The Epistemology of Security Clearance Dick-Waving

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

I really couldn’t be bothered to get hot and bothered about President Trump stripping John Brennan of his security clearance. Brennan himself has been involved in the politicization of security clearances (perhaps most directly in Jeffrey Sterling’s case), and to have David Petraeus, of all people, complain about politicized security clearances, discredits the pushback. I’m far more concerned about the loyalty policing at EPA, Interior, Department of Education, and on the DOJ team attacking ObamaCare than I am about Brennan, because the bullying of those more obscure people will have a tangible effect on Americans’ lives. Indeed, the fact that Trump issued a declaration stripping Brennan of his clearance on July 26 but we only learned about it on August 15 is a testament to how little impact this has, other than the posturing around it.

But it has led to dangerous politicization elsewhere.

After being stripped of his clearance, Brennan wrote this op-ed.

In it, Brennan spends six paragraphs setting up how deceitful are Russians generally and his former counterpart Alexander Bortnikov specifically, and how successfully they recruit targets, including Americans, leading from a description of Russian “perfidy” directly to deeming election tampering denials “hogwash.”

Brennan then turns to Trump. He leads his accusation that Trump “colluded” with Russia by describing how asking for Russian to find Hillary’s missing emails “openly authorized his followers to work” with Russians.

The already challenging work of the American intelligence and law enforcement communities was made more difficult in late July 2016, however, when Mr. Trump, then a presidential candidate, publicly called upon Russia to find the missing emails of Mrs. Clinton. By issuing such a statement, Mr. Trump was not only encouraging a foreign nation to collect intelligence against a United States citizen, but also openly authorizing his followers to work with our primary global adversary against his political opponent.

Brennan then points to what he has read in “the reporting of an open and free press” to declare Trump’s claims of no collusion — as he had just claimed Russia’s denials of election interference — to be “hogwash.”

Such a public clarion call certainly makes one wonder what Mr. Trump privately encouraged his advisers to do — and what they actually did — to win the election. While I had deep insight into Russian activities during the 2016 election, I now am aware — thanks to the reporting of an open and free press — of many more of the highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services.

Mr. Trump’s claims of no collusion are, in a word, hogwash.

The only questions that remain are whether the collusion that took place constituted criminally liable conspiracy, whether obstruction of justice occurred to cover up any collusion or conspiracy, and how many members of “Trump Incorporated” attempted to defraud the government by laundering and concealing the movement of money into their pockets.

In response, Richard Burr issued this testy statement, defending Trump’s action of stripping the clearance of a former CIA Director with whom Burr got along splendidly when he was spying on Burr’s own separate branch of government oversight committee.

Director Brennan’s recent statements purport to know as fact that the Trump campaign colluded with a foreign power. If Director Brennan’s statement is based on intelligence he received while still leading the CIA, why didn’t he include it in the Intelligence Community Assessment released in 2017? If his statement is based on intelligence he has seen since leaving office, it constitutes an intelligence breach. If he has some other personal knowledge of or evidence of collusion, it should be disclosed to the Special Counsel, not The New York Times.

If, however, Director Brennan’s statement is purely political and based on conjecture, the president has full authority to revoke his security clearance as head of the Executive Branch.

I’m offended by Burr’s statement not just because it ignores the plain language of Brennan’s op-ed, which it links, but for the epistemology of the Russian investigation suggested by the Senate Intelligence Committee Chair. Here’s the logic of the statement:

1. Brennan “purports” to know Trump colluded with a foreign power

Here, Burr ignores how Brennan defines it — first “authorizing his followers to work” with Russia by calling on them to find Hillary’s missing emails, and then “highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services” — stuff that’s public. He also ignores that Brennan himself says he doesn’t know whether the “collusion” involved constitutes a criminally liable conspiracy. That is, Brennan is defining collusion as something less than a criminal conspiracy to cooperate to cheat on the election, but Burr doesn’t care.

2. Why doesn’t Brennan’s claim show up in the Brennan-led Intelligence Community Assessment?

Again, Burr ignores Brennan’s description of becoming aware of this in the time period after he “had deep insight into Russian activities during the 2016 election” — so after he left the CIA — and taunts him that the ICA Brennan oversaw showed no evidence of collusion. The implication is Brennan’s ability to know if there were collusion ended on January 20, 2017. (Burr is also ignoring that there were two different investigations even while Brennan was in government — the intelligence investigation led by Brennan, which by law should not be targeting Americans, and the several parallel counterintelligence investigations at FBI, which could investigate Americans.)

Burr then presents three and only three possibilities for how Brennan might have knowledge of collusion, once again ignoring the free press that Brennan clearly attributes it to. First, either intelligence, or personal knowledge:

3. If Brennan has something called “intelligence” proving Trump’s collusion, then it must have come from an intelligence breach.

4. If he has something called “personal knowledge” of collusion, then it must only be shared with Mueller’s team, not with the NYT.

That’s it, according to the Senate Intelligence Chair, for real information about collusion. Either it’s intelligence to which Brennan is no longer entitled (assuming, of course, that Gina Haspel would have no reason to share intelligence about Russia with Brennan in some kind of consultation, which — if Brennan did then pass that on publicly, would be the only proper reason to strip his clearance). Or it’s “personal information,” usually called “evidence,” which may only be shared with Mueller and not with the press. “Intelligence,” which is the purview of the Intelligence Committee and the agencies it oversees. Or “evidence,” which is the purview of a DOJ investigation. Either/or.

That’s, of course, illogical, and not just because Burr’s own committee is investigating some of the same “evidence” that the FBI is, notably what happened on social media and what some witnesses have testified about, in secret, to the committee, and witnesses to both (like Rob Goldstone) have also commented publicly.

It’s illogical, too, because there are other ways to get real evidence of collusion. I believe I have evidence of collusion. I shared it with the FBI, sure. But after I revealed that I had provided information to the FBI in July, I also shared limited parts of it with some Republican Congressmen, in hopes of explaining to them how serious the investigation is and showing that entire parts of it don’t derive from Peter Strzok’s decisions. I’ve also discussed, prospectively, sharing it with some former top intelligence officials (unsurprisingly, not Brennan), in the interests of elucidating parts of the Russian attack they missed.

Yet even though his either/or proposition is false, Burr then uses it to proclaim Trump’s treatment of Brennan proper based on this remarkable statement:

5. “If, however, Director Brennan’s statement is purely political and based on conjecture, the president has full authority to revoke his security clearance as head of the Executive Branch.”

Having set up this false either/or proposition, Burr then suggests anything else must be “purely political” and “based on conjecture,” and — without showing the logical relation between the two clauses in this sentence — states that the President has the authority to revoke Brennan’s security clearance.

(If NOT (intelligence or evidence,) THEN political conjecture) THEN strip the damn clearance.

It is true that thus far the case law suggests that a President does have the authority to strip Brennan’s clearance (though a Brennan challenge, or even more easily, a Bruce Ohr challenge, might establish new limits to that authority). But that authority has no relationship to the claimed political or conjectural nature of Brennan’s comments. Not only does Burr suggest it does — suggest that stripping security clearances because of speech perceived to be political is not just proper but justified — but by yoking these two clauses together in one sentence, Burr suggests punishing political speech is in some way intimately tied to the authority therein.

Plus, as Brad Heath noted, Burr’s statement argues that Trump was right to strip Brennan’s clearance on July 26 because of statements Brennan made on August 16.

The Chairman of the Intelligence Committee, mind you, made this statement.

But here’s the reason why I really care about this.

Back when he was CIA Director, I openly criticized Brennan for the way he worked the press to get the most hawkish read of the Russian attack into the press. But I didn’t think his efforts arose from partisanship. Rather, it was an effort to raise alarm bells about the attack in the last weeks of the Administration. Such use of the press happens all the time when Administration officials are trying to advance their favored policy decisions.

Burr, however, is using his position of authority to affirmatively tie security clearances to speech he (or the President) deems excessively political. He’s doing it even as he argues there are just two appropriate categories of weighing whether collusion happened or not, intelligence (his purview) or evidence (Mueller’s). And he’s doing it as his committee is leading what has, up to this point, been the only Congressional investigation not utterly discredited by partisan bickering.

That pisses me off for several reasons. First, Burr is in the same breath being a raging partisan and asserting that his committee is one of the only entities that can appropriately weigh whether Trump conspired with Russia to win the election. He’s putting a thumb on the scale at precisely the moment that he claims only he (and Mueller) get to decide whether collusion happened. This raises real questions in my mind about what would happen if and when SSCI came upon information that shows Trump conspired with Russia. It raises real doubts in my mind about whether SSCI is able to conduct their investigation.

More importantly, he’s wrong. He’s wrong for the obvious reason that journalists are discovering important threads of the Russia investigation. Indeed, the part of SSCI’s work they’re most proud about — Russia’s use of social media — came out of a lot of really good reporting on the topic.

He’s wrong because we’re a democracy and whether Trump conspired with Russia will one day be most critically decided in a political sphere. As we get closer to that day, the American public has every right to read these two data points together and consider whether they show Trump and the Russians conspiring.

“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

And he’s wrong because none of the certified experts are getting the Russia story entirely right. As I said, I’ve had conversations in the last several months with Republican congressmen, former top intelligence officials, and a whole lot of experts on the Russian attack, including (but not limited to) top InfoSec people, other journalists, and some key witnesses. Even aside from the stuff I went to the FBI about (which might give me special insight to what happened, but also has made me admittedly blindered about other issues) all of those people, including me, have missed key things or gotten key details wrong. Just as one example, in conversations I’ve had with that ilk of people, every single person save one has either misread key parts of the GRU indictment or read in their prior assumptions (the one exception had the advantage of being a key witness behind at least two paragraphs of the indictment). That’s just one example, but it’s an example that suggests we need more honest discussion and less of Burr and Trump’s attempt to decertify democratic speech about what the President did.

The Chair of the Intelligence Committee, Richard Burr, effectively asserted that he is one of the few authorities with the right to say, based off what his committee does in private, whether Trump conspired with Russia or not, and that any citizen deigning to weigh in based off the public evidence may be properly disciplined by the President. The statement goes a long way to discredit the investigation his committee is doing, a real blow to his staffers’ success at bridging any partisan divide. Most importantly, because it so badly gets the epistemology of an attack that targeted all Americans wrong, it raises real questions about Burr’s understanding of the Russian attack at issue.

61 replies
  1. BG says:

     I’m far more concerned about the loyalty policing at EPA, Interior, Department of Education, and on the DOJ team attacking ObamaCare than I am about Brennan, because the bullying of those more obscure people will have a tangible effect on Americans’ lives.

    Last night I learned at a public meeting, that new guidelines issued by HUD under Carson now require people to be living on the streets for at least a year before they can be granted any kind of support under new guidelines. Not exactly bullying, but certainly having a tangible effect on Americans’ lives.

      • Tracy says:

        That is horrific! The EPA, Education, and Interior are in just as bad of shape: harmful reversals within the sector they are meant to bolster and protect.

    • cshapenote says:


      I’ve reviewed the online material from HUD on homeless programs issued since 1/20/17 and do not see the restriction you indicate. Perhaps it is a local or state move to restrict aid.

  2. Doug R says:

    Brennan is holding back because he doesn’t want to reveal sources and methods and/or evidence Mueller is working on.

    The behavior of several senators and other Congress critters reveals that there is a lot more under there.

    • Tracy says:

      Just from what I observed of his interview w/ Rachel Maddow, I don’t think he knows anything from inside the SC – he was very convincing that what he’s said, about Trump’s being “treasonous” after Helsinki and that “no collusion” is “hogwash,” comes from what’s in the public domain and what he’s observed/ seen in the press since he left office.

      He also intimated that from his work, he knows how Russians use kompromat to ensnare people, but did not even explicitly connect this to Trump and co.

      Interestingly, he clearly said that he didn’t even see the dossier till Dec, that only then did he connect it back to what two NBC reporters had been asking him in Sept, and it absolutely was not used to create their intelligence report.

      He was very clear that at the time he left, he did not know whether any Trump associates had conspired with Russians; his contentions all come from public info that came out later.

      I thought he did very well – he seemed very clean and clear – spoke very well on his concerns about the dangers for our country especially if the Repubs don’t stand up – and I hope he does challenge the security clearance revocation, for others’ sake/ precedents’ sake.

      • Charles says:

        I thought he did very well – he seemed very clean and clear


        Funny… I spotted what seemed like one very obvious lie, about his knowledge of the Steele memo. He said it was widely circulated in the media but he knew nothing about it. This is implausible. Also, if you believe his story, the CIA knew absolutely nothing about conspiracy between Americans and Russians except that there were contacts. He claimed everything the CIA saw got minimized because these were American citizens. But at least as early as the Page FISA warrant, at least one of those Americans was believed to be engaged in criminal acts relevant to national security with a foreign government. I simply don’t believe the CIA puts its fingers in its ears just because the criminal is an American. I also thought Brennan did a poor job with explaining his statement that Trump’s behavior in Helsinki was treasonous.

        And finally, he got confused when Rachel said she’s often disagreed with him. He started to get ready to mix it up, and she had to cut him off.

        Every time I see these guys in action, I worry about how well our intelligence team is able to handle serious, dedicated intel agencies like North Korea, China, and Russia.

        • emptywheel says:

          WRT the treatment of Page while he was under CI investigation by FBI: That would qualify them to be backdoor searched (so intercepts of the people he spoke with that IDed him would automatically be obtained and shared w/in NSA and, in slightly different terms, w/in CIA. But that doesn’t get you all that far.

        • Tracy says:

          Thanks, Charles, it’s always interesting to hear the different impressions of the same thing!

          I take your points – disappointing – maybe he was careful to say that he didn’t SEE the dossier until Dec, but could have known about it. Mainly, I think he wanted to refute that the dossier was used for their report.

          I must say that watched this interview w/ trepidation that he’d “slip up” and say something that Fox could then play out of context, on a loop, to show him as a “bad actor.” I was relieved that he seemed to do “well”… But I think that this fear that is being created is the real problem. Brennan has his right to free speech; but somehow it is nerve wracking to know that he will do more interviews (Chuck Todd Sunday).

          So it is the fear mongering around free expression that is really crazy and scary right now.  The right wing media will just bully, vilify and excoriate Brennan, as they did w/ Comey, conflating it w/ the investigation.

          Brennan said something like he knows that CIA agents would be wary of his disclosing their contact – but they were doing nothing wrong! Brennan had a security clearance and should be available for contact, is my understanding. So, the right has created this atmosphere of fear.

          They are creating fear around expression of anything contradictory to the line of the president; that is the big picture scariness right now.

          • TheraP says:

            If I misunderstood your remarks, I apologize. But FEAR is not an irrational reaction in the face of danger; it is sanity!

            My spouse grew up under a dictatorship. As a consequence he is extremely alert to any suggestion of adverse consequences for speaking or acting against tyranny. It is not necessarily a consequence of fear-mongering to be alert to such things, especially at a time when you have a MalAdministration in DC bent on trampling Free Speech, Freedom of the Press and the norms and guidelines which keep both government and the citizenry inside their lanes. To be wary does not mean to bury your head or stop your ears or your tongue. But to recognize full well the potential consequences of resisting tyranny or its forebears, while keeping your head and being ready to act, depending on circumstances.

            What is happening now is extremely, extremely worrisome. We have a court on the verge of being packed in support of executive power. We have a supine GOP Congress, willing to spout nonsense and do skullduggery to prop up an unfit chief executive, bent on reining in the Press and the Mueller investigation – one he knows is growing closer and closer to himself and his inner circle. All that with an unfit man atop our government, a power-hungry Megalomaniacal Coward, all too ready to behave in spiteful and sadistic ways – which place our Republic in Danger.

            Back to my spouse: He said to me long ago, especially during BushCo (recall Bush’s words: “If you’re not with us, you’re against us.”) that the worst sort of censorship is self-censorship – when persons or the press, out of fear of reprisal, fail to speak out or tone down their remarks.

            It’s courage and the willingness to do the right thing, to stand firm in the face of tyranny, that matters at this moment. Too many GOP elected officials are failing in their duty to the Constitution, to the fate of the Republic, to our citizens (whether they voted for them or not), to environmental protection, and to the welfare and peace of the entire planet.

            Those who stand up will be acclaimed by history. And history will excoriate the cowards and those who spearheaded the assaults on our civil rights, our national security and the welfare of our planet.

          • Charles says:

            They [Trumpians] are creating fear around expression of anything contradictory to the line of the president…

            I agree. I think that creating fear in the lower ranks, rather than punishing Brennan or the others, is Trump’s goal. Guys like Brennan are never going to suffer poverty. But an ordinary FBI agent who was stripped of his clearance, could find it difficult to find good work.  So, people anywhere near the Mueller investigation will be looking over their shoulders, trying to justify their actions in advance. People who are looking over their shoulders are not so good at seeing what’s in front of them.


            Trump’s overall strategy appears to be to delay consequences, in part by degrading law enforcement functionality. Creating fear is part of that.  But the main goal is to put off the day of reckoning until after the election, which they doubtless hope to in some way rig. Once their control of the courts is established, especially through installing Kavanaugh, they can nip away at investigations through, for example, frivolous cases regarding the constitutionality of the Special Counsel.And with the recent actions of Burr, which Marcy has called out, the entire Republican Party seems to be in on it.

  3. Trip says:

    This is not a good pissing match. It was the wrong time for Brennan to outline his theory. Like I said yesterday, he gave a gift to the GOP. And Burr is showing his hand, IMO. But then again, I haven’t trusted Burr since he made excuses for Trump, early on, (when Trump was trying to get him to push back on the investigations) by calling him ‘new’ or naive to politics or some other such BS. As the head of that committee it should have set off blaring alarm bells.


    • Tracy says:

      I thought Brennan was good on MSNBC, though (I noted this above). Before I saw that, I was worried that he might be being seen as leaky, but he was very credible in explaining where his “treason” word came from: all in the public domain. Lordy knows, I was thinking “treason” when I saw Helsinki! The press won’t go there – they act like it’s a huge taboo to say the word, and I know it has a legal definition, but still – he was responding to the spirit of what he was seeing in front of his eyes.

      The issue has had an outpouring of support, too (the letter signed by 60+).

    • Tomm Undergod says:

      Tut, tut. We don’t actually know that Burr did not hear alarm bells blaring. We all can pull the wool over our own eyes like a Subgenius, but it’s his job to be alert and be prepared to take timely action. People on the front lines of national security cannot sleep on watch, so I’m saying that if that is the excuse — he did not know or did not believe or did not understand — it’s really not good enough and, again, it was his sworn and well paid duty to take immediate aggressive action, not join Vlad’s Valets.

  4. Willis Warren says:

    Thanks for laying that out, that the CIA wouldn’t have been investigating Americans, so any claims that Brennan should have special access to colluders is bullshit

    • SpaceLifeForm says:

      “that the CIA wouldn’t have been investigating Americans’

      Except, that assumes facts not in evidence.

      They are not supposed to, but there are many hints over decades that they actually do. Especially politicians.

      These days, there are lots of hints that colluders are politicians.

  5. John B. says:

    Go get ’em MT Wheel. Man, I sure am glad you are working for Team Truth and Light…imagine if someone(s) with your powers of logic and close reading were working for the other side…you have my admiration for some time now but this pile of dogpoop is especially deplorable…

    • Worried says:

      Long time frequent reader, infrequent commentator;  I see MW stating that “because we are a democracy and whether Trump conspired……”.

      I see similar formulations in lots of commentary. I understand “democracy” as The Rule of the Majority.

      We have a set of basic rights established by the Constitution that are not affected by the rule of the majority.

      Thankfully then, we are not strictly a democracy and, theoretically, the power that a president and his supporters can wield has a boundary.

      I thank MW and all the contributors here who provide, often, profound insights into the issues that confront our Republic.

      • Charles says:

        While the points you raise are not wrong, the difference between “democracy” and “republic” is an artificial one, stimulated by the Founders and their fear of simple majoritarian democracy. However, all democratic systems, whether majoritarian democracies or representative democracies operated under a Constitution, can be corrupted even by a minority.


        Consider that the United States, which conservatives loudly proclaim as a “Republic not a Democracy” has a president and Congress elected by a small minority of the American people. Millions of people are excluded from participation based on past commission of crimes, and on what amount to poll taxes (e.g., the requirement of state ID for voting.) Poverty puts high walls before voters–homeless people are often outright denied the vote, whole less destitute people are forced to register every time they move, which may be several times a year. Gerrymandering and the extraordinary power granted to small states through the rules on electing Senators are another layer of this game. And the concentration of the press means that even if one is able to vote, one is often voting against one’s own interests. Our “Republic” is basically an oligarchy with window dressing headed quickly toward an outright dictatorship.


        So, I would worry less about the usage of “democracy” vs. “republic” and more about whether the government represents the people. Had the Founders been better informed about how Athens actually operated, and more on how democracy collapsed in Rome, they might have started us off with a better system.

  6. Ollie says:

    My gosh EW!  How did I ever get by prior to  coming here for facts and great comments!  I tell you true: I’ve been so frightened for my country that I’ve had trouble sleeping.  That’s what’s been saving this old gal: having facts and truth w/ZERO fakery/ is helping me stay calm.    Thank you all

    • Charles says:

      The time to be afraid was 23 years ago, when a demagogue named Newt Gingrich started the seizure of power that has culminated in Trump. At this point, we should concentrate on acquitting ourselves with dignity in the face of the consolidation of that ill-gotten power.


      But, yes, thanks to Marcy and every fearless journalist who speaks truth to and about power.

  7. Don Van Atta says:

    Burr is my senator. I’ve been hoping he had developed profiles-in-courage chops at the last moment, but his statement is no surprise.

    it appears USDA needs to be added to your list of organizations being politically purged. Trump and Co tried to defund the Economics Research Service some time ago, and they just proposed distributing its units throughout the country.  (Nikita Khrushchev tried to bring his MinAg “closer to production” too in his time.) ERS does a lot of basic work on trade, tariffs, prices,and food security-nutrition. So the political purpose is clear, if not particularly high-profile.

  8. TheraP says:

    From the increasing nonsense being spouted to try and prop up Trump, it would appear the GOP anxiety re November is rising to a crescendo.

    Drum Roll:  For her use of Epistemology and Dick-Waving in the same title, I hereby award Marcy Wheeler the never-before given:

    Honorary Doctorate in Potty-Mouth Philosophy

    Pure EW!

  9. MarkC says:

    Burr’s no Devin Nunes, but that’s really not saying much.

    For months, Trump has been saying that the Special Counsel’s investigation is “purely political” — once the revocation of security clearance is normalized he can move on to doing it to Ohr, then move surgically into the ranks of the DOJ, and finally into the Office of Special Counsel itself.

  10. elmanuel says:

    This is the first time that “epistemological” concerns have ever been acknowledged in a political news context since my readings included the Berkeley Barb. You are carving a space for timely “civic” wisdom, Marcy,  many thanks!

    • errant aesthete says:

      Wonderful use of the word “epistemology” and its concept as applied to this timely and relevant topic. Civic wisdom it is!

  11. Rusharuse says:

    “Swingin Dick” Burr is batting for Trump? Well FMD!!

    [espousal of violence removed by moderator]

    • Avattoir says:

      I realize this site’s moderation policy tilts to tolerance, but everything in reality world has limits.

  12. thomaspaine says:

    Off the subject, but did anyone hear retired Fed. Prosecutor Chuck Rosenberg tell Nicolle Wallace on MSNBC yesterday that Micheal Cohen has gone completely “radio silent” and is now very likely cooperating with the SDNY ?  Rosenberg is not usually prone to speculation.

    Further, John Heilemann and Tim O’Brien believe that the SDNY would only cut a deal with Cohen IF he had more to trade than just the campaign finance violations of the Trump Campaign surrounding the Daniels and McDougal payoffs.  O’Brien believes that Cohen knows the details of Trump’s financial ties to the Russian Mafia going back over 30 years.

    Further, Craig Unger was on O’Donnell’s program last night promoting a new book called House of Trump, House of Putin which document these ties, including years and years of real estate-based money laundering.  I just ordered a copy on Amazon.

    Cohen may still be a BIG problem for Trump concerning the ConFraudUS case, particularly since he appears to have motive to cooperate in Trump’s treatment of him, and in the potential bank and tax fraud liabilities Cohen has with the SDNY.

      • Avattoir says:

        He also provided an important explanation for the one jury Q that I admitted to not understanding from msm news reports: the request involving the Indictment and “numbering”.

        Chuck explained that the jury Q asked for help in tying specific (“numbered”) exhibits to specific (“numbered”) counts in the Indictment.

        This is one of the areas in which Judge Ellis’ pyrotechnical approach to the docket had a near palpable, potentially unjust effect.

        Prosecution had planned to show the jury documentary exhibits as they were introduced AND concurrent with eliciting testimony from witnesses. That’s a norm: it’s true that in some sense it’s a form of advocacy, but if the norm is curtailed during trial, it can take longer, and hold less efficacy, if done during ‘the clear time’ for overt advocacy, being closing arguments by the parties’ counsel.

        But Ellis also aggressively rode counsel on the length of their closings, forcing them – to the point: forcing the prosecution – to forfeit that clarifying process. IOW, as dubious as was Ellis’ interference with a reasonable norm of evidence development, his effective eradication of critical leeway to the government to argue its case at the end would definitely be a reversible error, BUT FOR the principles that almost entirely obviate prosecution appeals from acquittals.

        I can’t now recall whether it was Rosenberg who made this point, or I heard or read it elsewhere, but there’s a general acceptance on appeals of the principle that it’d be a reversible error in appeal from conviction had Ellis given into the request from the jury. One of the key REASONS underlying this last principle is that the appellate court will have observed that the ‘norms’ were intact, i.e. that prosecution had the two opportunities provided in the normal business of trial to assist the jury’s understanding of the tie-in, and so is either stuck with the shitty job it did in availing itself of those or else was stuck with its choices in failing to even try, when it had its chances.

        But that predicate assumption was completely undermined by Ellis, and so, in the result, Ellis screwed this jury out of assistance every other jury (at least every other jury that’s not heard a case at Rocket Docket Central) can count on.


        It’s not the end of the world. On receiving such a jury question in these circumstances, it’s allowed for the trial judge to instruct the jury to the effect that they’re expected to use their group acumen to consider all the evidence in relation to the each of the charges and try to figure it out.

        But then, what’s even the point of having talented, trained, experienced trial attorneys involved, anyway? The legal beagles could just as well set up in some coffee emporium and email in their choices, letting the judge do all the actual talking, asking all the questions, mentally editing out everything objectionable, telling his lame jokes and chuckling to himself, boring the jury beyond the capacity to care or think.

        (In reality tho, Ellis’ Great Rocketry Plans are self-defeating, because it could well take as long or longer for the members of this essentially under-assisted jury to carry out their duties than not merely the time Ellis must somehow fancy he ‘saves’ with his shenanigans, but even 10 days the case took in being force-hurled out at them. Putz.)

        • Frank Probst says:

          I saw this as a very positive question.  It means the jury wants to focus only on the appropriate evidence while considering each charge individually.  That’s a sign of an engaged jury that is taking its duties very seriously.  They aren’t throwing up their hands and saying its too much for them to process, so let’s just acquit and all go home.  When the request was denied, and then it became clear that this was easily going to run into next week, I saw that as another positive sign.  It reminded me of the Scooter Libby jury.  You’d could tell from the jury requests that they were taking their responsibilities seriously.  Frankly, I don’t think that bodes well for Manafort.

      • Tracy says:

        Agreed, Chuck is very calm, I like him! Thomas Paine (I hope you have another inspiring pamphlet for us to read at this time!!) – I am also intrigued by this book! Yes, I’ve been thinking that Cohen and Lanny Davis going silent means this. Lanny made a comment – noted in almost a footnote at the end of an article after the “pre-Trump Tower meeting” came out – something along the lines that he was not allowed to talk to the press thenceforward. His last twitter post was July 24th (apart from an unrelated one on Aug 9th), whereas before that he had been spouting off every day for some time.

  13. earlofhuntingdon says:

    Chairman of the Intelligence Committee.  Was that an irony alert?

    Sen. Burr’s knowledge, like General John F. Kelly’s, seems deficient in knowledge of the Constitution’s Bill of Rights.  Not esoteric knowledge one might expect of a credible aspirant to a seat on the Supreme Court.  No, a  basic level of knowledge one might expect of a high school senior or an aspirant to US citizenship.

    Sen. Burr seems to have neither, unless he ignoring what he knows to make cynical political points with his supreme leader.  But by all means, let’s make him Chair of the Intelligence Committee.

    • Nopants says:

      Burr is my senator. A few minutes after the news broke about Brennan, I wrote an email to him voicing my deep concern about Trump’s retribution and asked him to be the voice for the people and stand up for the security of our country. My last sentence essentially pointed out that if Trump has done this as a political move to silence critics or those who are in a position to serve as witnesses in the investigation, then what would stop him from targeting  other members of Congress or you(Burr)? And the next day…… voila!  BURR’S STATEMENT APPEARS. He was thinking the same.

    • Avattoir says:

      Fun with Facts: Senator Richard Burr does not in fact have a degree from any accredited law school, nor, it appears, has he ever attended upon the same in any academic capacity.

      What he DOES have going for him is a collitch xperience in frat house activies an’ fuhbow, 17 years of experience in lawn care equipment sales, and history of involvement with a visual branding group.

      Oh, and apparently is a distant cousin of Aaron Burr, the miserable conniver who killed Hamilton in duel, thereby causing both their political careers to be abruptly foreshortened, before being tried for treason and becoming a financial profligate and escaping the country for half a decade as a hopelessly insolvent bankrupt.

      So, that’s one family that’s made quite the contribution to American constitutional republican democracy.

      • AndTheSlithyToves says:

        Back in the mid-90s, I was chatting with a dear friend’s relatives, both of whom happened to be fairly prominent attorneys in Burr’s congressional district as well as registered Republicans and donors of his. My friend, who happens to be wildly liberal (and quite well-to-do) raised the issue of Burr’s retrograde views and his apparently unethical reputation. Her lawyer sister’s reply, which has become family legend, was “Well, he may be a crook, but he’s our crook.” As a possible sucker on this branch of epistemology, one might also consider that Mr. Burr didn’t have to trek to Moscow July 4th because he already has a back channel to the Kremlin through the NRA.

  14. earlofhuntingdon says:

    I would say that Trump and Burr are not aiming their sights at “excessively political speech”, merely at speech they dislike. A good description of tyrannical behavior.

    As for your marvelous title, I would observe that those who have the smallest flag poles inevitably wave their flag the most.

  15. Rapier says:

    While the clearance waving party is a sort of sideshow I was gobsmacked when Porter Goss’s name turned up on the ex CIA guys call out letter to Trump.  The letter specifically says some signatories were “reluctant” and I think we can be certain Goss was that.  Still reluctant and  not signing are two different things, and he signed.  I’m thinking if your a GOP president and you lost Porter Goss….   Well, it isn’t good.

  16. Rapier says:

    While the clearance waving party is a sort of sideshow I was gobsmacked when Porter Goss’s name turned up on the ex CIA guys call out letter to Trump.  The letter specifically says some signatories were “reluctant” and I think we can be certain Goss was that.  Still reluctant and  not signing are two different things, and he signed.  I’m thinking if your a GOP president and you lost Porter Goss….   Well, it isn’t good.

    He was shown the door as CIA director by what is now called the deep state after all. Well he’s 79. That might explain it.

  17. Drew says:

    So can the lawyers here enlighten us on what this means? It looks like the government is NOT happy with Papa. I notice that they make a point that this was NOT a standard plea agreement. In view of his non-cooperation, is there any chance/likelihood that they will charge him for stuff (like CONFRAUDUS or espionage or whatever) that he’s not charged with here?

    • Frank Probst says:

      My non-lawyer impression is that he didn’t give them much (if anything) that they didn’t already have by the time he agreed to plead out, with the possible exception of a cell phone that he used in London.  His lies hurt the investigation more than Alex van der Zwaan’s did, and van der Zwaan was a relatively minor figure in this whole drama.  Since van der Zwaan only got 30 days, it seems like the implication is that Papadopoulos should get more.  (The footnotes more or less say that his wife is nuts, which was pretty much the subject of one of EW’s recent posts.)

  18. Tracy says:

    Let’s add to all of this news Trump basically dangling a pardon today, again! :-/

    From what I understand, offering pardons to obstruct/ with corrupt intent could be an issue for Trump? A Dem from the Judiciary Committee was saying that even in the Constitution, there are some checks on this pardon power if there is corrupt intent behind it – yes?

  19. Tracy says:

    Marcy, I applaud you for trying some different channels to get people to take this seriously and to see it in a different way, it is being totally misreported in the media. I hope that somehow something you have said to Republican lawmakers will work its way behind closed doors.

    I continue to find the most disturbing part of all of this the Republican party not doing their job to check the President. The founders knew that we’d have awful presidents, presidents w/ autocratic tendencies, that’s why they baked checks and balances into the Constitution. The Republican Congress’ gross abdication of their oath to the American people is egregious; now, sadly, we must add Burr to the list of parsers, abdicators and obstructionists putting party before country.

  20. Ollie says:

    Simona Mangiante Papadopoulos
    ‏ @simonamangiante
    Aug 15
    PapaD is the key….
    27 replies 53 retweets 161 likes

    So…….who is “PAPAD”? Our Pres? This I copied off of Twitter feed just less than 10 mins ago. It’s 9pm pst

    • earlofhuntingdon says:

      Just a guess, but it’s probably Simona’s husband, George Papadopoulos.

      Water boy to “key” in one easy lesson, perhaps.  Reads like another beg for a pardon.  Donald ordinarily treats smallfry with disdain. If he’s key, we’ll see.

  21. Jeff Stewart says:

    Two paragraphs from the GRU indictment we are misunderstanding: The ones about the US server?


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