out those he wanted MAGA supporters to go after. Smith urged Judge Chutkan to “modify the defendant’s conditions of release by making compliance with the Order a condition.”

    On the same day, in response to his violation of a separate New York court gag order Judge Engoron ordered the former president to testify over an insult Trump threw at the judge’s law clerk. The judge found Trump guilty of violating his gag order and ordered Trump to pay a $10,000 fine on top of an earlier $5000. Trump stormed out of the courtroom, his somewhat bewildered Secret Service in tow. Trump technically remains free only on bail.

    Pundits asked if Trump is actually trying to antagonize judges and lose both cases. Or could there be some other reason for Trump’s on-the-face-of-it non-self serving actions?

    — Trump may be breaking up under the strain. One hates to even go near the “Trump is insane” 25th Amendment crowd, who think they can judge someone’s mental state long distance but one has to allow for the possibility that the stress of having his very existence and ego challenged (the NY trial after all concerns Trump’s actual net worth and status as a real estate kingpin) by small-time mooks like a judge and his clerk may have gotten to Trump. We’re seeing it play out as he strives to control his temper (hence the storming out of the courtroom.) If this is even in part an explanation for Trump’s counter-productive behavior in court it is a dangerous one, adding too much unpredictability into already tense situations. Perhaps Trump simply can’t stop himself. He’s “spent a lifetime attacking those who don’t accommodate him,” and he’s not able to quit now.

    — Trump could easily believe none of this matters, certain he will be elected president in November 2024 and be in a position to pardon himself and any others convicted along the way. In Trump’s mind this is all or nothing and the little details, such as the outcome of a specific trial, matter not.

    — It’s all about the appeal, part I. Trump knows he will lose the case in front of Judge Engoron, who has already substantively ruled Trump guilty and is holding the current trial sessions primarily to establish the penalty. By egging the judge on to make statements such as finding a Trump response he did not like a “lie,” ruling “as a trier of fact, I find that the witness is not credible… hollow and untrue” Trump is setting up an appeal claiming the judge is biased against him (otherwise, you generally as a defendant do not do things to encourage the judge to throw the book at you.) It is unclear if this is productive or even needed; there is already plenty to work with in the guise of former Trump attorney Michael Cohen, a star prosecution witness who is also a sworn enemy of Trump, a convicted felon, and serial liar singing for his supper. Cohen’s testimony is weak, claiming the former president never directly asked him to over-value Trump Organization assets, but instead implied somehow mind-reading style that he do so.

    — It’s all about the appeal, part II. The judges’ gag orders against Trump rub rough against the First Amendment, which will form the basis of appeals independent of the trial content themselves. The ACLU, no friend of Donald Trump, argues the gag order imposed by U.S. District Judge Tanya Chutkan in Washington barring Trump from making public statements about special counsel Jack Smith, the defense counsel or members of the court violates the Constitution’s 1A. “No modern-day president did more damage to civil liberties and civil rights than President Trump,” the group wrote in a press release. “But if we allow his free speech rights to be abridged, we know that other unpopular voices — even ones we agree with — will also be silenced.”

    Specifically, the ACLU argued Chutkan’s order is too vague, too broad, and not sufficiently justified. Trump made many “patently false” statements which have “caused great harm to countless individuals,” the group wrote. But he nevertheless “retains a First Amendment right to speak, and the rest of us retain a right to hear what he has to say.” Prior restraint on Trump’s speech must be “precisely defined and narrowly tailored,” the ACLU wrote, arguing that Chutkan’s order “fails that test.” For example, the prohibition on making public statements that “target” certain individuals is “unconstitutionally vague.” Trump “cannot possibly know what he is permitted to say, and what he is not.”

    — It’s all about the appeal, part III. The substance of an appeal is irrelevant, as long as the appeal can be dragged out past the November 2024 election. It is easy to imagine a “throw it all against the wall and see what sticks” approach to buy time. An appeals court could just as easily applaud the two judges for showing restraint when they might have thrown Trump in jail for contempt. No matter, as long as it all chews up the space until the election.

    Trump looks like a man who simply does not care what happens with the current trials, or any of the upcoming others. He is both convinced the system is fully unfair and equally aware that the more trouble he seems to get into the faster his poll numbers rise. Each courtroom defeat, small and procedural or a full-on guilty verdict, simply fans the flames for rally crowds. The cash penalties levied by Judges Engoron and Chutkan for violating gag orders have little meaning.

    But Trump actually being jailed for violating a gag order would grant him official martyr status. Within a week of his release Trump will be comparing himself to the jailed Martin Luther King and Nelson Mandela, freedom fighters all. He could then literally test an earlier boast by shooting someone in the middle of Fifth Avenue and not lose any supporters, or perhaps with MAGA cheers in the background simply flipping off one of the judges who dare seek to decide his fate.

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    Posted in Biden, Democracy, Trump

    Trump and the 14th Amendment

    October 4, 2023 // 6 Comments »

    In the developing world the party in power does away with its opponents one of three ways: a bullet to the head, throwing them in jail or kicking them off the ballot. Good to see America, Leader of the Free World, is already at work on two of the three.

    With it becoming ever-clearer that nothing in the courts is likely to stop Trump — polls show he can still win as a convicted felon from a jail cell — attention has turned to the third dirty solution, driving him off the ballot in as many states as possible to enable a Joe Biden walk-on win. The vehicle for this is supposedly the 14th Amendment, Section Three.

    Section Three was ratified in 1868 following the Civil War as a way to keep former Confederate officials out of government. It reads in whole “No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.” (emphasis added)

    The obvious ploy is to claim Trump engaged in some sort of insurrection on January 6 and with that making him ineligible to be president, his name should be automatically (self-enacting) removed from all ballots. Easier said than done; this use of the 14th Amendment is malarkey, will not succeed, and is simply another attempt at politically decapitating Donald Trump instead of beating him at the ballot box.

    The problems with the 14th Amendment strategy begin with the question of whether the prohibition still exists. Written in 1868 to affect Confederate officials, the Article was overturned by Congress on behalf of several individuals. They could do the same for Trump. Then in 1872, the disabilities were removed, by a blanket act, from all persons except Senators and Representatives of the Thirty-sixth and Thirty-seventh Congresses, officers in the judicial, military, and naval service of the United States, heads of departments, and foreign ministers of the United States. Twenty-six years later, Congress enacted law that said the disability imposed by Section Three… incurred heretofore, is hereby removed.

    Further standing in the way of actually using 14/3 against Trump is the 1969 Supreme Court decision in Powell v McCormack, which held a state cannot require of a congressional candidate declarations of loyalty, or affidavits averring lack of intent to seek forcible overthrow of the government. The decision went on to clarify that it was unconstitutional to require any requirements for office other than those already stated in Article I (age, residency, citizenship.) Loyalty to the United States or to its government is not listed as one of the standing qualifications for membership in Congress.

    Is Trump subject to Section Three? President Trump was unique among all of his predecessors in that he did not hold any prior government position before he took the presidential oath of office in 2017. Section Three of the Fourteenth Amendment could only disqualify Trump if the presidential oath he took on that date was as an “Officer of the United States.”

    Also left undefined is the standard of proof for “insurrection.” As a crime, insurrection has its legal definition. Trump, however, is not charged with insurrection (or sedition or rebellion) in any of the cases he now faces.

    The 14th Amendment in its Section One also provides for due process, of which the adherents of 14/3 prescribe none, claiming the section is self-enacting and needs no enabling legislation or procedure.

    Section Three remained largely dormant for many decades.  January 6 (as well as a Pennsylvania Law Review article  claiming Trump doesn’t qualify to serve as president under 14/3) have prompted renewed interest in the provision and its on and off again history. Active 14/3 challenges to specific candidates have been brought in Indiana, Wisconsin, North Carolina, Georgia, Arizona, and New Mexico, with contested offices ranging from County Commissioner to Senator (but not yet Trump.)  Issues have emerged, including whether Section Three has been repealed; whether Congress has sole power to disqualify its members; whether voters have standing to challenge under Section Three; and questions of subject matter jurisdiction and federalism. Absent action by Congress (in process though not expected to succeed) the arguments over Section Three demand either that the whole thing be forgotten to history where it belongs, or the Supreme Court step in to sort out the significant legal issues, not the least of which is state versus federal power.

    If you are keeping track of steps into the abyss, take a look at the core of what some current legal thinkers believe is 14/3: “Partisan officials in state governments, without specific authorization or checks and balances, should apply broad and uncertain definitions to decide who can run for office in a republic, when responsible officials with clear statutory and constitutional authority have not done so.” Seems instead like something for voters to decide, not out-of-context legalese from a previous century. This isn’t public policy, or even sound jurisprudence. This is a politicized legal fight. Sound democratic to you? Or maybe more like Democratic?

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    Posted in Biden, Democracy, Trump

    The Political Assassination of Donald Trump: Shots Fired

    September 22, 2023 // 14 Comments »

    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.

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    Posted in Biden, Democracy, Trump

    Mens Re and Donald Trump

    June 30, 2023 // 5 Comments »

    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.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Leave Trump Alone (Because It Does not Matter)

    June 23, 2023 // 10 Comments »

    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.

     

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    Posted in Biden, Democracy, Trump

    Indictments over Classified. Not Biden, and Not Pence. So Why Trump?

    June 12, 2023 // 8 Comments »

    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.

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    Posted in Biden, Democracy, Trump

    The Final Durham Report: Democracy’s Horror Show

    May 26, 2023 // 11 Comments »

    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.

     

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    Posted in Biden, Democracy, Trump

    A Spectator Looks at the Durham Report

    May 21, 2023 // 10 Comments »

    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.

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    Posted in Biden, Democracy, Trump

    I’m Disgusted with the Trump Indictment

    April 20, 2023 // 1 Comment »

    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.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Third World Politics: Details of the Trump Indictment

    April 8, 2023 // Comments Off on 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.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    The Real Trump Witchhunt

    April 7, 2023 // 5 Comments »

    Concerned the law be applied equally to all? Worried about political witch hunts? You should be, only you’re likely worried about the wrong case.

    While Trump’s will-he-or-won’t he indictment saga in New York sags on, it’s a magician’s trick of misdirection. The real witch hunt and challenge to the rule of law is ongoing in the Mar-a-Lago classified documents case where the government will force one of Trump’s own lawyers violate attorney-client privilege and present evidence against his client, Trump, in regards to handling classified documents.

    A federal appeals court ruled earlier this month a lawyer for Donald Trump in the investigation into his handling of classified material had to answer a grand jury’s questions and give prosecutors documents related to his legal work against his will and in violation of attorney-client privilege, which typically makes communications between a lawyer and his client private and out of the reach of prosecutors. The ruling by the U.S. Court of Appeals for the District of Columbia was a victory for the special counsel overseeing the investigation and followed Trump’s effort to stop his lawyer, Evan Corcoran, from handing over what are likely to be dozens of implicating documents to investigators. He’ll have to give up what was shared once with him in confidence.

    The gist of the matter is that at one point, when asked if there were any additional classified materials at Mar-a-Lago, Trump ordered his lawyers to prepare a statement stating “no,” that all classified had been turned over to the government. Based on Trump’s statement to them, the lawyers, including Corcoran, wrote to DOJ that a “diligent search” for classified documents had been conducted at Mar-a-Lago in response to a subpoena. That claim proved untrue as FBI agents weeks later searched the home with a warrant and found roughly 100 additional documents with classified markings. The Justice Department now claims Trump lied to his own attorneys in claiming no classified documents, possible crimes of fraud and obstruction in defying the government’s efforts to reclaim classified materials.

    Attorney-client privilege is a legal principle that protects communications between a lawyer and his client from being disclosed to others, including the courts. This privilege is intended to encourage clients to be open and honest with their attorneys, which in turn helps attorneys provide effective legal representation. Any information or communication exchanged between a lawyer and his client is protected from disclosure, as long as it was made in confidence for the purpose of seeking legal advice or representation. This includes not only written and oral communications, but also any documents or materials shared with the attorney. The privilege belongs to the client and not the attorney, meaning that it is the client who has the right to assert or waive the privilege, as with Trump.

    There’s a long history to attorney-client privilege, dating back to the ancient Roman and Greek legal systems. In the 16th century, English courts recognized the concept of legal privilege, which included the privilege of lawyers to refuse to testify against their clients in court. By the 18th century, the concept had expanded to protect all confidential communications between attorneys and their clients. In the United States, the attorney-client privilege was recognized early on in the development of the legal system. In 1810, the U.S. Supreme Court established privilege in the case of United States v. Burr. The Court held that communications made by a defendant to his attorney for the purpose of obtaining legal advice were privileged and could not be used as evidence against the defendant. Since then, the attorney-client privilege has been recognized and upheld by courts across the United States. It’s a big deal and one of the cornerstones of fairness in our system.

    In the Trump case, the Justice Department is using the one major exception to privilege, when the communication is intended to further a criminal or fraudulent act, to compel lawyer Corcoran to testify against his own client. In other words, Justice asserts Trump lied to Corcoran about having no more classified documents, and that this constituted a crime of fraud and maybe obstruction, and thus privilege is not available and Trump’s lawyer can be made to testify against his client. The crime or fraud exception to attorney-client privilege itself has a long history, dating back to English common law. In the United States, the crime or fraud exception was first recognized by the Supreme Court in the 1840 case of United States v. Privileged Communications. This exception was later reaffirmed in other landmark cases, such as Clark v. United States (1933) and United States v. Zolin (1989).

    There is some risk to the DOJ case if Corcoran is forced to testify while any further appeals are ongoing, as Trump has suggested he will seek a Supreme Court hearing of the matter. That opens the possibility if the Supreme Court ultimately rules the government’s arguments about the crime-fraud exception are wrong, prosecutors would be barred from using the information Corcoran provided as evidence to seek a grand jury indictment. That could serve as a basis for overturning the indictment, and make a clear case that Trump’s rights had been stomped on.

    “Prosecutors only attack lawyers when they have no case whatsoever,” according to the Trump campaign. That said, DOJ seems to have little to worry about. Trump has an uphill battle. One of the precedent cases, Clark v. United States, involved a criminal defendant, Samuel Insull, who was accused of mail fraud and other crimes related to his business activities. Insull had consulted with his attorney, Frank Clark, and had given him documents and information related to his shady business dealings. During Insull’s trial, the government sought to introduce evidence that Insull had given false information to Clark, and argued that the attorney-client privilege did not apply because the communications were made in furtherance of a crime. The trial judge allowed the evidence to be admitted, and Insull was ultimately convicted.

    As a final act, for now, Trump’s objections and request for a stay in proceedings were overruled by the Appeals Court of the District of Columbia.  DOJ Special Counsel Jack Smith will obtain key documents from the lawyer for the former president related to the handling of sensitive national security records discovered at Trump’s Florida home last year; it is unknown if Corcoran will also be required to testify further before the grand jury. Trump’s only hope now is to have Corcoran hand over the documents and testify, then seek a hearing before the Supreme Court, and see through that the testimony rescinded and the government’s case fall apart.

    If Trump lied to his own attorneys it is unclear that constituted a prosecutable crime. He has certainly not been charged with that. Things are further complicated by the fact that Trump has not been indicted or charged yet with any crime at all in connection with the documents. It’s a chilling development; attorney-client privilege had to yield to a fishing expedition via Corcoran’s testimony and records, evidence that the attorney may have been used to advance a crime. This can have significant legal consequences, as it allows the other party to use the previously confidential information against the client in court. See if you feel that’s what is intended by what we are increasingly call in quotation marks, “the rule of law.”

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Trump Indicted

    April 4, 2023 // 3 Comments »

    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?

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    Posted in Biden, Democracy, Trump

    The Revenge of Stormy Daniels?

    March 30, 2023 // 14 Comments »

    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.

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    The People v. Donald Trump

    March 27, 2023 // 5 Comments »

    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.

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    Posted in Biden, Democracy, Trump

    Classified for You, Not Me

    January 21, 2023 // 1 Comment »

    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.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Exposure: Why Mishandling Classified Material Matters

    // Comments Off on Exposure: Why Mishandling Classified Material Matters

    Hillary versus Trump versus Biden. All three kept classified information at their homes. Who wins the battle to have likely done the most damage to national security?

    In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, when was it seen, and for how long?

    The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might not be seen by anyone. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale. But never underestimate cleaning staff; spies love ’em. In what other capacity are likely locals allowed to rummage through an embassy at night, picking through the trash, and moving things around on desks to um, dust?

    The “what” and how much of it is the real stuff of James Bond. At times “what” is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs.

    The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth. It matters a whole lot less a month later after everybody in town saw the convoy arrive. “How Long” can matter as well, as the longer a document is exposed the more chances someone unauthorized has to see it.

    So those are the ground rules, on to Hillary versus Trump versus Biden!

    “Who” between Trump and Biden seems a toss-up, given that as far as we know both kept classified in locked closets (we’ll turn to Hillary and her server below.) An investigator would want to know who had keys to that lock, and if possible, who used them when. What controls if any were in place to prevent duplicates from being made? What kind of lock was used? Was it pickable? Would cleaning staff or painters called in have had time alone to work the lock? Were there any video or access logs that might show the staff spent an inordinate amount of time near the closets? We know nothing about this regarding Trump’s and Biden’s closets. One might also want to get into who packed the boxes containing classified info, on whose orders, and how much exposure did they get en route to those naughty closets. Did the information sit in an unguarded truck stop overnight in 2010? Who would have known? “Who” is more than a name, it is a line of dominoes.

    We have a starting on “what” material may have been compromised, and it is not good. Hillary, Trump, and Biden mis-stored information at at least the SCI level (Sensitive Compartmentalized Information, above Top Secret.) SCI means not only is the document classified, even seeing it is restricted to a specific list of people such that merely holding a full Top Secret clearance is not enough. We can say the documents included some real secrets as of their drafting.

    Next of concern is the raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 classified. With the raid, the government recovered over 300 classified documents from Trump. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary.

    Our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see while the Biden media has been very cagey on how many document have been found, using phrases like “several” and “a few dozen.” We’ll have to wait until Biden’s home is raided or the Special Counsel concludes his investigation to know for sure.

    In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup.

    Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 contained classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.

    The “what” is a toss-up for now. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton discussed Top Secret CIA drone info and approved drone strikes via Blackberry.

    We do have a winner in the “when” category, albeit via an odd path. Biden’s classified materials date back to his Vice Presidency, and we don’t know when they were moved out of secure storage, so the material goes possibly back to 2009. That’s potentially 14 years of the paper hanging around waiting for someone to discover and make nefarious use of it. In Trump’s case, he left the White House in January 2021 and the classified was pulled out of Mar-a-Lago no later than August 2022, only some 20 months of hiding for no more than four years of material.

    Investigations are ongoing in both cases but there is no evidence to date that anyone unauthorized saw the classified documents. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s place. Claims he retained classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by eight months. If the FBI thought classified material was in imminent danger from one of America’s adversaries they might have acted with a bit more alacrity.

    The real money-maker in the classified world is exposure, and here we finally have a clear leader. Hillary wins in that her exposure of classified emails was done consistently over a period of years in real-time. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Clinton’s security certificate was issued by GoDaddy.

    We have a winner. Whether anyone unauthorized got a look at Trump’s or Biden’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy concerning their country.

    No search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. So enjoy the bread and circuses around two old men with irresponsible staffs and or irresponsible ambitions who got caught with classified information improperly stored. The real damage had already been done years earlier by Hillary, who escaped any penalty, not even the embarrassment of a Special Prosecutor.

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    Posted in Biden, Democracy, Trump

    Leticia James’ Desperate Hail Mary Lawsuit Against Trump

    November 12, 2022 // 3 Comments »

    No one is above the law, but some actions are beneath it. Just ask Leticia James, the New York Attorney General who filed a $250 million civil suit against Donald Trump, what may turn out to be the last gasp of a multi-year effort to criminalize the electoral process in America. As she prepares for trial in early 2023, let’s see what she has to go on.

    During her 2018 campaign for attorney general, James declared: “Trump should be charged with obstructing justice (in connection with Russiagate.) I believe that the president of these United States can be indicted for criminal offenses and we would join with law enforcement and other attorneys general across the nation in removing this president from office.”

    James tweeted the campaign endorsement from Rep. Maxine Waters when that still mattered that James would be an attorney general who “who will investigate Trump” and promised that “the president of the United States has to worry about three things; Mueller, Cohen, and Tish James.” For the record, Robert Mueller has retired to the dark side of the moon after his investigation proved nothing (though there are still those who believe, as there are people who enjoy circus geeks, and the Venn diagram of the two groups is a circle), Michael Cohen is a convicted felon lucky to be called as a guest once a month on the Howard Stern Show, and of course Tish. In her 2018 election night victory speech, James boasted: “I will be shining a bright light into every dark corner of his real estate dealings….” and before taking office repeated her threat to target Trump world: “We will use every area of the law to investigate President Trump and his business transactions and that of his family as well.”

    She even pulled Trump into her victory speech, saying her win “was about that man in the White House who can’t go a day without threatening our fundamental rights.” All of that sounds like she had it in for Trump; had an attorney general ever said such things about a private citizen not named Trump it would be likely grounds all by itself for dismissal for bias. That said, Trump sued James last year seeking to halt her investigation, alleging it was “baseless” and motivated solely by her desire to harass a political opponent. A judge dismissed the suit in May.

    Tish does deserve a few points for being the last one standing. In an unprecedented sweep over the last five years, Congress tried to impeach Trump twice. The FBI tried to indict for espionage itself. The Southern District of New York (the Feds, DOJ) could not find anything to indict Trump on after he left office. Same for the Manhattan District Attorney’s office. Only Tish was able to drop paper on Trump’s desk out of all those smart lawyers and cops.

    Remember things started with Trump as a literal Russian intelligence officer, the actual Manchurian candidate, what would have been the most noteworthy political story of American history, had it been true. Tish as the last in line cannot be that choosey. Her law suit, a civil case which means there is no threat of jail time, alleges, inter alia, Trump overvalued some of his real estate to obtain loans and then undervalued the same real estate to pay lower property taxes on it. This is so common in the New York real estate world that these disputes are not even typically handled by a court, instead adjudicated through a tax commission grievance process. The result is typically a levy or a fine if the owner is found to have manipulated prices egregiously.

    To prove the same as a civil case and then demand significant penalties ($250 million and Trump can no longer do business in New York state) is a big ask. Even The New York Times had to admit James will have a hard time proving the case: “Property valuations are often subjective, and… all his loans are either current or were paid off, some before they were due.” Factors that can legitimately affect properties’ stated value include potential for future income, the view from their upper floors, zoning laws and proposed changes, and the like. If Deutsche thinks they got the deal right and is not suing, who is the attorney general protecting here?

    The presumed victims in James’ suit aren’t Mom and Pop customers Trump defrauded, big league contractors he stiffed, or shareholders he lied to. The victims are banks (primarily Deutsche Bank, one of the world’s largest) and insurance companies that supposedly undercharged Trump for loans and insurance policies, all because Trump told them his properties were more valuable than they actually were. Boo hoo.

    See the government doesn’t usually sue on behalf of big businesses that have their own well-staffed legal departments; it is a huge tell against James that Deutsche is not suing anyone. Financial firms rely to some extent on customers self-reported data. But they also do their own due diligence on what real estate collateral is worth for the explicit purpose of assuring they don’t commit money based on a deal they’ll lose out on. It works the same way with less zeros when you apply for a home mortgage. The bank does not write a check with no questions asked. Instead, it does a credit check, sends out an appraiser to value the property, gets insurance on everything, and prices the loan according to the risk it believes it is taking. Trump could make whatever claims he wanted to about his properties at Mar-a-Lago and 40 Wall, but no one was really listening. You know, trust but verify.

    Oh right, some of the deals were already verified, such as Trump’s sale of rights to the Old Post Office in Washington, DC., whose sale at its Trump-stated value was approved by Joe Biden’s General Services Administration, though Tish includes that sale in her lawsuit. None of Trump’s creditors lost money on any of his loans. Every one is paid off or current in being paid off. There were no allegations of an actual crime by anyone in law enforcement or the private sector. Instead, James started an investigation hoping to find a crime. By making this a civil suit she avoids the higher standards of proof and grand jury proceedings if this was a criminal case.

    It is no small surprise that Tish is up for reelection as Attorney General in November, and so that after waiting almost her entire term in office now files this lawsuit against Donald Trump, following through on her earlier campaign promises to “get him.” James is also fund raising off the lawsuit, writing to campaign supporters: “These men think they can rattle me and scare me off my path, but the truth is, they have only reaffirmed why I went into this work in the first place.”

    It is extremely likely if James loses in November (polls show she is currently in a dead solid tie with her Republican opponent) that her successor will drop the suit entirely, the way the Manhattan DA’s office gave up on Trump when the top job changed hands. Should she win again, Tish will spend the next few years of taxpayer money fending off motions from Trump to dismiss, to change venue, and most of all over seating an impartial jury. Trump could easily move the case out of liberal Manhattan to bright red upstate New York, where he beat Joe Biden in 2020, stalling until the 2024 election is over and one way or another none of this will ever matter again.

    And small world, Tish may even then have one more stop on her legal adventure tour — concerns over past prosecutorial abuse of power led to the creation in 2021 of the New York Commission on Prosecutorial Conduct, designed to hold prosecutors “to the highest ethical standards in the exercise of their duties.”

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    Posted in Biden, Democracy, Trump

    I Can’t Sleep

    September 28, 2022 // 14 Comments »

    When I try to sleep at night, I can’t relax. I blearily turn on the TV. But I can’t change the channel. My TV is telling me I am going to die, maybe by Covid (they say there’s a new variant, you know, called Monkeypox), maybe by climate change because it is likely already too late. Before I drown I’ll be hungry because supply chains don’t work anymore, and inflation is stripping away my purchasing power, and some sort of fascist coup will happen and I’ll probably have to wear all gray clothes all the time like in the dystopian movies. Then there are the TV diseases, bowel disorders and skin problems that medicines I can’t afford might fix except side effects can include blindness, paralysis, saying thingstoofasttounderstandanditallisjustablur of fear. It doesn’t matter I can’t pick out the words, I know what it  means. If only I had that medicine maybe I’d be happy like the people in the commercials, going to farmer’s markets with my racially diverse group of great pals.

    The rhetoric of emergency, crisis, and imminent doom has always been part of American life. We have not been happy for some 75 years. We were happy for a short time after we defeated Hitler, but then we spent three generations certain we would die in a nuclear fireball because behind Hitler were Communists who wanted to invade us, right up the beaches of San Diego, even when for a while we were the apex predator on the planet with the world’s only atomic bomb. We beat the Communists but our happiness was short-lived because of the terrorists and right after we beat them there was Putin, hiding and waiting to ruin the Olympics again.
    I have always been afraid. But I also realized that the ever-increasing speed of fear has never so dominated American life since about 11 p.m. on November 8, 2016, when it became clear Donald Trump would win the presidency. The stakes grew daily; never mind Putin, a Russian agent was in the very Oval Office. There he was giving away secrets, there he was jeopardizing the security of Asia by holding peace talks and hands with Kim Jong Un, then the terrorists were almost back because he was going to pull out of Afghanistan too soon after 20 years. Covid. George Floyd. Elections. Democracy itself was to end on January 6. Barack Obama said at the 2020 Democratic Convention we must vote Democrat out of fear of losing our democracy. Everyday I had new things to be afraid of, Oathkeepers and Boogaloo Bois, not enough beds, and not enough ventilators. The tension of constant crisis defined the years, every day it seemed to reach a breaking point only to be topped again the next morning.
    Then I thought maybe we had a chance. Normalcy, in the person of perhaps the most established and, well, normal politician of the last few generations, seemed to have returned. I felt like I was almost given permission to exhale.
    But no, the crisis had only deepened. The seemingly impossible had happened: the brief occupation of the citadel of American democracy by a mob out of control was not over. It was in fact, I was told, the seminal event of our generation, perhaps the end of the American Experiment itself. The TV says this is mostly the fault of Trump, whom the TV people seem very certain is still in charge of everything. If only a Democrat could get into the White House and start fixing things so I might see my grandchildren again at my show trial after they turn me in for thought crimes. Donald Trump — the ghost of elections past and, perhaps, yet to come — still commands constant and breathless coverage, from cable news to late night. The fraternity of coronavirus variants — alpha, delta, omicron — is like the list of hurricane names: catchy but menacing, perfect for tweets and news scrolls. I am told the upcoming elections, if Republicans do well, will not be fair, and that decades of civil rights work and legislation are meaningless now because the Senate still has the filibuster and Joe Manchin. It seems every story is reported with a flashlight held under the announcer’s chin.
    I tried to figure out if I had gone insane. The arguments are so stupid, it was like arguing a horse is not an orange. I left the room for five minutes and returned to see the U.S. was semi-at war for war over another country’s problems which isn’t America. What, are there Kurds now in Ukraine we have to die for? I couldn’t find any debate, anybody asking why we were starting down the road to another war, only that I should get scared again of the Russian Bear taking over Europe. See, because Neville Chamberlain misread Hitler, forever after any attempts at peace are called appeasement. That’s why I’m told war between China and Taiwan is imminent and the U.S. has to be ready to water the rice paddies of Asia again with American blood. Meanwhile, in the face of lurking Covid, living in daily fear of terrorism seems almost nostalgic.
    Dammit, somebody said if we elected Anybody But Trump things would be OK. Instead it seems worse than ever. Fear as a policy has yielded a nuclear arms race which nearly destroyed the world, the lost decade of freedoms sacrificed to protection from terrorism, and the hundreds of thousands dead in pointless revenge wars. Now comes the wasted spring, summer, autumns, and winters of Covid overreaction, destroying the economy and breaking the spirit of people, followed by inflation and five buck gas. So forgive me when I am not sure I should fear for our democracy as much as I fear for our sanity.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Klassified Kapers: Hillary v. Trump

    September 23, 2022 // 9 Comments »

    Hillary versus Trump in their Klassified Kapers. Both kept classified information at their homes, both appeared to break the law, only one may be legally punished. But which one wins the battle to have done more damage to national security than your average enemy spy?

    In the end when dealing with the damage done by mishandling classified information it comes down to exposure; who saw it, what was it, and when was it seen?

    The “who” part is clear enough; a document left inadvertently on a desk top in an embassy guarded by Marines might be seen by locally hired cleaning staff at worst. A document left on a park bench and seized by the local police risks direct exposure to the host country intelligence services if not sale to the highest bidder depending on the locale.

    The “what” is the real stuff of James Bond and even actual spies. A lot of things are classified, many perhaps overclassified. The Director of the National Security Archive at George Washington University estimates 70 percent of the documents he sees are overclassified. Donald Rumsfeld put it at 50 percent. Just because something is marked Top Secret does not mean the information there really is, but it still might rightly qualify as classified at the Confidential level. It would take a knowledgeable person looking at documents one-by-one to conclude which of the 7 out of 10 were overclassified.

    Other times “what” is classified is in the eye of the beholder. The Secretary of State’s daily list of telephone calls to make is always highly classified. It might matter very little to a Russian spy that the Secretary is calling the leader of Cyprus on Wednesday but matter an awful lot to the leader of nearby Greece. That is why intelligence services often horsetrade, buying and selling info they pick up along the way about other countries for info they need about theirs. One of the most deeply-run intel operations against the State Department involved a Euro-ally looking for info on a competitor by listening in to third party U.S. diplomatic sites where the data was treated almost as spam.

    The “when” aspect is also important as many documents are correctly classified at one point in their history but lose value over time. One classic example is a convoy notification; it matters a lot who knows tomorrow at midnight the convoy will set forth from A to B. It matters a whole lot less a month later after the whole affair has come and gone and everybody in town saw the convoy arrive.

    Lastly, we have the unknown factor in judging our contest. Few countries actively harvesting intelligence are in the mood to tell anyone about it. In fact, just the opposite. Even when caught spies deny everything such that one of counter-intelligence’s main tasks after a bad guy is caught is to try and figure out what he likely gained access to, which documents or information he got. Note the “or” there because it is always information, data, which is classified, not pieces of paper. Much damage can be done with a diplomat’s hand written notes of a meeting, unmarked by a classification such as Secret, compared to a document marked Secret but containing nothing really worth keeping quiet. The marking on a document is only the drafter’s best estimate of what the information on paper really is worth. This all makes it hard to judge the relative impact of one exposure to another, but there are other ways.

    So those are the ground rules, on to Hillary versus Trump!

    We start the contest with raw number of documents potentially exposed. In Trump’s case we have a decent tally, thanks to the Department of Justice. The initial batch of documents retrieved by the National Archives from Trump in January included more than 150 marked as classified. With the recent search raid, more were found such that the government recovered over 300 documents with classified markings from Trump since he left office. This worked out to over 700 pages of classified material and “special access program materials,” especially clandestine stuff that might include info on the source itself, the gold star of intelligence gathering. If you learn who the spy is inside your own organization you can shoot him, arrest him, find other spies in his ring, or turn him into a double agent to feed bogus information back to your adversary. To be fair, our contest is a bit unfair to Trump, as inventories of what was found at Mar-a-Lago are online for all to see.

    In Hillary’s case just coming to a raw number is very hard, as she destroyed her server before it could be placed into evidence and completely deleted (bleached) many, many emails. Because her stash was email the secret files were also not all in their original paper cover folders boldly marked Top Secret with bright yellow borders, as in Trump’s case. Hillary also stripped the classification markings off many documents in the process of transferring them from the State Department’s classified network to her own homebrew server setup. More on that later.

    Nonetheless, according to the FBI, from the group of 30,000 e-mails returned to the State Department, 110 were determined by the owning agency to contain classified information at the time they were sent or received. Eight of those chains contained information Top Secret at the time they were sent, with some labeled as “special access program materials.” Some 36 chains contained Secret information at the time; and eight contained Confidential information. Separate from those, about 2,000 additional e-mails were “up-classified” to make them Confidential; the information in those had not been classified at the time the messages were sent, suggesting they were drafts in progress, in the process of being edited before a classification was ultimately assigned.

    So in simple terms based on the albeit thin information available publicly, Trump wins the category for having the most raw material, classified documents, outside an officially secured facility.

    In this race, the “what” is a toss-up. Little information exists on specifically what each document trove held, though the WaPo claims one of Trump’s docs detailed a foreign country’s nuclear capability (ironically, the leak from DOJ revealing the document’s contents suggests things were more secure at Mar-a-Lago than after the search) giving him a slight lead in this category. Clinton only discussed Top Secret CIA drone info and approved drone strikes via Blackberry.

    But the real money-maker in the classified world is exposure, and here we finally have a clear leader. For all the noise around Mar-a-Lago, there is nothing to suggest the classified Trump held was ever exposed; in fact, information available suggests the stuff left the White House to remain boxed up inside a storage room. We know that after classified was id’ed inside Mar-a-Lago by the National Archives, DOJ asked Trump to provide a better lock, which he did, and later to turn over surveillance tapes of the storage room, which he did. But the clearest evidence of non-exposure is the lack of urgency on the part of all concerned to bust up Trump’s Klassified Kaper. Claims he removed classified documents from the White House began circulating even as he moved out in January 2021. The first public evidence of classified in Mar-a-Lago waited until January 2022 when the initial docs were seized, and the recent search warrant tailed that by months. It suggests if the FBI thought classified material was in imminent danger of being exposed to one of America’s adversaries they might have acted with a bit more alacrity.

    Not so with Hillary. Her server was connected to the internet, meaning for a moderately clever adversary there was literally a wire between her computer with its classified information and the Kremlin. As the actual Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server may have been “compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” How could anyone have gained access to the credentials? Um, Clinton’s digital security certificate was issued by consumer-level GoDaddy.

    The last bit seals it: we have a winner. Whether anyone unauthorized got a look at Trump’s stash remains unclear, but we know for near-certain Hillary’s was compromised. And by compromised we mean every email the Secretary of State sent wide open and read, an intelligence officer’s dream. Hillary had no full-time physical security on her server, her server was enabled for logging in via web browser, smartphone, Blackberry, and tablet, and she communicated with it on 19 trips abroad including to Russia and China. It would have taken the Russians zero seconds to see she was using an unclassified server, and half a tick or two to hack (hostile actors gained access to the private commercial email accounts of people with whom Secretary Clinton was in regular contact) into it. Extremely valuable to the adversary were the drafts, documents in progress, a literal chance to look over Clinton’s shoulder as she made policy.

    Unknown is the actual process Hillary used to move classified material to and from her server from the main State Department and other systems. If she transferred data the most likely and convenient way, via floppy disk or USB drive, then she likely compromised the State Department systems as well. Her SysAdm for the home server was a State Department Civil Service employee she hired and so suggests a link between State computer hardware and the Secretary’s own. We’ll never know, as no search warrant was exercised to seize the server and Hillary’s word was taken when she said there was no chance of compromise. All we can say is some intelligence officer in Moscow or Beijing was probably promoted to Colonel off this one.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    The DNI Two-Step and Trump

    September 17, 2022 // 4 Comments »

    If you play poker with a guy named Doc often enough you learn to watch his hands carefully when it’s his turn to hold the deck. Same when the Director of National Intelligence (DNI), the Intelligence Community (IC), and the FBI sit down at the table with the American people.

    The game right now is will he or won’t he; will Attorney General Merrick Garland indict Donald Trump over something to do with classified information held at Mar-a-Lago? Everyone is holding their cards tight to the vest, but the deal just passed to the DNI and the game is about to get serious. Stakes are high; in the pot is the presidency of the United States.

    DNI Avril Haines said that DNI “will lead an Intelligence Community assessment of the potential risk to national security that would result from the disclosure of the relevant documents” including those seized. She said the DNI was aiming not to interfere with the ongoing criminal investigation, to which everyone at the table had better shout “bull.” A review of potential risk means the DNI can show a pair of twos and claim they are kings. The DNI’s whole point is to interfere with the investigation, same as they did with Hunter’s laptop, Russiagate, and the Clinton server before that. The IC is as much a part of our elections now as it ever was in any other banana republic.

    It works like this: using classified methods in secret to look at classified documents the DNI will come to conclusions about what might happen to the security of the United States if those documents were to fall into “the wrong hands,” i.e., the hands of their choosing and certainly a worst-case scenario.

    Without revealing the documents’ contents or why those contents are so important, the DNI gets to say how bad things would be and your role as the public is to believe them and vote accordingly. Since it is a worst-case scenario game, the DNI will no doubt — without any evidence anyone but Trump saw the docs — proclaim nearly the end of the world, that pair of kings. The goal of course would most certainly be to influence the investigation or, more precisely, influence the public opinion outcome. It’s a remake of the January 2017 intelligence community assessment (another form of make it say what you want it to say document) which claimed, without evidence, that Vladimir Putin wanted to put Trump in the Oval Office. Or the 2020 IC letter claiming the Hunter Biden laptop was Russian disinformation.

    Right now the DOJ has very little to prosecute on, basically that Trump held on to some (maybe) classified documents at Mar-a-Lago. Did anyone see them? Was there any chance a foreign adversary got a peek? DOJ needs more than simple possession (albeit a crime) to go after a once and perhaps future president and may not have it. The docs may never have left lock and key. Mar-a-Lago surveillance tapes may not show Boris Badenov walking in and out of frame; enter the IC.

    The DNI document review itself will of course not be made pubic. In discussing which sources and methods might have been damaged it will need to be more highly classified than the original  documents. We’ll never see the Review. But better than the entire document, we’ll all see the leaks, the little snippets meant to take down Trump that will inevitably leach into the New York Times and Washington Post. The IC will provide the ammunition, in carefully measured amounts, DOJ needs to make the unclassified case to the public the classified stuff they’ll never see is a big, big deal.

    Conspiracy theory? Ask yourself how crime scene-like photos have already leaked from the Mar-a-Lago investigation as compared to say, the Jeffery Epstein case. Imagine a crime scene-like photo of children’s underwear strewn across the floor, stuff investigators allegedly found in Epstein’s desk. DOJ and Trump have been bickering about these documents nearly since he left office; why was the spectacular raid held just weeks ahead of the midterms?

    This is by now a familiar song. Remember the role the IC played in the 2020 election in making sure Hunter Biden’s laptop and its contents would not influence Americans.  As the New York Post broke the story that a laptop full of Hunter Biden’s files contained potential evidence of a pay-for-play scenario involving then-candidate Joe Biden just ahead of the presidential election, almost in real time more than 50 former senior IC officials signed a letter dutifully published by Politico claiming the emails “have all the classic earmarks of a Russian information operation.” The signers said their national security experience made them “deeply suspicious the Russian government played a significant role in this case. If we are right this is Russia trying to influence how Americans vote in this election, and we believe strongly that Americans need to be aware of this.” Small world — the U.S. spy chiefs who signed that infamously misleading letter, including John Brennan, Leon Panetta, Michael Hayden, and James Clapper, directed America’s IC while Biden was vice president.

    The letter was an act of evil brilliance, the weaponization of opinion. It played off cultivated prejudices from 2016 that the Russians manipulated American elections. In fact, most of the signatories — James Clapper and John Brennan among them — had played key roles in misdirecting public opinion around the DNC-server hack and later the whole of Russiagate. Among the establishment, the meme quickly became into “the laptop is fake.”

    The major difference in this case was the establishment’s willingness to actively block information. With the letter as “proof” the laptop was disinformation, the media took the handoff. Twitter locked the New York Post‘s account after the Post refused to obey Twitter’s orders to delete its own truthful reporting. Twitter even banned links to the story in direct messages. Facebook announced it would not allow discussion of the issue pending a “fact check,” which never came. Establishment media outlets labeled the laptop fake, social media blocked the news, and the public basically fell in line and voted for Joe without knowing squat about what he and his son Hunter had been up to. Many still do not.

    More recent information exposes the IC plan in greater detail, to include the FBI specifically approaching Facebook and Twitter to tell them not to allow the story. Claims of not interfering with the election were fully false, with a cover up until when it seems not to matter anymore, to boot. Like the whole of Russiagate, it was all made up, and the IC worked hand-in-glove with the Democratic media to hide information. Hunter Biden’s laptop had the potential to change the outcome of the 2020 election, and everyone knew it.

    So be careful when the inevitable DNI/IC leaks about how serious the whole Mar-a-Lago affair is show up. Now, after all that you wanna play another hand of poker with these guys? Sure, let old Doc here deal you in, sucker…

     

     

     

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Biden Foreign Policy Update: Ukraine, China, and More

    September 14, 2022 // 5 Comments »

    What is Joe Biden’s foreign policy? It’s a trick question, because he has no actual policy, no plan, no careful set of chess moves a step ahead of his adversary. America suffers for it.

    Biden’s foreign policy initially began and ended in Afghanistan, and the disastrous withdrawal that left refugees strew around the globe, problem children still being sorted out. There were years, then months, then weeks, then days to plan the NEO — the noncombatant evacuation order — and plenty of planning books for one sitting on desks in places like Seoul.

    Still the basic mistakes were made, including reducing the evacuation from several well-guarded sites (particularly American military bases being closed down) to a single semi-open civilian site at Kabul airport to allow the mobs and the enemy to concentrate, failing to negotiate an end strategy with the adversary (as was done in Vietnam and Iraq; basically let us evacuate peacefully and the place is yours a day later), having no system to prioritize boarding, and not pre-negotiating landing rights in neighbor countries that were to be used as staging areas. Instead, Biden simply sat on his hands while troops on the ground did their best to ad hoc a strategy of evacuating those who Darwin got over the fenceline. Add in breaking the cardinal rule of all NEOs, leave no American citizens behind. Biden’s follow-up to the evacuation has been to pretend it never really happened and not talk about it. America’s reputation, meh.

    That leaves the multidimensional foreign policy mess in Ukraine, Biden’s other big foreign policy move. What is the Biden policy, what is it intended to achieve for U.S. interests, and what is its end game? No one can really answer those questions, a sign of real problems, particularly the lack of an end game other than childish “the other side goes home before we do.”

    Biden’s failure in Ukraine is based on several fallacies. Primarily was his belief “allies” in Western Europe would band together behind the leadership of the U.S. to, well, do something against Russia. Nobody wanted actual war between say Germany and Russia, so the idea was western European allies would send weapons and participate in sanctions and this would cause Russia to withdraw. In the early days, more than six month ago now, the goal was whispered to be the fall of Putin, regime change with possibly even a new pro-western leader in Moscow, another “end of history” moment since the west squandered the first one trying to make Russia into a capitalist franchise. How’s that McD’s in Red Square we worked so hard for doing anyway?

    Euro-enthusiasm was damp to begin with, perhaps for having seen a dozen American foreign policy adventures that required their urgent support turn to mud (Afghanistan was the freshest international effort to fail, preceeded by the famous Coalition of the Willing in Iraq War III of 2003) and so predictably within weeks the arms flow became mostly All-America after some token gifts of aircraft and armor from the Danes, et al. U.S. Special Forces were on the ground in Ukraine soon enough, the CIA active alongside them, and the escalation in both amount of material and sophistication of weaponry running full steam. Ukraine on the ground very quickly devolved from a NATO effort into an American one. Again.

    But the biggest failure of Biden foreign policy in Ukraine was with sanctions, those economic pressure points that were to make the price of continued war too high for Putin to bear. Fears Putin would “cut off” western Europe’s gas turned out to be a joke. European gas and oil were instead simply rerouted to Paris and Berlin via Chinese and Indian resellers, and at higher prices than prewar to boot. U.S. sanctions have actually aided Russia. Though Russia’s energy exports fell by volume, Russia’s export prices have been on average around 60 percent higher than last year. About the only people actually sanctioned so far were American consumers, who paid $5.00 a gallon for gas in the spring and early summer, some dumb enough to even believe they were helping Ukraine via their small sacrifice. Europe may get their chance to help defeat Putin as energy prices may rise by 400 percent mid-winter.

    France and Germany evolved the ability to talk tough and do little of substance, making quite an event out of the end of Russian energy exports via ship while quietly lapping at the pipelines like drunkards. And what demand does not fix supply steps in for. The EU reduced direct imports of Russian crude oil by 18 percent but thanks to Russian re-exporters  India and others, that has little-to-no net change in Russia’s overall oil export volumes. China, too, has helped make up for the EU shortfall, re-exporting into the global market as the largest single buyer of Russian energy. Japan holds that title for as yet unsanctioned Russia coal exports. Even the U.S. itself helps out, buying unsanctioned highly refined oil products from the Netherlands and India that most certainly were made at least in part from Russia crude. It turns out Biden was unaware how hard it is to simply turn off Russian energy exports.

    China imported more Russian gas in 2022 then any previous year. In the first six months of 2022, according to Chinese customs data, China bought a total of 2.35 million tons of liquefied natural gas (LNG), valued at $2.16 billion, from Russia, an increase of 28 percent year-on-year, with the value surging by 182 percent. This meant Russia surpassed Indonesia and the United States to become China’s fourth-largest supplier of LNG. Bad enough news if China was using the LNG itself to grow its economy but the LNG is being resold to Europe as a sanctions buster. As reported by the Financial Times, “Europe’s fears of gas shortages heading into winter may have been circumvented, thanks to an unexpected white knight: China.” They further note “the world’s largest buyer of liquefied natural gas is reselling some of its surplus LNG cargoes due to weak energy demand at home. This has provided the spot market with an ample supply that Europe has tapped, despite the higher prices.” Maybe no one has told Joe the bad news.

    So where are Biden’s allies? The EU (…China, India, Africa, and Japan) may at times talk a great game but are hamstrung by its own energy needs. Joe Biden’s foreign policy response? To travel to Saudi Arabia to bargain away any remaining American self-respect for oil. The UN meantime saw 35 key abstentions, including much of Africa, on a symbolic get-out-of-Ukraine resolution. The head of the African Union explicitly called for the lifting of sanctions on Russia. Brazil and Mexico refuse to condemn Russia. Biden stands nearly alone claiming the liberal world order is at risk. And, um, the G-7 announced they agreed on a plan to impose a set price on Russian oil, literally not that that matters since the resell market is where the action is.

    Meanwhile, as Biden makes plans to send additional sticks and stones to Ukraine, Beijing recently announced plans to waive debt owed by 17 African countries. China plans to invest a further $300 billion in the continent. China’s continues to make inroads into the “Lithium Triangle,” Argentina, Bolivia, and Chile, which account for 56 percent of the world’s lithium supply. Over the years, China has acquired a number of mines in the three countries. In the space of two years, between 2018 and 2020, China invested $16 billion on mining projects there. In an effort to further capture a monopoly in the lithium market, China is also investing in Zimbabwe, home to Africa’s largest lithium reserves, injecting $300 million into its Arcadia Lithium Mine. Elsewhere, the Solomon Islands’ new security pact with Beijing could lead to a Chinese naval base being constructed off Australia.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    Prosecuting Trump

    September 6, 2022 // 9 Comments »

    What would you do if you were Merrick Garland? Would you prosecute Trump? Or would you walk away, concerned about accusations you and the FBI were playing politics?

    Step One appears easy, put off any decision until after the midterms. Trump is not a candidate, key issues driving the midterms (inflation, Ukraine, Roe) are not his issues and though Trump is actively stumping for many candidates, initiating any prosecution before the midterms is just too obvious. Nothing else about Mar-a-Lago has had an urgency to it (months passed from the initial voluntary turnover of documents and the forced search) and announcing an indictment now would be a terrible opening move. So if you’re Garland, you have some time.

    On the other hand waiting until after the midterms can be dangerous if as expected the Republicans do well and take both the House and the Senate. Even with slim majorities Republicans are expected to initiate their own hearings, into Hunter Biden’s laptop and how the FBI played politics with that ahead of the 2020 election. Holding off an indictment until that is underway risks making your case look like retaliation for their case. That’s a bad look for a Department of Justice which claims it is not playing politics. It would look even worse if the Republicans try and cut you off, opening some sort of hearings into the Mar-a-Lago search prior to an indictment. Nope, if you’re Merrick Garland you are caught between a rock and a hard place.

    But there is a bigger question: if you are Garland and you indict Trump, can you win? Candidate Trump is already earning a lot of partisan points claiming he is the victim of banana republic politics, and his indictment ahead of 2024 (it matters zero if he has formally announced or not, he is running of course) will allow him to claim he was right all along. An indictment will allow Trump to fire both barrels, one aimed at Garland and the other at the FBI and these, coupled with the dirty tricks a Republican investigation into the FBI and Russiagate will expose will make Trump look very right. He was the victim of partisan use of justice, and the FBI did try to influence both the 2016 election (with Russiagate) and the 2020 (by deep-sixing Hunter Biden’s laptop claiming falsely it was Russian misinformation) and now is taking a swing at 2024 with the Mar-a-Lago documents. If public opinion moves further to Trump’s side, Merrick Garland through his indictment just reelected Trump to the White House as a sympathy candidate. The spooks call that blowback, and it is a real threat in this instance.

    Any action against Trump must preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest. Garland will have to address the most obvious precedent case involving former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material. Her server held e-mail chains classified at the Top Secret/Special Access Program level which included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.

    Clinton seems to have violated all three statues Trump was searched under. If the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, and after all nobody is above the law.

    The other fear holding Garland back would be that of losing the case outright in court. Classified documents are typically dealt with either via administrative penalties (an officer is sent home for a few days without pay) or as part of some much larger espionage case where the documents were removed illegally as part of the subject spying for a foreign country. Rarely is a case brought all the way to court for simple possession. Most of the laws Trump may have broken require some sort of intent to harm the United States. In other words, Trump would have had to have taken the documents not just for ego or his library or as some uber-souveniers but with the specific intent to commit harm against the United States. Garland certainly does not have that.

    Other factors which typically play into documents cases are also not in Garland’s favor. Despite not being kept in line with General Services Administration standards, the documents appear to have been locked away securely at Mar-a-Lago, the premises itself guarded by the Secret Service. Trump has already turned over surveillance video of the documents storage location, which presumably does not show foreign agents wandering in and out of frame. It is much harder to prosecute a case when no actual harm was shown done to national security.

    Another factor in documents cases involves the content of the documents themselves. The uninformed press has made much of the classification markings, but Garland will need to show the actual content of the docs was damaging to the U.S., and that Trump knew that. Overclassification will play a role, as will the age and importance of the information itself; after all, it is that information which is classified, not the piece of paper itself marked Secret. Garland will know Trump will fight him page by page, meaning much of the classified will be exposed in court and/or the trial will move to classified sessions to shield the information but feed the conspiracy machine. One can hear Trump arguing his right to a public trial being taken away.

    Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States or to obstruct some investigation he would have had to have known about? Without knowing the exact nature of the documents this is a tough prediction but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.

    Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg, as part of a plea deal, will testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.

    The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? Then again, if knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well.

    And then what? If Garland successfully navigates the politics, if he proves his case in court, and if he secures some sort of conviction against Trump which withstands the inevitable appeal, then what? Trump’s Mar-a-Lago “crimes” are relatively minor. Could Garland call Trump having to do some sort of community service during the 2024 campaign a win? Pay a fine? It seems petty. It sure seems Trump wins politically big-picture whether he wins or loses at Mar-a-Lago. If you were Merrick Garland, what would you do?

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    What Three Things Matter Most in the Trump Mar-a-Lago Case? Intent, Intent, Intent

    September 4, 2022 // 8 Comments »

    The three things which matter most in the Trump Mar-a-Lago case are intent, intent, and intent. Trump’s intent — not so much what he did with classified and/or national security documents but what he intended to happen based on his actions — will decide his innocence or guilt if the case ever comes to court. The documents themselves matter much less, and are almost a red herring.

    Wholly separate from January 6 and any other legal action against Trump, the Mar-a-Lago search warrant specifies three sections of law as justification, meaning any prosecution that comes out of the documents found in the search will likely be under one or more of these, a roadmap to the possible prosecution. On the face it seems Trump is pretty close to guilty, assuming at least some of the documents found were marked as classified and his arguments that as president he declassified them are not accepted. You can see an example of the hathotic glee over this here.

    But there is one more step, often overlooked in Twitteranalysis, to prove, and that is intent. The concept of intent is planted throughout American law and says in many cases (to include incitement, most tax evasion, and sedition) that you not only need to have committed some act like stirring up a crowd to violence, you had to have done it with a specific goal in mind, such as stirring them up to violence. It is intent which separates the what from the why. It’s the difference between a mistake, error, misstatement, and an actual crime. The action itself is often easy to prove, while the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Based on the laws cited on the search warrant, it is what matters most in Mar-a-Lago.

    The three laws mentioned in the Mar-a-Lago search warrant all specifically require proving intent — Trump’s mental objective in taking the classified document  — or its equivalent:

    18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says (emphasis added) “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” Intent is mentioned repeatedly throughout the law, sometimes restated as purpose, reason,  and the like. This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases.

    18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” says that the act must be (emphasis added) “willful and unlawful,” a standard likely of general intent. This statute also states anyone who violates it should be disqualified from holding public office, but while the issue would likely get litigated in court, legal scholars broadly believe it couldn’t be used to stop Trump from running for president again in 2024. Only Article II of the Constitution can prescribe the requirements to run for president.

    18 U.S.C. §§ 1519, The “anti-shredding provision” imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.”

    Intent as we’re (and Trump) is concerned about almost always means specific intent, as opposed to general intent. General intent means the prosecution must prove only that the accused meant to do an act prohibited by law. Whether the defendant intended the act’s result is irrelevant. Specific intent means the accused intentionally committed an act and intended to cause a particular result, a wrongful purpose, when committing that act (U.S. v. Blair.) Merely knowing a result is likely isn’t the same as specifically intending to bring it about. (Thornton v. State.) Note that none of the laws mentioned as possible violations require the documents in question to be classified, though it would be hard to imagine prosecutors could prove something not classified could rise to the level of “injuring the United States.”

    In Trump’s case, based on what we know publicly, intent might play out as follows. On the first charge, the Espionage Act, prosecutors would need to show he kept classified and/or other national security information at Mar-a-Lago with the intent to cause injury to the United States. Similar for the third charge, where prosecutors would need to show he kept classified information and/or other national security info at Mar-a-Lago with the intent to impede or obstruct an investigation. The second charge seems more geared toward general intent, that Trump kept classified and/or other national security info at Mar-a-Lago knowing it was wrong without prescribing an outcome (actus reus), such as injury to the U.S. or obstructing an investigation. All easy to say, but hard to prove in court.

    Much of this is over-looked by the Twitteranalysists, who are like Southern Baptists and Satan, assuming the worst always about Trump’s intent to the point where they need not comment. For example, one Blue Check wrote “Will Donald Trump finally face something approximating justice for his five decades or more of apparent and aggressive lawlessness, culminating in a criminal presidency and an attempted coup, with the possibility of treason and criminal espionage? Will the American people finally be rid of this meddlesome would be tyrant-king with millions of followers, leader of a neofascist movement that is literally threatening to uproot and destroy American democracy?”

    Hyperbole aside, the critical question returns to whether or not prosecutors could prove specific intent on Trump’s part for the more serious charges, one and three above. Proving a state of guilty mind — mens rea — would be the crux of any actual prosecution based on the Mar-a-Lago documents. What was Trump thinking at the time, in other words, did he have specific intent to injure the United States (charge one) or to obstruct some investigation (charge three)? Without knowing the exact nature of the documents this is a tough task but even with the documents on display in front of us proving to a court’s satisfaction what Trump wanted to do by keeping the documents would require coworkers and colleagues to testify to what Trump himself had said at the time, and that is unlikely to happen. It is thus unlikely based on what we know at present that Trump would go to jail for any of this.

    Take for example the charges of tax evasion now levied again the Trump Organization (i.e., not Trump personally and not part of the Mar-a-Lago case.) Trump Organization CFO Allen Weisselberg as part of a plea deal will agree to testify against the Organization but not Trump himself as to why the Organization paid certain compensation in the form of things like school tuitions, cars, and the like, all outside the tax system. It will be a bad day for the Organization but loyal to the end, Weisselberg will not testify as to his boss’ mens rea. It is equally unclear who would be both competent and willing to do so against President of the United States Trump. Blue Check enthusiasm aside, he won’t go to jail over this.

    The final questions are probably the most important: DOJ knows what the law says. If knowing the chances of a serious conviction are slight, why would the Justice Department take the Mar-a-Lago case to court? If knowing the chances for a serious conviction are slight, why would the FBI execute a high-profile search warrant in the first place? To gather evidence unlikely ever to be used? No one is above the law, but that includes politics not trumping clean jurisprudence as well. The justice system cannot replace the electoral system in choosing the next president.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump

    The Clinton Precedencies and Mar-a-Lago Search

    September 3, 2022 // 2 Comments »

    It always ends up back with the Clintons, doesn’t it? The laws Trump may be charged under at Mar-a-Lago appear to have been violated by both of the Clintons, yet the two were never searched, never mind charged and prosecuted. Any action against Trump must account for that to preserve what is left of faith in the rule of law applied without fear or favor, or risk civil disenfranchisement if not outright civil unrest.

    The more obvious case involves former Secretary of State Hillary Clinton, who maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Clinton and her team destroyed tens of thousands of emails, potential evidence, as well as physical phones and Blackberries which potentially held evidence. She operated the server out of her home kitchen despite the presence of the Secret Service on property who failed to report it. Her purpose in doing all this appeared to have been avoiding Freedom of Information Act requests during her tenure as SecState, and maintaining control over what records became part of the historical archive post-tenure.

    Clinton seems to have violated all three statues Trump was searched under:

    18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information” says “Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation…” This law is part of the infamous Espionage Act of 1917. Parts of the Espionage Act also includes a gross negligence standard, meaning a prosecutor does not have to prove specific intent in all cases. That Clinton’s server was compromised strongly speaks to the question of injury to the United States.

    18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record…” is a no-brainer for Clinton, given that she destroyed thousands of emails, physical hard drives, and handheld devices.

    18 U.S.C. §§ 1519, The “anti-shredding provision” which imposes criminal penalties on anyone who (emphasis added) “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” Clinton destroyed much of the data during an investigation into her communications, satisfying intent. Her overall intent was to block FOIA requests, and might speak to intent to impede or obstruct some investigation that required the full diplomatic record be made available.

    Absent a trial no one can say conclusively Clinton was guilty of what Trump is likely to be charged with, but the basic elements are there. That is not the point anymore anyway. The point is that if the FBI is going to take a similar fact sets and ignore one while aggressively pursuing another, it risks being seen as partial and political. Any further action against Trump and certainly any prosecution of him must address why Hillary was not searched and prosecuted herself. Fair is fair, after all.

    And then there’s Bill Clinton. Bill made a series of some 79 audio tapes from 1993-2001 with a historian inside the Oval Office, sometimes recording his thoughts and decision making, other times directly recording his phone calls. He kept the raw tapes himself after a book was published in 2009, actually storing them in a dresser drawer inside the White House residence. Judicial Watch sued Bill for the tapes claiming they were presidential records and had to be made available to the public through the National Archives, aka NARA, and that the Archives needed to seize the tapes. Clinton argued they were personal records outside the control of NARA.

    In directly contravening what is happening with Trump, the court ruled in 2012 “NARA does not have the authority to designate materials as ‘presidential records,’ and NARA lacks any right, duty, or means to seize control of them.”

    Judicial Watch argued the Clinton tapes should have been included among the presidential records transferred to the Archivist at the end of the Clinton presidency, but Bill retained them in his personal possession when he left office and refused to produce them for use by Judicial Watch nor hand them over to NARA, considering them his own property just like the underwear and socks he stored the tapes among in his dresser. Judicial Watch lost the case and never appealed, and the tapes presumably remain with the Clintons.

    As with the Hillary case, any prosecution of Trump for dispossessing presidential records must address the precedent set in the Bill Clinton case, i.e., the simple assertion by Bill that the tapes were his personal property. More significantly, going forward on the Trump case the DOJ must address the court’s decision in the Bill Clinton case that “NARA does not have the authority to designate materials as presidential records, and NARA lacks any right, duty, or means to seize control of them.” In other words, for what Trump had in his possession to be government records, someone would have had to designate them as such. The court in Judicial Watch v. NARA said NARA could not make such a designation, and the FBI certainly is not legally the one to do it. Could it be the president himself designates when a record is official and when it is personal?

    Sort of. It appears a president’s discretion on what are personal vs. official records is far-reaching and solely his, as is his ability to declassify or destroy records at will. Per Judicial Watch, “under the statutory scheme established by the Presidential Records Act (PRA) the decision to segregate personal materials from presidential records is made by the president, during the president’s term and in his sole discretion… Since the president is completely entrusted with the management and even the disposal of presidential records during his time in office, it would be difficult for this Court to conclude that Congress intended that he would have less authority to do what he pleases with what he considers to be his personal records.”

    Now to be fair there is a fair amount of case law trying to define more clearly what is a presidential record and what is a personal record. There are also mechanisms to try and resolve differences of opinion between a president and NARA. But none of those mechanisms are criminal, and none seem to involve physically seizing documents under a search warrant. It is clear the PRA does not bestow on the president the power to assert sweeping authority over whatever materials he chooses to designate as presidential records without any possibility of judicial review. But NARA on the other hand cannot do so either. The battleground under the PRA is the courts, not the back rooms at FBI headquarters.

    If Trump were to designate a record as personal, not presidential, and NARA disagreed, it appears the standard mechanism (as shown in the Bill Clinton case) would be to go to court to redesignate the record. Step One (as in the Bill Clinton case) is not for the FBI to seize the record acting as some Solomon-like neutral party between the president and NARA. The bottom line is Bill Clinton was able to hold on to his audiotapes as personal records, and the tapes were never seized by the FBI under threat of the Espionage Act.

    Any attempts to move the Trump case forward as a criminal one will first need to explain how it differs from the Bill Clinton case. If DOJ can’t do that — as well as differentiate Trump from Hillary Clinton and her server — then they have no basis to claim they are enforcing the law without fear or favor. It will be just plain old political hackery, using the criminal justice system to defeat Trump when the electoral system will not. That’s Third World stuff, skippy.

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    Copyright © 2020. All rights reserved. The views expressed here are solely those of the author(s) in their private capacity.

    Posted in Biden, Democracy, Trump