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Blame It On The Bossa Nova: Lochte and Brazilian Police

The travails of the Ryan Lochte gang of American Swimmers has been playing out for a full week now. The result has been almost universal scorn, if not hatred, for Lochte et. al, and almost complete credulous acceptance of the somewhat dubious, if extremely strident, pushback and claims of the Brazilian Police.

Frankly, neither side’s story ever sat quite right with me. But Lochte’s story, among other exaggeration/fabrication, always, from the start, indicated that the swimmers were pulled from a taxi at gun point, by people in uniform with badges, who pointed guns at them, and took money from them.

And then came the dog and pony show press conference staged by the Brazilian Police for a worldwide audience during mid-day on Thursday August 18. It was a bizarre and rambling presser, that was nearly comical in its staging during its opening portion. It did, however, make clear that there was a lot more to the full story than Lochte had told, and that some of his story was flat wrong. But, if you listened carefully, as I am wont to do with cops making self serving statements, it, along with previous statements made by the police, also pretty much confirmed the swimmers were pulled from a taxi at gun point, by people in uniform with badges, who pointed guns at them, and took money from them.

So, then the question was what “crimes” and/or “vandalism” had Lochte and the swimmers really caused? There was an early news crew, I think NBC, that went to the site and did not really find all that much damage. As the statements by both Lochte and the other swimmers, notably Gunnar Bentz, came out, it was clear that there was a real question as to what, if any, real damage was done. And a question of who engaged in exactly what criminal behavior at that gas station in the early morning of August 15.

Well, now it is starting to come out. And, as expected, the Brazilians have ginned up every bit as much “over-exaggeration” as Ryan Lochte. From today’s USA Today Investigative Team of Taylor Barnes and David Meeks, which confirms some of the work previously seen from (again, I believe) NBC. It is a pretty thorough and convincing report:

But a narrative of the night’s events – constructed by USA TODAY Sports from witness statements, official investigations, surveillance videos and media reports – supports Lochte’s later account in which he said that he thought the swimmers were being robbed when they were approached at a gas station by armed men who flashed badges, pointed guns at them and demanded money.

A Brazilian judge says police might have been hasty in determining that the security guards who drew guns on the swimmers and demanded money did not commit a robbery. A lawyer who has practiced in Brazil for 25 years says she does not think the actions of Lochte and teammate Jimmy Feigen constitute the filing of a false police report as defined under Brazilian law.

An extensive review of surveillance footage by a USA TODAY Sports videographer who also visited the gas station supports swimmer Gunnar Bentz’s claim that he did not see anyone vandalize the restroom, an allegation that in particular heightened media portrayals of the four as obnoxious Americans behaving recklessly in a foreign country. Meanwhile, Rio authorities have declined to identify the guards or offer any details beyond confirming they are members of law enforcement who were working a private security detail.

Now, we can’t compare that with everything the Brazilian police have, because they have been hiding a lot of their material and, apparently, misrepresenting substantial portions of it from the start. But everything within the USA Today piece corresponds with the various videos obtained by the various media outlets, whether Brazilian, American or international, and corresponds with Gunnar Bentz’s statement, which nobody, even, quite notably the Brazilians, including police, seems to contest in the least.

In short, the overall picture of the incident seems to be bigger and more complex, with some outrageous conduct by not just the American swimmers, but also, and substantially, the Brazilians. Oh, and about that “bathroom trashing damage”? That appears to be vapor too:

At a news conference Thursday, Rio police chief Fernando Veloso characterized the athletes’ actions at the gas station as vandalism. He said they also had broken a soap dispenser and mirror inside the restroom. Reports quickly grew that the Americans had trashed the restroom.

A USA TODAY Sports videographer who visited the bathroom Thursday found no damage to soap dispensers and mirrors and said none of those items appeared to be new. Some media accounts suggested the men had broken down a door, which USA TODAY Sports also did not observe.

Bentz said in his statement that he believes there are surveillance videos shot from different angles that have not been released. He also said he did not see anyone damage the bathroom or even enter it.

Oh, and that much ballyhooed “sign” supposedly damaged? Reports are that it was a minor crack in a cheap plastic cover and that the swimmers were made to pay out somewhere between $100 to $400 to cover what appears to be mostly ginned up nonsense. Additionally, irrespective of what the “security guards” extracted from the swimmers at gunpoint, swimmer James Feigan was made to pay the amount of $11,000 as a “donation” simply in order to leave the country and return home. That is not a “donation”, that is a flat out outrageous extortion demand and payment extracted by Brazilian authorities.

I wonder what bloviating sports columnists so full of righteous outrage and apologia will say now? Brazil is to be commended for putting on a great Olympics, and doing so under difficult constraints and conditions. But for the green pools (that affected nothing in the long run), they really pulled off a fantastic, admirable and beautiful show. Even the rain did not phase or slow down the glorious closing ceremonies Sunday night.

But one point on which Brazilian authorities “over-exaggerated”, overreacted, and failed to acquit themselves well on was in relation to the randy American swimmers. According to the USA Today report, even judges in Rio are wondering if they were hoodwinked in the rush of outrage by the authorities.

The distress of the Brazilian authorities over the emerging story from the swimmers is perfectly understandable given the dynamics. But, if an international scandal was created by this incident, it appears as if it is every bit as much the fault of the Brazilan police and authorities as it is the American swimmers.

It took two for this little tango.

Training Camp Trash Talk

Welp, the NFL and Olympics have both descended on us. There is not much up in F1, the same usual boring Mercedes dominance with intra-team squabbling and petulance. Yawn. There is some really decent racing behind the Mercs, but the crappy coverage afforded in the States by the craptastic NBCSN shows little of it. So, unless you have a foreign feed, or are actually there, it is yet another worthless and boring season. F1 needs to get its act together fast, or become increasingly irrelevant.

On to the good stuff. training camp and the “pre-season” are here in the NFL. As you know by now, Tom Brady and the NFLPA got hammered and reversed by a split panel of the 2nd Circuit. The dissent, by the Chief Judge for the Circuit, Katzmann, was spot on, but he was outvoted by a majority who truly did not seem to be particularly prepared or knowledgeable in the nuances of the lower proceedings record. Either that, or just did not care and were determined to uphold the iron vise grip of arbitration no matter what.

Be that as it may, the majority prevailed, and Judge Katzmann did not. That’s the way the cookie crumbles sometimes. Everything you could possibly want to know is covered and/or linked in our friend Dan Werly’s superb blog, The White Bronco, including the pleadings and opinions, most importantly the 2nd Circuit majority and Katzmann dissent.

To put a coda on the affaire du Deflategate, this week the 8th Circuit, finally after months of waiting, issued its decision in the Adrian Peterson case. It tracked the anti-labor nimrodery of the 2nd Circuit militating against any semblance of Due Process if there is a collective bargaining agreement. A sad and terrible end, and an unfortunate one not only for the labor in the NFL, but all labor subject to CBA’s.

With Deflategate finally receding in the rear view mirror, NFL training camps have opened and the pre-season games are approaching. The first, as always, is the Hall of Fame game from Canton Ohio. That will be Sunday night between the Packers and Colts. But there will be little Aaron Rodgers, and little Luck, so view at your own peril. But the Hall of Fame enshrinement ceremony is tonight, starting at 7 pm EST on ESPN. The draw is, of course, The ‘Ole Gunslinger, Brett Favre, who will be the last inductee tonight. Here are some interesting notes on Favre from Andrew Brandt, who worked with him in Green Bay. If every player in the NFL played with the same pure joy as Favre, it would be a better place.

In other news and notes, the Bolts can’t even sign their first round draft choice (or maybe they should have steered away from Ohio State lunkheads that have been under Urban Meyer’s dubious tutelage) in spite of the fact the rookie caps and specs are supposed to avoid this type of situation. It really looks ugly, and the Bolts will have to either trade Joey Bosa or risk having him sit the year out and turn into draft vapor. What a mess.

In local news, the Cardinals have extended both Carson Palmer and Larry Fitzgerald for an extra year. Both are no longer spring chickens, but incredibly productive and absolutely critical for the Cards chances of staying near the top of the league. Seems like a good move as to both, but let’s wait to see what the toll of another full NFL season brings. Also recently signed up by the Cards long term is Tyrann “Honeybadger” Mathieu. He is an injury risk, but such an awesome player and even better person in the community here, it had to be done. Let’s hope the Honeybadger stays healthy for a while.

There are news and notes all through the league. Please, bring them from your team and area. I know Scribe is dying to drop some Steelers info on us, and maybe JoeSixPac from the Niners (who still look dicey to me!). Maybe Marcy will even bring some updates on the Kittehs and Pats!

Rock on folks. This weekend’s music, Seasons of Wither, is an older classic cut from Aerosmith off of their second album, Get Your Wings. This is a live and unplugged version they did later, just because live music is the best music. It goes out, along with best thoughts and wishes, to our good friend Jason Leopold.

Surrogating the 2016 American Presidency

Tonight was the opening of the Democratic National Convention. It was a rather stunning difference from the scenes on the street yesterday and today, where there were minimal and well behaved cops in Philly as contrasted with the warrior cop oppressive stormtrooper presence in Cleveland. From my reporter friends from the Arizona Republic, the food is totally better in Philly too. Hey, armies move on food, and cheesesteaks rule.

Is everything coming up roses? Nope. There was the whole Debbie Wasserman Schultz thing. She was well advised by our friend David Dayen to stay away and excommunicate herself from the convention podium. But, crikey, the rest simply looks beautiful. Sanders supporters marching in the streets for change, mostly unfettered and unoppressed, other voices being heard, and all relative delegates meeting and co-existing in the halls. This ain’t the dysfunctional RNC bigoted shit show. That, in and of itself, would be worth this post. There is more.

Don’t let cable coverage and the relentless yammer of their panels of self interested toadies fool you, the few true camera pans at the RNC showed more than a few empty seats and a far smaller crowd (especially in the upper decks) than displayed tonight at the DNC.

The real tell, in difference, was in the quality of the speakers and presentation. The only lasting memory from the RNC’s opening night was the embarrassing plagiarism in Melania Trump’s speech. Honestly, my bet is that is not on her, but the understaffed and idiot handlers her narcissistic, yet bumbling, husband provided. That said, it was a res ipsa loquitur deal and, in the end, spoke for itself. What else do you remember from that night other than Tim Tebow did not appear? I got nuthin.

The first night of the DNC in Philly, however, came with a litany of decent and well presented folks presented to a full and energetic hall. Emphasis on full. The dynamics in staging and presentation were stark. As were the quality and mental coherence of the speakers. The first electric moment came when Sarah Silverman, who along with Al Franken, was doing a bit and intro to Paul Simon singing (a geriatric, albeit mesmerizing) Bridge Over Troubled Water. Silverman and Franken had to kill an extra 120 seconds or so and she blurted out some hard, and real, truth that her fellow Bernie Sanders supporters who refuse to help Clinton defeat Trump are flat out “being ridiculous”. Truer words have never been spoken.

But soon came Michelle Obama to the podium. I am not sure I have the words to describe how good Michelle was. As a convention speaker, a surrogate, a leader, a mother and as a First Lady embodying all of the above. Michelle Obama killed it. She blew the joint up. I don’t know how else to describe it, but if you did not witness it live, watch the video up at top. Just do it.

Frankly, at the conclusion of Michelle Obama’s speech, it was hard to see how the last two key speakers, Elizabeth Warren and Bernie Sanders, could possibly top the moment. Sadly, they could not. Liz Warren gave a great, and often in depth, speech. One that absolutely slayed Donald Trump in nearly every way. On its own, it would have been noteworthy. But sandwiched between the brilliance of Michelle Obama and Sanders, with his acolytes cheering and hers still reeling, it seemed good, but not great.

Bernie Sanders caught a little more fire, but mostly because of his yuuge contingent of supporters. And that is not just a good thing, it is a great thing. Sanders did everything, and more, he should have done in this speech by ginning up the classic points and issues his campaign, and its followers, were built on…and then transferring them to Clinton.

It did not work perfectly, but this will be a process up until the election date on November 8. Bernie went a long way, gracefully and patiently, tonight. And, while the cheering crowd appeared to be much more than just the “Sandernistas”, all of the hall seemed to get on board. That, along with Sarah Siverman telling holdout Bernie Busters to wake up and not be ridiculous, were giant steps in unifying support for Clinton over Trump.

Listen, I have been around the block a few times, and know I am supposed to lead with the headline. Sorry, this one worked up to it, and here it is. The RNC and Trump got their lousy bounce because the media, once again, cravenly portrayed what happened in Cleveland as normal, and tit for tat, with what is happening, and will happen, in Philadelphia. That is simply a ratings and craven click germinated lie. The difference is stark.

Nowhere is it more stark than in the picture painted as to the surrogates who will come out of the respective conventions to campaign for their respective candidate between now and November 8.

Um, let’s see, for the GOP we have Newt, Carson, Melania, Thiel, Flynn, Joe Arpaio and Chachi Baio. I excluded Ivanka because she might actually be competent. Seriously, that is basically it for Trump surrogates. From the whole convention. Even Clint Eastwood’s chair took a pass in this, the year of the Orange Faced Short Fingered Vulgarian Bigot.

Let’s compare that with what came out of the Democratic Convention’s first night. Sarah Silverman, Al Franken, Paul Simon, Eva Longoria, Corey Booker and, then, the big three…Michelle Obama, Liz Warren and Bernie Sanders. That is just the first night folks.

See a bit of a dichotomy in personality and credibility there?

Then picture that Clinton’s road warrior surrogates will include not just the above, but also Joe Biden, President Barack Obama and the Big Dog himself, Bill Clinton.

Elections are won in the trenches. Say what you will about Hillary Clinton, and I will probably join you on many negatives, but the Clintons do have a ground operation. And their surrogates are like the 1927 Yankees compared to the Bad News Bears for Trump and the RNC. How will Trump bolster his bench, by bringing in Roger Ailes to molest the women of America? Is there another ground plan for the Trump Juggalos?

Sure, Clinton can still muck it up and lose. She, and the DNC, have been beyond pathetic in how they have treated nearly half their party, and much of their activist base, during the primaries and aftermath. Not just ugly, but stupid. They deserve any hell they get for that, whether it comes from appropriately enraged Sanders supporters or from press reporting on hacks (THE RUSSIANS ARE COMING, THE RUSSIANS ARE COMING!!!)

Bottom line is this: Which set of surrogates would you think would do a better job spreading out over the country: Crazy Newt, Racist Flynn, Bigot Arpaio and Chachi, …. or Michelle Obama, Liz Warren, Bernie Sanders, Barack Obama and Joe Biden?

Think I will go with the latter, and I think they will reach a heck of a lot more voters who will actually engage than will the trite and petty bigots Trump will have on the public offer.

And the Dems have a laundry list of other quality surrogates who will stand up. Trump has apparent Klan worthy members like Jeff Sessions, felons like Don King and Mike Tyson, and people who seek to be them.

Who you gonna call when it comes time to vote?

Seems like an easy decision, especially when you consider that the next 30 to 35 years of ideological control of the Supreme Court hang in the balance.

Tom Brady Taps Out of Deflategate and Other Trash Talk

Just posted a few minutes ago on Tom Brady’s Facebook page:

Screen Shot 2016-07-15 at 10.46.18 AM

Frankly, I am stunned. From the jump, Brady seemed to be a guy that would fight to the bitter end because he truly believed he was innocent and that the conduct of Roger Goodell and the NFL was dishonest and oppressive. And, frankly, every bit of research and evaluation of the case indicates that is exactly the case. My early analysis, which I still believe holds up nearly 100% is here. I touched significantly on why the Deflategate litigation was critical not just to Tom Brady, but to all organized labor operating ind a Collective Bargaining Agreement (CBA). That is quite so, and the NFLPA has already indicated they may – may – continue on as a union to litigate this issue. We shall see, though they will be weakened without Brady being involved.

Having said that I am completely stunned Brady has tapped out, there are cognizable reasons for it. His best shot of success was with his petition for wn banc review in the 2nd Circuit, but that was denied Wednesday morning. To go further, Brady would have to file a petition for certiorari with the Supreme Court and seek to obtain a stay of his suspension while the cert petition was processed. That would have been a tall order. The first stop would have beed the 2nd Circuit itself, which just dumped him, and then with Ruth Bader Ginsburg as the assigned Circuit Justice for the 2nd Circuit, and lastly to the full SCOTUS (which is not even in session currently).

I have a couple of sports law attorney friends I have found along the Deflategate way that thought Brady had a shot at a stay, maybe even odds as good as 50%. I thought that was probably entirely too optimistic, and not we will never know as the NFLPA does not have any need for a stay without Brady’s suspension hanging in the mix.

Just spitballing here, but I am going to guess that Bill Belichick, Bob Kraft and the interests of the team were the deciding factor for Brady, and not the thin odds. You see, even if Brady had been granted a stay, unless the Supremes granted cert, there is a real chance that the four game suspension rears its ugly head again at the end of the season and/or even the playoffs. If the Patriots are going to lose Tom Brady, it is far better that it be in the first four games, most of which they may have a decent shot at winning even without Brady, than have it be at the end of the year or playoffs. Nathaniel Grow at Sports Law Blog has a good discussion of the timing issue it Brady had actually obtained a a stay. So, dollar to donuts, this was not just the deciding factor, but the only real factor. Money was never an issue.

Just so you know, the Pats open here in Arizona against the Cardinals on Sunday Night Football on NBC, and then are at home in Foxborough against the the Dolphins, Texans and Bills. They can win some, if not most, of those games with Jimmy G at QB.

So, there you go, Deflategate comes to an ignominious end, at least as to Tom Brady. But there are other sports issues in the air, not to mention a boatload of politics and other matters. So feel free to use this thread as an open forum.

On The Passing of David Margolis, the DOJ Institution

david-margolis-250David Margolis was a living legend and giant at the Department of Justice. Now he has passed. Just posted is the following from DOJ:

Statements From Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates on the Passing of Associate Deputy Attorney General David Margolis

Attorney General Loretta E. Lynch and Deputy Attorney General Sally Q. Yates released the following statements today on the passing of Associate Deputy Attorney General David Margolis, senior-most career employee at the Department of Justice.

Statement by Attorney General Lynch:

“David Margolis was a dedicated law enforcement officer and a consummate public servant who served the Department of Justice – and the American people – with unmatched devotion, remarkable skill and evident pride for more than half a century. From his earliest days as a hard-charging young prosecutor with a singular sense of style to his long tenure as one of the department’s senior leaders, David took on our nation’s most pressing issues and navigated our government’s most complex challenges. To generations of Justice Department employees, he was a respected colleague, a trusted advisor and most importantly, a beloved friend. We are heartbroken at his loss and he will be deeply missed. My thoughts and prayers are with David’s family, his friends and all who loved him.”

Statement by Deputy Attorney General Yates:

“David Margolis was the personification of all that is good about the Department of Justice. His dedication to our mission knew no bounds, and his judgment, wisdom and tenacity made him the “go-to” guy for department leaders for over 50 years. David was a good and loyal friend to all of us, and his loss leaves a gaping hole in the department and in our hearts.”

I am sure Mr. Margolis was a kind, personable and decent chap to those who knew and worked with him. I can be sure because there have been many voices I know who have related exactly that. He was undoubtedly a good family man and pillar of his community. None of that is hard to believe, indeed, it is easy to believe.

Sally Yates is spot on when she says Margolis’ “dedication to our [DOJ] mission knew no bounds”. That is not necessarily in a good way though, and Margolis was far from the the “personification of all that is good about the Department of Justice”. Mr. Margolis may have been such internally at the Department, but it is far less than clear he is really all that to the public and citizenry the Department is designed to serve. Indeed there is a pretty long record Mr. Margolis consistently not only frustrated accountability for DOJ malfeasance, but was the hand which guided and ingrained the craven protection of any and all DOJ attorneys for accountability, no matter how deeply they defiled the arc of justice.

This is no small matter. When DOJ Inspectors General go to Congress to decry the fact that there is an internal protection racket within the Department of Justice shielding even the worst wrongs by Department attorneys, as IG Glen Fine did:

Second, the current limitation on the DOJ OIG’s jurisdiction prevents the OIG – which by statute operates independent of the agency – from investigating an entire class of misconduct allegations involving DOJ attorneys’ actions, and instead assigns this responsibility to OPR, which is not statutorily independent and reports directly to the Attorney General and the Deputy Attorney General. In effect, the limitation on the OIG’s jurisdiction creates a conflict of interest and contravenes the rationale for establishing independent Inspectors General throughout the government. It also permits an Attorney General to assign an investigation raising questions about his conduct or the conduct of his senior staff to OPR, an entity reporting to and supervised by the Attorney General and Deputy Attorney General and lacking the insulation and independence guaranteed by the IG Act.

This concern is not merely hypothetical. Recently, the Attorney General directed OPR to investigate aspects of the removal of U.S. Attorneys. In essence, the Attorney General assigned OPR – an entity that does not have statutory independence and reports directly to the Deputy Attorney General and Attorney General – to investigate a matter involving the Attorney General’s and the Deputy Attorney General’s conduct. The IG Act created OIGs to avoid this type of conflict of interest. It created statutorily independent offices to investigate allegations of misconduct throughout the entire agency, including actions of agency leaders. All other federal agencies operate this way, and the DOJ should also.

Third, while the OIG operates transparently, OPR does not. The OIG publicly releases its reports on matters of public interest, with the facts and analysis underlying our conclusions available for review. In contrast, OPR operates in secret. Its reports, even when they examine matters of significant public interest, are not publicly released.

Said fact and heinous lack of accountability for Justice Department attorneys, not just in Washington, but across the country and territories, is largely because of, and jealously ingrained by, David Margolis. What Glen Fine was testifying about is the fact there is no independent regulation and accountability for DOJ attorneys.

They are generally excluded from the Department IG purview of authority, and it is rare, if ever, courts or state bar authorities will formally review DOJ attorneys without going throughout the filter of the OPR – the Office of Professional Responsibility – within the Department. A protection racket designed and jealously guarded for decades by David Margolis. Even when cases were found egregious enough to be referred out of OPR, they went to…..David Margolis.

In fact, attuned people literally called the OPR the “Roach Motel”:

“I used to call it the Roach Motel of the Justice Department,” says Fordham University law professor Bruce A. Green, a former federal prosecutor and ethics committee co-chair for the ABA Criminal Justice Section. “Cases check in, but they don’t check out.”

If you want a solid history of OPR, and the malfeasance it and Margolis have cravenly protected going back well over a decade, please go read “The Roach Motel”, a 2009 article in no less an authority than the American Bar Association Journal. It is a stunning and damning report. It is hard to describe just how much this one man, David Margolis, has frustrated public transparency and accountability into the Justice Department that supposedly works for the citizens of the United States. It is astounding really.

As I wrote back in 2010:

But just as there is an inherent conflict in the DOJ’s use of the fiction of the OPR to police itself, so too does David Margolis have issues giving the distinct appearance of impropriety. Who and what is David Margolis? A definitive look at the man was made by the National Law Journal (subscription required):

“Taking him on is a losing battle,” says the source. “The guy is Yoda. Nobody fucks with the guy.”
….
Margolis cut his teeth as an organized-crime prosecutor, and he often uses mob analogies in talking about his career at the Justice Department. When asked by an incoming attorney general what his job duties entailed, Margolis responded: “I’m the department’s cleaner. I clean up messes.”

The analogy calls to mind the character of Winston Wolfe, played by Harvey Keitel in the 1994 film “Pulp Fiction.” In the movie, Wolfe is called in by mob honchos to dispose of the evidence after two foot soldiers accidentally kill a murder witness in the back of their car.

“The Cleaner” Mr. Margolis considered himself, while fastidiously sanitizing gross malfeasance and misconduct by DOJ attorneys, all the while denying the American public the disinfectant of sunshine and transparency they deserve from their public servants (good discussion by Marcy, also from 2010).

Perhaps no single incident epitomized Margolis’ determination to be the “cleaner” for the Department of Justice and keep their dirt from public scrutiny and accountability than the case of John Yoo (and to similar extent, now lifetime federal judge Jay Bybee). Yoo as you may recall was the enlightened American who formally opinedcrushing innocent children’s testicles would be acceptable conduct for the United States to engage in. Yoo and Bybee, by their gross adoption of torture, literally personally soiled the reputation of the United States as detrimentally as any men in history.

So, what did David Margolis do in response to the heinous legal banality of evil John Yoo and Jay Bybee engendered in our name? Margolis cleaned it up. He sanitized it. Rationalized it. Ratified it. Hid it. To such an extent architects of such heinous war crimes are now lifetime appointed federal judges and tenured professors. Because that is what “The Cleaner” David Margolis did. “Protecting” the DOJ from accountability, at all costs, even from crimes against humanity, was simply the life goal of David Margolis, and he was depressingly successful at it.

So, less than 24 hours in to the passing of The Cleaner, is it too early to engage in this criticism? Clearly other career officials at the DOJ think discussing the pernicious effects of Margolis on accountability and transparency are out of bounds.

I wonder what the late Senator Ted Stevens would say in response to the “too soon” mandate of Steven Bressler? Because thanks to the efforts of The Cleaner Margolis, Stevens died without the public knowing what an unethical and craven, if not downright criminal, witch hunt attorneys in the Department of Justice ran on him. Even after Stevens was long gone from office and dead, there was Margolis “cleaning” it all up to protect his precious Justice Department when even the internal OPR found gross misconduct:

Following the Justice Department’s agreement in 2009 to vacate the convictions it obtained of former Alaska Senator Ted Stevens, it conducted an internal probe into the conduct of its senior lawyers and—surprise!—exonerated them and itself. It then refused to make the report public. However, at the time the conviction was voided, the presiding judge in Stevens’s case, Emmet Sullivan, appropriately wary of the department’s ethics office, appointed a special prosecutor, Henry F. Schuelke, III, an eminent Washington attorney and former prosecutor, to probe the DOJ’s conduct. Late last week, Schuelke’s 525-page report was released, over the loud objections of DOJ lawyers. The report revealed gross misconduct by the prosecutorial team, stretching over the entire course of the case and reaching into the upper echelons of the department. It concluded there had been “systematic concealment of significant exculpatory evidence which would have independently corroborated [Stevens’s] defense.”

Having laid out the above bill of particulars as to David Margolis, I’d like to return to where we started. As I said in the intro, “I am sure Mr. Margolis was a kind, personable and decent chap”. That was not cheap rhetoric, from all I can discern, both from reading accounts and talking to people who knew Mr. Margolis well, he was exactly that. Ellen Nakashima did a fantastic review of Margolis in the Washington Post last year. And, let’s be honest, the man she described is a guy you would love to know, work with and be around. I know I would. David Margolis was a man dedicated. And an incredibly significant man, even if few in the public understood it.

Say what you will, but Mr. Margolis was truly a giant. While I have no issue delineating what appear to be quite pernicious effects of David Margolis’ gargantuan footprint on the lack of accountability of the Department of Justice to the American citizenry, I have some real abiding respect for what, and who, he was as a man. Seriously, read the Nakashima article and tell me David Margolis is not a man you would love to kill some serious beers with by a peaceful lake somewhere.

But David Margolis, both the good and the bad, is gone now. Where will his legacy live? One of our very longtime friends here at Emptywheel, Avattoir, eruditely said just yesterday:

Focus instead on the institution, not the players. The players are just data points, hopefully leading to greater understanding of the institutional realities.

Those words were literally the first I thought of yesterday when I received the phone call David Margolis had passed. They are true and important words that I, and all, need to take heed of more frequently.

David Margolis, it turns out from all appearances and reports, was a complex man. Clearly great, and clearly detrimental, edges to him. So what will his legacy be at the Department of Justice? Will the closing of the Margolis era, and it was truly that, finally bring the institution of the Department into a modern and appropriate light of transparency, accountability and sunshine?

Or will the dirty deeds of David Margolis’ historical ratification and concealment of pervasive and gross misconduct by Department of Justice attorneys become permanently enshrined as a living legacy to the man?

We shall see.

There’s No [Easy] Exit

Not an European scholar or sage. Have tried to pay attention to the Brexit question across the pond, but unsure how well I have done so. Generally, however, it has struck me that, given real problems either way for the Brits, the best choice was to stay in the EU.

Really, there was a definitive majority to join then, so what is the plan now?

Tell me why the secrets have disappeared
cover up the traces of wasted years,
the traces of wasted years

build it up
alibies for the damned
hide away
don’t ever reveal your plan.

So, what is the plan now for the always diminished, but oh so egotistically adventurous Brits, given they are woefully short on empire and hegemonic power? Oh so much like the terminally behind the queue United States?

Isn’t that a lesson the US ought not heed? If not decades ago, maybe finally now?

The UK may be leaving the collective, but do they really have an exit plan? The number of modalities in which they simply cannot have a great and immediate plan are too number to plow through.

There is no easy exit. Despite the vote in the UK. Germany and France make it clear this is not easy.

Lock it up,
standing behind closed doors
give it up,
no hiding place anymore

The value of the British pound and stock prices in Asia plummeted as financial markets absorbed the news.

I don’t know how it is going to be in the UK going forward. But if the vote is what it looks, the Brexit has definitively occurred, the only question now is what happens.

On the whole, pretty scary proposition, and the effort to get there seems much like the brain dead Trumpian movement afoot here in the States; i.e. shortsighted, uninformed and stupid. Hope I am wrong.

But here we all are, on both sides of the pond, looking inordinately stupid and shortsighted.

The world is being consumed by Trumpalos and Juggalos.

There is no exit.

[If you don’t know this band in the video featured, you should. They are The Angels, and this song is perfectly prescient for today even if from long ago.]

El Nino Scalia

Antonin Scalia is dead. Say what you will, there is no rejoicing from me. Was Nino a malefactor in Supreme Court jurisprudence over the decades since his confirmation on September 26, 1986? Yes, and an irascible one as well. Once Bork got Borked, Scalia was the whipping post for all liberals, on the continuity of the spectrum. Did he earn that status? Yes, and maybe then some.

The hagiography of Nino is already quite well underway. I was out shopping for garden/landscaping things and had no idea until called by Marcy. It still took me a while to get back and dive into this. There are a million takes already underway on the net and in the press, such as the press may be these days. If you want a recap of the same old, this ain’t it. And, for now, what I have to say is not all that long or extricated.

First off, let’s talk about Scalia the man and Justice. As said above, once Bork got Borked, there was going to be a piñata for liberals (like me) to pound on. And, over the years, boy have I, and we, done just that. And for, mostly, good reason.

But anybody can blabber about what a prick Nino was. Fairly. But, in the current context, I want to do something different. As loathsome as Scalia often was, he was still somewhat of a hero to people that practice actual criminal law. No, not across the board, but enough that it ought be mentioned and left as a part of his legacy.

Why? Okay, this is a quick take:

Fourth Amendment: There is actually a long thread of Scalia decency on Fourth Amendment issues over the years. I have had occasion to quote him from both majority and dissents frequently. But, most recently, you can probably relate most easily to United States v. Jones, Riley v. California and, significantly, Kyllo v. United States. Now Scalia only penned Jones and Kyllo, but his fingerprints were all over Riley too. This is just my opinion, but I am not sure that a lesser conservative justice on the court would have seen these decisions through, and allowed them to be as consensus as they were.

One law professor, Tim MacDonnell, put it this way:

Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity.

I do not agree with everything in MacDonnell’s article, but it is quite good and his dubious context is spot on. Scalia has been more than prominent in Fourth Amendment jurisprudence since his time on the court. I have serious issues with many of the “exceptions” he has bought off on in the name of police expediency, but I can, and do, imagine a different justice being far, far, worse on the Fourth (can you say “Alito”? Of course you can). So, there is that. But, by the same token, I remember coming out of court and getting informed of the Kyllo decision. Several drinks were hoisted to Scalia that afternoon and night.

Then, there is the Sixth Amendment. This is an area on which Scalia gets scant attention and credit for. And, yes, if you practice criminal law, it is one of critical importance, whether pundits or the press realize it or not. Because if you happen to actually do criminal jury trials (or bench for that matter), you know the critical importance of being able to confront and cross-examine the witnesses and evidence against your client, the defendant. I have cited Scalia’s words, both successfully and unsuccessfully, for a very long time on confrontation issues. But the successes I, and clients, have had owe in large part due to Scalia. Here is a bit from David Savage, of the LA Times, from 2011 that summarizes Scalia’s Confrontation Clause championing about perfectly:

The 6th Amendment to the Constitution says the “accused shall enjoy the right … to be confronted with the witnesses against him.” To Scalia, this clause not only gives defendants the right to challenge actual witnesses, but also the right to bar testimony from all those “witnesses” who did not or cannot testify in court. He takes this view even if the witness is dead.

Three years ago, Scalia led the court in reversing the murder conviction of a Los Angeles man who shot and killed his girlfriend. A police officer testified the victim had reported that Dwayne Giles threatened to kill her. Scalia said that testimony violated Giles’ rights because he could not confront or cross-examine her.

“We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding,” Scalia said for 6-3 majority. This went too far for liberal Justices John Paul Stevens and Stephen G. Breyer.

Two years ago, Scalia spoke for a 5-4 majority reversing the conviction of an alleged cocaine dealer from Massachusetts because prosecutors did not bring to court a lab analyst whose test confirmed the bags of white powder were indeed cocaine. The dissenters, including Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Samuel A. Alito Jr., said a lab technician who conducts a test is not a “witness” in the ordinary sense of the term.

In June, the court went one step further. The Scalia bloc, by a 5-4 vote, overturned the drunken-driving conviction of a New Mexico man because the lab analyst who testified about his blood alcohol did not actually work on the defendant’s blood sample. He put together an odd-couple coalition with Justices Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

“This is not a left-right split. This is principle versus pragmatism,” said University of Michigan law professor Richard Friedman.

Frankly, Scalia has only reinforced that since late 2011 when Savage wrote said words. If you practice in a criminal trial courtroom, you owe a debt of gratitude to Antonin Scalia for your ability to still confront and cross-examine witnesses and evidence. I don’t think it is hyperbole to say that, without Scalia, this fundamental procedural right would be totally shit right now.

So, this is but a nutshell of the greater whole, and I am still trying to catch up. But those are my thoughts for now. Do not get me wrong, Antonin Scalia was never, nor will ever be, my favorite, nor even an overall positive Supreme Court Justice in my eyes. There is too much malignancy and caustic history from Scalia, on far too many fronts, for that to ever be the case. But the man is not yet even in the ground, and there were a couple of important positive things to say before the ultimate obituary is written.

And, on one other note, let’s keep in mind that the warm and fuzzy stories of Scalia with Ruth Bader Ginsburg, from court interaction, to opera to shooting at animal trips is not the only history of Nino Scalia and women on the Supreme Court. He was, certainly less famously, in some instances, a frat boy jerk to Sandra Day O’Connor. So, take the lionization of the Kagan relationship with a healthy grain of salt.

Antonin “Nino” Scalia was a flawed, but important man. He is now gone. So, the biggest issue is, what happens now? Republican leadership did not have to announce that they will stall their asses off and try to prevent the confirmation of ANY nominee that Obama would put up. Frankly, that went without saying in today’s Congress.

But, can they do that, will there be no Obama SCOTUS nominee confirmed, no matter what? I would not be shocked if that were not so. By the same token, the longest a confirmation battle has ever taken to confirm a SCOTUS Justice is 125 days (Obama has 361 left).

Obama has already said he will make a nomination, and I believe he will. If I had to bet right now, my bet is that the nominee is Sri Srinivasan. I have long thought this, and Sri, while being a decent guy, is a dead nuts centrist, barely a “liberal” at all kind schlub that Obama loves. But I doubt the crazed GOP led Senate would confirm even a milquetoast centrist like Srinivasan. Let other speculation begin now even though the chances of confirmation of any nominee are close to nil.

Irrespective, the primary, and certainly the general, elections just got FAR more interesting. Frankly, this is the only part of the election I was really worried about from the get go. Now it is squarely on everyone’s plate.

Super Bowl 50 Trash Talk

It’s the most wonderful time of the year again…..Super Bowl time! Yet, for all the incessant hype, this one feels a little flat to me. Maybe it is because I so wanted the Cardinals to be there. Maybe it is because, just as much, if not more, I wanted the Patriots there so as to drive bilious jackass Roger Goodell crazy. Maybe it is because the thought of cobbled together halftime show of Coldplay, Bruno Mars and Beyonce makes me want to vomit. What, was Nickelback not available? Maybe it is the fact that ESPN seems to have cloned the unctuous Stephen A. Smith so that he can annoyingly be on their air 24 hours a day for the last two weeks. Maybe it is because I have heard horror stories from pretty much every person I know in the Bay area about how interrupted and on security lockdown status the entire area has been. Maybe it is because everybody thinks it will be a blowout, like Super Bowls of yore, instead of a great game like last year.

But all griping aside, the game is nigh. Two truly superb defenses. For all the talk of Denver’s kick ass defense, Carolina strikes me as being nearly as good, with excellent strength in all three levels. Allen and Johnson upfront, Kuechly and Davis in the middle and Josh Norman on the back end. That is pretty damn formidable. The rest of the Carolina DB’s are decent, but not great, and if Manning is going to make hay, that’s where it will probably be. So, while the Broncos may have a slight edge on defense, it really is slight.

Which brings us to the offense. The conventional wisdom is that Carolina is overwhelmingly superior, and that is were the game is lost. Frankly, that is probably right. The Donks won, but certainly didn’t light the field up against the Pats, who have a good defense, but nothing like the Panthers have. But Manning has two more weeks of relative rest and practice. Several people watching him are saying he looks as good or better than at any time this year. That is good news as he was mostly horrible this year. I think Manning has a little magic left in him and will play well. Will it be enough? I wouldn’t bet on it. The current line is Panthers by 5.5. Both teams have all players as probable or better, so come in healthy and ready to go.

What else is up in random sports musings? Johnny Football is officially Johnny Fucked now. When even your father is saying you are on a death track, it’s bad. The Dallas cops took the report from his rather bizarre reported incident and then promptly announced the investigation was closed and there would be no charges. I am not privy to how it came to be closed without charges with a report containing such bad facts. But, generally, my experience is it means that the alleged victim was seen as not particularly credible AND indicated she didn’t want to cooperate in prosecution. The facts reported would appear to indicate both misdemeanor and felony conduct if believed. Cops and prosecutors still charge that if they truly believe the complainant, whether she wants to cooperate or not. So, my bet is there is a credibility issue. But, suddenly yesterday, Crowley got a restraining order and told the cops she wants to cooperate, and the “investigation” is reopened. We shall see what comes of it all, but the whole thing is pretty sad. Looks to me like Manziel and his ex-girlfriend Crowley both need some serious help. Let’s hope they get it.

Noticed how so many ads surrounding the Super Bowl refer to “The Big Game” instead of “The Super Bowl”? I have, and it turns out there is a reason. Could it be that Goodell and the NFL are sociopathic jackass asshole bullies? Of course. From BostInno:

The obvious reason for this is that the NFL fiercely protects its brand, allowing only a handful of “official sponsors” who pay exorbitant fees to use the term Super Bowl. Everyone else risks trademark infringement if they say Super Bowl. This is why most choose to say “big game” instead.

“But the NFL is a bully and has been known to send cease & desist letters to advertisers of all sizes using “Super Bowl,” and when you get a C&D from someone known to be litigious and to have really deep pockets, you usually cease and desist.”

Is there really legal precedent clearly on the NFL’s side here? No, of course not. The better argument is that it is an ubiquitous phrase and incidental use of it is “fair use”. But no one wants to take on supremely litigious assholes like Goodell and the NFL, so they all cower. By the way, a Stanford study found that Super Bowl ads are an ineffective waste of money in most instances.

In more Goodell and NFL assholery, at this big Super Bowl press conference, Goodell got asked about the data and results from the league’s year long ball inflation testing. Well, that was just another #Deflategate lie from Goodell and the league, like everything else they put forward against Brady and the Pats in #Deflategate was a lie. When the excellent Tom Curran of CSN asked Goodell about the league data, boy did he get a load of horseshit from Goodell:

Aren’t you glad we got to the bottom of that PSI thing with White Shoes Goodell?

Brutal.

His 309-word answer when I asked at his Friday press conference what constitutes a ball pressure violation and whether any balls measured under 12.5 PSI in 2015 was a study in deflection.

He didn’t so much answer as he did orally ejaculate syllables for a prescribed length of time before he felt safe to go on to a stuttering query about whether the Pro Bowl will ever be played in Austria.

Before I left the ballroom where Goodell held his press conference at a dais made up like an altar, I realized – with some help – that the NFL doesn’t care about PSI.

They don’t care to know how much air pressure a football will lose on a 28-degree evening with freezing rain or on a crisp 46-degree day under bright sunshine.

They didn’t go into the 2015 season trying to find out if they’d convicted Tom Brady of a crime he didn’t commit.

So, #Deflategate was the giant fraud I said it was from the get go? Yes. And it continues to so be.

Gronk is at the Super Bowl. Here he is, with brother no less, in a Buffalo Wild Wings chicken wing eating contest. Here he is giving a lap dance to a rather attractive Fox Sports reporter, Julie Stewart-Binks, who asked the Gronk about his Magic Mike lap dance prowess. Pretty, uh, wild, but all seemed to genuinely have fun. Perhaps the best take came from Stewart-Binks’ Fox Sports colleague Katie Nolan (who is great):

“It’s Gronk. He’s gonna do what he’s gonna do. He’s a really nice guy who knows what his brand is. People pitch him segments based on his brand, so he won’t be like “NO!” become something might make him look uncool. But I think when were we’re in sports, and there are only so many women, and that’s how a show chooses to use them… I would love a lap dance from Gronk. I wouldn’t televise it. I wouldn’t use that time to be like, ‘Here’s what it’s like to get a lap dance from Gronk.’ I don’t think anyone meant any harm by it, but the most shared moment from my network today is gonna be a woman getting titty-fucked by Gronk on a couch.”

Anyway, that’s a wrap, enjoy the Super Bowl. Music today by Bob Marley, as requested by our very long time reader and commenter, RadioFreeWill, who I had several beers with last night.

NFL Pro Bowl Trash Talk

Hahahahaha, psyche!

No, there is no substantive Pro Bowl Trash Talk. Because the Pro Bowl is a complete worthless joke.

This is a let loose on idiocy in general post. Which is more than what the NFL Pro Bowl is at this point.

Have fun and let yer hair down.

Music by Jefferson Airplane. Paul Kantner was an incredibly nice, and extremely under appreciated, seminal musician. RIP Mr. Kantner, and thanks.

NFL Conference Championship Sunday Trash Talk

It is early Saturday afternoon here in the comfy confines of Casa de Bmaz in the desert cactus patch. Snowly Shit is afflicting everywhere from the northeast to southeast. Bad. It is kind of sick, but I have been watching the news and fielding Twitter feeds from good friends in the afflicted area for 24 hours now. All from the comfort of 74º high days. Wearing a suit, I actually had to use the air conditioner in my cay yesterday afternoon. Don’t fret, in a few more months, it will be 110º here and they can all laugh at me.

Frankly, I would kill to be in the winter maelstrom in New York and Washington DC, just to experience it. With plenty of food and booze properly stocked up, along with backup power, of course. But I am here, and so many of you and other friends are there, and my heart and best wishes go out to you. There are conference championship games afoot, and hopefully all can enjoy them comfortably, wherever you are.

First up is the Patriots at Broncos. Peyton Manning versus Tom Brady. Yadda yadda yadda. But there are 10 other people on the field for each on offense and 11 on defense. Brady will not lose the game. Manning could given his old age infirmities, but I would be stunned if that were the case. The Pats, despite Belichick’s infamously worthless injury reports, seem to be pretty healthy. Especially so as to Edelman and Gronk, which mean everything to Brady. The Donkos, maybe a little less so because of DB Chris Harris’ shoulder. If he is weak opposite Aqib Talib, that will be an exploitable problem.

It would be pretty easy to take the Pats here, all things being equal. But things are never equal, especially in this kind of battle. There are two other factors that I think – think – may be key. First, the Broncos are home in Mile High. And that is a brutal place for any team to play, anytime. But it has been especially toxic for the otherwise invincible Patriots, Brady and Belichick. It is not that they have never won there, but it has been an uncommonly black hole.

Secondly, the Broncos, under Mike Shanahan, had the best head to head success against Belichick, Brady and the Pats of anybody. Gary Kubiak was the OC on most all of those matchups. Shanahan altered his offense against Belichick to have a balance two tight end set on offense to compensate and pitch up the Belichick tactic of overloading the weak side. This not only protected the QB, but facilitated the run game. Kubiak knows the tricks that Shanahan used to be so successful. I bet Kubiak draws off that. Is it enough?

I dunno, but if I was betting real money, it would be on the Pats and Brady. I think they want to see Roger Goodell at Super Bowl 50, and I think they will. Even the New York Times now recognizes that Goodell and the NFL were horse’s asses in Deflategate. Which I explained from the start, both on Twitter and here. Also, ESPN has a real problem with ignorant assholes. First it was Curt Schilling, then Chris Mortenson perpetuating the patent fraud of Deflategate, and now blithering idiot Danny Kanell who is literally calling for the Broncos to take Tom Brady out with dirty hits.

The second game is Cardinals at Panthers. I probably have too many emotions wrapped up in this one to be overly fair. The Cards versus Packers was tough for me. Cards versus Panthers, however, is beyond an easy call. The Panthers are very good, and Cam Newton has turned into one hell of a pro quarterback, but the Panthers are basically not that easy to like for me.And certainly not this weekend.

The quarterbacks, on paper, look to be nearly a draw. If there is any justice, they will seriously finish first and second in the league MVP voting. Newton should absolutely win, but Carson Palmer is an arguably close second. Palmer is a better read and throw guy, and arguably better passer, but Cam Newton has gotten very good at that and can run in ways that Palmer can’t dream of. Edge Newton and Panthers. But Palmer and the Cards have better receivers and packages to exploit them, by a light year. Huge edge to the Cards there. The battle of offenses will come down to which offensive line plays and protects better. Frankly, that is probably what the game comes down to as well.

Which leaves the defenses. Both are better than average on the defensive line. Carolina has a big advantage at linebacker, and Kuechly is simply killer. Despite Josh Norman, the Cards may, if they play well, have a slight advantage in the secondary. This would be a no brainer in the Cards’ favor if Tyrann Mathieu was on the field, but, alas, that is not to be.

So, what is the bottom line? Carolina is at home, which is always to be paid attention to. These are very clearly the two best teams in the NFC this year, and it is perfect they are playing for the Championship. I have no idea who wins, but they match up well against the Panthers and the two teams played in Carolina last year. But there is a hell of a difference between a healthy Arizona team with Carson Palmer at QB than a decimated Cards team with Ryan Lindley at QB. By the same token, Palmer and the Panthers are far better too. It is a tossup, but heart is very much with the Cardinals. Go #BirdGang

Alrighty then, that is a wrap for this Trash. Music, in honor of all the winter weather affecting the east is by the Bangles, with an incredibly awesome version of Hazy Shade of Winter. Rock and roll hootchicoos.

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