• Archive of "Trump" Category

    Klassified Kapers: Hillary v. Trump

    September 23, 2022 // 4 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 Democracy, Trump

    The DNI Two-Step and Trump

    September 17, 2022 // 3 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 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 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 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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    Posted in 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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    Posted in Democracy, Trump

    What the Mar-a-Lago Warrant Tells Us

    September 1, 2022 // 3 Comments »

    At first read the newly-released Mar-a-Lago search warrant reveals little, with about half its pages redacted. It does suggest two possible narratives going forward, one with severe political implications: the National Archives sicced the FBI on Candidate Trump.

    The warrant does say the search was based on “a significant number of civilian witnesses” to Trump’s actions and the Twitterverse is already alive speculating who that might have been (Ivanka or a maid?) This will generate a thousand conspiracy theories as to who first told the FBI about the classified documents stored at Mar-a-Lago but in the end adds little to key questions. The warrant also includes a single line saying prosecutors requesting to search Trump’s residence had “probable cause to believe that evidence of obstruction will be found” without explaining what was potentially obstructed and how. The warrant makes clear it does not matter if the documents seized were classified, or had been declassified.

    The real meat of the warrant is redacted, some 14 out of its 32 pages. We get the beginning and end but not the important middle. The warrant reiterates the sections of law of concern are 18 U.S.C. §§ 793, “Gathering, transmitting or losing defense information… with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,” part of the infamous Espionage Act of 1917. Also included is 18 U.S.C. §§ 2071, “Concealment, removal, or mutilation generally of an record” and 18 U.S.C. §§ 1519, the “anti-shredding provision” which imposes criminal penalties on anyone who “knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede or obstruct an investigation.” This section of law as a possible violation is what the line had “probable cause to believe that evidence of obstruction will be found” likely refers to.

    The warrant gives us the laws in question, and a slightly fuller accounting of what was found at Mar-a-Lago, including previously when Trump cooperatively allowed DOJ to remove items from his home. The warrant tell us 15 boxes taken voluntarily in May contain NDI, National Defense Information. The documents lean toward the higher end of the classified spectrum. Sub-designators include Sensitive Compartmented Information (SCI), classified information derived from intelligence sources, methods, or analytical processes, Special Intelligence (SI) meaning technical and intelligence information derived from the monitoring of foreign communications signals, and HUMINT Control System, or HCS, meaning intelligence information derived from clandestine human sources. 

    Redacted is the in between, the narrative portion of the warrant which links the laws potentially violated with the evidence found/to be looked for. This is especially important for the obstruction charge, which may be as simple as Trump refusing voluntary access to materials stored at Mar-a-Lago, a conclusion which would also explain the need to obtain a warrant.

    Based on the visible portions of the warrant, two possible scenarios exist.

    One scenario is Trump takes documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May and refuses to give up any more documents; DOJ obtains a search warrant under the above criminal codes to seize the remainder of the documents through the involuntary search in August. Trump is “guilty” of not returning his classified library books and the DOJ used the search warrant to go pick them up. The argument would be whether the documents in question qualify as “presidential records” and thus could have stayed under Trump’s control, or “government records” which should have been under control of the National Archives. Comments by Trump and one of his attorneys suggest this may be the view Trumpworld is taking of all this.

    DOJ seems to be taking a different view, given the unreturned documents appear to be highly classified, and that is to criminalize Trump’s actions. The very first line of the warrant states “The government is conducting a criminal investigation concerning the improper removal and storage of classified information in unauthorized spaces, as well as the unlawful concealment or removal of government records. The investigation began as a result of a referral the United States National Archives and Records Administration (NARA.)”

    Under this scenario, Trump knowingly takes classified documents with him from the White House; the National Archives requests those documents returned; Trump voluntarily returns some of them in May but refuses to return the remainder; DOJ obtains a search warrant under the above criminal codes to seize the documents through the involuntary search in August both to regain possession to safeguard the material against future misuse by Trump and as evidence of his crime of illegal possession; DOJ indicts Trump, criminalizing his possession of the documents instead of seeing that as a legitimate disagreement over what qualifies as  a presidential record. Obstruction charges come from the lack of cooperation in August as shown in May, necessitating the warrant and full-on field search. None of this scenario requires the documents to be classified, or is affected if Trump declassified any of them. This would be consistent with a footnote on page 21 of the warrant stating “18 U.S.C. 793(e) does not use the term classified information but rather criminalizes the unlawful retention of information relating to the national defense.” (emphasis added) In short, the Archives sicced the FBI on Trump.

    Even if either of the above narratives is substantively true, this is not a slam dunk case that will end any potential Trump candidacy. In the former Trump and NARA will argue, likely via motions in front of some court, over which documents were the president’s to control and which were not, a discussion which will break down into technical chatter.

    The latter scenario will generate smoke as it is a criminal matter and potential source of indictment for Trump, but absent some sort of unlikely proven criminal intent (Trump planned to give the documents to the Russians!) and in the face of claims it is all banana republics-style politicization of the judicial, will generate little fire. It is unlikely the Trump journey ends over a document dispute with the National Archives.

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    Posted in Democracy, Trump

    The Mueller Report, January 6, Mar-a-Lago, and the Abyss

    August 26, 2022 // 12 Comments »

    Dear Merrick Garland:

    One of the problems with the Abyss is you often don’t realize how close you are to falling in until too late in the game. Watching the seemingly endless January 6 hearings and Mar-a-Lago search throw mud against the political wall in hopes something sticks, it is easy to forget how close we came to impeaching or prosecuting a president based on false information, and in that process wrecking our system of rule of law. Remember what was at stake — the President of the United States was accused of being a Russian agent. Then there was a backup plan to get Trump, an indictment for obstruction of justice based on obstructing a case which could only have exonerated him, based on false info as it was. It is all worth revisiting as the January 6 Committee and the FBI contemplate empty but politically juicy criminal referrals.

    As we look at gaps in the January 6 story, older questions remain: why didn’t the Mueller Report say the obvious, that the Steele Dossier and all that flowed from it via Crossfire Hurricane, was based on bogus information created by a politicized FBI, that there was no Russiagate? And why didn’t Trump say the same thing, explicitly (he did deny the allegations) and call the Democrats’ bluff, exposing Russiagate in real time for what it was, a Hillary Clinton paid-for smear exercise that was allowed to get out of control? Imagine the Constitutional issues of an impeachment based on false information, especially if it had been upheld by the Senate or Trump otherwise driven from office?

    Special Counsel Robert Mueller, portrayed as the dogged Javert, presented his report on Trump-Russia ties to the public in April 2019. The report tackled two broad questions: did Trump work with Russia to get elected in 2016, and did Trump obstruct justice as the FBI, the Special Counsel, and Congress sought to investigate the first question? Mueller answered questions upon presenting his report to Congress, and then disappeared from public eye. No Late Night, no memoirs, no high brow interviews.

    As to the first question, Mueller was very clear “The Special Counsel’s investigation did not find that the Trump campaign or anyone associated with it conspired or coordinated with Russia in its efforts to influence the 2016 US Presidential Election… the report does not recommend any further indictments, nor did the Special Counsel obtain any sealed indictments that have yet to be made public.”

    But the second question, obstruction, was left open for many of the hopeful. Mueller wrote in Footnote 1091, “A possible remedy through impeachment for abuses of power would not substitute for potential criminal liability after a President leaves office. Impeachment would remove a President from office, but would not address the underlying culpability of the conduct or serve the usual purposes of the criminal law. Indeed, the Impeachment Judgment Clause recognizes that criminal law plays an independent role in addressing an official’s conduct, distinct from the political remedy of impeachment… Impeachment is also a drastic and rarely invoked remedy, and Congress is not restricted to relying only on impeachment.” Mueller also mentioned “the conclusion that Congress may apply the obstruction laws to the President’s corrupt exercise of the powers of the office accords with our constitutional system of checks and balances and the principle that no person is above the law.” Heard that again recently?

    Just about everyone sitting left of political center read that clearly as saying even if Congress could/would not impeach and convict Trump (as the Senate was Republican controlled) they could open a case against him with DOJ that would pend during his term while he had immunity and then whack! come down on Citizen Trump the day he left office. A cardinal rule for prosecutors is to not publicize negative information that does not lead them to indict someone — “the decision does the talking.” James Comey was criticized for doing this with Hillary Clinton during the campaign. Yet most of the Report’s Volume II is just that, descriptions of actions by Trump that allegedly contain elements of obstruction. Some say Mueller wanted to draw a “road map” for a prosecution that would have to take place years separate from his Report.

    Following Mueller was an amazing amount of smoke and noise regarding obstruction, but ultimately Trump was not impeached nor after he left office did anyone (SDNY, DOJ) seek to prosecute him as a private citizen for connections to Russia or obstruction. It all just faded away as impeachment over something-something Ukraine was ginned up in a hurry based on a bogus whistleblower and a non-issue quickly forgotten when the Senate righteously failed to convict Trump. We will never know how close the U.S. got to impeaching Trump for obstruction or a prosecution for the same. We do know the temptation was there.

    What we know now that we did not know then is that there was no Russiagate. All the stuff of the Steele Dossier, the pee tape, the Moscow meetings, Michael Cohen in Prague, was simply made up. Everything investigated by Steele, Mueller, and the FBI never happened. It was all paid for by Clinton operatives for the purpose of smearing Trump during the campaign and after he won, in an attempt to destroy his administration and possibly drive him to resign or be ridded by the 25th Amendment.

    We know know Christopher Steele, paid by the Clinton campaign (after Clinton’s denial, it took a year for congressional investigators to uncover that the dossier was commissioned by the opposition research firm Fusion GPS, working for the Democratic Party and Hillary Clinton’s campaign, paid through the Perkins Coie law firm), seems to have done no investigative work. Instead, his reputation as a former British intelligence officer was purchased to validate a dossier of lies and then traffic them to the FBI and journalists. One of Steele’s key “sources” is the now-arrested Igor Danchenko, a Russian émigré living in the United States whose trial for perjury is scheduled for this autumn (Steele was introduced to the Russian by Fiona Hill, then of the Brookings Institution. Hill would go on to play a key role in the Ukraine impeachment scam.) Danchenko completely made up most of what he told Steele about Trump-Russian collusion.

    When he did not make up stuff himself, Danchenko was spoon-fed lies by Charles Dolan, a Clinton campaign regular (Fiona Hill introduced Dolan to Danchenko). Ironically, Dolan had close ties not only to the Clintons but to the Russians as well; he and the public relations firm where he worked represented the Russian government and were registered as foreign agents for Russia. Dolan is credited with, among other things, making up the pee tape. Dolan also fed bogus info to Olga Galkina, another Russian who passed information to Danchenko for inclusion in the Dossier. Galkina noted in e-mails that she was expecting Dolan to get her a job in the Hillary administration.

    Mueller mentioned the Steele Dossier in his own Report numerous times, and was well aware the Dossier played a major role in the FBI investigation of Trump. Did Mueller also come to know it was bogus, fake, a fraud, campaign fodder paid for by Clinton? If so, Mueller remained silent and so much for the rule of law. Why? The FBI, internally we now know dubious of many of the Dossier and other claims handed to it by various Clintonites working undercover, stood by its justification for the full investigation. And so much for the rule of law.

    “The fact pattern that John Durham is methodically establishing shows what James Comey and Andrew McCabe likely knew from day one the Steele dossier was politically-driven nonsense created at the behest of the Clinton campaign,” said Kevin Brock, the FBI’s former intelligence chief. “And yet they knowingly ran with its false information to obtain legal process against an American citizen. They defrauded not just a federal court, they defrauded the FBI and the American people.” The 2019 Horowitz Report, a look into the FBI’s conduct by the Justice Department Inspector General, also made clear the FBI knew the dossier was bunk and purposefully lied to the FISA court.

    What would have happened had some entity brought charges against Trump for obstructing an investigation itself based entirely on false information and false pretenses? At the very least all hell would have broken loose in Washington. For example, would an FBI whistleblower have emerged, concerned his beloved Bureau was about to throw its reputation away on a political assassination while the Bureau et large remained mum co-conspirators?

    Would Trump have revealed the mountain of information he for some reason still holds close today? For example, Trump, knowing exactly what he ever did or did not do vis-a-vis Russia, knew the Dossier to be bogus but stuck simply with short-form denials. At what point in a Trump trial would it have come out that nearly 100 percent of the information against him came from the Clinton camp as campaign smear material? Is it even legally possible to be found guilty of obstructing an investigation that could have only found you guilty by employing fraud against you? Obstruction requires a showing of intent and how could Trump intend to obstruct an investigation he knew could not lead to anything because all the basic facts are false?

    A prosecutor need also look deeply to ensure he can prove intent as necessary, that an act — perjury, for example, was done with the intent to mislead and was not simply a mistake. That’s the difference between a mistake, error, misstatement and a true lie, what it was intended to accomplish, a crime. The act is easy to prove, the thought pattern, what was in someone’s head, the mental objective behind an action, much less so. Imagine those issues being debated in a divided America during say a presidential election campaign? Rare is the challenge to peoples’ belief in the rule of law. Was the Deep State ready to go that far?

    That’s the Abyss. Perhaps future historians of January 6 and Mar-a-Lago will tell us how close we really got to it.

    Respectfully,

    Peter

     

     

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    Posted in Democracy, Trump

    Five Stages of Mar-a-Lago Grief

    August 20, 2022 // 10 Comments »

    Another week, another silver bullet missing Donald Trump. The endless roll of waves of crimes, accusations, near-indictments, and just bad words slandered away which we had all endured for the past four years happened again. We went from Trump has classified material under lock and key at Mar-a-Lago to a group of people paying $1800 to fly a banner reading “ha ha ha ha” over the resort to mock a Trump staying 3000 miles away in New York. On cue the regulars on MSNBC and CNN brought out their running dog former CIA and FBI officers to tell us tick tock, the walls are closing in, this time it will stick, Trump is going down, he’ll be in jail before he runs again for office. If we can’t stop him with the electoral system we’ll use the judicial system. This. Is. The. One.

    Except it isn’t. The offense itself — some variant of mishandling of official materials — is muddled from the git-go by the former president’s former ability to declassify anything, a power he claimed he already used before he left the White House to magically spay the documents. An Espionage Act prosecution is a non-starter, requiring as it does the showing of intent to harm the United States. It seems the documents, however classified and/or sensitive they are, were securely stored at Mar-a-Lago and the risk of exposure was very minimal. The FBI nonetheless threw the kitchen sink at Benedict Donald with a full-on raid, to enforce the Presidential Records Act, a law that actually has no prescribed penalty associated with it. Given the presumed age of some of the documents and non-impact, it was sort of like not returning a semi-important library book.

    The story will drag on a while, buoyed by leaks supposedly telling us politically salacious details about the secret documents (the single handwritten doc stored by Trump will likely take on lore akin to the grassy knoll for Trump conspiracists) but in reality “Mar-a-Lago-gate” is fast on its way to closing, joining Russiagate, Ukrainegate, Stormygate, January6gate, and all the others off to the side of history. It is close enough to being a dead story that it’s worth helping our progressive friends through the five stages of grief — Denial, Anger, Bargaining, Depression, Acceptance — that accompany something once so important passing. RIP.

    Denial:  Are we really doing this all again? There is no way tRump is not guilty of something. There is no way way the Orange Man can finish his term without jail time. Mueller laid out a roadmap to post-term prosecution. Wait until we see his taxes. January 6 had to have been sedition or treason or truancy. It could not have been sort of a violent but potently nothing, amiright? OK, fine, now that he is no longer protected as president and is a regular citizen again the gloves are off and he is going to jail. There is no way Trump is going to run again unless he campaigns from prison. You gonna ignore (checks notes for name) Cassidy Hutchison? Whatta you mean Georgia still hasn’t filed an indictment for election fraud, it’s been how many years? Wasn’t his grabbing the wheel from the Secret Service driver on J6 enough? What about that we call it J6 now? We were so close with the Emoluments Clause, and then the DC hotel business. The walls have to be closing in. Dig up Ivana, her coffin is probably full of purloined documents! Repeat after me: “I know we’ve said it many times before, but this time…”

    Anger: Mueller time should have worked but he wimped out! I paid $29.95 on eBay for a Mueller bobble head doll and you’re telling me the guy had nothing at all, not a pair of twos to play? Sanctimony (“Nobody is above the law, you know”) runs inverse to memory (“But her emails!”) in the poli-grieving process. If you’re gonna take a shot at the king you better not miss. And Garland has been putting in a lot of range time. I Googled “RICO” and per Wikipedia this has to work unless the DOJ is in on it, too.

    Bargaining: So Dotard had top secret documents, probably was going to sell them to the Russkies, so he’s guilty under the Espionage Act which carries the maximum penalty of death, like the Rosenberg’s or someone else, this is it, the silver bullet! What the hell is wrong, there were hundreds of peeResident Brown Shirts at the Capitol, can’t you idiots get one of them to flip and accuse Trump? What about the Alfa Bank and the Yota smartphones, the hotel deal, what about the pee tape for gosh sakes! You made us believe there was a pee tape and this whole Trump thing was going to be over before it ever really began. Where is the pee tape, we were promised a pee tape. And a hero, we want a hero and all you gave us was Robert Mueller, Michael Avenatti, Michael Cohen, Adam Schiff, Dr. Fauci (optional), Liz Cheney, and now Merrick “Milquetoast” Garland. Somebody do something to fix all this and we promise never to use the expressions “Period. Full Stop. End of story” or “Let that sink in” or “I’ll just leave this here” or “methinks” again on Twitter.

    Depression: Yea, that Joe Biden, what a guy, woo hoo. Yes, I guess we all lost our minds again, this time over what is probably “presidential memorabilia,” stuff that would have ended up anyway in Trump’s presidential library on “indefinite loan from the National Archives” if Trump had just gone through channels like Obama and Bush.

    Acceptance: OK, well, Russiagate didn’t work. Trump doing something naughty with the Ukraine didn’t end in an impeachment conviction. Michael Avenatti is in jail. The deal with Stormy Daniels and the other Barbies might have been sleazy but it was not criminal. And his 700 sexual assaults! So, alright, nobody could make a  indictment out of all that fuss over security clearances for Don and Eric. The Southern District of New York could not find something to charge Trumpkins with vis-vis property taxes or valuation stuff no one really understood, and the various walls never closed in. Maybe Trump will be forced to release his taxes if he runs again, there’s a bright side, gotta be something in those taxes, right? I mean, who takes the Fifth except guilty people, the Orange Man himself said that when he was talking about Hillary but it applies to him and the Trump crime family.

    The family, that’s right, that’s his Achilles Heel! Ivanka had some sort of sweetheart deal with China or something even before Hunter Biden to trademark her fashion things, and Jared sold NYC property too cheaply, and Don Jr., had his hand in some golf course thing I think I remember, in Sweden or maybe Scotland. And didn’t Trump flush secret documents down the White House pooper, that was wrong, right? There is still time for Trump’s accountant to flip and tell us all, got to be some indictable stuff in those books, eh? Or maybe Michael Cohen, he has a another book coming out, that will likely cement his role as Fredo and send tRump to the slammer. I hope his cellmate is ironically named Tiny. And Merrick Garland is not really done with the documents, is he? I mean, he hasn’t indicted Trump for anything over them yet — yet — but it could be just nine dimensional chess with Garland waiting for the exact right moment to bring in something from the Articles of Confederation or the Stamp Act showing Trump is guilty. He’s gotta be guilty of something. Right? We still believe.

    Maybe next time.

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    Posted in Democracy, Trump

    Classified Right Outta Mar-a-Lago

    August 17, 2022 // 9 Comments »

    What is a classified document? Trump seems to have lots of them, and the FBI sure wants them back.

    In the wake of my first book critical of the State Department’s Iraq Reconstruction program, Diplomatic Security began a deep dive into my life in an attempt to find something over which to prosecute me. A colleague inadvertently passed on a bit of personnel gossip via his official email to my Yahoo! account, and the chase was on.

    Diplomatic Security claimed I was in possession of “classified” material at home and referred my case to the Justice Department. The email in question was simply labeled “For Official Use Only,” (FOUO) a standard tag then automatically applied to all email sent by State in the unclassified system (a wholly separate email system existed for true classified — Confidential, Secret, Top Secret — messages.) FOUO was a non-standard “classification” made up by State and was being used to pin me against the wall and force me to resign under threat of prosecution. Luckily someone familiar with classification law at the Department of Justice prevailed, and I was not charged. The so-called secret in the email, that a mutual friend thought someone’s boss was a jerk, stays safe with me to this day.

    The classification system for national security documents, while designed to identify documents to protect from people without the proper clearances, including foreign intelligence officers, has been often misused over the decades. It is very easy to slap a classified label on a document — persons using the State Department’s classified email system must classify what they write as either Confidential, Secret or Top Secret. If the document does not fit those categories it does not belong on the “class system” to begin with, though this is often misused as well. State workers who use the class system almost exclusively for their work might pass on a lunch invitation via the same system to avoid jumping from computer to computer.

    Many documents correctly classified on creation, such as a military convoy movement time, lose their secretness within a few hours after everyone sees the convoy rumbling down the road. The classified bit was knowing in advance the convoy would depart a certain place at a certain time and after that passed, meh. Lastly, documents are often over classified for ego purposes, the sender feeling more important if his pet project is labeled Secret as opposed to FOUO or simply left unclassified. That all said, some documents deserve their classification and more, particularly those which reveal sources and methods, say the name of our agent deep inside Putin’s inner circle. Stuff like that is rarely ever even put into writing; if the president wants to know he is usually orally briefed.

    Classification can also be misused in other ways, say to “hide” a document from future Freedom of Information Act searches and delay its release. Important people like to think they do important things and rightly or wrongly most of what the president or the Secretary of State touches ends up classified at some level. Over classification thus plagues the government, slowing down the legitimate transfer of information.

    Except for the president, once classified it is very hard to unclassify or downgrade a document not subject to automatic declassification. Anyone can create a classified document by slapping the word Secret on it, but very few people can later take that document and change it to unclassified. The assumption is the original classifier was correct. The biggest exception of them all is the president himself, who holds the authority to change or declassify documents. This is not done willy-nilly; there is a process to follow which leaves a decision trail and usually includes some sort of consultation with the organization (State, CIA, DOD) which originated the document. The president cannot wave his hand over a storage unit of banker’s boxes and declassify the lot. Also, the president can unilaterally authorize officials from a foreign government to receive classified national security information. It is a very broad mandate, stemming from the fact that the entire classification system is based on Executive Orders more than law. Of course there are also the questions of  “legal” and “sensible” that apply to all presidential actions but the latter is up to the voters, not the FBI, to decide.

    Classified documents are supposed to be stored in classified containers (safes) or spaces (up to bank-like vaults.) All these rules about classified documents are supposedly taught to you as part of being issued a security clearance, though in practice people like the president or SecState have staffers who take care of producing, storing, and disposing of classified. If a breach occurs, the first question is not nyah nyah nyah you got caught! but what level of document was exposed and how was it exposed. Did you inadvertently leave it out on your desk instead of putting it into a safe inside the guarded embassy during lunch, or did you intentionally publish it to your Instagram? Was it an out-of-date means-little document or a current list of human assets in Ukraine? How much damage was done and what was the intent? Because there’s classified, and then there’s classified, bubby. Those maximum penalties bandied about by the media would typically require a significant exposure with intent to do harm.

    People inside government and the military commit security violations all the time, almost all minor and inadvertent. Punishments can be as mild as being told not to do it again, up to loss of pay and forced time off to actual loss of job and even prison. But you gotta work at it to go much further than your own boss and the security team.

    We don’t know exactly what documents were found at Mar-a-Lago, and we don’t know what classification they individually held or how they were stored. We do know Trump as president had the authority to declassify any of them, something which will figure into any defense he has to make. We also know the type of document and what it contains matter a lot in any penalty which may follow the FBI raid. We also know what Trump did with the documents is critical. If they never left a dark, locked basement storage area at Mar-a-Lago and were likely not reviewed by anyone since leaving the White House, punishment will be unlikely unless politics interferes.

    Since millions of government employees have at one point handled and mishandled classified, there is plenty of precedent out there on action and punishment. For example, one of the most well-known cases is Sandy Berger, former national security adviser to President Bill Clinton, who stole classified documents from a secure reading room at the National Archives. He pleaded guilty in 2005 to a misdemeanor charge of unauthorized removal and retention of classified material (via the Espionage Act, the same charge the media says Trump may face) and was sentenced to probation, community service, and a fine. General David Petraeus received only probation for intentionally sending highly classified military documents via commercial email to his lover/biographer.

    Former Secretary of State Hillary Clinton maintained an unsecured private email server which processed classified material on a daily basis. Her server held at least 110 known messages containing classified information, including e-mail chains classified at the Top Secret/Special Access Program level, the highest level of civilian classification, that included the names of CIA and NSA employees. The FBI found classified intelligence improperly stored and transmitted on Clinton’s server “was compromised by unauthorized individuals, to include foreign governments or intelligence services, via cyber intrusion or other means.” Yet Clinton was not prosecuted nor penalized. Any prosecution of Trump would need to address that precedent.

    All this needs to be kept in mind when evaluating the FBI raid at Mar-a-Lago. The FBI, its reputation already in tatters post-Russiagate, might also have kept it in mind before deciding to stage another likely losing full-on assault against Trump.

     

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    Posted in Democracy, Trump

    They Need the Indictment to Beat Trump 2024

    August 14, 2022 // 8 Comments »

    Get it yet? The point of the raid on Mar-a-Lago and the J6 hearings is aimed at one man. Nope, not Donald Trump, Merrick Garland. It is aimed at one end: get Garland to indict Trump for something and failing that, to indict the highest ranking person near Trump in hopes it will rub off on the near-certain-to-be Candidate.

    The reason for this is that nothing else worked. Democrats pointed the full national security apparatus at Trump, with the FBI doing yeoman-like duty, and turned Robert Mueller loose with unlimited resources for a full year to find something Russian to indict Trump on, going as far as to suggest he obstructed an investigation which found him innocent. Alice in Wonderland stuff, that. After wading through reams of FBI investigative malfeasance to include but not limited to lying to get FISA warrants and accepting an obviously wholly-fictitious dossier as fact for months, Mueller could not find a single issue worthy of bringing to an actual court. So Democrats impeached Trump, twice, one of which was little more than a policy difference over a Ukraine few outside the DC Bubble cared about then but sure as hell do now. The aggressive Southern District of New York (SDNY) was unleashed on Trump’s finances and real estate work, given a grand jury to take testimony, and still came up with nothing indictable. And that is leaving aside the reality the IRS has had Trump’s full tax records for decades of audits and again came up with nothing indictable.

    Dems’ whole remaining strategy for 2024 is to make people believe Trump does not support America’s democracy. Propaganda/journalism/TV hearings failed to sway many minds. To succeed it’s going to require something real, an actual court finding Trump actually guilty of an actual crime that meets the expectations set after flinging around words like treason and sedition like angry monkeys. Some goofy tax problem in a state court or empty process crime will not be enough. It is hard to imagine Trump taking with him some classified documents will be enough, despite the high-profile raid on Mar-a-Lago.

    With the Democratic midterm massacre scheduled for November, Dems know they now have about 12 weeks left to indict Trump or someone near him. Republicans are already drooling over the prospect of shutting down the FBI and the J6 Headline Committee Machine and opening their own investigation into Hunter and Joe Biden’s financial tomfoolery in Ukraine and China. So it is now or never for the Last Man Who Can Trump Trump, Merrick Garland.

    Garland seems a rare person in 21st century Washington, a man with a moral compass. Appointed Attorney General by Joe Biden, many Dems expected Garland to be an angry beast of a prosecutor. After all, the only reason he does not now sit on the Supreme Court (he might have saved Roe!) after being nominated at the end of the Obama administration was Republicans refused to allow him a Senate hearing. The unfairness of it all is supposed to be eating at him, and he should be out of blood to take down the Republicans once and for all by slashing Trump at the knees.

    Garland instead seems lost in a kind of Jeffersonian Zen state, promising to follow the law and respect the civil liberties of all. In an interview’s worth of softball questions on NBC Nightly News, Garland sounded more like Mr. Rogers than a prosecutor atop his fiery pulpit. Yes, the DOJ is investigating Trump, et al, alongside the J6 Committee. Yes, it’s a criminal investigation, that’s what DOJ does. No, he has not decided to prosecute because all the information is not in. No, it doesn’t matter Trump is a former and maybe future president, the law is blind to that. Listeners were left waiting for him to say “And now anything else troubling you, young fella?”

    The problem is despite all the cries about democracy under attack, there seems little to indict Trump over, and Garland seems to sense that. The original Great Dem Hope, incitement (often expressed as treason or sedition by pundits) is not mentioned much anymore. Among other problems, incitement requires a showing of intent — that the speaker wanted the crowd in this case to attack the Capitol not just protest there — and no witness has come up with anything remotely applicable and Trump’s own words fall far short. The idea that Trump spoke and the mob rioted seems attractive on TV (one thing followed another so they must be related, right?) but does not meet any legal test worthy of actual indictment. Merrick Garland knows that, even if Liz Cheney pretends she does not. The J6 people can pitch a criminal referral but that changes nothing for the man who has to actually decide if there is anything legally actionable he can take to court. It’s the gap on display between no standards and very high ones. It is very unclear anything Trump took with him to Mar-a-Lago would rise to the level of indictment after he blames staff and the movers for inadvertently packing the wrong stuff.

    What will be left for Garland is some sort of charges of conspiracy to defraud the United States. This would have to take the form of persons planning to set in motion some sort of process which would have negated or at least scrambled the results of the 2020 election sufficiently that Trump could have claimed a victory and see what happens next. Garland is under huge pressure from the Democratic left, who know their time in power is numbered in weeks, to squish and squeeze the goofy rhetoric Trump’s lawyers were spouting into an indictment along those lines.

    This indictment, if it comes at all, will probably not include Trump who, like any client, is not responsible for what his lawyers (or the movers) said or did. Instead, Trump lawyers John Eastman and Jeffrey Clark will likely bear the brunt of any legal opinions rendered, while the press and Dems try to drag the stain off them on to Trump. Both men recently were aggressively served with search warrants. Both men came up with complex schemes to negate the 2020 election, with no chance of success, just to placate their client, Trump. Eastman mumbled about old election law to “spin a yarn” the vice president might be able to exclude state-certified electoral votes based on speculative vote-fraud suspicions. Clark said even though the Justice Department found no evidence of voter fraud the fact that it was still investigating while Trump’s campaign claimed other election irregularities could be used to nudge contested states into auditing their elections.

    If Garland is pressed to indict Eastman and Clark, he’ll face accusations that his jurisprudence is politically motivated. He’ll also face practical problems such as seating an unbiased jury. But if he thinks the cases will lead him to Trump, he’ll hit a stone wall. Trump’s conversations and interactions with his lawyers — the stuff that can reveal intent and state of mind — are protected by both attorney-client privilege and by executive privilege. The latter will also cover nearly every official who directly interacted with Trump. Garland could easily find himself facing a Supreme Court fight over the limits of such privilege which would run past 2024.

    As for the work of the lawyer’s themselves and their possible indictment, Orwell would call what they might be accused of thought crimes. The legal advice was frivolous. It had no connection to the riots. It was never acted on. It is unclear what impact the opinions made anywhere, even their impact on Trump himself. In any normal world drafting a legal memo is hardly a crime. Yet they may yet prove just barely enough to bring an indictment against Trump’s lawyers and minimally satisfy the Democrats’ blood lust. The last hope is their indictment will stick to Trump and that — that — will dog him into defeat where everything short of shooting someone on Fifth Avenue has not. Call it a long shot.

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    Posted in Democracy, Trump

    Marbury v. Madison v. Joe Biden v. Abortion

    August 6, 2022 // 1 Comment »

    Joe Biden doesn’t have the the guts to do what people are suggesting he do, be the first president to stare down a Supreme Court ruling and refuse to abide by it. It wouldn’t matter anyway.

    Abortion in American should never have been allowed to turn into the judicial and moral circus that it is here and nowhere else on earth. Women even under Roe faced 50 different sets of rules and laws, abortion clinics tried to hide what they did, religious child help centers tried to pretend abortion was an option they offered, and the scene was full of protesters and clinic escorts and dozens of other things which separated a woman from her doctor and possibly her clergy in a regulated environment in which to make a very difficult decision. But that was the world we created out of professed concern for women and for the unborn. It was a system which said the fight would never really end, just change as the Supreme Court changed and saw things differently from 1972 to Roe and Doe in 1973 to Dobbs in 2022 to…

    The clarity of Dobbs is unfair to the mess which followed: the Court was very clear, abortion regulation was to be decided on the state level, not the quasi-federal level of Roe and Doe. You know how that works; New York allows third trimester abortions when necessary and Ohio prohibits any abortion past fetal heartbeat, even in cases of rape or incest, and so forth. Dobbs was not intentioned to set off a round of how can we detour around what the Court really said and give abortions in National Parks.

    The biggest change since Roe is chemical abortions. Already pre-Dobbs over 50 percent of all abortions were done chemically, with the mother taking one or two medicines to provoke a miscarriage. While typically done under professional supervision (miscarriages can result in dangerous bleeding, and incomplete miscarriages can be fatal to the mother) a single pill taken by a woman on her own will in most cases provoke a safe miscarriage. This is what will replace the horrible “coat hanger” abortions of the pre-Roe days according to many advocates.

    If America is good at anything, it is smuggling drugs across state lines, and so certainly “abortion pills” will be readily available to many woman in non-abortion states, albeit illegally the same way other drugs smuggled across borders are illegal and occasionally even prosecuted. In the crudest of practical terms, it is unclear how many women will not have access to an abortion post-Dobbs. However, Biden is being pushed to do something more. He is being pressed to refuse to abide by the Supreme Court.

    Joe Biden’s White House is considering executive action to make abortion pills accessible nationwide despite state laws restricting the drug. The administration may seek to use executive power granted under the Public Readiness and Emergency Preparedness (PREP) Act to declare a public health emergency to allow abortion providers and pharmacists to distribute chemical abortion pills, even in states where abortion is heavily restricted.

    Senators Cory Booker and Elizabeth Warren, along with 16 of their colleagues, urged Biden to take such action in a July 13 letter. “While it is impossible to immediately undo the damage inflicted by the Supreme Court’s repeal of Roe v. Wade, the Biden-Harris Administration must use every tool within its power to fight back,” the letter said. “We urge you to declare national and public health emergencies over Americans’ access to reproductive care.” Technically, powers available under the PREP Act would shield doctors, pharmacies and others from liability for providing abortion pills to people across the country. The exact same law was just used with broad popular support to shield manufacturers of Covid drugs and treatments from legal liability in order to get vaccines deployed expeditiously. The use of such law to expand presidential power past a decision by the Supreme Court to the exact contrary, however, would be devastatingly controversial.

    If Biden were to take such a decision, it would put him in immediate legal conflict with those states that choose to regulate chemical abortions and more importantly, the Supreme Court itself, which just ruled this was a states’ right to do, not a Federal one. No president has ever previously directly denied the Supreme Court. Nixon resigned rather than follow or resist the Court’s order to hand over incriminating evidence during Watergate. While many worried Trump would refuse to obey the Court in this situation or that, in the end the Cassandras were wrong, again, and the fight never happened.

    The first draft of America circa 1789 or so did not grant the Supreme Court this power of review. Marbury v. Madison, arguably the most important case in Supreme Court history, was the first U.S. Supreme Court challenge to apply the principle of “judicial review” — the power of federal courts to void acts of Congress in conflict with the Constitution and declare other government actions “unconstitutional.” Written in 1803 by Chief Justice John Marshall, the decision played a key role in making the Supreme Court a separate branch of government on par with Congress and the executive.

    The actual facts surrounding Marbury are irrelevant to the abortion discussion. Relevant, however, is even though the instant case found Secretary of State James Madison had acted unconstitutionally, the underlying matter was resolved without a head-to-head conflict between the executive and judicial and the doctrine stood. With Marbury a new tool in governance, there exist only three ways to fight back against a Supreme Court decision: Congress can pass a new law (in this case legalizing abortion across the states), the Constitution itself can be amended or the Court can overturn itself, as it just did with Dobbs.

    That means should Biden try for option four, executive action, his quest will be Quixotic. Sitting in some Texas government official’s outbox is no doubt a completed challenge to any such action ready to file, meaning a lower court would almost immediately stay Biden as things got sorted out (that is what happened to some of Trump’s early immigration legislation, the so-called Muslim Ban, giving the false impression of early victory to progressives angrily hanging around airports in that instance.) The challenge to Biden would quickly find its way back to the Supreme Court, which would correctly uphold itself. The same result is likely should Biden try some sort of clever end-around, such as abortion clinics on Federal land. The use of PREP would also invite a legal challenge over the point of public health emergencies, and post-Covid utterly politicize what’s left of public faith in public health.

    As an aside, despite the noise, there is no likely path toward prohibiting interstate travel for abortions, say a pregnant woman driving from Texas to New Jersey and thus nothing there for Biden to worry over. Crossing a state border for abortion services is not likely to become illegal. Apart from the Constitution’s unambiguous support for interstate commerce, the House recently passed legislation affirming interstate travel for abortion, and no state has any opposing law on its books. And of course no one from Ohio is arrested for gambling coming home from Vegas, either.

    Criminalizing activities done out of state, or preventing interstate travel, is basically prevented by the Constitution’s Privileges and Immunities Clause, which holds a citizen of one state is entitled to the privileges in another state, from which a right to travel to that other state is inferred. There’s also Bigelow v. Virginia which dealt directly with the issue of out-of-state abortion. The Supreme Court concluded “a state does not acquire power or supervision over the affairs of another state merely because the welfare and health of its own citizens may be affected when they travel to that state… It may not, under the guise of exercising internal police powers, bar a citizen of another state from disseminating information about an activity that is legal in that state.”

    That a gesture like declaring a PREP emergency accomplishes nothing practical does not mean it would not appear politically attractive to Democrats as they head into what promises to be a very rough midterm election. Biden, however, does not seem like the kind of guy who wants to go down in history as the only president to thumb his nose at the nation’s highest court, and all that for no actual gain. Biden knows any action he could take would simply be struck down by the very court that put him in this place. It is called “checks and balances,” Joe, look it up, and it works well in these cases.

     

     

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    Posted in Democracy, Trump

    Biden at 500 Days

    July 1, 2022 // 2 Comments »

    The Joe Biden administration at about 500 days in office tests the limits of those who claimed 501 days ago “anybody” would be better than Trump. With the threat of nuclear war now well alive, Biden presides over the highest gas prices, the worst inflation, and the saddest stock market in lifetimes. It is not morning in American as much as late Sunday afternoon and raining.

    Start with the record breaking vacation time. It became a meme during the Trump years to criticize him for weekends at Mar-a-Lago, and to point out how much the Secret Service paid him for their accommodations. Yet as he marks Day 500, Biden is preparing for another weekend scram, on track to take more vacation than any other of his predecessors. So far since taking office Biden spent 191 days away from the White House vacationing in either of his two Delaware properties, at Camp David or on Nantucket. Trump spent 381 days on vacay but over four years. Go Joe!

    And as for those Secret Service room bills, they pay them for every president, as the Service is prohibited from accepting “gifts,” even the free accommodations necessary to protect the president. At Biden’s home in Delaware he charges the Secret Service $2,200 a month rent for a cottage on his property. He made $66,000 in total off the Service in 2013; contemporary figures are not available but they tally up, just like Trump and the others. Hillary bought a second house in upstate New York just for the Secret Service anticipating her victory in 2016.

    But what of the time Joe Biden has spent in the office, how have the 500 days gone so far? Biden succeeded primarily in engineering a new form of war in Ukraine, not quite Cold and not quite Hot. Not Cold as in 1945-1989, because American Special Forces may soon be on the ground in Kiev and American ships in the Black Sea, and Ukrainians have boasted how American intelligence and targeting information have killed Russian ships, tanks, and generals. With no regard to what leakage into the global black arms market might mean, Biden is sending billions of top-notch weapons into the nation with the avowed aim of bleeding out Russia. When something like this was tried in Afghanistan in the 1980s, the U.S. had the common courtesy to do it through the CIA and keep at least some of it secret. No more. Vladimir Putin, in return, has reminded the world several times he has nuclear weapons he is not all that opposed to using. Joe Biden has succeeded where presidents since 1989 have failed — he sends Americans to bed at night worrying about nuclear holocaust. And that is his greatest foreign policy accomplishment absent the clusterfutz evacuation from Afghanistan and a soon-to-really-happen trip to forgive the Saudis for their sins and become the first president since the 1970s to overtly beg for more oil.

    (For the record Trump was the only president in some 20 years who did not start a new war during his term, and the only one in that same rough time period who made an effort to seek peace with North Korea, a country Joe Biden continues to ignore as official policy. When asked in Seoul if he had a message for Kim Jong Un, Diplomat-in-Chief Biden said “Hello. Period.”)

    In other Leader of the Free World accomplishments, Biden’s actual leadership was shown when Mexico snubbed him, refusing to attend the Summit of the Americas because Biden would not also invite Cuba, Nicaragua, and Venezuela, all Cold War hissy fits Joe is keeping alive for a new millennium. “There cannot be a summit if all countries are not invited,” Mexico’s president said at a press conference. “Or there can be one but that is to continue with all politics of interventionism.” It really is 1980 again! Additional leadership has been shown in Europe, where Germany and France agreed to U.S. demands to stop buying Russian energy but just not for a couple more months, okay? To make it look like something is being leadered around they have stopped buying energy delivered by ship as a face saving gesture, just as they keep lapping up the massive pipeline delivered materials. But Biden did travel twice to Europe and declared “America is back,” so there’s that.

    As for domestic achievements, everyone in America knows about Joe’s gas pains, which he disingenuously claims like a hubby caught with lipstick on his collar are not his fault. Biden apparently sees no connection between his sanctions against Russian energy (which seek to remove significant amounts of oil from the world markets) cutting supply at a time when demand is rising, and inflationary prices. The good news is the sanctions on Russia, well, no, it is not good news, Russia is still fighting away in the Ukraine which means the sanctions have so far failed in their primary function. Biden will give them more time apparently, as the U.S. is not seeking negotiations to otherwise curtail or end the fight.

    Biden further sees no connection between his failure to anticipate a baby formula crisis and hungry children. A smarter Biden would have one of his interns sit down with The Google today and make a list of everything that is affected by supply and demand, and of those things, jot down which are only made in a single factory. That accomplishment alone would eclipse the rest of Biden’s domestic agenda, which consists today entirely of pretending historic inflation is Putin’s fault.

    Of course that last line is not fair, as Joe did finally pass a $1.2 trillion infrastructure spending bill which in no way could have helped contribute to inflation by dumping all that money into an economy still chasing goods scarce from those naughty supply chain issues. Then there was that $1.9 trillion Covid relief bill (less than half of American approve of Biden’s Covid handling) now that everyone feels better which in no way could have helped contribute to inflation by dumping all that money into an economy still chasing goods scarce from those naughty supply chain issues. Plus wages are up, pouring more money into an already inflationary economy.

    The media actually listed Joe’s Biggest Achievements for us in case they were hard to pick out, to include appointing a boatload of judges, 80 percent of whom are women and 53 percent are people of color (“judges that reflect our nation”) which in no way reflect our nation and in no way is racist because you obviously fight back against racism and gender inequality by promoting people based on race and gender. Biden also strategically secured America by overturning the Trump ban on transgender people in the military. In fact, the White House brags it has the first majority non-white Cabinet in history, with most women in the Cabinet, including first woman Treasury Secretary, first LGBTQ and Native American Cabinet officials, and first woman Director of National Intelligence as if someone was giving out prizes for those things.

    But it is always best to go to the source, the White House itself with its own list of “record firsts” in Joe’s presidency. You can read them yourself, but you’ll run into the same problem everyone else does — it is all boasting with no links, sources or details attached. So we hear Joe was “most significant by economic impact of any first-year president” but with nothing more. Um, okay. A lot of the rest of the stuff, unemployment and child poverty, got better by the numbers but there is not a word about how anything Joe did caused those things. It is kinda like taking credit for a comet on your watch, especially given how much “not our fault” garbage is being tossed around when someone brings up inflation or fuel prices.

    As for Democratic issues of importance like gun control, abortion rights, and climate change, the home town stuff, Biden rates a zero. The EPA continues to recommend Flint, Michigan residents use filters in their homes to remove lead. Joe has driven home the idea that unless a president has a super majority in both houses and now, the Supreme Court, you better not expect much from him. Indeed in Biden’s case he can’t even wrangle his own party, with two key Democratic senators, Joe Manchin and Kyrsten Sinema, stymieing Joe. Biden for his part predicted Republicans would have an “epiphany” after Trump left office, but that has not yet materialized. The expected Democratic midterm loss currently scheduled for November 2022 will not help. And we haven’t even talked about Biden’s Dead Man Walking lifestyle and walk-it-back gaffes.

    So it has only been 500 days, plenty of time left. But to date the Biden administration has strained those statements about how anyone but Trump would be a better president.

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    Posted in Democracy, Trump

    Was There a Coup Attempt on January 6?

    June 25, 2022 // 10 Comments »

    Was there a coup attempt on January 6? To answer yes, there had to have been some realistic path by which some action on that day could have resulted in Donald Trump remaining president of the United States.

    Watching the show trial on television and the saturation coverage of the same across all media, you could just believe it might have been possible. The TV show is dedicated to convincing a lay audience they came “that close” to tossing away their democracy as some mechanism almost clicked into place to leave Trump in power. It would be easier to take the Dems much more seriously if they would just coolly and in detail outline just how Trump could have stayed in office without the military, who were clearly not taking a partisan stance on January 6. Absent that, you had political theatre and a riot, not a coup attempt. Think back to the 1960s and imagine how occupying the administration building on campus was going to stop the Vietnam War in its tracks. This is politically much ado about not much except Democratic Party 2024 election engineering.

    So here it is in a sentence: Democrats, take two minutes from your hate telethon and tell us how it would have worked. How was Trump going to stay in power?

    The answer is there is no answer, and that should end the matter. Anything that has zero pathway to success is not a coup attempt. To stage a coup you need tanks on the White House lawn, and America again instead transitioned peacefully from one administration to another. That, that hard reality, is what is wholly missing from the Democratic January 6 Committee hearings and all the frou-frou that accompanies them.

    Could Trump have used the Capitol riot to declare martial law and stayed in power? No. The president cannot use the military domestically in a way Congress does not agree with. The “web of laws” Congress enacted to govern the domestic activ­it­ies of the armed forces — includ­ing the Posse Comit­atus Act, which prohib­its the use of federal troops to execute the law without express congres­sional author­iz­a­tion — would stop Trump cold. Accord­ing to well-settled prin­ciples of consti­tu­tional practice, the pres­id­ent cannot act in a way Congress has forbid­den unless the Consti­tu­tion gives the pres­id­ent “conclus­ive and preclus­ive” power over the disputed issue. Martial law has been declared nine times since World War II and, in five instances, was designed to counter resistance to Federal desegregation decrees in the South. Although an uneasy climate of mutual aid has always existed between the military and civilian law enforcement, Department of Defense personnel are limited in what they can do to enforce civil law. They can’t extend a presidential term. So that business about putting tanks on the White House lawn? Somebody has already thought it through.

    The Insurrection Act of 1807 is the one stat­utory excep­tion to the Posse Comit­atus Act that does allow the pres­id­ent to deploy the milit­ary domest­ic­ally, but by precedent they can be used to suppress armed insur­rec­tions or to execute the laws when local or state author­it­ies are unable or unwill­ing to do so. Their role is limited and in no way puts the milit­ary “in charge” or suspends the normal func­tions and author­it­ies of Congress, state legis­latures, or the courts. More importantly, troops in the streets have nothing to do with what votes are already in the ballot boxes. Same for seizing voting machines or ballots; they were already counted by January 6. The president has no authority to simply “suspend” the Constitution.

    Anything Trump might have tried to do required the military to play along, something there is no evidence to support. Just the opposite. Chairman of the Joint Chiefs of Staff General Mark Milley took a number of steps in the final days to ensure any dramatic orders out of the White House would be confirmed, checked, and likely delayed indefinitely.  While some of Milley’s concerns raise Constitutional issues of their own, particularly his right-to-the-edge-of-the-line actions to interfere with the nuclear chain of command, clearly Milley was in no way priming his forces to participate in any sort of coup.

    Lastly, it is critical to point out how deeply the idea of legal civilian control of the military, and the separation of powers, is drummed into America’s officer corps. Unlike many developing world situations, America has a professional officer corps well-removed from politics, and which sits atop an organization built from the ground up to respond to legal, civilian orders. Like a religion. If Trump had ordered the 82nd Airborne into the streets of Pittsburgh their officers would have most likely said no.

    With martial options well off the board, Trump’s coup would have needed to rely on some sort of legalistic maneuver exploiting America’s complex electoral system. The biggest issue is the 20th Amend­ment, which states unambiguously the pres­id­ent’s term ends after four years. If Trump some­how succeeded in prevent­ing Joe Biden from being inaug­ur­ated, he would still have ceased to be pres­id­ent at noon on Janu­ary 20, and Nancy Pelosi, as Speaker of the House, would have become pres­id­ent. There is no mechanism to stop that succession, ironic as it would have been.

    That said, the most quoted Trump plan ran something like this: “Somehow” even though the Electoral College had met on December 14 and decided Biden was to be president, Republican-friendly legislatures in places such as Arizona, Michigan, Wisconsin, and Pennsylvania would “ignore” the popular vote in their states and appoint their own pro-Trump electors. The law (the 19th century “Electoral Count Act“) does allow legislatures to do this in some never-used extreme situation if states have failed to make a choice by the day the electoral college meets (no matter that date had passed by January 6.) Never mind the details; the idea was to introduce enough chaos into the system to force everyone in the whole of the United States to believe the only solution was to force the election two months after voting into the House where Vice President Pence himself would vote the tie and choose Trump for another term.

    In addition to every other problem with that scenario, Pence had no intention of doing any such thing. Trump maintained “The Vice President has the power to reject fraudulently chosen electors” when in fact Pence’s January 6 role was entirely ceremonial, presiding over the House and Senate as they receive and certify the electoral votes conveyed by the states, and then announcing the outcome. Location did not matter; although the riots delayed the final announcement, which still occurred at the Capitol, there is nothing in the Constitution which requires the receipt and certification to take place there. Pence could have met with Congress at a Starbucks in Philadelphia and wrapped up business. Pence, in a 2022 speech, said “I had no right to overturn the election. Frankly, there is almost no idea more un-American than the notion that any one person could choose the American president.”

    To imagine a dystopian fiction where one state legislature blows past the vote to chose pro-Trump electors is difficult. To imagine several doing so simultaneously to gin up enough Trump electors, and then to imagine the Electoral College changing its mind, is beyond possibility. There was no indication Republicans in these important states considered going along with this anyway. Pennsylvania’s top state Repub indicated his party would follow the law and award electors to the winner of the popular vote. He stated the state legislature “does not have and will not have a hand in choosing the state’s presidential electors or in deciding the outcome of the presidential election.” Besides, the borderline states all had Democratic governors who would have refused to approve after-the-fact Trump electors.

    To be fair, such goofy schemes were also in the wind in 2016, when Trump was elected and many progressives were looking to little-known Electoral law for some sort of fail-safe. They failed, too. Despite the many claims about how close we came to democracy failing, in reality the complex system proved at least twice in recent years to be made of stiffer stuff.

    There were a few left-overs that were far-removed from January 6, specifically a very unclear plan to weaponize the Department of Justice to declare something, nearly anything, about the election invalid enough to provoke a Supreme Court fight. The details matter and did not really exist, plus the Constitution is very clear the election of the president is primarily a state matter and absent a good reason (as in 2000 where  the problem was one state and urgency begged) needs to be decided at that level. There was also the matter of Attorney General Bill Barr refusing to cooperate with Trump and resigning, followed by his successor refusing to cooperate, followed by threats by a whole raft of senior Justice Department officials threatening to resign. And for the record, there was no incitement by Trump. For all the talk of sedition and coup no charges will ever be filed.

    What is missing most of all from the Great January 6 Democratic Telethon is a statement the system worked. The Constitution held. Officials from Vice President Pence on down did their jobs and stood up for the democratic system. All the fear mongering, all the what-ifs Dems now hope will distract Americans from their own party’s failings at governing — war, inflation, gas prices, gun and crime violence, a growing despair — miss the most important point of all. In the end, no legal mech­an­ism was ever going to allow Trump to continue being pres­id­ent. There was no attempted coup.

    The real problem is the Dems can’t win in 2024 on what they have to offer. Most of their domestic agenda is shot. They have no clear plan for the economy. With all the efforts to prosecute Donald Trump for something (including January 6) having failed, their sole strategy is to make people believe Trump tried to overturn the last election, and having not succeeded, chose the odd path of re-embracing the electoral process. There is room to judge Trump’s actions. But that judgment must not come from a kangaroo court, if you want to talk about preserving the rule of law. We were never even close to losing our democracy. The system worked is the real message echoing from January 6.

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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 Democracy, Trump

    Justice, Albeit Late, at Oberlin College and Gibson’s Bakery

    June 19, 2022 // 2 Comments »

    An African-American college student was arrested for shoplifting and a culture war erupted at Oberlin College, Ohio. He’s black now, the term African-American itself becoming offensive to some in the interim, and the war is mostly over. Ultra-liberal Oberlin lost after six years of legal wrangling. Oh, and the college owes $33 million in defamation damages to the surviving white people (two of the plaintiffs died of old age while the trial dragged on) who own a bakery it defamed over racial issues.

    It was 2016 and Donald Trump had just been elected president, defeating candidate Clinton. Everyone was certain Trump’s victory was the End of Democracy and was anxious to claim their victimhood in the New Order.

    Enter Oberlin College, arguably the most socially liberal school in America. Students protested the inauthenticity of food at the school’s Afrikan (sic) Heritage House and complained the cafeteria sushi and bánh mì were prepared with the wrong ingredients, making a mockery of cultures. There was scrutiny of the curriculum, and a student wanted trigger warnings on Antigone. African-American students wrote a letter to the school’s president with 50 non-negotiable demands for change in Oberlin’s admissions and personnel policies. And all that was seen — in 2016 — as a good thing. Such were the times.

    Then on November 9, 2016 (just the day after Donald Trump was elected), three black students from Oberlin College were arrested for attempting to steal wine from nearby Gibson’s Bakery. The shop was as much a part of the traditional Oberlin scene as the statues and college green. The white owner confronted one student, who ran from the store. Outside, the owner detained him, and while waiting for the police was attacked by two other black students. The students eventually entered guilty pleas, and were convicted. They read statements recanting allegations of racism against Gibson’s. Nothing connected the theft with Trump or racism except… racism.

    Upon hearing of the arrest Oberlin’s Student Senate immediately declared the incident a case of racial profiling, and without investigating passed a resolution calling for a boycott of the bakery. The college’s administration sent an email to students implying Gibson’s discriminated on the basis of race. Then-Oberlin Dean of Students Meredith Raimondo (she’s now vice president for student affairs at Oglethorpe University) handed out flyers supporting the boycott. As protests kicked into higher gear, Oberlin College provided a break room stocked with coffee and pizza in a nearby school building. Dean Raimondo also agreed to reimburse a student for money spent on gloves given to protesters to combat the cold weather. Raimondo had the college’s food distributer cut off food from the bakery. Gibson’s business suffered.

    The problem was the bakery did not racially profile anyone. The students had been shoplifting. The college acted against the bakery (“tortious interference with the business relationship” said the court) based on nothing but its underlying anger at Trump’s election. After some weak efforts to claim protection under the First Amendment (the legality of the protests was not in question), demand a mistrial, and blame everything on the students alone, the College dragged the case out for so long two of the Gibson’s owners died while waiting for the verdict.

    The case eventually ended up at the Ohio Court of Appeals, who knew a textbook defamation case when it saw one, and quickly fined Oberlin College $33 million in damages. Oberlin can but has not yet appealed the decision further. It was left to Ohio Attorney General Dave Yost to tweet the ruling represented “The cost of woke.” He was mocked on Twitter, of course.

    As knee-jerk reactions driven by an anti-Trump political agenda were a mark of the Trump Administration years themselves, so will defamation lawsuits, like the one with Oberlin, be a symbol of the post-Trump era. Defamation is a statement that injures a third party’s reputation, either as libel (written statements) or slander (spoken statements). Proving defamation requires showing four things: 1) a false statement purporting to be fact (Gibson Bakery is racist); 2) publication or communication of that statement to a third person (the flyers and protests); 3) fault (e.g., intent) amounting to at least negligence (Oberlin ignored the shoplifters’ guilty pleas and other facts regarding the underlying crime); and 4) damages (Gibson lost business.)

    The Gibson case aside, the most likely source of defamation today is the media, given their reach via “publication.” So why aren’t there more defamation suits? First, the courts in the U.S. traditionally set the bar high to preserve the 1A’s duty to constitutionally-protected opinion. Historically the courts have also granted leeway to anyone, journalist or not, who appears to defame public figures. The idea is that if you put yourself out there, you’re expected to take a few slings and arrows. This is what allows tabloids like the National Enquirer to get away with making up stories about celebrities as their mission statement. But defamation as a business practice was once upon a time what bottom feeders did, not regular practice for the media of record and college deans.

    Things may be changing given the free-for-all media environment which relies on defamation to generate clicks. In addition to the big money Oberlin case, two years ago Covington Kid Nick Sandmann successfully sued CNN for defamation to the alleged tune of $25 million. The media falsely accused Sandmann of racism on the National Mall when he and some fellow high school students were confronted by actual racists. Sandmann’s suit charged CNN journalists “maintained a well-known and easily documented biased agenda against President Donald Trump and established a history of impugning individuals perceived to be supporters of the president.” They asserted CNN and the others would have “known the statements to be untrue had they undertaken any reasonable efforts to verify their accuracy before publication.” In other words, they should have committed journalism, the finding of facts, in lieu of packaging what was actually nothing at all into a steamy piece that fit an existing agenda.

    In another example, John Paul Mac Isaac came to own Biden’s laptop after the president’s son abandoned it in his repair shop, the Mac Shop, in April 2019. The repair shop owner recently filed a defamation suit against the Daily Beast, CNN, and Politico seeking at least one million dollars in compensatory and an unspecified amount in punitive damages. Those media outlets claimed that Isaac was a liar who stole Biden’s laptop.

    The mind set of 2016 seems so long ago. People like AOC and her Squad, Michael Avenatti, and Andrew Cuomo were thought of as likely presidential candidates. Yet justice grinds on. Just check with the people who have to pay for it at Oberlin College.

     

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    Posted in Democracy, Trump

    Five Unanswered Questions for the January 6 Hearings

    June 18, 2022 // 9 Comments »

    Imagine a BLM member’s trial in which the prosecution simply played videos of acts of violence over and over, even acts not related to the defendant in question. Sound fair, a quest for truth, a process to establish facts? No? Well, welcome to the Third Trump Impeachment, aka the January 6 televised hearings.

    Having watched a lot of PBS back in the day, I kept waiting for hearing chair Bennie Thompson to appear on my screen asking for a donation to “stop the violence” and promising me a Democratic tote bag if I phoned in my pledge of $50 or more. That was the tone from, as they say, gavel to gavel. But there are so many important things being left out in the Dems desire to showcase violence. Here are just five of the hearings’ unanswered issues.

    1) Dems and groupie Liz Cheney constantly use words like coup, insurrection, incitement, sedition, and treason. Most of them are lawyers and are well aware those words have specific legal definitions. They’re real fighting words, not to be thrown around like casual slurs against a man who once was president and has a very good chance of being president again. So let’s add one more: indict. It is easy to be the bully, ganging up unopposed on TV to say nasty words. But they only count if the Department of Justice indicts Trump for one of them and seeks to bring him to trial. That’s why we have a judicial system, to prevent organs of government from simply making accusations against citizens without due process. Indict him or drop it. If there are not grounds to indict, drop it. Democrats, put up or shut up.

    Like the members of the Warren Commission before them, the people claiming the accepted narrative about January 6 is beyond reproach are the same ones blocking any court challenge that might challenge it. Potential game-changers are wish-washed away as conspiracy theories, not to be spoken of. You will not hear the word indictment raised this week in the hearings.

    2) Are we finally going to hear who Ray Epps is and what the role of the FBI was on January 6? It would take a simple series of questions from the committee: Mr. Attorney General, how many undercover people did you have on the ground on January 6? How many of them traveled to D.C. with groups they had elsewhere previously infiltrated? What was their purpose on January 6? What were their rules of engagement—in other words, what were they allowed to say or do? Could they scream, “Yeah, let’s go!” and lead people forward? Could they give statements to the media misrepresenting the aims and mood of the crowd without revealing their identity? Did any of the agents stray from being after-the-fact accessories and instead become provocateurs?

    You would think, at least, that the raw number of undercover officers on the ground on January 6 would be an easy question to answer. Yet when Representative Thomas Massie asked Attorney General Merrick Garland at an earlier hearing in October 2021 if any federal agents or assets entered the Capitol or incited others to riot, Garland refused to answer. Massie played a video of a man on January 5 saying “we have to go into the Capitol,” and asked Garland if that man was a fed. No comment, said Garland. That man was Ray Epps, president of the Arizona Oath Keepers, who is also seen on video organizing the first group to breach the Capitol. That is just one minute after a pipe bomb had been found, as if the acts were themselves a conspiracy. This all appears to have happened even before Trump finished his “incitement” speech.

    Epps refuses to answer journalists’ questions about whether or not he is a federal agent and is still a free man. Why? Under oath and before the January 6 committee, someone should ask FBI Director Wray, Attorney General Garland, and Ray Epps to give a yes or no answer to this question: Did Ray Epps work for or with the federal government? Why won’t they ask that question? You will not hear Epps’ name on the televised hearings this week.

    3) While the Justice Department has called the inquiry into January 6 one of the largest in its history, why has no information come to light on the pipe bomber? Two bombs were planted near the Capitol. Official Washington is one of the most heavily surveilled spots on earth. Why haven’t the Capitol Police allowed the release of more than a few minutes of the 14,000 hours of the pre-riot security-camera footage? Social media only shows the riot in process. The surveillance video would show what happened before. Who planted the pipe bombs?

    4) Why, and on whose order, did Capitol police allow 300 people to simply walk into the building without resistance on the afternoon of January 6? And who was the man in a bicycle helmet whom video shows initiating the window-smashing that ended in the shooting of Ashli Babbitt? Why was he welcomed behind police lines once things got out of hand?

    5) We’ve heard over and over people died on January 6, and indeed they did. At what point will Ashli Babbit’s killer, who was never punished and never faced a trial (simply an inquiry; because Congress exempts the Capitol Police from the Freedom of Information Act, the family is forced to sue “for notes and summaries of what the officer said regarding the shooting and the reasons he discharged his weapon.”) testify? When will the Committee start showing the video of her being shot by Capitol Police? Babbitt, wearing a Trump flag like a cape, was one of the rioters who smashed the glass on the door leading to the Speaker’s Lobby of the Capitol. A plain clothes Capitol Police officer, without warning, fired a shot and Babbitt fell into the crowd and died. It was the only shot fired in the riot. A SWAT team just behind Babbitt saw the situation differently and never fired on her or those with her. Babbitt was unarmed and was not resisting arrest because the cop never got that far. He just shot her.

    Though these issues will be missing from the hearings, what is missing most of all from the Great January 6 Democratic Telethon is a statement the system worked. The Constitution held. Officials from Vice President Pence on down did their jobs and stood up for the democratic system. Trump was never going to retain office. The whole thing is flim-flam, the truth another victim to Democratic desperateness to frame Trump for something, anything, ahead of 2024.

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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 Democracy, Trump

    What Will It Take to Come Home to the Democratic Party?

    June 17, 2022 // 1 Comment »

    Raised in 1970s Ohio meant I was raised Democrat. In my area of industrial northern Ohio, Republicans were old people, or those younger, good natured guys from the Jaycees who always joked about “next year” at the get-out-the-vote rallies. It’s true. I used to write for The Nation, even a couple of articles for The New York Times. I didn’t change much, but my party did and one day a few years ago I woke up being yelled at by women in pink hats clamoring I was a racist if not an outright Nazi for supporting free expression they ignorantly called “hate speech.”

    I didn’t leave the Democratic party as much as I was abandoned. With the midterm crushing of the party coming as sure as the good guy wins in professional wrestling (big in Ohio) I can’t say I’m ready to go home. But if the Dems want to lure people like me back, here are some things they’ll need to do.

    Abortion. I am a practical person, and one in favor of people making decisions not government, and support some level of access to abortion. It is obvious in cases of the horrors of rape and incest. What beast wants a woman already victimized to be forced to give birth to her attacker’s child — hey, look, he has his father’s glowing red eyes! I understand religious objections, but remember the 1A protects all religion, even that which isn’t really religion. I understand Roe as an imperfect mess of judicial creative writing, but representing a distasteful flavor of compromise I could live alongside. But Dems, third trimester abortions? And because I support limited abortion rights you say I also have to buy into a whole full-meal deal of unrelated-to-everyone-but-you LGBETC rights and trans stuff? Didn’t you get the memo that trying to bundle all these things with the Equal Rights Amendment and with various abortion measures cost you support, not earned it? Stick with the basics post-Roe.

    Jettisoning the Blue-Anon rhetoric is a natural follow-on. I barely made it through four years under Trump hearing daily the sky was falling, the walls were closing in, and that damn clock would not stop tick-tocking. Every tweet by Trump was not the end of democracy, fall of the Republic, wrap party for the rule of law, etc. When the Supreme Court moves against your wishes, I don’t need to wake up to a headline like “The Supreme Court is a Tool of Tyrants” or worse, “Time for Canada to Offer Gender Asylum to American Women.” Same for when the Electoral College or the Senate does not bounce your way. These institutions were crafted by the Founders to achieve a balance of power, and they do it fairly well. Accept that “balance” means occasionally things will go the other way. The same court that rewrote society implementing Roe can do it again taking down Roe without you losing our mind.

    I just can’t support a party where people like Elizabeth Warren go on national TV and act like they just mainlined a warm syringe full of Tourette’s every time something goes wrong. So no more Op-Eds demanding a packed Court, or a change to equal representation in the Senate, or the end of the EC, or more weight on the popular vote, or any of all that. Instead shut down MSDNC and its hemophilia of fake news. I’m tired of the media taping a transcript the chosen candidate’s debate performance on the national refrigerator door.

    The Founders, speaking of them, still matter as examples of the more perfect Americans despite their flaws. As a group they were only in the 20s, kids, who for the first time in history created a nation based on a synthesis of ideas; they wrote the code running underneath the United States matrix. They risked “Our Lives, Our Fortunes And Our Sacred Honor” to do that, a dandy example for pols today not willing to stand up and offer an opinion without polling advice. Yes, yes, most of them participated in the ugly slave trade of their day. They weren’t perfect but they are deserving of those school names. Find something more important to fritter away political capital on. What we see in modern wokeness is the difference between a small mind and a great mind, between people who ignore their own flaws to pick at others’ out of time and out of context. Men like Jefferson were prime movers, the thing that lead to the next thing. That is worthy of a statue.

    The party should be a Big Tent, but that does not mean we all have to give up our seats for the meme-o-the-day. The Democratic party’s pandering to one racial group (black lives do not matter any more than any other lives, such as my own) or gay folks until they got boring and the party switched to the All Trans Network. Don’t leave more people out, leave more in. Stop elevating shallow clowns like AOC and her Squad. They are hypocrites, demanding we not judge by color or gender while demanding white men to the back of the bus. Look back to the 1950s and 60s Civil Rights movements, which stressed the inclusivity of human rights, not special treatment for every high school kid wanting to annoy his parents by wearing dresses junior year.

    Many of us currently outside the tent care as much about the First Amendment as any of the above issues. The 1a — speech in all its forms — is the fundamental right, the one that supports and drives forward all the others. That beautiful haiku of the 1A embraces everything from Jefferson’s eloquence to rotten pornography. It certainly protects what you call hate speech, something that if it started with good intentions has gone on to suck dirt in hell and mean anything that offends anyone anytime. The Supreme Court has found over and again nasty stuff is protected by the 1A, rightfully so, as in the past simply using words like “gay” has been prohibited. Let them sing, the rude and radical, and get back to fighting bad speech with better speech. And leave Elon alone. Twitter before him sold censorship, the promise your pretty little flower people would never encounter challenging ideas in that social media stream, an anathema to a democracy that must thrive on the marketplace of ideas. Right now social media isn’t a barometer, it’s a mirror.

    No more wars, okay? Nobody, after two decades of failures and lies and body bags in the Middle East, voted for Joe Biden to restart the Cold War. The United States, I thought, had learned some sort of lesson in the pathetic finale in Kabul, until Old Joe reminded us it was 1980 again by his watch. How in the hell did I end up worrying about nuclear war again? Trump (say what you will, I’ll wait) did not restart the Cold War. He did not go to war as you said he would with China, Venezuela, or Iran. He even tried to make peace with North Korea. I want more of that, not this.

    And please, Dems, if you want some of us back, really retire Hillary. She represents little beyond corruption, from the sleazy Arab “contributions” to the Clinton Foundation (which dried up alongside her political chances, funny thing) to a near-endless appetite that lead her to make terrible decisions on things as mundane as running her own email server to avoid FOIA requests. In 2016 we asked for change and we instead watched the party drive Bernie out to the marshes (leave the gun, take the lox.) In 2020 we asked for change and we got the sad skeleton of Joe Biden. So no more rigged primaries. No more Hillary and her “debates” with Martin O’Malley playing the role of the Washington Generals. Learn the lesson before 2024. Take a second look at some of the bright minds on your back bench to see if they might be part of the party’s future if you would like people like me to be part of the party’s future. Otherwise we’re going to vote Trump, or sit it out.

    That’s a lot of ask. And spare us “but the other party does…” because that line of argument sounds like “did to, did not” and that failed even fourth grade logic. People understand nobody is perfect, as is no party. Give it all some thought as you’re licking your wounds over the loss of Roe, and the very likely thumping of the midterms. You still have two years to find a real candidate and avoid the easy outs of clones like Harris, Beto or Buttigieg. It’s a hint when someone does not have what it takes when they’re available to run for the White House because they lost locally and were given a patronage job for four years.

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    Posted in Democracy, Trump

    The Specific “Why” Behind Russiagate

    June 4, 2022 // 5 Comments »

    Show of hands? How many still believe Trump and Russia colluded? That Trump is somehow beholden to Russia? That Hillary Clinton had nothing to do with “Russiagate?” Anyone? In the back, Bueller? And we’ll get to the large group chanting “it doesn’t matter” and “but Trump did, too…” in a moment, so stick around.

    Hillary Clinton lied about Russiagate. The latest information shows Hillary paid experts to create two data sets, one purportedly showing Russian cellphones accessing Trump WiFi networks, and another allegedly showing a Trump computer pinging an Alfa Bank server in Russia. The latter was supposedly how Trump communicated incognito with his handlers in Moscow Center. We’ve seen the lipstick on the collar before but how do we know for certain this time?

    Because former Clinton campaign lawyer Marc Elias on May 18, 2022 during the trial of his former partner, Michael Sussman, swore to it under oath. Special Counsel John Durham brought Sussman to trial for allegedly lying to the FBI, perjury, claiming he was not working for a client when he was actually surreptiously representing the Clinton campaign. Elias admitted he briefed Clinton campaign officials about the fake information, including Hillary herself, Clinton campaign chair John Podesta, spokesperson Jennifer Palmieri, and policy director Jake Sullivan, now Joe Biden’s national security adviser. Elias also personally briefed campaign manager Robby Mook.

    In a bombshell during the Sussman trial, Mook testified Hillary Clinton signed off on the plan to push out the information about the link between Trump and Alfa Bank despite concerns the connection was dubious at best. Mook’s testimony is the first confirmation Clinton was directly involved in the decision to feed the Trump-Alfa story to journalists. It explains some of her later actions.

     

    Here’s the timeline which reveals the specific “why” behind Russiagate:

    — On July 5, 2016, FBI Director James Comey issues a statement clearing Hillary Clinton of any wrong doing in connection with her private email server. This removes what was thought to be her last major hurdle to nomination.

    — Wikileaks releases information taken from the DNC servers which showed, inter alia, the Clinton campaign’s efforts to disparage Bernie Sanders. The leaks break during the Democratic Convention (July 25-28) and threaten to split the party, with the Sanders wing considering walking away from Hillary. This development means crisis time for the Democrats.

    — Clinton’s sign off to begin the Russiagate dirty tricks campaign (as Mook testified to, Smoking Gun One) had to have been in late-July (likely concurrent with the Wikileaks disclosure and the Democratic National Convention 2016, which would have created a sense of panic inside the campaign) because on or about July 28, 2016 CIA Director John Brennan briefed President Obama on Hillary Clinton’s plan to tie Candidate Trump to Russia as a means of distracting the public from her use of a private email server. A highly-redacted document states “We’re getting additional insight into Russian activities from [REDACTED]. Cite alleged approved by Hillary Clinton on July 26 a proposal from one of her foreign policy advisers to vilify Donald Trump by stirring up a scandal claiming interference by the Russian security service.”

    — The FBI then opened its omnibus investigation into all things Trump-Russia, Crossfire Hurricane, on July 31, 2016, a Sunday, coincidentally only four days after Clinton initially approved the dirty tricks campaign and as the DNC ended with Clinton’s nomination. Crossfire was ostensibly opened based on information on Trump campaign member George Papadopoulos relayed by an Australian diplomat. Many believe the timing of the investigation suggests it was based on disclosures to the FBI of the Steele Dossier from inside the Clinton campaign, not diplo gossip about Papadopoulos. Many believe a cut out like Sussman, or Steele himself, ran the dossier data to the FBI the same way Sussman ran the Alfa Bank data to the FBI.

    — Brennan may have been personally tipped off by Jake Sullivan, now Joe Biden’s national security advisor and then the most likely “foreign policy adviser” inside the Clinton Campaign running the Russiagate caper, as Brennan as CIA Director briefed Obama on Clinton’s July 26 sign-off (Smoking Gun Two) on the dirty tricks campaign while his own agency would not come to the same conclusions until September 2016, when it forwarded to the FBI an investigative referral about Hillary Clinton approving “a plan concerning U.S. presidential candidate Donald Trump and Russian hackers hampering U.S. elections in order to distract the public from her email scandal.” If not a tip off, then how did Brennan, always a public Hillary supporter, know before his agency did?

    — Aiming for an October Surprise (i.e., a major, game-changing political event breaking in late October, early enough to influence the election but too late for the opposition to effectively rebut), Sussman then meets with the FBI to lay out the Alfa-Bank and smartphone story on September 18, 2016.

    — The FBI (via fraud) on October 21 obtains the first FISA warrant against a Trump team member.

    — Following a press release by Jake Sullivan, Hillary tweeted on October 31, 2016 Trump had a secret server and it was communicating with Russia (Smoking Gun Three.) She knew her campaign paid to create that information and push it into the public eye via Sussman (to the FBI) and a woman named Laura Seago.

    Seago was an analyst at Fusion GPS, the people who commissioned the infamous Steele dossier on behalf of Clinton. Seago testified at the Sussman trial she, Fusion co-founder Peter Fritsch and another Fusion staffer went to journalist Franklin Foer’s house to pitch the story, telling him it had been vetted by “highly credible computer scientists” who “seemed to think these allegations were credible.” Foer ran the story on October 31, 2016 strongly suggesting the server connecting Trump with Alfa Bank was used as a clandestine communications tool, a smoking gun in the world of espionage. The story stated “the knee was hit in Moscow, the leg kicked in New York.”

    Need it even clearer? Comey cleared Clinton of legal trouble over her emails. The last barrier to nomination was breached. Then Wikileaks disclosures threatened to derail the convention. A distraction was needed. Mid-convention Hillary signed off on the Russiagate dirty tricks campaign per Mook and Brennan and then just days later the FBI opened Crossfire Hurricane based on either flimsy foreign gossip and/or the Clinton paid-for Steele Dossier.

     

    “The trial is the vehicle that Durham is using to help bring out the truth, to tell a story of a political campaign that in two instances pursued information that was totally fabricated or at least misinterpreted with the Alfa Bank connection to Trump and use that disinformation to mislead the American voter,” Kevin Brock, the FBI’s former assistant director for intelligence, said. The Sussman trial shows if nothing else Hillary Clinton herself was personally the start and the end of Russiagate’s false story. As dirty tricks go, this was a helluva tale she sold to a gullible public and ready media.

    But so what? Politicians approve dirt being spread on their opponents all the time. But not outright, fabricated lies, which is fraud/defamation, that’s the short answer. And Jake Sullivan, Biden’s national security advisor, played a still-hidden role in all of it. And what kind of president would Hillary have made if she was willing to lie like this to get elected? She is all appetite, still active in her party, still a dangerous animal. The spiteful Clinton still maintains Trump has ties to Russia and through surrogates like Brennan kept Russigate alive to defang the Trump administration even after she lost, the real insurrection.

    Twitter has still not removed the Clinton/Sullivan Russiagate tweets from 2016 as “disinformation.” That silence allows the lie a second life, important because of course Trump is running again for president and polls show almost half of Americans still think he colluded with Russia.

    It is easy enough to still say “so what?” at this point. Most people who did not support her concluded long ago Hillary Clinton was a liar and untrustworthy. Her supporters know she’ll never run for public office again, hence the claims that none of this matters, right?

    Wrong. What matters in the end is less the details of Hillary’s lie than that as someone close to being elected as her would lie about such a thing, claiming her opponent was working for Russia against the interests of the United States he would soon swear an oath to. This week’s revelations and the way they fill in “motive” in the timeline are bombshells if you blow the smoke away.

    No doubt in many minds Clinton and the intel community’s manipulations are being measured alongside whatever transgressions are attributable to Trump himself. Those who think that way may have missed the day in kindergarten when everyone else was taught how two wrongs don’t make a right, and in high school where good and bad were shown not to be a zero sum game. Trump did not win to absolve Hillary of her sins. And those who worry about the 2024 election being stolen over simple vote miscounts are thinking way too small.

     

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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 Democracy, Trump

    Moments of Russiagate Truth

    May 30, 2022 // 6 Comments »

    It’s sometime a very sad moment when truth is all that’s left. Suspicions of infidelity become credit card receipts from the no-tell motel. A Facebook post tells of a meal shared when a business trip was scheduled. It is ugly, especially the now certainty that you were lied to by someone you once trusted. Two such instances passed through the MSM this week with barely a notice that deserve notice.

    The first is Hillary Clinton and the Democratic National Committee, through the MSM, lied Russiagate. Hillary, et al, paid experts to create two data sets, one showing Russian cellphones accessing Trump WiFi networks, and another showing a Trump computer in contact with a mystery Alfa Bank server in Russia. The latter was supposedly how Trump communicated incognito with his handlers in Moscow Center. Neither happened, both were lies, and both were made up for and paid for by Hillary. How do we know this with certainty?

    Former Clinton campaign lawyer Marc Elias on the stand May 18, 2022 in the trial of his former partner, Michael Sussmann swore to it under oath. Special Counsel John Durham brought Sussmann to trial for allegedly lying to the FBI, denying he was working for a client when he was representing the Clinton campaign. Elias testified he and Sussmann worked for the Clinton campaign, and had engaged Fusion GPS to acquire dirt on candidate Donald Trump. He also admitted that he had briefed Clinton campaign officials about the fake information, including contacts with Clinton campaign manager Robby Mook, campaign chair John Podesta, spokesperson Jennifer Palmieri, and policy director Jake Sullivan, now Joe Biden’s national security adviser and who aggressively pushed the Alfa Bank server story in the media. Elias said he also spoke with Hillary Clinton and was involved in meetings where she was present.

    Does this have to really be so ugly? Do we have to hear it in her own words? Somethings it takes that harsh splash of cold water. Yes. Hillary tweeted on October 31, 2016 Trump had a secret server and it was communicating with Russia. She knew it was false at that moment because her campaign paid to create that information. The only thing left for the trial to prove or disprove is whether Sussmann lied about working for the campaign when he met with the FBI. He pleaded innocent but is a very bad liar; Sussmann billed the Clinton campaign for his meeting with the FBI. The material facts otherwise have been demonstrated — she lied. Cold and simple. No one colluded with Russia (as the Mueller Report later concluded.)

    The next splash of water require you to wallow so deep in hypocrisy and lies if it was all water you’d drown. After refusing to cover the Hunter Biden laptop story except to label it Russian disinformation in autumn 2020, the same NBC news headlined a story May 18, 2022, almost two years after the laptop story first broke, reporting “analysis of Hunter Biden’s hard drive shows he took in about $11 million from 2013 to 2018” from Ukrainian and Chinese companies for dubious consulting work. NBC reports this as breaking news, and made no mention whatsoever that they sat on the story.

    To understand why NBC spiked the story for almost two years, one needs to go back to 2020 as the laptop tale was breaking elsewhere. Almost in real time more than 50 former senior intelligence officials signed a letter claiming the emails “have all the classic earmarks of a Russian information operation.” With absolutely no evidence, the signers said their national security experience made them “deeply suspicious that the Russian government played a significant role in this case.” “If we are right,” they added, “this is Russia trying to influence how Americans vote in this election, and we believe strongly that Americans need to be aware of this.”

    The letter was evil brilliance in that it played off earlier prejudices created by Hillary Clinton in 2016, that the Russians sought to manipulate American elections. In fact, most of the key signatories — James Clapper and John Brennan among them — had misdirected public opinion around the whole of Russiagate. In the hands of the MSM the meme quickly morphed into “the laptop is fake,” a parallel to “but her emails!!!”

    NBC News wrote in 2020 U.S. intelligence agencies suspected Trump associate Rudy Giuliani, who had been shopping the laptop contents to various media organizations, had been in contact with alleged Russian intelligence agents. The FBI was “looking into whether the Russians played any role, and no official has ruled that out,” said NBC. Twitter also blocked the Hunter laptop story after intelligence officials shared Russian hack rumors.

    NBC also claimed in 2020 the laptop was not “newsworthy” as it contained no smoking gun, and because despite any ethical lapses by Hunter “Trump… is ethically challenged when it comes to appearing to use the power of his office to enrich himself and his family.” NBC in 2022 offers no explanation why the same laptop contents which it deemed not newsworthy days before Joe Biden’s election to the presidency are suddenly newsworthy in the middle of his second year in office.

    The takeaway is NBC News did not pursue the Hunter laptop story in 2020, when it mattered most, because it acted in collusion with the U.S. intelligence community to make the story go away during the election. As Hunter has publicly paid millions in back taxes and the New York Times among others validated the laptop contents, there’s no need to pretend the story is not newsworthy or Russian trickery.

    It is easy enough to say “so what?” at this point. Most people who did not support her long ago concluded Hillary Clinton was a liar and untrustworthy. Her supporters know she’ll never run for public office again, hence the claims that none of this matters. As for NBC, the last days before the election were confusing times, and the Hunter laptop story after all was out there for anyone who wanted to read it at the NY Post or Fox. So that doesn’t really matter either, right?

    Wrong. What matters is less the details of Hillary’s lie but that as someone very close to being elected she would lie about such a thing, claiming her opponent was working for Russia against the interests of the United States he would soon swear an oath to. As for NBC (and Twitter) its journalistic slovenliness laid bare news organizations work with the intelligence community to manipulate elections. Both of this week’s revelations are bombshells if you blow the smoke away, and both threaten to make a second run at our democracy in 2024.

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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 Democracy, Trump

    What I Missed on Twitter

    May 17, 2022 // 5 Comments »

    After almost a four-year lifetime suspension, Elon Musk let me back on Twitter, with a new account @PeterMVanBuren, and the promise of once again being privy to the world’s opinion. I could again read the “takes” of people smart enough to have a Blue Check (I do not) including those whose points of view I usually don’t share. Here is what I learned.

    Progressives are insane. They have lost their minds. They are certain every event which they do not personally support is the End of Times.

    I started back on Twitter the week after Justice Alito’s draft opinion overthrowing Roe was leaked, and right away was blasted by Blue Anon stuff like “The Supreme Court is a Tool of Tyrants” or “Time for Canada to Offer Gender Asylum to American Women.” But at least those tweets started life in the actual media, where editors wiped some of the spittle away. Tip to Elon: never mind banning people on Twitter, shut down MSDNC, et al. We’ll be fine without their hemophilia of journalism.

    But when I write the collective “we” I must exclude the once-sentient Lawrence Tribe (@tribelaw) who could not be more sure of himself if he saw the code behind the Matrix. He tweeted: “Three-fifths of the Supreme Court justices who joined that Alito abomination were nominated by a serial abuser of women, Donald Trump, who lost the popular vote to Hillary Clinton by 2.9 million votes and were confirmed by Senators representing a minority of the U.S. population.” The Founders must have been drunk when they wrote Article I!

    Tribe speaks for his generation, which at least on Twitter has a longing for Hillary that would border further on the creepy only if they started posting Photoshopped images of her in a Princess Leia bikini. Many Twitter celebrities re-cycle memes along the lines of “What if she’d won?” with some clever image of Mrs. Clinton smirking that “I told you so” look that so endeared her to non-deplorable people. She is the behind-the-scenes smiter of Trump in one wrinkled body.

    There was no actual Tweet saying President Hillary would have raised Ruth Bader Ginsberg from the dead and reappointed her to the court, but it was implied. David Weissman (@davidmweissman) felt the need to write “Since the Clintons are trending, I will say that after learning the truth about Hillary Clinton and seeing how right she was about everything, I stood with her. Even a few years later, I continue standing with the Clinton family.” Mollie Katzen (@MollieKatzen) “Imagine where we’d be now had more people listened to Anita Hill, Hillary Clinton, and Christine Blasey Ford.”

    To be honest, I had to look up that last name. Ford was the woman who testified a clothed Brett Kavanaugh laid on top of her in 1982 and would then go all Handmaiden’s Tale on the Supreme Court because she could just tell. As you read these Tweets, patterns like that emerge. If a handy glossary existed for conservatives, it would include sketch bios of Ford, RGB, and that one woman artist with the unibrow, and entries for popular vote, electoral college (why sucks) and fan fiction about a 45 member Supreme Court to help understand what all the Tweets are about. some topics, like Michael Cohen, need their own glossary for terms like fixer, Fredo, and consigliere.

    But things only got worse, much worse, when I got deeper into the personal Twitter accounts of the Blue Checks (the term sounds like a Dr. Who villainous force,) the places where they usually slither about without an editor and say what they really think. What they really think is that America is almost cooked and done. They imagine we just barely survived the Trump years without putting Beelzebub on our coins, and face the likely prospect of Candidate Trump returning to the White House with the anticipation of a colonoscopy done by a doctor nicknamed “knuckles.” Look:

    Heidi Przybyla (@HeidiNBC) “Are we up to democracy? …I worry we are entering the darkest period.”

    Malcolm Nance (@MalcolmNance) “WARNING: 62 days before 1/6 I warned that Trump would start a political/paramilitary insurgency to seize American democracy. It has begun.”

    Rob Reiner (@robreiner) “The reason Republican lawmakers are refusing to cooperate with the Jan. 6 Committee couldn’t be more obvious. They were part of the Seditious Conspiracy to violently overthrow the Government. Period.”

    Progressives seem to have their own vocabulary, things like ending an emphatic Tweet with Period.  End of Matter. Full stop. They like to say they are standing with someone or something a lot. The only historical events they know are Munich, the Reichstag fire, and Weimer.

    Tweetmaster Reiner later managed to get three issues into one Tweet (economy of prose is prized on Twitter and when shouting on a street corner wearing only a shower curtain) saying “There is only one way to save a woman’s right to choose, our Democracy, and our Planet. Vote for Democrats.” He also wrote “You cannot reason with a Trump supporter. They believe a Lying Criminal who doesn’t give a flying f*** about them was sent to them by God. Don’t try to reason. Just Vote. Vote like our Democracy depends on it. Because it does. It couldn’t be more simple. A vote for Republicans is a vote to destroy Democracy.”

    But how will Trump pull this off? His last coup resulted in exactly nothing happening except him breaking up with Mike Pence right before prom. Twitter knows:

    Ruth Ben-Ghiat (@ruthbenghiat) “I’ve been warning Americans for months that the GOP is replenishing its political ranks with criminals who have the skill set and character to support autocratic rule. Fascists in Italy and Germany brought thugs and murderers into party and state bureaucracy.” Kyle Griffin (@kylegriffin1) has the nuts and bolts figured out “Republicans in Michigan have replaced election officials who certified Joe Biden’s win.” Anyway, you heard it here first, says Mehdi Hasan (@mehdirhasan) “If (when?) Trump steals or tries to steal the 2024 election, don’t say we weren’t given plenty of advance warning that it was coming.”

    Spending time on Twitter convinces you journalism today is basically cramped somewhere between bad opinion making and simple propaganda. It mostly fails the most basic test of being interesting. That should finish it off as a profession in a couple of years, and we can all watch it slide into the sea on Twitter.

    And then out of nowhere came a moment of clarity from none other than CNN’s master journo Jim Acosta (@Acosta) who for no reason whatsoever felt the need to write “Ran into an Afghan refugee in the elevator today. He was delivering groceries. Didn’t know which buttons to push so I helped. Must have been new. As he got off the elevator, he thanked me and said ‘I am Afghan.’ I said good luck and welcome to America. He smiled. He’s on his way.” So there’s that. Bill Kristol tweeting for blood in what he hopes is the Google dialect of Ukrainian was a close second.

    Four years for me without Twitter was a long time. I am glad I am back, and feel smarter already because all of the Tweets above came in only one afternoon. Twitter is once again my guide, and I look forward to sniffing some old airplane glue and joining in.

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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 Democracy, Trump

    Trump (and Georgia) On My Mind

    May 14, 2022 // 2 Comments »

    One of my kids is studying law, and I’ve read a bit over her shoulder as she prepped for exams. Two critical things stand out: unlike in literature, words in the law have very specific meanings (lie, fraud, possess, assault), and intent matters quite a bit. The latter is very important, because people say things all the time they do not mean, such as “If Joe in Sales misses that deadline I’m gonna kill someone.” No one’s life is actually in danger, we all understand. Same for all those neighbors who were going to but never did move to Costa Rica if Trump was elected.

    Misunderstanding words as moving from the general to the very specific when you pull them out of a conversation and try to bring them to court, and determining intent based on what you “believe,” are really at the root of the ever-growing string of failed legal actions against Trump (there are some 19 still pending.) We have, and this is just hitting the highlights, all of Russiagate, the Mueller Report, Impeachment I, Impeachment II, Stormy Daniels, failed accusations of real estate valuation fraud in New York and most recently, a grand jury seated to look into election fraud in Georgia.

    For example, in Impeachment I, the Ukraine caper, the entire brouhaha hinged on Donald Trump’s own words in the transcript of his call with the Ukrainian president. But did they mean Trump was demanding foreign interference in the 2020 election? Or was he asking an ally to run down unethical actions by Joe Biden as a public service before he might become president? What was Trump’s intention when he said “A lot of people want to find out about that so whatever you can do with the attorney general would be great.” Later in the call Trump suggested some aid to Ukraine might be withheld, though not in specific reference to any investigation into Biden.

    The people who brought the impeachment proceedings decided all that constituted an illegal solicitation of a foreign in-kind contribution to Trump’s re-election campaign, maybe even extortion. The allegation was referred to the Justice Department, which declined charges. Many Democrats though that unfair, failing to see the lack of anything coming of it (i.e., no investigation by Ukraine), the lack of anything withheld (the aid was eventually delivered) and overall the lack of intent to commit a crime by Trump. The legal definition tests for words like solicit and extort were not met and Justice correctly dumped the case and there was no conviction in the Senate.

    Same story in New York, where the facts seemed to support Trump valued real estate at a lower price for tax purposes and a higher price when used as loan collateral. It’s called valuation and is legally done all the time. But some decided saying one thing to one person and another to another person to gain something was “fraud,” and everyone pursuing the case forgot that they also had to prove intent, that Trump lied with the intention to commit a crime and gain by ill begotten methods. The case rightfully collapsed.

    Yep, same with the Stormy Daniels saga, where the facts seemed to be Trump, via Michael Cohen, paid money to Stormy to keep quiet about their affair. Sleazy enough, but paying someone as part of a non-disclosure agreement is not illegal. It would be a crime if the money was paid by Trump with the intent of influencing an election, which he suggested was not true, the cash-for-silence was maybe to protect his marriage. Campaign finance laws require proof a person was willfully violating the law. Prosecutors would have to demonstrate that willingness by Trump alongside showing his principal goal was to influence the election. If this kind of case would have ever reached court, Trump would have simply denied intent.

    Another example can be found in the incitement allegations surrounding the speech Trump made just before his supporters entered the Capitol building January 6. A democracy can’t lock up everyone who stirs up a crowd. Speech which inspires, motivates, or warms the blood cannot be illegal as it is the very stuff of democracy. Trump thought the election was unfair and had a right to say so. Brandenburg v. Ohio refined the modern standard to 1) the speech explicitly or implicitly encourages the use of violence or lawless action; 2) the speaker intends their speech will result in the use of violence or lawless action, and 3) imminent violence or lawless action is the likely result of the speech. Brandenburg is the Supreme Court’s gold standard on what government may do about speech that seeks to incite others to lawlessness.

    The key is always intent. You have to prove, not just speculate, the speaker wanted to cause violence. Listeners’ reaction to speech is not alone a basis for taking action against a speaker. You’d need to prove Trump wanted the crowd to attack the Capitol and set out to find the words to make that happen. It ain’t gonna fly for the January 6 Committee.

    Which brings us to Georgia, where the NYT asks “Will Trump Face a Legal Reckoning in Georgia?”  On January 2, 2020, facing an election loss, Trump called Georgia’s Secretary of State to demand he “find 11,780 votes,”  one more than Joe Biden’s tally. Did Trump encourage the secretary to commit election fraud? That prosecution will fail, as did all of the ones above, for the same two reasons: words are not solely what they seem, and intent is hard to prove.

    For example, to the Democratic lay person “find” means commit election fraud to come up with votes. But well before anything goes to court, it will be made clear that “find” in this context can also mean, in just one example, recount all legal ballots to see if a mistake can be found which legitimately sends more votes to Trump. The other issue is again intent; to prove solicitation of election fraud, Georgia law requires a person intentionally “solicits, requests, commands, importunes or otherwise attempts to cause” another person to engage in election fraud. Trump and his associates need only to maintain they meant “find” as in recount, not as in cheat. Case closed.

    In seeing the same mistakes made over and over, you’d start to think maybe the Democrats need some better lawyers. But don’t worry. Democratic lawyers know just as well as Republican lawyers none of these cases ever had a chance in a real court. Their purpose was purely political, to manufacture some headlines, to influence voters, to create the impression Trump has to be guilty of something if only he could be stopped from wriggling away. The goal is to convince voters to ignore the rule of law and take matters into their own hands in 2024 to stop Trump.

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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 Democracy, Trump

    Who is to Blame if Roe is Overturned?

    May 13, 2022 // 2 Comments »

    With bad things accumulating like Ukrainian mud around Democrat midterm chances, nobody seems to be talking about the elephant in the room. Its name is Roe, and if national abortion rights are overturned, it could help destroy the Democratic party. A Supreme Court decision is expected soon.
    The signs of significant change are clear. Texas is already effectively restricting abortions after six weeks (Idaho passed similar legislation.) Florida restricts most abortions after 15 weeks. If Roe is gone, 26 states are expected to ban or limit abortion. Four states support the Mississippi law the Supreme Court is now reviewing in Dobbs v. Jackson Women’s Health Organization. The Mississippi law is a direct challenge to Roe v. Wade, the landmark 1973 Court decision which made abortion a woman’s right through the second trimester. The Court will likely announce this spring a decision to overturn or significantly weaken Roe, clearing the way for each state to create its own restrictions. It will also signal the end of an era dominated by Democratic party social policy.
    Politically the loss could be part of a death spiral for Dems. “Protecting Roe” has been a central Democratic talking point for decades and if that protection fails, especially under a Democratic president and with Democratic House, it will not go down easy. The decision may have as much effect on the midterm elections, and possibly 2024, as any other factor. A lot of Democratic support from educated women is tied to abortion rights, as well as many progressive votes in general. With the party already losing/lost working class voters and many Hispanics, they cannot afford to jettison too many more blocs. And somebody is going to be blamed.
    The most likely gambit by the Dems will be self-destructive, to scold voters, saying if the dumb rednecks hadn’t elected Trump we would not have three new conservative judges on the Court. Scolding and mocking voters was a signature of Hillary’s campaign and look where it got her; “deplorables” is forever an American election meme now. And even if the Democrats were to 3-D print a viable candidate for 2024 out of soy-based beef substitute, it is unlikely he could bring enough new blood to the Court (only Justice Breyer was the obvious candidate to retire) to change the balance quick enough to rally Roe. So the most obvious Dem slogan, elect us and we’ll repack the Court with liberals, is at best a solution decades away even if everything goes well. There is no will to expand the Court outside of the NYT Op-Ed pages.
    Dems will not mention it, but the real blame lies in 50 years of Congress refusing to codify Roe’s judicial creative writing into actual law that could withstand a conservative court. Over the decades the Democrats when in the majority treated abortion, as they did same-sex marriage for many years, as a third rail. They supported it but would never risk the votes by actually touching it. It will beg the question in many Blue voters’ minds of why bother to elect Democrats at all. The Democrats of course don’t see it that way; “I think the country hasn’t seen the rage of women speaking out,” said Representative Jackie Speier. Representative Pramila Jayapal said “I think it’s going to mobilize people to go to the polls. You will see an outcry like you’ve never seen before.” Righteous anger? Maybe. But Democrats will have quite a battle convincing these angry voters that yes for sure this time promise they’ll actually do something to protect abortion rights other than talk about losing them and holding Handmaidens Tale watch parties.
    The other question Democrats will need to confront is what do Americans really want? In a nationwide survey, 56 percent said they would support restricting abortions after 15 weeks, what the Mississippi law at the center of Dobbs aims to do. Hispanic voters, who Democrats are already losing, are divided on the issue of abortion and vote Red in notable numbers. Same sex marriage finally became so widely supported that even Democratic candidates in purple areas could safely jump on the bandwagon. Not so with abortion.
    There are other players the Democrats might want to spread a little blame on as well. In the case of Dobbs now at the Court, their champion Justice Sotomayor failed to lay a legal glove on her opponents. While the conservative and swing justices walked their colleagues through case after important case where precedent was overturned, she whined like a 1L that precedents she supported were untouchable. She chided her colleagues if they overturned Roe the whole Court would lose credibility and take on a “stench.” She spoke like someone running for election in San Francisco, not a sober justice building a case her colleagues would sign on to. She seemed to forget at oral arguments the justices aren’t really talking to the attorneys before them; rather, they’re talking to each other through the lawyer at the lectern. But at least her no doubt snarky dissent will earn her comparisons to the Notorious RBG.
    Speaking of RBG, perhaps she deserves a dainty teaspoon of blame. Her hubris in a) thinking she would live forever and b) assuming Hillary would be anointed and choose her successor lead directly to Donald Trump’s signature political triumph, turning the Court right. The blood of the martyr Breyer waters RBG’s grave site.
    Which also suggests Barack Obama, who failed to fight for his Supreme Court nominee Merrick Garland, shares some blame. Claiming Obama could not effectively fight for his nominee because of Republican opposition again begs the question of why bother to elect a Democrat at all if they’re just going to fail and blame the other party for their failure. You’re just not a very good politician if you can only get things done with a super-majority.
    More broadly, blame should Roe fall lies in part with the feminist movement and the far-left of the Democratic party. They long ago insisted on including the contentious issue of abortion in with the basket of more broadly supported women’s issues, such as equal pay. They then turned away many middle-of-the-road voters and “purple” women by tying abortion rights into all sorts of issues which do not enjoy consensus dealing with LGB and incessantly, trans people. “America’s anti-abortion agenda is also anti-trans” announced one queer media outlet matter-of-factly. “Banning trans people from public life and banning abortion are all about installing a regime of gender roles.” For those whose idea of “a regime of gender roles” means basic biology not same-sex toilets the argument is as non-inclusionary as an NFL locker room.
    As if to double-down on the idea, many Democrats are ginning up scare tactic ploys, saying if Roe falls same sex marriage is next along with a slate of basic civil rights. This strategy, which insists on pairing the broad political spectrum among gay and lesbian voters with a radical feminist perspective, fails to account for the fact the Roe was a cobbled together compromise using the 14th Amendment to create a “right” to abortion, which really made no one feel things were settled. Cases like Obergefell v. Hodges, which made same-sex marriage legal, and Lawrence v. Texas, which overturned laws criminalizing same-sex relationships, rest on much different and sounder precedent.
    Any politician seeking to build support instead of acquire virtue points tries to make the tent bigger. Instead, Representative Ayanna Pressley, basically saying hold my beer to Hillary “Deplorable” Clinton, stated “Pro-life laws hurt our lowest income sisters, our queer, trans and nonbinary siblings, black, Latinx, AAPI, immigrants, disabled and indigenous folks. And none of this is happenstance… These bans are rooted in a patriarchy and white supremacy.” And no progressive commentary is complete without the now-obligatory Nazi reference. It was feminister has-been Gloria Steinem who added ahistorically “You know, Hitler’s first official act was banning abortion.” The basic line “all men are pigs and rapists” did not build support for feminist issues in the 1960s, it did not build support for the Equal Rights Amendment in the 1970s, and it is not helping today.
    In one article of so many on such themes, the writer begins by asking why more men don’t overtly support women in the abortion fight. She then calls any opposing views from hers “Taliban-adjacent,” claims the government is over-represented by men, and cites the need to destroy the patriarchy. She goes on to mock men who claim they understand women’s issues because they have daughters. Hmm, sister, if you don’t see why you’re not building up support among us dudes after that, I can’t mansplain it.
    The real problem for the Democrats is if the Republicans can claim victory in overturning Roe, they will empower their base in new degrees; a signature victory for many social conservative and evangelical voters was delivered. Those evangelicals who held their noses and supported Donald Trump will have new found reason to look past his gross person; he came through for them on an important issue. In response, “Vote for us, we lost Roe on our watch” is not a very inspiring Democratic campaign slogan.

     

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    Posted in Democracy, Trump

    Trump is Just Not Going to Jail

    May 9, 2022 // 7 Comments »

    If you had “Trump goes to jail” in the office pool, better double-down on “Trump Gets a Minor Civil Fine.”

    The end of any possible criminal prosecution out of New York over Trump’s finances has come as the grand jury seated to find them has sunseted. The possibility of a civil penalty, likely a fine, looks poor but anything is possible. This is all a long way from predictions when these cases were initiated through the Southern District of New York (SDNY) that the walls were supposedly closing in. Dems, dragging all their Biden baggage along, are going to have to beat Trump at the ballot box, assuming anyone can afford the gas to drive out to vote.

    We need not spend too much time on all the failures preceding those of the SDNY, though a list is educational: DNC server, Putin’s agent, all of Russiagate, Mueller Report, Impeachment I, Impeachment II, and Stormy Daniels. The January 6 campaign is floundering. The IRS has had Trump’s taxes in hands for decades without any criminal prosecutions, and the New Jersey Gaming Commission held Trump’s casino financials without incident. It is possible to conclude however much one might hate Trump, he just is not guilty of any crimes.

    Each prosecutorial dream began with the certainty Trump did something wrong, that the evidence was growing, that some stooge would flip (and the mindless Godfather references), followed by… nothing much. The true believers will always believe, but for most Americans the over-stimulus followed by the let down followed by mumblings it all wasn’t fair again have grown tiresome. Yet there are always teachable moments, even in such farce, and the most recent failure in Manhattan to bring down Trump is one of those.

    Like all of the capers, it begins with the premise Trump is sleazy and any success he enjoyed must be due to cheating. In the instant case, the DA claimed The Trump Organization had over-valued some properties to obtain loans from Deutsche Bank, and then under-valued those same properties to pay lower taxes to the city of New York. This is all that’s left in the civil action in New York against Trump. The investigation along these lines has been running since 2019, so far with no actionable results. The most recent legal move was a contempt citation against Trump over not turning over a couple of cell phones, that after Trump already complied with millions of pages of documents and 13 employees of the Trump Organization sent up for interview. The belief seems to be there must be something in there somewhere.

    For anyone who has owned property in New York, either directly like Trump or via the co-op system like millions of middle class New Yorkers, none of this is a headline. It literally happens all the time. For example, Building A sits on land the City has taxed for hundreds of years. The value of that land in that context is hardly in contention. But if someone wanted to use that land as collateral for a loan, they might instead explain how the ground floor of the building is now ready for flush post-Covid clients to return. They might cite a new luxury building across the street, which will raise local real estate prices. They might show how the average tenant stays longer in their building then elsewhere, assuring stability. What something is worth — a building, a Pokeman card, a drink of water in the desert — is very much a negotiation between two sides. This is known as valuation.” There are numerous methods of assessing the value of a property. In New York you have your assessed value, your transitional value (Tax Class 2, 3, and 4 only) and other variables such that there are lawyers who specialize in nothing else.

    Banks, which look to the future to make sure their loan will be profitable, understand well what the DA is trying to avoid, that property valuation is inherently subjective. It is important to note Trump loan seller Deutsche Bank has raised no objections, made no claims of fraud, and has not asked the DA to look into all this. Nope, the Manhattan DA’s office itself scanned the skies over Gotham and decided they saw a crime. Some say it was a political action, because in almost every other value dispute case in New York history the issue was sorted out by negotiation, and at last resort, by a special civil court that does nothing else. No one can say Trump is the only instance where the City has jumped from valuation to a criminal case with a grand jury, but it is damn hard to find another modern example.

    For the New York DA to “win” a political case like this, some written decision by a no-name magistrate judge’s tax court saying Trump should pay some more property tax is far from enough. So, they had to imagine the case as a criminal one, and that’s where everything falls apart (as with obstruction, as with incitement.) Though the law differs with obstruction and incitement to some extent, basically to win these as a criminal cases the DA has to prove criminal intent. So prosecutors would have had to prove not just that Trump inflated the value of his assets, but that he intended to break the law doing so. Even harder is to show the valuation was Trump’s personal decision, near impossible to do with massive, complex corporations where the actual decision maker is traditionally obscured exactly to avoid such liability.

    Prosecutors fell victim to their own prejudices. They had hoped to “flip” Allen Weisselberg, the Trump Organization’s longtime finance chief by drumming up equally weak criminal tax charges against him. Those charges have to do with Weisselberg accepting car service and apartment payments from Trump and allegedly not declaring them properly as income on his taxes. These cases are again typically settled with a fine (though Weisselberg maintains innocence) not jail. The infamous Al Capone tax case is infamous because it was so unique. Weisselberg, with his years of financial experience, has a pretty good idea he is not going to jail and thus has little incentive to rat out Trump if indeed he had anything to rat about.

    That pretty much left prosecutors with Michael Cohen, the guy who pleaded guilty to nine criminal offenses, including lying to Congress, tax fraud, and campaign finance violations. Cohen would have faced questions of personal bias, given his own multiple lawsuits against Trump. He would have faced 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 are still 19 cases pending against Trump, including a number of civil suits. Maybe one of them will land a blow. But none have the potential to be the knock-out punch Dems thought was an easy route to winning 2024.

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    Posted in Democracy, Trump

    New Durham Finding Reveals CIA Info on Michael Sussman, Alfa Bank/Yota Phone

    April 23, 2022 // 5 Comments »

     

    If you still dismiss “Russiagate,” the Dossier, Alfa Bank, and the Yota Russian smartphone events surrounding Donald Trump, the 2016 campaign, and the Mueller investigation, you may want a second cup of coffee. The latest filing by Special Consul Robert Durham suggests the rabbit hole goes a bit deeper. I hate to sound like Rachel Maddow, but it is just that much more likely the walls are closing in.

    Durham filed a new, 34-page motion on April 15, 2022, in answer to defendant Michael Sussman’s request to dismiss the case against him. Durham accused Sussmann of lying to the FBI about his working for the Clinton Campaign while he was trying to sell the Bureau on opening an investigation into Trump’s ties to Russia, focusing on alleged Internet pings between a Trump server and the Russian Alfa Bank. Sussmann’s claims included a number of pings against Trump Tower WiFi and later White House WiFi by a Russian-made Yota cellphone. Sussmann’s motion basically called Durham case garbage, which pressed Durham to explain to the court why the case needed to proceed, hence the new motion (the court subsequently ruled against Sussmann and the trial will commence soon.)

    But as he has done in the past, Durham used the required motion filing as a chance to tip over a few of the cards he is holding. It looks like aces.

    Durham previously established CIA knew about what we’ll call “Russiagate” as of at least July 2016 and briefed President Obama on the same only five days before the FBI’s Crossfire Hurricane full-spectrum investigation into Trump/Russia began. The new filing adds the next chapter. Sussmann met with unknown persons at CIA to tell them a Russian Yota cellphone seemed to be following Trump around, attempting to log into the WiFi network wherever he was. This included Trump Tower and later the White House. At January and February 2017 CIA meetings Sussmann claimed the phone “appeared” in April 2016 (coincidentally right around the time the DNC hack supposedly took place) and even “appeared with Trump in Michigan” when he was interviewing a future Cabinet secretary. Sussmann went on to disingenuously claim to CIA the Yota smartphone model used is often gifted to Russian officials. He also claimed his client was a Republican.

    The problem was the information Sussmann passed to the FBI was fake. Phony. Made -up. Fabricated, much like the Dossier. CIA “concluded in early 2017 Russian Bank-1 data [Alfa] and Russian Phone Provider-1 [Yota] data was not “‘technically plausible,’ did not ‘withstand technical scrutiny,’ ‘contained gaps,’ ‘conflicted with [itself]’ and was ‘user created and not machine/tool generated.’” Reuters‘ own tech people also said they could not authenticate the data and passed on the story. While CIA declined to open an investigation based on such data, the FBI did, leaving open additional questions on whether or not the FBI was technically unschooled, or in on the greater conspiracy.

    This new information also begs the question of why Robert Mueller or DOJ Inspector General Michael Horowitz did not ask why the FBI was so easily fooled when their cousins across the river (and some journalists) saw through the grift. The FBI were warned — on September 7, 2016 the CIA sent FBI Director James Comey and Peter Strzok a warning Hillary Clinton approved a plan to tie Trump to Russia to distract from her email scandal. Then only 12 days later Sussmann approached the FBI, who despite the heads-up, took the hook. About a month later the courts issued the first FISA warrant. Hillary Clinton tweeted “Computer scientists have apparently uncovered a covert server linking the Trump Organization to a Russian-based bank.”

    This would also raise questions about Michael Sussmann and his role representing the Democratic National Committee and the DNC server hack. Careful research by retired NSA persons suggested the server was accessed from inside the U.S., not hacked from Russia as widely alleged. If there is truth to that, would the same people who fabricated complex DNS and WiFi log data (i.e., good enough to fool the FBI) have been capable of making a local hack look international? One hates to go down the conspiracy road, but is Julian Assange, whose Wikileaks released some of the DNC emails, imprisoned in part because he could prove his source for the hacked emails was not Russian, as he has claimed?

    Who knows, right? Maybe Researcher-2 (identified elsewhere as David Dagon of Georgia Tech, whose research focus is Botnets.) Dagon previously bragged of using a “bag of tricks” to prove Trump-Russia collusion.) Durham granted Researcher-2 immunity to “uncover otherwise-unavailable facts underlying the opposition research project.” Durham also granted immunity to someone at Fusion GPS, the front organization that moved money from the DNC/Clinton Campaign to both Dossier author Christopher Steele and Alfa/Yota pitchman Michael Sussmann. The Fusion person is likely Laura Seago. Seago helped sell the fake Alfa data to Slate.

    Earlier articles established the Alfa/Yota conspiracy mirrored the Dossier conspiracy in style, funding, and execution. This new information from Durham adds now as with the Dossier, the Alfa/Yota data was faked. The commonalities between the two as yet legally unlinked conspiracies strongly suggests a common backstage element. We spoke with a former U.S. intelligence officer about what would be involved in managing an operation this size, Alfa, Yota, Dossier, etc., liaison with the FBI, all the media planted bells and whistles, but just the admin side, not the actual spy work. She said it would be a very large job, likely bigger than many overseas stations would take on, something that would need its own working group in Washington. She said keeping the finances clean but covert alone would be a near full-time job.

    So what does it all mean? Special Counsel Durham is revealing a relentless effort by Democrats to sell the Russia collusion narrative across the U.S. government from CIA to the FBI, to the point where in the absence of derogatory information they created it. The Democrats then enlisted (to date…) Christopher Steele and Michael Sussman to peddle the false information across Washington in hopes of stirring someone in the intelligence community to turn their vast resources on Trump to find actual dirt. The whole venture failed in the initial sense — Trump was elected and completed his term — but large numbers of Americans still believe in whole or in part Trump is somehow allied with the Russians, a hangover likely to last into the next election.

     

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    Posted in Democracy, Trump

    Understanding Things: That Stalled Russian Convoy in Ukraine

    March 24, 2022 // 3 Comments »

    The amount of disinformation coming out of the Ukraine war is unsurpassed in modern history. Unlike the glory days when outlets like CNN sent knowledgeable reporters into combat zones looking for actual information, today most MSM coverage is based on borrowed social media video, or just. made. up.

    The problem with the former, video from social media, is it lacks context. Here’s eight seconds of a tank blowing up. Where was it shot? When? Was the explosion caused by a mine, a missile, or something internal to the tank? Is the tank Russian or Ukrainian? In most cases the media outlet has no real idea of the answers to those questions, never mind who shot the video towards what end. Even if they tumble on to the basic who-what-where, the exploding tank video is devoid of context. Was that the lead tank hit, stopping the Russian advance toward a village? Or was it a Russian tank that lingered in an open field and got picked off in a lucky shot, strategically without much consequence. At that point it is just war porn, a little jolt for the viewer. Such videos were immensely popular among the terrorists in Iraq; nearly every one captured had some random video on his phone of a US vehicle being blown apart by a roadside IED. Now the same thing is on MSNBC.

    The bigger problem is the media’s willingness to make things up, and then reinforce each other’s “reporting” by agreeing on what they have made up. Let’s disassemble one such episode.

    The media found online photos of a Russian convoy some 40 miles long. Within hours those images had become a story — the Russians had run out of gas just miles from Kiev, stalling their offensive. That soon led to think pieces claiming this was evidence of Russian military incompetency, corruption, and proof Ukraine would soon win. Soon enough Reuters was agreeing with CNN who agreed with NYT: stalled, no gas.

    Leaving aside the idea that perhaps no one on earth absent some Russian generals actually knew why the convoy was not moving, the media created a reason and confirmed each other. If you follow the right people on Twitter you can sometimes watch them form these consensuses on issues, journalist all thousands of miles away from the scene with no information on hand nudging one another into the narrative. It’s kind of like watching a time-lapse film of water freezing into ice. So are the Russians out of gas?

    Consider the lack of supporting evidence. Fuel travels through the same logistics chain that beans and  bullets do, and the Russians do not seem to lack for ammunition. Artillery shells are big heavy things, and there seem to be plenty of those making it to the troops on the ground. The Russians have over a million men in the field and absent one blurry TikTok purportedly showing some shoplifting, seem to be feeding them. If a million men needed to shoplift three meals a day it would not be hard to discover. We have also seen no evidence Russians are looting fuel dumps as they make their way across Ukraine. Russians are flying some 200 air sorties a day, many of which are helicopter flights from inside Ukraine. Each can use hundreds of gallons of fuel a day, never mind ammunition and spare parts, all of which must be hauled in. And look past that single stalled convoy; Russian armored thrusts are moving across vast swaths of land to the south without any concern for fuel. The empirical evidence suggests if anything there is plenty of gas. If not, that “stalled” convoy on the outskirts of Kiev is only about 100 miles from the Belarus border, a very short transit for fuel trucks on paved roads Russia controls.

    On the other side, if the Ukrainian forces had any information the Russians were low on gas their strategy would look different. You might see a full-on effort to attack fuel dumps, using Ukrainian air or drone forces, or even ground troops. You’d see Ukrainians blowing up gas stations and fuel handling facilities as they retreated. Instead of the exciting video of Javelins hitting tanks, you’d see everything from hand grenades to Molotovs blowing up fuel trucks. A tank without gas is already dead, what they military calls a soft kill, at much lower expense than destroying a modern tank. You might also see the Ukrainians trying for a much more mobile defense, ceding territory and making the Russians chase them until they run out of gas. There have been no signs of any of this, mostly the opposite actually as the Ukrainians set up static defensive lines on the outskirts of cities. There is literally nothing to support the MSM’s contention that the convoy ran out of gas.

    There were also MSM reports the Ukrainians had made significant attacks against the parked vehicles. While no doubt some skirmishes must have taken place along the 40 mile stretch, the fact that the convoy remained bunched up nose-to-bumper and not dispersed suggests no one was very worried about being attacked. The soldiers openly slept on the ground, it is not clear from the photos that air defenses were aggressively deployed, and overall it looks more like soldiers killing time than soldiers preparing to repel attackers. Though the MSM was in no position to know anything about the soldiers’ morale, they commented on it endlessly.

    Of course the convoy did start to move, and in a very predictable way. The textbook approach to using armor against an urban area is to surround it, besiege it, cut off food, water, power, and communications, and then if the defenders will not surrender, use artillery to either force them out or destroy them. Such an attack has to be coordinated 360 degrees so if some troops arrive early they must wait for the others to show up. This is what is happening now in the city of Mariupol. What is not done is to drive straight into town, where the narrow streets grant cover to defenders. The “stalled” convoy appears to have waited until Russian forces advancing from the south had made sufficient progress toward Kiev before spreading out west of the city and beginning bombardment.

    One convoy and one falsely reported story matter little in the middle of a vast war. But they serve as a clear example of how far the media has fallen, to the point where outlets like the BBC have become little more than propaganda mouthpieces, creating a fake narrative out of whole cloth and peddling it to an increasingly non-critical western media consumer.

     

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    Posted in Democracy, Trump

    Ukraine and Propaganda

    March 11, 2022 // 1 Comment »

    I hate going back, again, to Orwell, but since the world is intent on using his epic novel 1984 as an instructional guide, I have no choice. So proles, take note: this week’s Two Minutes of Hate will be split among Tucker Carlson, Vladimir Putin, and Donald Trump. They may in fact be the same person, and we are certainly told they share the same goal: destruction of American democracy via the Russian invasion of the Ukraine.

    Something very sinister happened in the American mind space over the last few days. Ukraine, a country of little importance to the United States, suddenly became the sole focus of most media-consuming Americans. Constructed to appear organic, it is impossible to not imagine guiding hands behind the shift of every media outlet to a single story told in a single way. Leap frogging over one another, social media and traditional media competed for the most extreme Ukraine stories, all slanted towards unbelievability. One of the first was the Ghost Pilot of Kiev, who improbably shot down six Russian aircraft. No matter the video was undated and could have been taken anywhere anytime, and no matter when the whole story proved false and the images shown to have been created by home aircraft game sim software. This was followed by a tale of Ukrainian soldiers on some island who died valiantly rather than surrender, which also was not true because we learned days later they did indeed surrender.

    America was flooded with images of gorgeous Ukrainian girls with AirSoft toy rifles volunteering for the front. Ukrainian cats are supposedly being trained to spot Russian laser sights. Pictures appeared of plucky people making Molotov cocktails to fight the Russians in the streets. FYI, those cocktails would a) have either evaporated their inflammant through the rag before use, you can’t make ’em days in advance or b) set fire to the thrower. Unless the rag is very, very tightly in the bottle, the inflammant will run down the thrower’s arm and set him afire. Propaganda has no time apparently for WikiHow. But the most intense propaganda has been reserved for the Ukrainian president, who has been labeled by the MSM as both a George Washington and a Winston Churchill. Combat reports of him patrolling the streets in cammies are now a standard feature.

    The tell on all this is how unspecific the propaganda is. Yep, that’s Zelensky alright, but exactly where is he? When was the footage shot? We haven’t seen this much veneration of a foreign leader since the election of savior-o-the-day Iraqi Prime Ministers a decade or so ago. Same for all those images of tanks (are they Russian? Tonka?) rolling across snowy fields, or planes firing rockets into wooded areas. The Ukraine coverage is nearly fact-free. It’s all about narratives, hot girls with guns, little clips of tanks. But nothing about what is going on. Is one side winning? It’s all just emotion to stim you into equally meaningless acts on social media.

    But it has worked. Shallow Americans are “standing with” Ukraine, throwing Russian alcohol off the shelves, lining up to eat at Ukrainian diners in New York, and of course posting their support across social media. Overnight we as a nation have become experts on the SWIFT system, and patriots ready to pay more at the gas pumps for freedom. My neighbor made a show of pouring out some old vodka but was unaware our state generates most of its electricity off Russian crude oil. Whatever, he’s doing what the teevee says to do. And yes, Twisted Sister’s Dee Snider “absolutely” approves Ukrainians using “We’re Not Gonna Take It” as their anthem amid Russia’s invasion.

    Alongside all this false and misleading information is the overnight disappearance of those fact checkers that plagued thoughtful journalism through the Covid era. The same people who would jump on an article for misquoting a protein statistic, or cancel an account for not following the party line on masking, are dead silent in the face of a tsunami of propaganda purposely painting an incomplete if not completely inaccurate picture of the war in Ukraine. So no surprise the former Ukrainian president lauded CNN as an “objective source of information as a contradiction against Russian information.” Twitter will label all tweets linking to Russian state media while allowing Ukrainian sources free reign. Everybody’s working the same angle here.

    If any of this seems familiar, rewind to the 2016 presidential campaign, and then get back to the future.

    The propaganda, having done its job of whipping Americans into a blood orgy demanding Putin’s death, has now begun its morphosis into tying Trump into all this. In doing so, the campaign builds on the remnants of 2016, when the Clinton machine falsely claimed the Russians elected Trump as their agent in place. USA Today writes “Trump’s bromance with Putin was very much on display… as the former president saw it, there was nothing to condemn [in Ukraine] but much to admire.” The NYT says “The American political right… has shifted toward fawning praise for autocrats, even those leading America’s traditional adversaries. Where once Russia and other autocracies were seen as anti-democratic, they have now become symbols of US conservatism — a mirror for the right-wing worldview.  Supporting Mr. Putin, as well as other authoritarian leaders, is yet another way in which the political right is weaponizing culture wars to further divide Americans.”

    Salon explains “How Trump’s coup attempt [January 6] encouraged Putin’s Ukraine invasion” and says “Donald Trump and his regime consistently acted as vassals for Vladimir Putin’s regime and Russia’s strategic interests.” WaPo noted “the implications of President Vladimir Putin’s actions against the United States in 2016 will finally sink in, especially for Republicans in Congress. The Vladimir Putin who planned, staged and launched a large-scale war on Ukraine is the same Vladimir Putin who ordered an aggressive, multifaceted, clandestine campaign to interfere in the 2016 U.S. presidential election.” The Atlantic hauls out none other than Hillary Clinton to thunder “It’s a five-alarm national-security crisis. The hard truth is that if Republicans won’t stand up to Trump, they can’t stand up to Putin or Xi.” Has-been with a platform Al Franken predicts Trump will win in 2024 and it will be the last democratic election. It’ll be a dictatorship.”

    There are two things to worry about here. The first is the amazing speed with which a massive narrative can be forced across America in a coordinated fashion by traditional media, government, and social media. Overnight no other version of the story could be found. Ukrainian propaganda sucked all of the oxygen from the room so quickly it should scare us. The second thing to fear is how quickly American partisan political forces were able to hijack the initial anti-Russian narrative and repurpose it into a slightly revised version of 2016’s “Trump is a Russian asset.” No matter that that itself has been debunked as Clinton-made propaganda, the story line is somehow — meh, the details don’t matter — Trump and Putin are working together to destroy Ukraine on their way to ending American democracy.

    Trump has nothing to do with Putin, or the Ukraine, and the latter two have nothing to do with American democracy. As in Orwell’s world, our thoughts are no longer are own. We are told how to think and increasingly, groomed how to vote.

     

     

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    Posted in Democracy, Trump

    Arguing About Durham and Hillary Spying

    March 8, 2022 // 3 Comments »

    1) Special Counsel John Durham dropped a new filing in his Russiagate investigation. Fox says it means one thing, and CNN says something almost the opposite…

    The whole filing is only 13 pages; the juicy stuff about “spying” is only a few paragraphs. Just read it.

    2) I’m kinda busy, so could you just give me the gist?

    All the quotes below are from the filing text. The new filing is at its heart legal housekeeping, asking that a waiver be considered to allow indicted Clinton lawyer Michael Sussmann to retain his current law firm. A potential conflict of interest exists because Sussmann’s representative works for a law firm which also represents others Durham may be going after, and may have been involved in the larger events under investigation, perhaps as witnesses. Sussman is under indictment for lying to the FBI. He brought the Trump-Alfa bank accusations to the FBI pretending to be a patriotic citizen, when he was actually working on Clinton’s behalf trying to get the FBI to investigate Trump.

    While the conflict of interest issue is interesting in itself, what is news worthy in Durham’s latest filing are allegations tech company Neustar and its executive Rodney Joffe (who was also a law client of Michael Sussmann) accessed “dedicated servers for the Executive Office of the President of the United States (EOP).” Joffe then “exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.”

    Joffe also “enlisted the assistance of researchers at a U.S.-based university” (likely Georgia Tech) who had access to “large amounts of Internet data in connection with a pending federal government cybersecurity research contract.” This would have been how Joffe got access to data from Trump’s private computers. “[Joffe] tasked these researchers to mine Internet data to establish ‘an inference’ and ‘narrative’ tying then-candidate Trump to Russia,” he added. “In doing so, [Joffe] indicated that he was seeking to please certain ‘VIPs,’ referring to individuals at Law Firm-1 and the Clinton campaign.”

    3) What’s all the DNS stuff mean?

    Remember metadata, the info about a communication Edward Snowden showed us the NSA gathers? This is like that. Metadata shows, among other things, when and where a communication started, and where it ended up. DNS data, a kind of metadata, comes from a Dynamic Name Server. When you use a smartphone or type www.theamericanconservative.com into your browser, it contacts a DNS server, which translates those English words into the numbers the Internet actually runs on. Same thing for email, Tik Tok, anything online. If you have access to DNS data, such as Joffe did, you know who the White House and Trump were communicating with. DNS data is a road map and if you have enough of it, patterns, such as perhaps regular communication with Russia, emerge. That’s why the NSA does the same thing against its enemies or competitors.

    4) So is that “spying?” Durham never uses the word in his filing.

    What word would you use to describe secretly and likely illegally collecting information about enemies or competitors to use against them? Durham is writing a legal document, and must use precise words, so of course he would not use a blunt term like spying. But it is pretty hard to call what actually happened anything else.

    5) How is what Joffe/Neustar did illegal? They did not hack into any servers. They had access to them.

    There were two sources of DNS information, let’s take them separately. The first was DNS servers actually inside the White House. Neustar provided these servers under a contract with the government. Contractors like Neustar and Joffe working on sensitive data systems do not own the data they see. Their scope of usage is very specific to the job they were hired to do. It does not include exploiting high-security government contracts for political purposes, personal gain or to help Hillary. Sort of like your doctor, who knows your medical information but cannot just share it with his brother-in-law who sells insurance.

    Joffe also monitored the DNS data from Trump Tower and other Trump properties. He got this data via Georgia Tech. They got it (along with a gazillion other DNS records) as part of an unrelated contract with the Pentagon. Georgia had no obvious right to share data with Joffe and he had no right to use the shared data for political purposes. There has got to be a crime in there somewhere.

    6) But Joffe and others never read any Trump email or listened in on calls. So it’s not spying.

    Time to update the definition of spying from 1945. In Joffe’s case, he was trying to establish a pattern of communications between Trump and Russia. Michael Sussman was then to take that pattern pulled from the DNS data to the FBI and CIA as a patriotic bystander, and those agencies would be able to go in deep reading individual emails with a flick of a switch. The NSA does this all the time, looking at who one terrorist contacts in order to target another. It is the core of modern spying and it looks like the Clinton campaign was doing it, and then using Michael Sussmann as a false front to peddle it to the FBI and CIA. We know the FBI took the bait.

    7) But I heard all this DNS monitoring of the White House started under Obama.

    Neustar got the contract and installed the DNS servers in the White House during the Obama administration. This may have been for some legitimate cybersecurity task and/or to establish a baseline of “normal” White House-Russia communications. Joffe continued his DNS monitoring of the White House into February 2017, after Trump took office. Having failed to stop his campaign, the data was lined up to aid in driving him out of office. The other monitoring, of Trump’s personal and business DNS data, took place during the campaign, which of course meant it was while Obama was in the White House.

    8) This guy Joffe seems right out of Better Call Saul.

    In quid pro quo, Joffe was offered a top cybersecurity job in the future Hillary Clinton administration. But his background goes deep. Among other things, Joffe’s other company, Packet Forensics, sells wiretapping equipment that allows federals to spy on private web-browsing through fake Internet security certificates. This lets agents see an individual’s online transactions without obtaining a warrant. This is not to imply, at least not yet, that Joffe could have easily used his access to the White House servers to install his product and then monitor everything. Joffe’s company has done $40 million in federal contracts, including with the FBI (in 2013, FBI Director James Comey gave Joffe an award recognizing his work on a case) and the Pentagon’s Defense Advanced Research Projects Agency (DARPA.) Joffe’s firm also monitors the computers of other government officials for threats, including in the office of Justice Department watchdog Michael Horowitz, who investigated the FBI for Russiagate wrongdoing. He is one guy in position to know a lot.

    Joffe started out as a direct mail marketing scammer in the 1980s. In the 90s he sat on the board of PlasmaNet, which then operated FreeLotto.com, an scammy online sweepstakes game. And small world– Joffe’s company Packet Forensics landed a recent Pentagon contract to manage Internet domains. The bid was awarded the day Joe Biden was inaugurated president.

    9) What’s next?

    Indictments by Durham against Joffe are almost certain. Durham may also get curious why the FBI and CIA did not question where Sussmann got his data, given that it could have only come from White House servers. In addition, if researchers at Georgia Tech who were being paid by the U.S. government via a DARPA grant were freelancing the data they collected to help the Clinton campaign smear Trump, that would be another area Durham will be looking into. Durham might also seize the Neustar-provided DNS servers if they haven’t been wiped and see if any data reading software was ever installed.

    One of Durham’s earlier indictments, former FBI lawyer, Kevin Clinesmith, has already been found guilty of falsifying data on a FISA application to enable wiretapping Trump staffer Carter Page. The case against Clinton lawyer Michael Sussmann is ongoing, as is the third publicly-known indictment, against Igor Danchenko, a Russian émigré living in the United States. Danchenko made up most of what he told Christopher Steele for his dossier.

    Keep your eye on Charles Dolan, a long-time Clinton hack. Dolan has close ties not only to the Clintons but to the Russians as well; he and the public relations firm where he worked represented the Russian government and were registered as foreign agents for Russia. Dolan is credited with, among other things, making up the pee tape and otherwise using cut-outs to feed false info about Trump into the dossier.

    10) Anyone going to jail?

    Durham’s filings are lightening flashes, briefly and unpredictably illuminating part of the whole. One thing seems clear, however. The statute of limitations on many of the process crimes Durham is pursuing, like perjury, is short. Any strategy of using little fish to catch bigger fish is likely to time out, at least as far as actual prosecutions. Instead, Durham seems intent more on exposing the larger conspiracy, to include the Russia dossier and now electronic, well, spying, by the Clinton campaign. He may also expose more fully the intelligence community’s role in all this, turning a blind eye on the sources and methods (which effect credibility) and accepting anything peddled to them about Trump. One can imagine future hearings in a Republican-controlled House showing what Hillary knew, never mind potentially Obama and Biden.

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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 Democracy, Trump

    What John Durham Really Said About Hillary Spying

    February 25, 2022 // 3 Comments »

    There is a word for secretly collecting information about enemies or competitors to use against them.

    According to the latest court filing by Special Counsel John Durham, the Hillary Clinton campaign surreptitiously and likely illegally reached into protected White House and Trump communications data to try and show some link between Trump and Russia. The Clinton campaign during the election hid from FBI, CIA, and the media that it was the source of the information gathered. Durham doesn’t use the word “spy” but that in no way changes what happened.

    The recent filing relates to Durham’s September indictment of Michael Sussmann, an attorney who represented the Clinton campaign while at the Perkins Coie law firm. Sussmann is accused of lying to the FBI at a September 2016 meeting when he presented documents claiming to show Internet communications between Trump and Russia-based Alfa Bank. The indictment says Sussmann falsely told the FBI he was presenting this information as a good citizen, purposely hiding his ties to Clinton. The allegations about the bank were false.

    The new filing is at its heart legal housekeeping, asking that a waiver be considered to allow Sussmann to retain his current law firm. A potential conflict of interest exists because Sussmann’s representative works for a law firm which also represents others Durham may be going after, and may have been involved in the larger events under investigation, perhaps as witnesses. While that is interesting in itself, what is news worthy are broader details of what really happened around Russiagate that potentially point to crimes on a Watergate scale.

    The filing says tech company Neustar executive Rodney Joffe (who was also a law client of Michael Sussmann) worked with the indicted Clinton campaign lawyer to access “dedicated servers for the Executive Office of the President of the United States (EOP).” Joffe then “exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.”

    Joffe also “enlisted the assistance of researchers at a U.S.-based university” (likely Georgia Tech) who had access to “large amounts of Internet data in connection with a pending federal government cybersecurity research contract.” This would have been how Joffe got access to data from Trump’s private computers. “[Joffe] tasked these researchers to mine Internet data to establish ‘an inference’ and ‘narrative’ tying then-candidate Trump to Russia,” he added. “In doing so, [Joffe] indicated that he was seeking to please certain ‘VIPs,’ referring to individuals at Law Firm-1 and the Clinton campaign.”

    Some nerd stuff. Remember metadata, the info about a communication Edward Snowden showed us the NSA gathers? This is like that. Metadata shows, among other things, when and where a communication started, and where it ended up. DNS data, a kind of metadata, comes from a Domain Name Server. When you use a smartphone or type www.spectatorworld.com into your browser, it contacts a DNS server, which translates those English words into the numbers the Internet actually runs on.

    DNS is like a phone lookup; you want to speak with Mom, who the phone knows only as 212-555-1212. Same thing for email, Tik Tok, anything online. If you have access to DNS data, such as Joffe did, you know who the White House and Trump were communicating with. DNS data is a road map and if you have enough of it, patterns, such as perhaps regular communication with Russia, emerge. That’s why the NSA does the same thing against its enemies or competitors.

    The Clinton people got access to all this information via a private contractor, Joffe’s Neustar, which provided the actual DNS servers to the White House. Durham wrote, starting in July 2016, Joffe’s company “exploited this arrangement by mining the EOP’s DNS traffic and other data for the purpose of gathering derogatory information about Donald Trump.” In quid pro quo, and despite a fraud-laden past, Joffe was offered a top cybersecurity job in the future Clinton administration.

    The data gathering on the Trump campaign began while Obama was still in office (and the EOP portion could have been to establish a baseline of “normal” White House-Russia communications) and continued into February 2017, after Trump took office and all attention turned to impeachment. Having failed to stop his campaign, the data was lined up to aid in driving him out of the White House.

    But no one stole or hacked the data, right? Not so fast. Contractors working on sensitive data systems do not own the data they see. Their scope of usage is very specific to the job they were hired to do. It does not include exploiting high-security government contracts for political purposes and personal gain. Sort of like your doctor, who knows your medical information but cannot just share it with his brother who sells life insurance.

    Indictments by Durham against Joffe are sure to be coming. It is also curious FBI and CIA did not question where Sussmann got his data, given that it could have only come from White House servers. In addition, if researchers at Georgia Tech who were being paid by the U.S. government via a DARPA grant were freelancing the data they collected to help the Clinton campaign smear Trump, that would be another area Durham will be looking into.

    Back to Michael Sussmann, the Clinton lawyer. As he tried to get the FBI interested in the Trump-Alfa Bank tale in September 2016, Sussmann went to the CIA (“Agency-2”) on February 9, 2017 and “provided an updated set of allegations — including the Russian Bank-1 data and additional allegations relating to Trump.”

    Sussmann also “claimed lookups demonstrated that Trump and/or his associates were using supposedly rare, Russian-made wireless phones in the vicinity of the White House.” Durham says this is unsupported, though as recently as October the New York Times was still defending it. The Durham filing also maintains Sussmann lied again to CIA about having any affiliation with his paying clients Joffe and the Clinton campaign.

    So call it what you will — spying, hacking, infiltrating, a rebut to but her emails – but here is what it is: Durham asserts Neustar, on behalf of the Clinton campaign, gathered data likely illegally and certainly surreptitiously from White House and Trump computers, seeking a connection to Russia. Lawyer Michael Sussmann, hiding his connection to Clinton and Joffe, brought false conclusions drawn from this data to FBI and CIA (and perhaps the DOJ Inspector General) in hopes they would turn their enormous resources toward investigating Trump. The con worked with the FBI.

    This would mean Hillary and her lawyers masterminded a coordinated electronic conspiracy against Trump when he was a candidate and later president, while simultaneously perpetuating the dossier hoax. As with the dossier, everything Clinton peddled was fake. There was no pee tape, no payoffs from Putin, no connection to Alfa Bank, and no Russian-made smartphones. But this is not a fake scandal. Durham has potentially uncovered the most destructive political assassination attempt since Kennedy.

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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 Democracy, Trump

    Why the Trump Toilet Story is Full of Crap

    February 19, 2022 // 2 Comments »

    While President Trump was in office, White House staff periodically discovered wads of printed paper clogging a toilet and believed the president had flushed documents. So reports the NYT’s Maggie Haberman, based on anonymous sources. How does a literate media consumer know the story is garbage? Read it like an intelligence officer.

    Start by applying some of the same tests intelligence officers do to help them evaluate their own sources. Thinking backwards from the information to who could be the source is a good start on evaluating credibility.

    For example, is a source in a position to know what they say they know, what intelligence officers call spotting? The “position to know” idea scales up sharply when a source says they are privy to important conversations; how would they know the contents of a call the president-elect made to a foreign leader? Only a very few people would be in the room for something like that. Would any be likely leakers?

    In Haberman’s toiletgate, the circle of real sources is very small, the same as those who have access to the president’s personal crapper. Notice Haberman does not characterize her source, as in “one who has direct access to the pooper,” another red flag. If there is any source at all, it is likely cafeteria gossip. Remember in the case of journalism’s most famous anonymous source, Watergate’s Deep Throat, his information was used to guide the reporting, not as a scoop by itself, because it could not always be verified.

    As for verification, watch out for what intel officers call loops, where multiple reports come in to different people/journalists, with the fact that they came from the same source disguised. This is often how reporters erroneously confirm each other’s fake news, not realizing they are all talking to the same “anonymous” source. Now Google “Christopher Steele.”

    Any article that cites a source who claims to know the “why” behind some action, what was in the head of a decision maker, should be subject to special skepticism. Key officials are generally not in the habit of explaining their true motivations out loud. In Haberman’s submission notice how she avoids addressing the “why” directly. She claims her sources “believed” the president flushed pieces of paper, with the implication Trump was destroying records instead of over-wiping.

    Haberman also suspiciously released her scoop along side stories some White House records had been sent to Mar-a-Lago, not the National Archives. She manipulates her readers by telling them something in line with what they already believe. This is one way double-agents try to fool intel officers. A careful reader has to honestly ask himself whether he wants to believe such a thing bad enough to overlook its improbability.

    Legitimate sources risk something by talking, such as job loss, maybe even jail. Is what they will get out of the leak worth the risk? In this case the actual source would have to be an intimate staffer, or at least a White House plumber. Why would such as person risk his job to feed free gossip to Haberman? Did Trump anger them by leaving the seat up one too many times?

    If the answer to the question of “what’s in it for them?” is not obvious, the source is suspect. Intel officers always work to understand their source’s motivation, usually a combination of money, sex, revenge, personal advancement, and nationalism. Any of that apply to the White House plumbing staff, most of whom have worked at the place for years?

    Sources may push out info intended to influence public opinion. If you the reader can’t suss out the mystery source’s likely agenda — what they want — then you’re the guy at the poker table who can’t tell who the rube is, and needs a mirror to find out. Remember what happened when journalists failed to see what leakers of false info about Iraq’s WMDs were up to, and helped start a war? Always ask, cui bono, who benefits?

    Similarly, is what you are reading consistent with other information on the subject? Does the new info track known things, what intelligence officers call expectability? Overall, the further away from expectability a story stretches, the more obligation to be skeptical. Falling back on “it might be true” or “you can’t prove it’s not true” are typical signs of fake news. Same for “news” which can by definition never be proven false, such as proving the negative Trump did not flush documents. It’s like claiming Putin kills fluffy kittens for sport; how can you disprove such a statement?

    So there is the expectability question of why would Trump flush documents when shredders and burn bags are literally everywhere in the White House? And why would he do it “periodically,” as Haberman asserts, after finding out it is not a good way of getting ride of something because it only ends up in the wet hands of some plumber? It literally makes no sense.

    The closer information gets to something you want to believe is true the more skeptical you should be. The best example of this is the infamous dossier and especially the “pee tape” (shown to be disinformation created by an actual intelligence officer to discredit Trump.) The tape was the magic bullet which would end Trump. About half the country wanted it to be true. In addition, the supposed tape too easily hit all the Trump tropes: hatred for Obama, sexual piggishness (notice how like a fetish the media loves to connect Trump with scatological themes?) and of course the Russians. If it seems too “good” to be true, it probably is.

    In addition to considering the source of the information, consider the source of the reporting — what do they have to gain? In this instance, Haberman released her toilet blockbuster to directly promote her new tell-all book on Trump. It is obvious her story is advertising, not journalism. Let’s ask Haberman why she squatted on “reportable” poopy information, flushing it into the MSM public sewer only when she needed to pimp her book.

    In the end, an intelligence officer rarely knows what is 100 percent true, so he assigns a rating, such as high, medium or low confidence, and acts on the information (or not) in line with that. A reader can similarly never know with certainty the truth about an anonymously-sourced story. But while anything is possible, only some things are probable, and that’s usually the way to read it.

     

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    Posted in Democracy, Trump

    Liz Cheney and Her 14th Amendment Comedy Show

    February 5, 2022 // 9 Comments »

     

    The Democrats’ newest champion (Michael Avenatti did not return calls) Rep. Liz Cheney just about said the quiet part out loud: her January 6 Committee has the singular goal of pre-defeating Trump ahead of any voting in 2024. As it becomes clearer the Committee is failing in its propaganda campaign to get Republican Party powerbrokers to dump Trump, and as it is near crystalline the Committee will not find evidence leading to formal prosecution of Trump for sedition, treason, or insurrection, they are getting desperate. The latest? Purposefully misinterpreting an obscure phrase from a post-Civil War Constitutional amendment.

    Cheney said “I think one of the really important things that our committee has to do is lay these facts out for the American people, so that they inform us in terms of our legislative activity going forward.” Cheney is talking about one phrase from the 14th Amendment, no doubt presented to her by an intern applying a Control + F search for “insurrection” to an online text of the Constitution. This is a familiar strategy for the Democrats, having purposefully taken phrases out of context from the 25th Amendment and the Emoluments Clause trying to force Trump from office for four years.

    While the 14th Amendment was written primarily to grant citizenship and rights to freed slaves, it also created the “equal protection clause” which cornerstoned landmark cases including Brown v. Board of Education, Roe v. Wade, and Bush v. Gore. But tucked away in Section 3 was a bit of post-civil war housekeeping, the phrase “No person shall hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same.” The 14th also provides for Congress to enforce the provisions via legislation, and Cheney thinks that’s the key to Democratic success. Seriously.

    The intent in 1868 was to prevent Confederate leaders from returning to power. But the January 6 Committee is in 2022 so lacking in substantive content that they are considering some sort of legislation labeling Trump an insurrectionist, and thus prohibiting him from taking office again, even if he were to win the election. Cheney is not alone; Maryland Democratic Rep. Jamie Raskin has also called the use of the 14th a “live proposition.”

    Section 3 does not have a particularly glorious history. Reconstruction Era prosecutors brought civil actions in court to oust officials linked to the confederacy, and Congress in some cases took action to refuse to seat Members. Section 3 was last used in 1919 against a socialist congressman accused of having given aid and comfort to Germany during WWI. The congressman was eventually seated after the Supreme Court threw out his espionage conviction. Currently the only criminal punishment left on the books dates to 1870 and makes it a misdemeanor to run for office when ineligible to do so under Section 3. So while the Constitution does specifically refer to legislative action by Congress as a way to enforce Section 3, precedent clearly shows due process and litigation would step in. Imagine Cheney or anyone trying to label someone who controls the loyalty of roughly 50 percent of Americans an insurrectionist through a show of hands.

    Such legislation would also have to pass both houses and be signed by the president, something beyond a non-starter. The question of whether Section 3 is actually an unconstitutional Bill of Attainder is also not fully resolved. A Bill of Attainder in simple terms is a piece of law designed solely to punish one person, an argument the Democrats of 1868 themselves used to try and prevent Section 3 from even becoming part of the Constitution. The question was left largely unsettled as old Confederates died off and the use of Section 3 effectively ended in 1919 except in the fevered brains of people like Cheney.

    There is also the open question of whether use of Section 3 against Trump would represent an unconstitutional ex post facto law. The drafters of Section 3 were clear their intent was precautionary, looking not to punish Confederates for the past but to prevent them from taking power again in the future. It was not a measure of punishment, but a measure of self-defense, and the bar was set very high: participating in actual warfare against the United States that took the lives of millions in pursuit of breaking up the Union. In Trump’s case, given that his offense would be being voted an insurrectionist over a year after making a speech to keep him from the White House, it would be very hard not to see it as punishment.

    More problems? Section 3 prohibits someone from taking office, not from running for election. Imagine Trump conducting a three year campaign, winning the race, and then being prohibited from taking office over a clever interpretation of some words from 1868 clearly meant for a wholly different purpose.

    The use of the 14th Amendment to end Trump is the kind of thing non-experts with too much Google time can convince themselves is true. Given that there is no realistic possibility of preventing Trump from taking office in 2024 under Section 3 of the 14th Amendment, what is this all about? Most superficially it is a chance for a trog like Liz Cheney to get on TV spouting some quasi-legalistic garbage. It will be diluted through CNN as “Trump’s election is barred by the Constitution” and “Trump is in violation of democracy” and repurposed into Lincoln Project Facebook memes.

    But more substantively, silliness like Cheney’s is a sign of increasing desperation by the Democrats, three full years before the election. Increasingly sure they will lose at the ballot box, the Dems strategy is to prevent Trump from ever reaching the ballot box. Failing to be able to prosecute him, they have only left to persecute him, across tax courts in New York, the January 6 Committee, endless manhunts for Capitol trespassers, and the like. For a party that cries continuously that democracy is in danger, the Democrats act increasingly like thugs in a banana republic trying to bring down their opponents extra-electorally.

    Political prosecutions are not new in America. Political pogroms are. It is sad to watch the Democratic Party embrace such third-world practices as policy.

     

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    Posted in Democracy, Trump