Yesterday Noel Francisco Raised the Stakes on the Mystery Appellant

Back when President Trump fired Jeff Sessions, there was a CNN report describing how two competing groups of people discussed what to do in response. It described that Solicitor General Noel Francisco was in the Sessions huddle, a huddle focused, in part, on how to protect the Mueller investigation.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

[snip]

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Francisco’s presence in the Sessions/Rosenstein huddle was significant for a number of reasons: If Rosenstein had been fired while Big Dick Toilet Salesman was Acting Attorney General, he would be the next superior officer, confirmed by the Senate, in the chain of command reviewing Mueller’s activities. As Michael Dreeben testified in the days after the firing, Francisco would have (and has had) to approve any appeals taken by Mueller’s team. In addition, it was significant that someone who is pretty fucking conservative was huddling with those who were trying to protect the investigation.

That’s why I’m interested in several details from the Mueller response to the Mystery Appellant challenge to a Muller subpoena submitted to SCOTUS yesterday.

First, as I expected, the government strongly rebuts Mystery Appellant’s claim that they are a foreign government (which was the spin in their own brief). Rather they are a commercial enterprise that a foreign government owns.

As the petition acknowledges (Pet. 1 n.1), petitioner is not itself a foreign government, but is a separate commercial enterprise that a foreign government owns.

That makes a ton of difference to the analysis, because the government has a much greater leeway in regulating businesses in this country than it does foreign governments.

Indeed, in one of the key parts of the brief, the government lays out the import of that: because if foreign owned companies were immune from subpoena, then on top of whatever problems it would create for regulating the foreign-owned corporation, it would also mean American citizens could deliberately use those foreign-owned corporations to shield their own criminal behavior.

Petitioner’s interpretation would, as the court of appeals recognized, lead to a result that Congress could not have intended—i.e., that “purely commercial enterprise[s] operating within the United States,” if majority- owned by a foreign government, could “flagrantly violate criminal laws” and ignore criminal process, no matter how domestic the conduct or egregious the violation. Supp. App. 10a. Banks, airlines, software companies, and similar commercial businesses could wittingly or unwittingly provide a haven for criminal activity and would be shielded against providing evidence even of domestic criminal conduct by U.S. citizens. See id. at 10a-11a. Although petitioner declares that result to be “precisely what Congress intended,” Pet. 25, it cannot plausibly be maintained that Congress and the Executive Branch—which drafted the FSIA—would have adopted such a rule “without so much as a whisper” to that effect in the Act’s extensive legislative history, Samantar, 560 U.S. at 319.8

In an unbelievably pregnant footnote to that passage, the government then notes that Mystery Appellant’s suggestion that the President could retaliate if foreign-owned corporations engaged in crime via something like sanctions ignores what tools are available if foreign-owned corporations don’t themselves engage in crime, but instead serve as a shield for the criminal activity of US citizens.

8 Petitioner suggests (Pet. 26) that Congress would not have been troubled by barring federal criminal jurisdiction over foreign state-owned enterprises because the President could use tools such as economic sanctions to address foreign instrumentalities “that commit crimes in the United States.” That overlooks not only the legal and practical limits on sanctions, but also the threshold need to acquire evidence through grand jury subpoenas in order to determine whether a crime has been committed—including by U.S. citizens.

Consider: There is significant evidence to believe that a foreign country — Russia — bribed Trump to give them sanctions relief by floating a $300 million business deal. There is also evidence that, after a series of back channel meetings we know Zainab Ahmed was investigating, such funds may have come through a Middle Eastern proxy, like Qatar. There is not just evidence that Qatar did provide funds no one in their right mind would have provided to the President’s family, in the form of a bailout to Jared Kushner’s albatross investment in 666 Fifth Avenue. But they’re already laying the groundwork to claim they accidentally bailed him out, without realizing what they were doing.

So if Russia paid off a bribe to Trump via Qatar, and Qatar is trying to hide that fact by claiming Qatar Investment Authority is a foreign government that can only be regulated in this country by sanctions imposed by the guy who is trading sanctions to get rich … well, you can see why that’s a non-starter.

Finally — going back to why I’m so interested that Francisco was in the Sessions/Rosenstein huddle — just Francisco’s name is on the brief, even though Dreeben and Scott Meisler surely had a role in drafting it.

This was noted to me by Chimene Keitner, who is an actual expert in all this (and did her own very interesting thread on the response).

I’m sure I understand only a fraction of the significance that just Francisco signed the brief. But two things I do understand: One, Francisco is giving this argument a great deal of weight with SCOTUS, signaling the import of winning this argument.

Additionally, however, it means he stands as a shield for Mueller’s work on this appeal. If Trump wants to retaliate against DOJ for exposing the payoff to a quid pro quo, the President is going to have to fire another Senate-confirmed officer to do it, and fire one against whom he hasn’t laid a claim of partisanship. As I’ve already noted, by dint of this company being a foreign company, Mueller likely already knows what he’s getting via SIGINT. This subpoena is likely significantly an attempt to parallel construct evidence for use at trial. And the brief seems to make it clear that Mueller suspects some US citizen used this foreign-owned corporation to shield his own criminal behavior.

Which might explain why Francisco sees the need and import of shielding Mueller in this step.

Update: I’m seeing people misunderstanding the significance of my point (which, again, was suggested by someone more expert than me and most journalists on this). It’s not just that Francisco appears — that’s normal. It’s that only he appears, when we know that several other people had to have worked on the brief. That is, it’s the fact that Dreeben is not named.

As comparison, here’s the signature line for another brief that DOJ submitted (as amicus) today:

As I disclosed last July, 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. 

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92 replies
    • BobCon says:

      Or both.

      I suspect that a lot of Whitaker’s sweat was the result of trying to thread a needle that, in his arrogance, he originally thought was the width of a couple of camels.

      I would bet there are more people than just Whitaker who may have gotten themselves into some kind of trouble going in, only to find out later that they needed to scurry back to Mueller’s side before they risked much more.

  1. Rapier says:

    Qatar has a special need to suck up to Trump.  The Saudis are leading a coalition against it and almost invaded it.  I suppose they figured the US shouldn’t much care who the soverign there  as long as they leave our big airbase alone. Then ended up having second thoughts. Then Qatar out of the goodness of its own heart decided to throw in $1.8bn to upgrade our airbase.

    • Vicks says:

      I am jumping in here late but the Qatar thing has always made me itchy.
      Is there any connection to Broidy almost(?) for a little bit(?) getting DJT onboard with his highly profitable anti-Qatar campaign?
      The wierdness (to put it mildly) surrounding the blockade?
      The cruise that Tom Barrack and Manafort took right after Manfort got fired where they met with the former prime minister of Qatar?
      Cohen and Broidy handling the money for the RNC? (sorry that just cracks me up!) Barrack’s running a superpac under investigation?
      Rick Gates (who admitted to stealing money from the campaign in his testimony) was working for Barrack until he was indicted and agreed to cooperate?

      • Rayne says:

        Yeah, that little yacht cruise did look fishy.

        Barrack invited Manafort to join him on his yacht off the coast of Greece. “He got fired, and I felt terrible,” Barrack said. “When Manafort called, he was depressed. I said, ‘I have got five guys on a boat,’ and ‘Join us.’ He came over, and he spent four or five days figuring out what he would do next.”

        (source: Paul Manafort’s ‘lavish lifestyle’ highlighted in indictment, October 30, 2017 WaPo)

        “Off the coast of Greece” — is that code for “near banks in Cyprus”? LOL Somebody has intelligence on this, I’m sure; we’ll just have to be patient or dig some more.

  2. Democritus says:

    Thank you Marcy for sharing your thoughts on this. Much appreciated :)

    Given the typos I managed in relaying just that thought alone, I will leave it there.

    • Sarah says:

      Pretty sure he is being charged with State level crimes in Florida. As we have learned, Trump can only pardon Federal crimes. Kraft would need the Florida Governor to pardon him.

      • orionATL says:

        second time’s a charm; at p first try cursor will NOT show up in the box after showing up in the credentials section.this is the third time today that this has happened. solution is to force another screen to appear. hope this report helps.

        main comment:
        before the superbowl in atlanta there was a (as reported in the local media) big federal/state effort to combat sex trafficing. if i recall correctly there were 70 some arrests over a couple of weeks.

        coming so soon after the superbowl (feb 3), i wonder if the florida arrests were not directly connected to confessions of those arrested? around here today, kraft is rumored to be a principal in sex trafficking, not just a guy caught with his skivvies (and maybe knee-high socks) down.

        could this be the beginning of the end of billionspaire dominance of nfl football? probably too good to be true, alas.

    • Alan says:

      I have no qualms about Kraft or anyone going to a “massage palor”, but I sure hope they would first make sure whomever works there was not sex-traffic’ed.

  3. bie phiephus says:

    You know the old saw about hard cases making bad law, or the more current version being political expedience setting bad precedence (looking at you #NationalEmergency). Nice to see there are still a few in the GOP willing to buck this trend. Also good to know there are some lines Noel Francisco won’t cross. In the Trump times, you need to take your hope where you find it.

  4. harpie says:

    WOW

    This subpoena is likely significantly an attempt to parallel construct evidence for use at trial. And the brief seems to make it clear that Mueller suspects from US citizen used this foreign-owned corporation to shield his own criminal behavior.
    Which might explain why Francisco sees the need and import of shielding Mueller in this step.

    • ItTollsForYou says:

      Definitely a “holy shit” moment for me. I feel so dense for not linking Kushner’s 666 with the appeals battle.

      • Silence Hand says:

        One of the features of Trump et al.’s grift is that so much of it is baldly in plain sight. I mean, they seem to think that this is some sort of defense, like it’s not a criminal conspiracy if you’re tweeting it and shouting it into microphones. Russia! If you’re listening! The 666 bailout is right there in broad daylight, so must be nothing to see, right? No cloaks, and the daggers are openly shoved into your belly and not your back. It’s the #nothingtoseeherepeople administration.

        Shockingly, a lot of media types seem to buy this.

    • harpie says:

      [email protected] has a really good thread of sub-threads timeline here: https://twitter.com/dcpoll/status/1098698561628315650

      One of the last entries:

      Feb 12, 2019: Trump met with private nuclear power developers, including Westinghouse [owned by Brookfield, which bailed out Kushner’s 666 building for $700M], to discuss efforts “to share US nuclear technology with Middle East nations, including Jordan and Saudi Arabia.”

      • harpie says:

        Laura Rozen wrote this yesterday:
        Trump introduced Qatari to donor pursuing nuclear power project, report says
        [quote] Last spring, President Donald Trump introduced a potential Qatari investor to a friend and inauguration donor seeking a few billion dollars in investment to buy an unfinished nuclear power plant in northeastern Alabama, according to interviews the donor gave to a Tennessee media outlet published this week. // Tennessee businessman Franklin Haney, 78, told the University of Memphis’ Institute for Public Service Reporting that Trump introduced him to the Qatari at Trump’s Mar-a-Lago resort in Palm Beach, Florida, of which Haney is a longtime member. He said the introduction to the Qatari, whose name he said he did not recall, came a couple weeks after he was introduced in March to Trump’s then-personal lawyer Michael Cohen, whom Haney briefly hired as a consultant. […] 

        • Fran of the North says:

          POTUS introduces you to an investor who might have both the interest and where-with-all to provide a couple of $ BILLION, and you can’t remember the investor’s name?

          Ahhh…. no.

  5. Alyogola says:

    Brilliant analysis, as always.
    What I am wondering is whether, if Qatar did really act as the intermediary in the bribe, it’s even possible to use the subpoena process to parallel-construct the proof of the Russia-Qatar link without relying on SIGINT. Of course, I suppose Mueller would not even need to go that far if at least the corrupt intent of the Qatar – son-in-law deal were shown.

  6. P J Evans says:

    Mueller suspects from US citizen

    I’m having trouble parsing this – I’m sure “from” wasn’t intended!

  7. Badger Robert says:

    It appears to have all been set up when the Russians knew how dependent Kushner had become on foreign money: which is why Kushner never could have been granted a security clearance in any other circumstances. Odd that Mr. Kushner is still not out on bail. There must be, as you suggest, evidentiary problems. The facts are known.
    Thanks again.

    • brewstate says:

      Mueller probably has quite a bit on Trump’s family members, but indicting them would essentially be an act of war against the administration. He would have to have his entire case wrapped up with a big red bow for Congress or the SDNY before he did that or risk that Trump would take the nuclear option.

  8. viget says:

    Guys–

    Don’t also forget that Brookfield Asset Mgmt, which is partially owned by QIA, also wholly owns Westinghouse (nuclear reactors).  Brookfield bailed out Kushner.   QIA also helped Barrack’s Colony Capital buy Miramax from Disney back in 2010 I think.

    And then, there’s the 19.5% Rosneft stake sale that QIA helped finance, that Page was offered a brokerage fee for.

    It’s gotta be QIA.

    • bie phiephus says:

      So why is Trump et al. siding with the Saudis in their feud with Qatar? His did they go from taking huge bribes from Qatar to fucking over Qatar?

      • viget says:

        Because the Qataris aren’t willing participants in this game. They get very little out of it (well the al Thani’s are making out like bandits, not so much everyone else). They are being forced to be the intermediary precisely because they are susceptible to pressure from Saudis and Emiratis.

        QIA is being used to launder Russian money and evade sanctions, kind of like how 1MDB was. If this comes to light, the Qataris are in big trouble.

  9. Waban1966 says:

    Marcy, agree with all your analysis here.  One addition on the topic of “Why only SG Francisco on the brief?”

    The SG almost certainly had help with the research and writing on the brief.  But the SG himself could be the ONLY person in the SG office who is read-in on the relevant confidential facts.  Likely Mueller would want it that way (since he already has at least one other SG office lawyer detailed to him).  A lawyer filing a pleading is required to have the factual information and take it into account in making the arguments — and thus only SG office lawyers read-in to the facts (e.g. who the subpoena target is) can sign I think.  So Francisco probably had to sign by himself.

    There may be a bunch of secondary reasons to do it as well: political appearance of separation from Mueller’s office, or sending a message that the SG himself agrees (as you note).

    • bmaz says:

      That is a fair point. But there were other people read in that could sign it too. So, it is notable that not only did others not be the lead signatory, they are not even on there as secondary signatories.

  10. Barry says:

    Down the road, when all the Trump et. al. criminal investigations are completed, we’ll know whether or not the DOJ and SCOTUS were able to maintain themselves as a semi-independent, rule of law institutions in the face of high level and consequential Executive Branch criminality. If  these institutions ultimately succumb, there will be a new and even broader de facto definition of the imperial presidency.  I am hoping, based on this extremely interesting post and the earlier one about “the two huddles”, that Solicitor General Franco sees the stakes in very much this way.

  11. A. Non says:

    Why presume Russia is the source of Qatar’s bailout of Kushner?   Qatar has plenty of money of their own and a massive incentive to buy off Trump (to end the Saudi embargo).

  12. earlofhuntingdon says:

    For an administration that wanted inaugural celebration service providers to take payment directly from supposed donors, no questions asked, I would assume that no financial shenanigan is out of bounds for them.

    Having one foreign government bail-out the Kushners on a deeply underwater mortgage on a signature property in midtown Manhattan in exchange for sanctions relief for another country – in order to pay back an obligation of Trump – would be exactly the kind of shenanigan these criminals would think to be a no-brainer. Cohen probably arranged that sort of thing, on orders of magnitude lower scale, for years.

  13. P J Evans says:

    @earlofhuntingdon February 22, 2019 at 1:50 pm
    Very much like using one credit card to pay off another, and hoping that the creditors will never notice or that the bills won’t all come due at once.

  14. Jockobadger says:

    @Bie – “In the Trump times, you need to take your hope where you find it.”

    Yep. And if you’re a DC Pol/DOJ/FBI dweller you also need to decide if you’re going to be a black hat or a white hat and you need to decide early to avoid any taint. Sounds to me like Franco saw the handwriting and put on his white hat – at least I hope so. Thanks to all you EW folk.

  15. gedouttahear says:

    A worrisome thought: My hazy recollection is that in the Plame affair, that Cheney could not be prosecuted because Libby’s obstruction stymied that possible prosecution. With Manafort’s continuing obstruction and what seems to be the consensus that Mueller’s report is imminent (I’m not so sure, though that may just be hope — it’s sure not fact-based) and with none of t’s odious spawn having been indicted, have the obstructionists been successful in protecting the bosses? (I know there are significant state charges to come for other crimes.) On the other hand, as many others with smarts and insights have said, maybe there will be more handoffs by Mueller to other USAAG’s. And just maybe — fantasy — people like Barr will see a chance to redeem themselves from their performances during the Bush years.

    • Arj says:

      It would be very difficult to indict Trump family, regardless of evidence, without triggering whatever cataclysm ends Act III. Mueller must have all his ducks in a row before that move. Just hope there are enough ducks and there’s a clear enough shot at ‘em.

    • earlofhuntingdon says:

      Cheney was a master bureaucrat, even if he did think so himself. He was careful to work through cut-outs and to avoid leaving an evidentiary trail. We have seen no such behavior from anyone in Trump’s crew.

    • CitizenCrone says:

      I can be naive, but
      You know how easily T is manipulated…stroke his ego or malign Mueller and Presto! Like BDTS you’re hired.

      Barr seems smarter than BDTS. Maybe his memo was a ruse to try to get in a position to shield Mueller. Maybe he has a sense of right and wrong, and is sickened by the enormity of corruption and abuse of our institutions. If the solicitor general is acting to shield the investigation, why not Barr?

      One can hope…

  16. orionATL says:

    lorem ipsem 2/2[email protected]:17p

    3/12/18
    “…One firm that lobbied in favor of Qatar is Mercury Public Affairs, which worked with Trump’s former campaign chairman Paul Manafort. Manafort has since been charged by Mueller with money laundering, bank fraud and tax evasion. Mercury is believed to be an unnamed party in Manafort’s charges, but so far faces no legal exposure. Manafort has pleaded not guilty to all charges…”

  17. earlofhuntingdon says:

    So a part of the KSA nuke deal was to payback those who refinanced Kushner’s badly underwater mortgage on 666 Fifth Avenue, which Kushner wildly overpaid for at the height of the pre-Great Recession property boom.  The nuke deal, like everything else Trump touches, is inherently corrupt – and deeply dangerous.

  18. bmaz says:

    Matt Brett at 2:15 pm – Court filings have stated that it is a “foreign financial institution”. Qatari Airways would not seem to fit that description.

  19. Ronald Prentice says:

    According to the link to a Reuters story you provided, Brookfield paid the rent on the 666 property for 99 years. So the QIA is miffed that their 9% share is being wasted on an albatross thereby benefiting Jared who is on the side of their enemy MBS. All fine and good, but where’s the link between Russian money and Brookfield?

  20. Ronald Prentice says:

    Also, can you provide any more detail on the “series of back channel meetings we know Zainab Ahmed was investigating,”?

  21. RisingDown says:

    Appreciative as always, Marcy!

    A  couple questions, if folks could assist:

    Would Francisco only have been read in on this case after the Supreme Court agreed to hear it?

    Once read in, would he be allowed to provide insight to Executive?

  22. Diviz says:

    @Rayne

    Do you think it would be worth it to have an open thread on the four other cabinet scandals I just saw you tweeted in the tweet window to the right?

  23. PaulCrucet says:

    I know there is no need to require corroboration of the Steele Dossier in order to observe the deep levels of conspiracy and corruption that encompasses Trump’s relationship with Russia and which has already been revealed in the public record.

    However it does seem that the Oct 16 (2016/134) report describes a very interesting scenario:

    “In terms of the substance of their discussion/ SECHIN’s assoriate said that the Rosneft
    President was so keen to lift personal and corporate western sanctions imposed on the
    company, that he offered PAGE/TRUMPs associates the brokerage of up to a 19 per cent
    (privatised) stake in Rosneft in return, PAGE had expressed interest and confirmed that were
    TRUMP elected US president, then sanctions on Russia would be lifted”

    Indeed, sale of 19.5% of Rosneft was completed in Jan of 2017.
    The sale involved Qatari’s sovereign wealth fund.
    The purchasers and financers of the deal has been rather shady
    The sale was conducted in Dec / Jan of 2016/2017, and according to the dossier, was in exchange for sanctions relief
    This also matches the timeframe in which Michael Flynn was also discussing sanctions relief with the Russians (and lying about it)
    Zainab Ahmed who specializes in Middle Eastern affairs has been involved in this Mystery Appellant case
    Which involves a financial institution closely tied to a government

    All of which to say is that I know of no publicly available information that would refute a hypothesis that the Mystery Appellant is the Qatari Sovereign wealth fund potentially involving a brokerage proceeds of the sale of up to 19% of Rosneft in exchange for sanctions relief.

    (I’m not the only person to speculate this – there is a good article on medium.com about this if you search “steele dossier Rosneft” in your favorite search)

    If there is information that makes this unlikely/impossible, then please correct my wild speculation!

    • r helder says:

      f.d.a. has four categories:
      1. cheese
      2. cheese food
      3. processed cheese food
      4. processed cheese food product
      “velveeta” is #4

      does that mean this is just a “process” crime?

  24. Njrun says:

    is it possible that Mueller is winding down — or handing off some parts of his investigation to other jurisdictions might be a better way to put it — because he can’t trust that Barr won’t be in effect a spy for the president? So Barr wouldn’t shut him down, but provide intelligence that would thwart the probe? Just musing.

  25. P J Evans says:

    @Cathy  February 22, 2019 at 10:56 pm
    There are some things it’s good for. (I don’t actually use it myself. But I do eat some of the processed cheeses.)

  26. P J Evans says:

    @orionATL  February 22, 2019 at 11:28 pm
    Among other problems – it’s some kind of update that’s f*cking up the reply box in various ways, some of which only show up when you hit “edit”. (I can’t get “reply” to give me a working box most of the time. But the one at the end of the thread works – most of the time.)

    • orionATL says:

      p.j. [email protected]:44p

      thanks p.j. it is helpful to know someone else has experienced the same. i trust it will be resolved in time now that the problem is known.

      i am reminded of the problem of code interfering with code in recent auto problems. this can only get worse until we begin to back off on reliance on digital info processing until we get competely new and less complex logic statement code (or new logic and math to support new and less complex code).

      and new ways of protecting privacy i will add.

  27. orionATL says:

    njrun @10:33p above

    if mueller is winding down it is because both sessions and rosenstein left.

    my reading of william barr is that under no circumstances should he be trusted to protect the osc or mueller (“good friend” or no – because he hides his extreme partisanship behind legal language justifications that sound nonpartisan). not trusted because  the big fight in washington is about keeping the republican party from being fairly and truthfully blamed for having betrayed america to its most potent past enemy, the russian government, thru the candidacy and then presidency of donald trump, and  subsequently prevented from rapidly discovering that by the obfuscation of the republican congress of 2016, elected itself in important if small part by russian government intrusion in american elections.

  28. Eureka says:

    @ Rayne 213a LOL, also check ~trump family astrological charts~ or ~trump 2019 astrology~.  Under the latter, this sounds ominous but I have no idea what all of it means.  Oh shit I just figured some of it out, hilarious re timing above.
    First what is defined as Moon in house 12, as this is important in the later snippet:

    On January 1, 2019 the major progressed Moon is in house 12 – the intelligence services, FBI, crime, secrets, secret enemies and self-undoing.

    …..

    March 10: Progressed Moon conjunction birth chart Mars starts

    The major Moon stimulation to birth chart Mars between now and its peak power date – April 6 – times when a major event mapped by progressed Mars sextile birth chart Pluto can occur. Mars and Pluto will demonstrate a major house 12 event. Mars is the planet of strife, aggressive action and raging. The aspect-stimulation ends May 2.

    (Bold emphasis in original; underline italics added)

    OK, maybe not so amusing.  Yikes.

  29. Eureka says:

    Accidentally cut off the last line of quoted snippet:

    March 14: Major aspect progressed Midheaven conjunction progressed Saturn ends

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