Dear Bob Corker: Trump Has Also Been Starting Wars Here at Home

There is great delight in the chatter classes about — first — Bob Corker’s quip about the White House serving as an adult day care center caring for old people with dementia.

And then this article with a series of accusations about how unstable Trump is.

Senator Bob Corker, the Republican chairman of the Senate Foreign Relations Committee, charged in an interview on Sunday that President Trump was treating his office like “a reality show,” with reckless threats toward other countries that could set the nation “on the path to World War III.”

In an extraordinary rebuke of a president of his own party, Mr. Corker said he was alarmed about a president who acts “like he’s doing ‘The Apprentice’ or something.”

“He concerns me,” Mr. Corker added. “He would have to concern anyone who cares about our nation.”

But I want to point to several passages most people aren’t focusing on.

First, Corker claims that he still likes his golfing buddy Trump.

The deeply personal back-and-forth will almost certainly rupture what had been a friendship with a fellow real estate developer turned elected official, one of the few genuine relationships Mr. Trump had developed on Capitol Hill. Still, even as he leveled his stinging accusations, Mr. Corker repeatedly said on Sunday that he liked Mr. Trump, until now an occasional golf partner, and wished him “no harm.”

Then, Corker says he doesn’t regret normalizing Trump during his campaign.

One of the most prominent establishment-aligned Republicans to develop a relationship with Mr. Trump, the senator said he did not regret standing with him during the campaign last year.

“I would compliment him on things that he did well, and I’d criticize things that were inappropriate,” he said. “So it’s been really the same all the way through.”

And ultimately Corker stops short of deeming Trump unfit, in spite of all the comments that make it clear almost all Republicans do view him as unfit (which, indeed, he would be if he required adult day care).

“As long as there are people like that around him who are able to talk him down when he gets spun up, you know, calm him down and continue to work with him before a decision gets made, I think we’ll be fine,” he said.

Mr. Corker would not directly answer when asked whether he thought Mr. Trump was fit for the presidency. But he did say that the commander in chief was not fully aware of the power of his office.

“I don’t think he appreciates that when the president of the United States speaks and says the things that he does, the impact that it has around the world, especially in the region that he’s addressing,” he said. “And so, yeah, it’s concerning to me.”

This is important for several reasons.

For the most part, Corker is focusing on the damage Trump will do internationally. He mentions North Korea, matters on which he fantastically imagines the worst Secretary of State in recent memory, Rex Tillerson, is “negotiating,” and the Iran Deal.

When specifically asked if Trump is unfit, Corker focused on his role as Commander-in-Chief, bracketing all the other parts of being President, as a way to avoid calling the man unfit, which might require action under the 25th Amendment.

And, still, Corker still normalizes the golfing buddy who has spent over two years sowing division in this country and ten months working to dismantle the country internally.

Yes, Corker mentions Trump’s racist comments after Charlottesville, and then confesses he still likes the man who made them.

It’s nice that Corker has finally made it clear his Republican colleagues recognize what the rest of us have too, that Trump is a disaster. But he did so in such a way as to absolve himself and his colleagues from direct action, choosing instead to leave Trump in place to continue his war on America and Americans, even while hoping that Tillerson and his co-babysitters can keep Trump’s fat fingers off the nuclear button.

These are great one-liners from Corker.

But these are not responsible comments. Congress is a co-equal branch of government. And if almost all Republicans in the Senate recognize that Trump is unfit to be president, their constitutional duty is to do something about it, not to continue to normalize him in the hopes he’ll finish dismantling the laws and policies protecting vulnerable Americans.

Killer Trash Talk

Hi there!

This will be a Trash Talk mostly absent the real world intrusions of the last few weeks. Mostly.

But I had dinner a couple of days ago with a couple of people, both students, with a family and home in Puerto Rico. No, nothing there is going the way Trump duplicitously portrays it. It is just not. To argue otherwise is to prove a fool and ignorant. Here is the Washington Post with a reminder of what we all knew. The family we know lives in a part of San Juan that is upscale. It is the “nice” part. They still do not have power. Just barely got running water. Things are very much not good there. And will not be for a very long time. For this White House to have taken the victory laps they did is simply unimaginable. Then there is the Las Vegas shooting. That will await another day.

So, probably we should be concerned about whether or not athletes in America stand of kneel for the national anthem. Even in hockey they may not always, or they may raise a Tommie Smith fist, and idiots will probably be up in arms about that.

On to the games. Turns out, the Mean Green of Sparty did the nation a favor by slaying Kaptain Khaki and the Bo Merlots in the large abode. And Mark Dantonio reminded everybody exactly who is the best college coach in Michigan. Don’t sleep on Chris Peterson and Washington, they are coming, and he is one hell of a coach. And hate it all you want, Penn State may be in that rarified picture too.

As to the pros: I cannot say it any better than Gary Myers did, so I won’t, and will let him speak:

The NFL needs to start looking for ways for the Chargers to move back to San Diego. Team owner Dean Spanos should take the $650 million relocation fee he owes the NFL and put it towards a new stadium in San Diego instead. Fans are tired of corporate welfare and don’t want to pay for billionaires to get new stadiums so they can make even more money. Los Angeles was fine without a team for over 20 years and now they have two. The Rams are having a tough time getting re-established in the market. The Chargers are not wanted. They can’t even sell out the 27,000-seat soccer stadium that is their home until the new stadium is ready in 2020. Fans of opposing teams are making it feel like home games are road games for the Chargers… Rivers has not relocated his family to the Los Angeles area. He customized an SUV with video equipment and a driver and rides up from San Diego every day with backup QB Kellen Clemens. Rivers says the commute takes about an hour each way. They must be leaving early and coming back late to beat the usually horrendous traffic. “It’s actually been even better than anticipated. That’s one thing I’m thankful for,” Rivers said. “I’ve had no issues at all and really feel like I’m getting all the work done. It’s been as if, honestly, as if I was right there in San Diego, as far as the way we get to setup. So, it’s been smooth.”
>>>>>
Chicago’s Mitchell Trubisky is the third rookie QB now starting as he takes over for free agent bust Mike Glennon. Browns second-round pick DeShone Kizer won the job out of camp and Texans first-round pick Deshaun Watson was made the starter at halftime of the first game. Alex Smith is doing a good job keeping first-round pick Patrick Mahomes on the bench in Kansas City… Watson, by the way, was electric in the Texans’ 57-14 victory over the Titans last week throwing for 283 yards and four TDs and also running for a TD. The Texans traded up from No. 25 in the first round and also gave up their first-round pick in 2018 to move to the Browns spot at No. 12 to get Watson. Of course, Cleveland should have taken Watson. In March, they took Brock Osweiler’s $16 million guaranteed off Houston’s payroll along with adding the Texans’ second-round pick. If the Texans win the Super Bowl, the Browns front office should get Super Bowl rings… The Browns are 2-29 in their last 31 games, the worst 31-game stretch in NFL history.

I saw that this morning, and all of it were thoughts I had to start with. It is time for Trubisky. And Watson for the Texans looks like the truth. With a real franchise QB, the Texans could be scary good for a very long time. As to the Bolts, they really should go back to San Diego. It makes far more sense than LA for them. Thing is, I am not sure San Diego wants them back at this point. The blinding arrogance and lack of sensitivity of the Spanos family and the NFL owners/Goodell is so incredible that I am not sure the Chargers are now welcome anywhere, much less in San Diego. What a total oligarch cockup.

The Pats overcame the Bucs in one of the better and more memorable Thursday Night games to move to 3-2 for the year. Huge win, but Brady is still spending too much time on his ass from poor offensive line play. And, though the defense has been praised for their effort against TB, it really was not that much better. History reflects that Bill Bel defenses start soft and gel when it counts, but this one is nowhere near that yet. We shall see, but, for now, Bill Bel and the boys are 3-2 and on to the Jets Jets Jets, who will undoubtedly enter the game next week also at 3-2 because they play the Brownies today. The better question is whether the Bills circle their wagons enough today against the Bengals in Cinci to keep the lead in the AFC East, or if they fall to 3-2, and leave the Pats right where they always are. In the division lead.

In other games, the Cards at Iggles is interesting. Philly has been in a breakout so far. The Cards have sucked. I think the Eagles win this pretty easy, but Cards are one of those outliers that, if they catch fire, can flat kill you. Don’t think so this week.

Detroit at Carolina ought to be pretty interesting. What kind of routes will Cam the misogynist man run? But I’ll put my dimes on the Kittehs, because they are a better team. Titans at the Fish was going to be great, but Mariotta is hurt, now maybe a tossup. Best game, probably by far, is the Cheesers at the Boys. I’ll call it a tossup. It is not a make or break game for either team. It is, however, one of the more underrated rivalries in the NFL over the last two decades. That is must see TV.

Today’s music is by The Killers. It seems a weird name for the band in light of what just happened a week ago in their home town of Las Vegas. But they have been rocking, and carrying the banner of Nevada and Las Vegas since they broke out with Hot Fuss in 2004. The band is ridiculously good, and have been from the start. If you do not know The Killers, you should, give them a try. So, let us rock on for another week.

Chuck Grassley Finally Shows Concern about Parallel Construction — Affecting Trump

As I’ve said repeatedly, I think Chuck Grassley’s concerns about the Steele dossier — and FBI’s refusal to answer questions about it — generally have merit. That continues with his latest letter to FBI.

Effectively, he’s worried that because Steele shared the dossier with MI6, the FBI might effectively be parallel constructing intelligence that ultimately came from Steele, and so from a oppo research dossier.

There is another concern about Mr. Steele’s and Fusion GPS’s work that the FBI needs to address.  Public reports indicate that the FBI received the dossier and has used it in the Russia investigation.  However, it appears that the FBI, the media, and various Congressional offices were not the only recipients of the dossier prior to its publication.  In court filings by Mr. Steele’s attorneys in London, he admitted that he had passed at least some contents of the dossier to at least one foreign government – the United Kingdom.[1]

Media reports have also claimed that foreign governments passed along information to the United States about purported contacts between Trump associates and Russians.  Given that Mr. Steele also distributed the dossier’s contents to at least one foreign government, it is possible that this political dossier’s collusion allegations, or related allegations originating via Mr. Steele, may have also been surreptitiously funneled into U.S. intelligence streams through foreign intelligence sharing.  If so, that foreign information would likely have ended up within the FBI’s investigation of allegations of collusion between Trump associates and Russia.  However, given that foreign intelligence agencies carefully guard their sources and methods, it may not have been clear to the FBI that the foreign reporting was actually based on the work of Mr. Steele and Fusion GPS.

If this in fact happened, it would be alarming.  Mr. Steele’s dossier allegations might appear to be “confirmed” by foreign intelligence, rather than just an echo of the same “research” that Fusion bought from Steele and that the FBI reportedly also attempted to buy from Steele.  It is even more alarming in light of what we are learning about the allegedly unregistered Russian foreign agents who Fusion GPS and Glenn Simpson were working with to undermine the Magnitsky Act and who met with Trump family and campaign officials last summer.

The Committee must understand what steps the FBI has taken to ensure that any foreign information it received and used in the Russia investigation, beyond the dossier itself, was not ultimately sourced to Mr. Steele, his associates such as Fusion GPS, or his sub-sources.

It’s a fair point — as mentioned, he’s effectively describing parallel construction, which the FBI uses all the time to hide the ultimate source for its evidence on defendants (though usually, that process involves obtaining subpoenas to hide what kind of foreign intelligence it relies on).

So I’m grateful the Chair of the Senate Judiciary Committee has finally decided to turn his focus on a process that is badly abused, to the detriment of due process in this country.

I just wish he expressed the same concern for less famous targets, rather than just the President.

Richard Burr Accuses the Obama Administration of Running Out the Clock on Election Interference

At the end of yesterday’s press conference, Richard Burr made a startling accusation. In response to a question about whether the Trump Administration hasn’t done enough to respond to Russia’s interference, Burr instead addressed DHS’ delayed notice to states about election intrusions, as if that constituted an adequate response from the Trump Administration.

In doing so, Burr accused the Obama Administration of “running out the clock” (apparently, on notifying states).

Listen, I think the Vice Chairman alluded to the fact that though it was slow, getting DHS to recognize [that states needed notice of attempted hacks on their election infrastructure], it didn’t take as long as it did for the last Administration to run the clock on it. So we’re not trying to look back and point to things that were done wrong. Everybody’s done things wrong.

The accusation is particularly galling, given Lisa Monaco’s description of her efforts to get the Gang of Eight to write a letter warning states of the thread.

In the briefings, the C.I.A. said there was intelligence indicating not only that the Russians were trying to get Mr. Trump elected but that they had gained computer access to multiple state and local election boards in the United States since 2014, officials said.

Although the breached systems were not involved in actual vote-tallying operations, Obama administration officials proposed that the eight senior lawmakers write a letter to state election officials warning them of the possible threat posed by Russian hacking, officials said.

But Senator Mitch McConnell of Kentucky, the Republican majority leader, resisted, questioning the underpinnings of the intelligence, according to officials with knowledge of the discussions. Mr. McConnell ultimately agreed to a softer version of the letter, which did not mention the Russians but warned of unnamed “malefactors” who might seek to disrupt the elections through online intrusion. The letter, dated Sept. 28, was signed by Mr. McConnell, Mr. Reid, Speaker Paul D. Ryan and Representative Nancy Pelosi, the ranking Democrat.

On Sept. 22, two other members of the Gang of Eight — Senator Dianne Feinstein and Representative Adam B. Schiff, both of California and the ranking Democrats on the Senate and House intelligence committees — released their own statement about the Russian interference that did not mention Mr. Trump or his campaign by name.

Do the math here: McConnell, Reid, Ryan, and Pelosi signed a letter saying that malefactors might try to disrupt the elections. Then Feinstein (then Burr’s counterpart on SSCI) and Schiff (Nunes’ counterpart on HPSCI) released a stronger letter blaming Russia.

Based on briefings we have received, we have concluded that the Russian intelligence agencies are making a serious and concerted effort to influence the U.S. election.

At the least, this effort is intended to sow doubt about the security of our election and may well be intended to influence the outcomes of the election—we can see no other rationale for the behavior of the Russians.

We believe that orders for the Russian intelligence agencies to conduct such actions could come only from very senior levels of the Russian government.

We call on President Putin to immediately order a halt to this activity. Americans will not stand for any foreign government trying to influence our election. We hope all Americans will stand together and reject the Russian effort.

None of these are the precise letter that Monaco has said she was after — a letter emphasizing the risk to the polls.

Still, just two people signed no letter: Nunes (who would go on to serve in Trump’s transition team) and Burr (who not only was serving on Trump’s national security advisory committee, but was in a close race in one of the states most likely to have had the outcome affected by known Russian hacking).

And he has the gall to call out the Obama Administration?

Richard Burr’s Tacit Warning to Christopher Steele

I’m just now catching up to Richard Burr and Mark Warner’s press conference on the Russia investigation yesterday. I saw some folks questioning why they did the presser, which surprises me. The answer seems obvious. They did the presser to release and apply pressure from specific areas of the investigation. For example, Burr exonerated those involved in the Mayflower Hotel meetings on April 2016 and further argued that the GOP platform was not changed to let Russia off the hook for Ukraine (I think the latter conclusion, in any case, is correct; I’m less persuaded about the first). Warner used the presser to push for Facebook to release the ads sold to Russia.

A particularly instance of this — one that I believe has been misunderstood by those who’ve reported it thus far — pertains to the Steele dossier. Here’s what Burr said about it, working off of prepared remarks (meaning issuing this tacit warning was one purpose of the presser; after 16:00):

As it relates to the Steele dossier: unfortunately the committee has hit a wall. We have on several occasions made attempts to contact Mr. Steele, to meet with Mr. Steele, to include, personally, the Vice Chairman and myself as two individuals, of making that connection. Those offers have gone unaccepted. The committee cannot really decide the credibility of the dossier without understanding things like who paid for it? who are your sources and sub-sources? We’re investigating a very expansive Russian network of interference in US elections. And though we have been incredibly enlightened at our ability to rebuild backwards, the Steele dossier up to a certain date, getting past that point has been somewhat impossible. And I say this because I don’t think we’re going to find any intelligence products that unlock that key to pre-June of ’16. My hope is that Mr. Steele will make a decision to meet with either Mark and I or the committee or both, so that we can hear his side of it, versus for us to depict in our findings what his intent or what his actions were. And I say that to you but I also say that to Chris Steele.

People seem to interpret this to mean SSCI hasn’t been able to corroborate the dossier — a point on which Burr is ambiguous. He references intelligence products that might unlock secrets of the dossier, which might suggest the committee has found intelligence products from later in the process that either confirms or doesn’t the events as the dossier as produced.

More important, however, is his reference to June 2016. While it seems like Burr might be suggesting the committee has found no evidence on collusion dating to before that date, that would seem to be inconsistent with the committee having received information on Michael Cohen’s discussions of financial dealings from before June (though given Burr’s exoneration of the Mayflower attendees, he may deem the earlier activities to be inconclusive).

So it seems more likely Burr raised the June 2016, along with his question about how paid for the report, to suggest he has real questions about whether its findings served as a partisan effort to taint Trump, paid for by a still undisclosed Hillary backer.

If Christopher Steele won’t talk about what intelligence he had on Trump before the time when, in June 2016, he reported on Russia providing kompromat (though not, at that point, hacked emails) on Hillary to Trump’s team, Burr seems to be saying, then it will be far easier to question his motivations and the conclusions of the report. And frankly, given some of the details on the Steele dossier — especially Steele’s briefings to journalists and his claim that the customers for the brief never read it — Burr is right to question that.

In other words, one point of the presser, it seems to me, was for Burr to warn Steele that his dossier will not be treated as a credible piece of work unless and until the committee gets more details about the background to it.

Update: Apparently, Steele responded to Burr’s comments by informing the committee he is willing to meet with Burr and Warner.

Mark Warner’s Inconsistent Social Media Law-Mongering

Remember when, three weeks ago, people were shooting off their baby cannons because two reports kind of sort of claimed that Robert Mueller used a criminal search warrant to obtain details on Facebook’s ad sales to the Internet Research Association? I noted at the time that the logic behind those stories — that Facebook would have needed a warrant (as opposed to a 2703(d) order or a 702 directive) to obtain that information — was faulty. I’ve since become more certain that a D order was used in this case.

But since the stories were so dodgy, I assumed then they weren’t actually reporting about the investigation, but rather pressure on the part of Mark Warner to force Facebook to share the same data with Congress, including leaving (rather than just showing) ads.

And it worked! Last week and this week, Facebook did share those ads, with all the more leaks about them.

Unsurprisingly, Mark Warner is back, now insisting that Facebook should release all those ads that he or someone close to him just weeks ago was suggesting could only be released with a criminal search warrant, but now wants released with neither legal process nor a congressional oversight claim to force it.

I get why he wants that to happen. Even on top of informing the public about what happened in last year’s election, Warner would like to embarrass Facebook into accepting more sweeping regulation of political ads, which is a totally respectable goal.

But I find it amusing that the same people who, weeks ago, were certain that such materials were so private they could only be released with a search warrant are now arguing they should be released with no process whatsoever.

And whatever the beneficial goal here, there’s also the precedent of protection for private data. Do we really want it to be possible for (say) Russia to force Facebook to release all the information on the NGOs that target Russian users? Do we want Jeff Sessions’ DOJ to be able to force Facebook to release the details of those who oppose Trump without legal process?

I don’t expect Warner to be bound by those considerations — he’s trying to win a political battle (and doing a remarkably effective job). But I’d expect those reporting on this story to show some awareness of the claims they made about the sensitivity of this data just weeks ago.

It’s Not the Economy, Stupid

Despite Bill Clinton’s famous catchphrase that he rode to two terms in the White House, and despite its echo in the 2016 campaign when Trump voters were described as acting out of “economic anxiety”, politics in the United States in my lifetime comes down, first and foremost, to racism. Yes, in Trump’s case and for most Republicans in office, there is a hefty dose of misogyny mixed in, but the animus against those who are not old, rich, white males unites their hatred.

Russia affected the 2016 contest. Clearly. But one of their primary tools was to stoke racial animus. Another huge impact on the actual outcome of the election was the outright suppression of minority votes by Republicans. It now appears that they may well have tipped the Wisconsin vote through suppression. And all those millions of votes for Trump, in the end, amount to nothing more than a huge endorsement of his outright racism. In the end, they came out on top with a little help from Republican policies expressly developed to prevent minorities from voting.

Trump is America’s racism unmasked and he would not be President if there weren’t a huge racist component to American culture today. The primary home for that racism is the Republican party.

The last few days have shown Trump revealing both his deep-seated racism and his cynical understanding that virtually his only support now is rooted in America’s racism. He tried his best to make his response to NFL protests be about the flag and patriotism. But that is most definitely NOT what Colin Kaepernick was protesting when he started this movement in August of 2016:

San Francisco 49ers quarterback Colin Kaepernick has willingly immersed himself into controversy by refusing to stand for the playing of the national anthem in protest of what he deems are wrongdoings against African Americans and minorities in the United States.

His latest refusal to stand for the anthem — he has done this in at least one other preseason game — came before the 49ers’ preseason loss to Green Bay at Levi’s Stadium on Friday night.

“I am not going to stand up to show pride in a flag for a country that oppresses black people and people of color,” Kaepernick told NFL Media in an exclusive interview after the game. “To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

Making matters even worse, NFL teams and even billionaire NFL owners–the very parties responsible for Kaepernick still not being on a roster despite abysmal quarterback play on several teams–came out with what some folks saw as admirable statements and actions in response to Trump calling for owners to “fire the sons of bitches” who kneel during the national anthem. The best response to that development came from Shannon Sharpe. If you haven’t seen it yet, watch the entire statement, it is a thing of beauty and something that every American needs to hear:

So what are we to do?

First, those of us who carry the advantage of being old, white males who are at least comfortable if not rich must speak up every time there is an instance of racial injustice. Especially at the local level, when the police treat minorities without respect, make it known that this will not stand. Support larger groups that are working to promote racial justice.

But perhaps it is also worth taking look at our own lives. What aspects of our own lives help to perpetuate racial injustice? Even simple actions can accumulate. The next time you reconcile a credit card statement, take a look at your choices. Do you only eat at faceless chain restaurants? When was the last time you had a meal at a locally owned restaurant with a minority owner? Those are likely some of the best eating establishments in your town if you take the time to look around and try some new cuisines.

How about schools? Do you send your kids to private schools, most of which have been established to get around integration? Worse yet, do you send them to charter schools, which are set up expressly to take money away from public schools?

How about your place of worship? Is it integrated? Does it have any activities or programs aimed at racial justice?

One small action that I’ve decided to take is that I won’t watch another down of NFL football until Colin Kaepernick has been signed by a team.

Trump is the poster child for American racism, but we could all benefit from spending a little time thinking about our own roles both in how he came to be President and what we can do to make sure his sort never gets there again.

Did President Trump Violate Federal Law With His Alabama Rant?

I wrote yesterday about the racial, social and football implications of Trump’s rant in the history and home of George Wallace.

But a new, and by all appearances excellent, commenter on that post noted this:

“It occurs to me that his tweets are at least arguably in violation of 18 U.S. Code § 227. That section prohibits the POTUS (among others), from “attempting to influence or interfere” in a private company’s labor matter, to urge a “political” firing. This is especially true where the basis for the POTUS’s urging of the firing of such a private company employee (union covered, collective bargaining agreement governed) — is (as here) centered on protected political first amendment expression.”

So, is that right? Well, it is a LOT closer call than most would dismissively think. Let’s look at the language of the relevant statute, 18 USC §277:

18 U.S. Code § 227 – Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch:

(a) Whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity—
(1) takes or withholds, or offers or threatens to take or withhold, an official act, or
(2) influences, or offers or threatens to influence, the official act of another,
shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
(b) In this section, the term “covered government person” means—
(1) a Senator or Representative in, or a Delegate or Resident Commissioner to, the Congress;
(2) an employee of either House of Congress; or
(3) the President, Vice President, an employee of the United States Postal Service or the Postal Regulatory Commission, or any other executive branch employee (as such term is defined under section 2105 of title 5, United States Code).

Read the statute. It is a lot closer call than you think. Will Trump’s own Department of Justice pursue this? No, no chance, nor probably should it be. Is it a viable question, and one that ought be discussed in the public and media, yes, absolutely.

As sports law “experts” would say, let’s break it down. There are elements to a crime. Trump is unequivocally a “covered person” within the ambit of the statute. Also unequivocal is the fact that his words in Alabama were meant to influence “an employment decision or employment practice of any private entity”, in this case, the National Football League.

The problem lies in section (a)(1) of the relevant statute, which requires:

takes or withholds, or offers or threatens to take or withhold, an official act

It is easy to see and admit that Trump would do just that in a heartbeat. But Trump did not do that per se in his Alabama speech.

No. That element cannot be met by Donald J. Trump’s Alabama Song of hate. So, no, there is no exposure to 18 USC §227.

It is a great thought and question though.

And it is a perfect example of the precipice of racism, bigotry and ignorance on which the political discussion in the United States, and our Article II Executive Branch, courtesy of President Trump, nows perilously treads nearly every day.

The events and actions in and from the NFL today, tomorrow, and in the next few weeks pale in comparison. They are a symbol and a voice. But it is so much more and bigger than that.

How to Read the DHS Targeted States Information

Yesterday, DHS informed the states that had their registration databases targeted by Russian hackers last year. There has been an outright panic about the news since states started revealing they got notice, so I thought it worthwhile to describe what we should take away from the notice and subsequent reporting:

  • “Most” of the 21 targeted states were not successfully hacked
  • Some targeted states were successfully hacked
  • Not all swing states were targeted, not all targeted states are swing states
  • These hacks generally do not involve vote tallying
  • These hacks do not involve hacking voting machines
  • These hacks do not involve other voter suppression methods — whether by GOP or Russians
  • Notice needs to improve

The AP has done good work tracking down which states got notice they were targeted, identifying the 21 targeted states. Those targeted states were:

  1. Alabama
  2. Alaska
  3. Arizona
  4. California
  5. Colorado
  6. Connecticut
  7. Delaware
  8. Florida
  9. Illinois
  10. Iowa
  11. Maryland
  12. Minnesota
  13. North Dakota
  14. Ohio
  15. Oklahoma
  16. Oregon
  17. Pennsylvania
  18. Texas
  19. Virginia
  20. Washington
  21. Wisconsin

 

“Most” of the 21 targeted states were not successfully hacked

This list of 21 states does not mean that Russians successfully hacked 21 states. All it means is Russians probed 21 states. And the AP says “most” were not successful. WI, WA, and MN have said the attacks on them were not successful.

Thus, for “most” of these states, the impact is the same as the reports that Russians were attempting, unsuccessfully, to phish engineers in the energy industry: it is cause for concern, but unless new intelligence becomes available, it means that for those “most” states these probes could not affect the election.

Some targeted states were successfully probed

Of course, by saying that “most” attacks were not successful, you’re admitting that “some” were. We only know IL and AZ to have successfully been breached.

This means this story may not be done yet: reporters, especially state based ones, are going to have to get their voting officials to provide details about the attacks and it may take some FOIA work.

Mind you, a successful hack still doesn’t mean that the election was affected (as I believe to be the understanding with respect to AZ, though there is more dispute about IL). It might be that the hackers just succeeded in getting into the database. It may be that they succeeded only in downloading the voter registration database — which in many states, is readily available, and which is nowhere near the most interesting available data for targeting in any case.

In my opinion, the most effective way to affect the outcome of the election via voter registration databases is not to download and use it for targeting, but instead, to alter the database, selectively eliminating or voiding the registration of voters in targeted precincts (which of course means the hackers would need to come in with some notion of targets). Even changing addresses would have the effect of creating lines at the polls.

Altering the database would have the same effect as an existing GOP tactic does. In many states, GOP secretaries of state very aggressively purge infrequent voters. Particularly for transient voters (especially students, but poorer voters are also more likely to move from year to year), a voter may not get notice they’ve been purged. This has the effect of ensuring that the purged voter cannot vote, and also has the effect of slowing the voting process for voters who are registered.  In other words, that’s the big risk here — that hackers will do things to make it impossible for some voters to vote, and harder for others to do so.

Not all swing states were targeted, not all targeted states are swing states

The list of targeted states is very curious. Some targeted states are obvious swing states — WI, PA, FL, and VA were four of the five states where the election was decided. But MI is not on there, and NC, another close state, is not either.

In addition, a lot of these states are solidly red, like AL and OK. A lot of them are equally solidly blue, like CA and CT. So if the Russians had a grand scheme here, it was not (just) to flip swing states.

These hacks generally do not involve vote tallying

DHS has said that these hacks do not involve vote tallying. That means these disclosed probes, even assuming they were successful, are not going to explain what may seem to be abnormalities in particular states’ tallies.

These hacks do not involve hacking voting machines

Nor do these hacks involve hacking voting machines (which is covered, in any case, by the denial that it involves vote tallying).

Yes, voting machines are incredibly vulnerable. Yes, it would be child’s play for a hacker — Russian or American — to hack individual voting machines. With limited exceptions, there been no real assessment of whether individual machines got hacked (though it’d generally be easier to affect a local race that way than the presidential).

These hacks do not involve other voter suppression methods — whether by GOP or Russians

This list of 21 targeted states does not represent the known universe of Russian voting-related hacking.

It does not, for example, include the targeting of voting infrastructure contractors, such as VR Systems (which Reality Winner faces prison for disclosing). There’s good reason to at least suspect that the VR Systems hack may have affected NC’s outcome by causing the most Democratic counties to shift to paper voting books, resulting in confusion and delays in those counties that didn’t exist in more Republican ones.

And they don’t include any Russian social media-related support or suppression, which we’re getting closer to having proof of right now.

Importantly, don’t forget that we know Republicans were engaging in all these techniques as well, with far better funding. Russians didn’t need to hack WI and NC given how much organized suppression of voters of color took place. Republican secretaries of state had the power to purge voters on trumped up excuses without engaging in any hacking.

Do not let the focus on Russian tampering distract from the far more effective Republican suppression.

Notice needs to be improved

Finally, the other big story about this is that some states only got notice they were targeted yesterday, some even after having partnered with DHS to assess their voting infrastructure.

DHS has used classification, in part, to justify this silence, which is an issue the Intelligence Committees are trying to address in next year’s authorization. But that’s particularly hard to justify that many of these same states have run elections since.

Mind you, we’re likely to see this debate move to the next level — to demanding that state officials disclose full details about their state’s infrastructure to citizens.

In any case, if we’re to be able to use democratic pressure to ensure the infrastructure of democracy gets better protected, we’re going to need more notice.

Amid Promises to Share Ads with Congress, Some Other Interesting Promises

DC is atwitter with Facebook’s announcement that it can, after all, voluntarily share the same information it shared with Robert Mueller with Congress. As part of that announcement, it released a statement from their General Counsel, a Q&A addressing some of the questions that had been generating bad PR, and some promises of additional things Facebook will do to support democracy from Mark Zuckerberg.

I’m most interested in two details in Zuck’s statement. For example, this paragraph says Facebook will continue to look at what happened closely.

 We will continue our investigation into what happened on Facebook in this election. We may find more, and if we do, we will continue to work with the government. We are looking into foreign actors, including additional Russian groups and other former Soviet states, as well as organizations like the campaigns, to further our understanding of how they used our tools. These investigations will take some time, but we will continue our thorough review. [my emphasis]

While the frenzy responding to this announcement has focused on Russian ads, Zuck just revealed that Facebook is also looking at what the campaigns did.

That would permit Facebook to look for any apparently similar activity from campaigns and Russian actors, as we have reason to believe there was. It also might suggest Facebook is reviewing to see whether Republican dark marketing served to suppress turnout, and if so in coordination with what other actors.

I’d really love to have this information, but note that it is a substantially different thing for Facebook to review Russian actions and for Facebook to review Democratic or Republican actions.

Then there’s the promise to work even more closely with other tech companies.

We will increase sharing of threat information with other tech and security companies. We already share information on bad actors on the internet through programs like ThreatExchange, and now we’re exploring ways we can share more information about anyone attempting to interfere with elections. It is important that tech companies collaborate on this because it’s almost certain that any actor trying to misuse Facebook will also be trying to abuse other internet platforms too.

I think I’m okay with this (and they’re legally permitted to do this in any case). But given my newfound obsession with the fact that with any of these global tech companies, you’re dealing with intelligence resources that might rival nation-state intelligence, I’m interested in Facebook’s efforts to expand the sharing.

Facebook, by itself, may not rival the NSA. But when you put together Facebook, Microsoft, Google, Twitter, and others, then you’re beginning to talk really powerful intelligence capabilities.

It’s good, I suppose, that that much technical power is going to hunt down Russians. But it might be worth pausing to imagine what else they might cooperate to hunt down.

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