Rudy’s Lawyers Destroy His Reputation in an Attempt to Save It

Just before a long tirade about how, if DOJ had just asked Rudy Giuliani for help proving he’s not a secret Agent of Russian-backed Ukrainians while he was busy at State and WDPA acting as a secret Agent of Russian-backed Ukrainians, he could have avoided a covert search to find out whether he’s a secret Agent of Russian-backed Ukrainians, his lawyers say, in a now-public letter, that it’ll badly damage Rudy’s reputation if it becomes public that DOJ believed he might delete evidence or intimidate witnesses.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the Government. We should be allowed to question the Government as to what basis it had, if any, to make that assertion. Accordingly, we request the information that was presented in the iCloud warrant to justify the NonNotification Order pursuant to 18 U.S.C. Section 2705 (b) that “there is reason to believe that notification of the existence of this warrant will result in destruction of or tampering with evidence, and/or tamping (sic) with potential witnesses, or otherwise will seriously jeopardize an ongoing investigation.” We also request access to the application for any extension of the non-disclosure provision which originally lasted for a year.

As the single exhibit to prove that Rudy had reached out to DOJ to provide help, his attorneys included a picture of a TV screen with his attorney making that claim (I’m not sure whether this claim is November 25, 2019, or in the wake of the most recent searches) when it might have avoided the search. But then they include all this verbiage which sure seems to describe Rudy acting as an Agent of Russian-backed Ukrainians who just didn’t give a shit about registering as such because why do that if the President can bail you out?

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the U S State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine. In fact, there has never been an occasion where Mr. Giuliani has refused to cooperate with, or give assistance, to his government. This was as true during the Clinton administration as it was during the Bush administration.

[snip]

As a reminder, this same attorney had cooperated with the State Department and offered, for a year and a half, to answer any questions from the SDNY about any subject or crime, with no limitations except for privileged matters. During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine. Amazingly, the SDNY continually turned down the offer by stating that while they would be happy to hear anything Mayor Giuliani’s counsel had to say, they refused to identify the subject, although those subjects were disclosed to the media.

Plus, Rudy’s lawyers note — as if it helps him — that they only reached out to offer to help on November 4, 2019, the very same day the warrant was obtained (as if maybe a birdie warned him?), which means he didn’t offer to help for the entire month after the indictment against his business partners Lev Parnas and Igor Fruman was unsealed.

But Rudy’s letter and a similar one from Victoria Toensing’s lawyers lay out certain details of the investigations into the two of them.

There are two sets of warrants. With Rudy, SDNY obtained a sealed warrant for his iCloud account on November 4, 2019 and then the overt one for a shit-ton of devices on April 21, 2021. With Toensing, SDNY obtained a sealed warrant for her iCloud account on November 4, 2019 and another for her Google account on December 13, 2019; they obtained a warrant for a single phone on April 28, 2021.

Rudy says that the earlier warrants showed listed FARA, unregistered Foreign Agent, abetting, and conspiracy as the crimes under investigation.

In essence, the Government was looking for evidence that Giuliani was acting as an agent, unregistered agent or lobbyist of a Ukrainian national, government official, corporation or political party or in violation of the foreign agent registration and lobbying laws or making contributions on behalf of a foreign principal (see attachments to search warrant also citing 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371).

It’s not entirely clear whether the later warrants against Rudy are the same. He doesn’t say. Plus, he says the later search was only “nearly identical,” as compared to Toensing’s claim that the searches were “virtually” identical. (The content, of course, wouldn’t be identical.)

For her part, Toensing is quite worried that DOJ seized information about a client, who sure seems like Dmitro Firtash.

Rudy’s letter mentions “President President President President” over and over. But in this challenge, unlike the one Michael Cohen made, the President has not filed as an interested party, meaning Rudy’s on his own. Probably, he’s too cheap to pay his share of the presumed Special Master fees.

Rudy also argues, falsely, that the search of the President’s lawyer’s cloud content without the use of a Special Master is unprecedented and especially egregious given that this search came in the wake of the search of Michael Cohen’s devices, which used a Special Master.

Moreover, in the Fall of 2019, during an intense debate over the impeachment and the campaign for the upcoming Presidential Election, with Giuliani publicly acting as President Trump’s personal attorney, the Government decided to take the unprecedented step of seeking a search warrant for Giuliani’s iCloud account. In these circumstances, on the heels of the precautions instilled by Judge Wood in a nearly identical situation, the use of a one-sided “filter” team was highly inappropriate and inadequate to identify privileged materials and thereby protect Giuliani and his clients ’attorney-client privilege, and highly indicative of the appearance of impropriety. Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time. Instead, the Government has had these private, confidential, and privileged materials in their possession for over eighteen months, and established a Taint Team who acted as prosecutor, defense lawyer, Special Master and Judge entirely in secret, knowing full well this contravened the protocol established in the Cohen case.

Except it’s not remotely unprecedented. That is, literally, the same thing that happened to Cohen. Indeed, his Trump Organization emails were preserved (at Microsoft) and searched by Mueller’s team, then shared with SDNY under a new warrant. And those emails actually did pertain to the President — though from the campaign period, not the period when he was trying to coerce campaign assistance from a foreign government.

Ultimately, a big story here is that someone high up in Billy Barr’s DOJ authorized the sealed searches in November and December 2019, making Rudy’s wails far less convincing. My guess is that after Rudy made Brian Benczkowski look corrupt for taking a related meeting on a bribery case (of the Venezuelan bankrolling the Ukrainian grift) at a time when Rudy was being criminally investigated, Benczkowski wasn’t all that interested in going out on a limb to protect Rudy, especially as it would focus attention on the earlier corrupt review of the whistleblower complaint. My further guess is that after Benczkowski resigned, effective July 3, and after Billy Barr failed to replace Geoffrey Berman with a loyal flunky during precisely the same weeks in June 2020, Barr and Jeffrey Rosen went to epic lengths to prevent this warrant from being approved, with Rosen going so far as to require that a specific person in the Deputy Attorney General’s office be required to sign off on such a warrant on December 30, weeks before the second effort. Whatever the case, Trump’s DOJ approved the covert warrants, the one both lawyers are wailing the most loudly about.

If, as the lawyers wail, SDNY has been sifting through their cloud content, then this warrant shouldn’t hurt them all that much more than their earlier searches (unless Parnas revealed that they weren’t backing up their encrypted apps to the cloud).

Except — particularly given the confirmation that Lev Parnas unsuccessfully deleted his own iCloud account — Rudy’s insistence that he doesn’t have a guilty conscience and wouldn’t have deleted anything rings false.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

At about this stage in the Michael Cohen litigation, we learned that he, too, had deleted some information.

Not only has SDNY been sorting through these files for 18 months, they had Parnas and Fruman’s content for far longer, and since then Parnas has been trying hard to take Rudy down. So I would imagine SDNY had good reason to believe that Rudy may have destroyed evidence.

Key related posts

October 14, 2019: The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

The Parnas and Fruman grift was, in many ways, the direct continuation of Manafort’s efforts to cash in on Trump’s win. You’d think that would raise the stakes of Rudy’s privilege claims — but Trump doesn’t appear to care.

October 16, 2019: On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

I argued that doubts that Rudy could be prosecuted for FARA were not only too pat, but ignored his other criminal exposure for precisely the crimes that would be named in his warrant weeks later.

October 22, 2019: How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

I laid out that Criminal Division didn’t do any of the things they’re supposed to do with the whistleblower complaint. That may have forced their hand to approve of the initial warrants against Rudy and VicToe.

October 25, 2019: Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Just before the sealed warrants were obtained, Main Justice got more involved in the SDNY investigation.

November 4, 2019: When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

I’ve written several posts about the ridiculous claims John Dowd made to try to cover this up in a network of privilege claims. The original is linked in the linked post. But I’m linking this one because I posted it on the same day DOJ got a warrant for Rudy’s iCloud.

November 23, 2019: Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

This post includes all the foreign influence peddling that Rudy was doing during the period covered by his warrant.

January 28, 2020: SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

There were a bunch of discovery issues in the case in January 2020, including the revelation that Lev Parnas had deleted iCloud data and an affirmative assertion that Parnas could not waive attorney-client privilege for Dmitro Firtash.

May 7, 2021: Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Barr was working hard to kill the Ukraine investigation during the period through which Rudy’s subpoena extends.

Amanda Gorman Made Silvester Beaman Sad, Joe Biden Happy, and John Lewis Dance

"https://youtu.be/lI1c-Lbd4Bw

The saddest person on the Inaugural stage was not Mike Pence, the outgoing Vice President. Indeed, after what he had to put up with from Trump for the last month, he’s probably relieved if not outright happy. The saddest person was not Amy Klobuchar or other presidential hopefuls who came up short during the primaries, who no doubt imagined themselves as the person taking the oath of office today. The saddest person on the stage today was the Reverend Doctor Silvester Beaman of Bethel AME Church in Wilmington, Delaware.

The happiest person on the stage was President Joe Biden, but it’s not because he was sworn in as the 46th president of the United States of America. It’s not because the inauguration went off without more violence. It’s not because he can finally *do* things to address all the problems he and we are facing, which had to have been incredibly frustrating as the transition floundered and foundered and blundered its way to today. It’s not because he accomplished what Beau wanted him to do.

The reason Beaman was so sad and Biden was so happy is this: Biden finished before Amanda Gorman spoke and Beaman had to follow her. Honestly, I half expected Beaman to step up to the microphone, ask “Can I get an Amen?”, and then drop the folder with his prepared benediction and sit down. Don’t get me wrong: Beaman’s words were good, but he had to know that he was following something epic.

When I saw Gorman come down the Capitol steps wearing her yellow power coat, her bold hoop earrings, her bright red wrap around the powerful tight braids atop her head, I just sat back and smiled. Michelle Obama looked great in her purple, but she was a member of the audience today. Lady Gaga and Jennifer Lopez both made their entrances before they picked up the microphone, and were fine, but Gorman owned those steps in a way that no on else did today. Seeing her enter reminded me of AOC stepping onto the House floor in her power red suit as she prepared to respond to being called a “fucking bitch” by Florida Congressman Ted Yoho. Before Gorman opened her mouth, it was clear that she had Something To Say and it was going to be good.

And make no mistake: she did, and it was.

It was incredibly powerful for three reasons. First, Gorman was unapologetically herself: young, African-American, articulate, and proud of all three. She did not cast herself as Maya Angelou or Robert Frost, two earlier inaugural poets. She spoke with the rhythms of rap that are the language of her generation and her community, embracing the whole heritage of Africans on this continent, and conscious of her power in this moment.

Second, Gorman was unflinchingly honest. She spoke of the ugliness of our history at times, at the tragedies we have been through, and the reality of what is going on right now. There were no pious platitudes to paper over the pain that far too many have had to deal with for far too long.

Most of all, Gorman was unimaginably hopeful. If she owned and possessed the four centuries of pain poured out on the Africans brought to this country in chains and their descendants who lived through slavery, official Jim Crow, and unofficial oppression, she also owned and possessed the strength that carried them through it all, forcing this country to slowly and painfully look at its past, decide to change, and actually make those changes begin to come to be.

But while democracy can be periodically delayed,
it can never be permanently defeated.
In this truth, in this faith we trust
for while we have our eyes on the future, history has its eyes on us.

This is the era of just redemption.
We feared it at its inception.
We did not feel prepared to be the heirs of such a terrifying hour,
but within it, we found the power
to author a new chapter,
to offer hope and laughter
to ourselves so while once we asked,
how could we possibly prevail over catastrophe?
Now we assert:
how could catastrophe possibly prevail over us?

We will not march back to what was,
but move to what shall be
a country that is bruised, but whole,
benevolent, but bold,
fierce, and free.
We will not be turned around or interrupted by intimidation
because we know our inaction and inertia will be the inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain,
if we merge mercy with might and might with right,
then love becomes our legacy and change our children’s birthright.

And with these words, I thought immediately of John Lewis, the happiest person *not* on the stage today.

Gorman was not mindlessly repeating the words of an earlier generation of activists, but building on them. Just as the 23 year old John Lewis spoke on the steps of the Lincoln Memorial in 1963, so the 22 year old Amanda Gorman stood at the other end of the Mall, on the steps of the Capitol in which John Lewis served until he died, and she is taking this nation one more step forward. She isn’t asking permission to do this, or suggesting this be done. She is declaring reality: we will not be turned around or interrupted by intimidation.

I am glad that Joe Biden and Kamala Harris defeated Donald Trump and Mike Pence. I am relieved that we have made it through the transition between the election and today. I am still shaken by the insurrection of January 6th and what may yet lie ahead on that front. But I am dancing in my living room right now, and am convinced that John Lewis is dancing in heaven today, because in Amanda Gorman we see that the good troublemaking goes on.

How could catastrophe possibly prevail?

“Dems in Disarray” as the GOP Fractures over Trump

When I wrote this post, laying out what I perceived to be the urgent need to cure the GOP of the spell Trump has them under, I intended to premise the solution — the means by which Dems and others could encourage such a break — on the political calculus of those Republicans who’ve enabled him for four years. A sufficient number of Republicans need to want to break that spell.

Given how events of the last few days are beginning to fracture GOP unity (the “Dems in disarray” in the title is a sarcastic reference to how commentators always portray things in the worst light for democrats), I thought I’d lay out that premise in a stand-alone post.

Yesterday, even before the Georgia results were in, WaPo chronicled how Trump’s push for an unconstitutional challenge to the election today has splintered GOP unity.

President Trump is effectively sabotaging the Republican Party on his way out of office, obsessed with overturning his election loss and nursing pangs of betrayal from allies whom he had expected to bend the instruments of democracy to his will.

Trump has created a divide in his party as fundamental and impassioned as any during his four years as president, with lawmakers forced to choose between certifying the results of an election decided by their constituents or appeasing the president in an all-but-certain-to-fail crusade to keep him in power by subverting the vote.

[snip]

Trump’s intensifying drive to overturn the election results has deepened a GOP divide on Capitol Hill. McConnell last month urged Republican senators not to object to the electoral college vote certification in Wednesday’s joint session. But now that 13 have said they would, the leader has stepped back from any significant effort to tamp down the brewing rebellion. He is not whipping votes and has not spoken to Trump in weeks.

In conversations with other Senate Republicans, McConnell has stressed that their decision now will be a matter of conscience and that each senator should vote the way he or she has to vote, according to two senior GOP officials who spoke on the condition of anonymity to relay the majority leader’s private posture.

Some Republican senators have expressed concerns that voting to certify — and against Trump — would open them up to a primary challenge from the right, while others worry that voting to object would make them vulnerable in a general election, a person familiar with the deliberations said.

“I think it is revealing that there is not a single senator who is arguing that the election was stolen from President Trump,” said Josh Holmes, an outside adviser to McConnell. “The divide in the party is whether it’s appropriate to pull the pin on an electoral college grenade, hoping that there are enough responsible people standing around who can shove it back in before they detonate American democracy.”

Then, at a time when a huge proportion of House Republicans and a shameful number of Senators were on the record supporting Trump’s arson attempt, Democrats appear to have pulled out both Senate seats in Georgia. While the corruption of and racist attacks from both Republicans hurt their own chances — especially a Kelly Loeffler attack on Raphael Warnock’s sermons, a direct attack on Black faith — there’s good reason to blame Trump.

With some exceptions for David Perdue, Democrats improved their performance county by county based on lower relative turnout from Republicans. Trump might like to claim that turnout fall-off is due to him not being on the ballot, but it’ll be easy for Republicans to argue, with reason, that it’s just as likely that Trump’s efforts to delegitimize the vote led people to stay home. All the more so given that the county where he held a rally the other night, underperformed turnout in the rest of the state.

So even if it weren’t true, it’d be in the self-interest of career Republicans to blame all this on Trump, which is beginning even before the race is formally called for Jon Ossoff.

“Trump is the cause of this, lock, stock and barrel,” said one Republican strategist. “But when you’re relying on someone to win you a Senate race that also lost statewide eight weeks prior, you’re not in a position of strength.”

The immediate recrimination is emblematic of the complicated GOP dynamics that have emerged after Trump’s loss in the November election. Fissures are forming as Republicans decide whether it’s useful to cling to Trump — even as he tries to subvert an election — or to distance themselves. And if the Georgia races are any indication, it appears Republicans are willing to turn on Trump if he can’t reliably turn out the vote for candidates in the months and years ahead.

When asked why Republicans didn’t prevail on Tuesday, a senior Senate Republican aide simply said: “Donald J. Trump.”

Importantly, there were already a number of Republicans who would have liked to turn on Trump if he didn’t have the power to make them regret that (and I expect we’ll hear stories of the means by which Trump commanded such unthinking loyalty in the days ahead). With Republicans out of power in DC, that’s all the more true. Republicans will undoubtedly try to limit the number of victories Biden enjoys, but they will have fewer means to do so going forward.

And Trump’s attempted coup is only going to exacerbate that. Since most Republicans committed to a position before the Georgia results — a decision Trump forced on a number of people, including Loeffler and Perdue, to their potential disadvantage — it will solidify pre-existing fracture lines. Yes, Republicans will blame Trump. But Republicans in Congress will also blame each other, particularly in the Senate.

All that creates a very different landscape in DC, if Biden and Democrats in Congress can exploit it. Some fraction of Republicans in Congress will have an incentive to burn Trump to the ground.

Update: This profile of what a dog-shit choice Trump has given Republicans today focuses on something I’ve been thinking a lot about: Michael Cohen’s warning to Republicans in his OGR testimony about how badly things were going to work out for them.

Michael Cohen, Trump’s former attorney and fixer, whose fealty landed him in prison, feels like he’s watching a reprise of his own demise.

“I warned them,” he told me.

“I warned Mark Meadows at my oversight hearing. I warned the Jim Jordans,” he said, referring to his congressional testimony from less than two years ago as well as Trump’s current chief of staff and other notably pro-Trump GOP House members. His message: “I know what you’re doing. I know the Trump game plan, because I wrote it, and it didn’t work out for me. And it’s not going to work out for you.”

“Donald Trump,” he said, “will push people to the brink, and unless they want to end up disbarred and imprisoned and financially ruined, like what Trump did to me, they better open their eyes.”

[snip]

“Each of the Republicans that have signed on to Trump’s chaos are not doing it out of loyalty to Trump,” Cohen said. “They’re not doing it because they even believe in what Trump is doing. They’re doing it because they fear his Twitter wrath and believe that the supporters, the base of Trump supporters, will vote against them in any upcoming election for not siding with Trump. This is more about their survival than anything else. And that’s sad and pathetic.”

Not only will Cohen’s warnings of the downsides of coddling Trump be prescient in some foreseeable cases, but as Trump loses the power of the Presidency, the upside for making his loyalty oaths will have diminishing value. If something tarnishes Trump’s brand significantly (in my first post, I suggested financial setbacks and state prosecutions could do that), the value of allegiance to Trump could go south precipitously.

And that would have the effect of making these public oaths of loyalty backfire.

Update: Fixed spelling of Perdue’s last name.

Good Trouble

A year ago, after John Lewis announced a cancer diagnosis that would kill him in July, Peterr wrote a post reminding that when John Lewis first started leading this country with moral courage, he was not 80, he was 20. He reminded us to look to what new leaders will lead us forward in the days ahead.

A few weeks ago, John Lewis put out a press release announcing to all that he is undergoing treatment for stage 4 pancreatic cancer. He later sent out a tweet, lifting up one of the best lines in that press statement:

I have been in some kind of fight – for freedom, equality, basic human rights – for nearly my entire life. I have never faced a fight quite like the one I have now.

Lewis’ summary of his life is not hyperbole. He is the last living member of the Big Six, the speakers at the 1963 March on Washington for civil rights, and now is a senior member of Congress. But it’s important to remember that John Lewis was not always old. He was just 23 when he spoke on the steps of the Lincoln Memorial as the president of the Student Nonviolent Coordinating Committee (SNCC) – an organization he co-founded three years earlier at age 20 – and at 21 was one of the original Freedom Riders.

Let me repeat it again: John Lewis was not always old. He has always been a fighter for civil rights, but he has not always been old.

Last night, the Jewish, 33-year old former Lewis aide Jon Ossoff just unseated a corrupt old Georgia, David Perdue. Raphael Warnock, the 51-year old pastor from Martin Luther King Jr’s church just became the first Democrat who will represent a Confederate state in the Senate. These men won this race, in significant part, because Stacey Abrams responded to voter suppression by working for two years to defeat it.

I’ll write about all the things Trump did to sabotage Republicans in a bit. For now, it’s worth noting that one of the big factors in this win was that Kelly Loeffler attacked the Black Church, which may have contributed to astounding turnout among Black voters.

If there’s a heaven, John Lewis can look down and rest assured he passed on his torch.

Graphic: Quino Al via Unsplash (mod by Rayne)

‘I Just Want to Find 11,780 Votes’

We’re waiting for the state of Georgia to finish counting ballots for the Ossoff vs. Loeffler and the Warnock vs. Perdue U.S. Senate races. I’m sure The New York Times’ needle monitor has been bombarded with traffic. A number of pollsters are calling the races but I’m not going to pay them heed yet.

I’m too afraid of getting my hopes up too high given how many attempts Team Trump and the GOP have made to subvert U.S. elections.

While waiting for the final tallies, I want to look at the transcript from the audio recording of the teleconference between Trump and Georgia Secretary of State Raffensperger, particularly this excerpt:

TRUMP: … And why can’t we have professionals do it instead of rank amateurs who will never find anything and don’t want to find anything? They don’t want to find, you know they don’t want to find anything. Someday you’ll tell me the reason why, because I don’t understand your reasoning, but someday you’ll tell me the reason why. But why don’t you want to find?

I don’t know about you but it sounds like Trump is implying with the right persons permitted access to the ballots, the votes Trump needs to win Georgia would be “found.”

He’s implied he wants a fixer team to resolve his “missing votes” problem since Raffensperger can’t or won’t — how mobster-like, how corrupt.

There’s just so much raw, naked criminality in this one phone call, beyond numerous lies Trump made.

There’s solicitation of a crime — he clearly says he wants to “find” 11,780 votes, a number representing at least one more than the margin by which Joe Biden won Georgia. Trump’s insistent on this point, using the word “find” 23 times over the course of the conversation compared to his Chief of Staff Mark Meadows who says “find” twice but in context of an agreement, and attorney Cleta Mitchell who says “find” once while asking about FBI and Georgia Bureau of Investigation findings.

There’s extortion —  a threat of prosecution and other less specific injury implied against Raffensperger and GA SOS counsel Ryan Germany if the desired votes aren’t “found.”

I’m not the lawyer here at emptywheel, but it looks to me like Trump may have violated federal voting and election law 52 U.S. Code 20511 with his interference in a federal election, depriving or defrauding the residents of a State of a fair and impartially conducted election process.

Trump may have violated Georgia election law 21-2-604, Criminal solicitation to commit election fraud; a presidential pardon won’t weasel him out of this one if GA attorney general Chris Carr or Fulton County District Attorney Fani Willis find there’s adequate reason to investigate and prosecute Trump.

Former federal prosecutor Renato Mariotti and Moms Demand Action activist Patti Vasquez discussed the tape with MSNBC Legal Analyst Joyce White Vance, former U.S. Attorney for the Northern District of Alabama in their On Topic podcast. Vance pointed out there was an effort to put “lipstick on the pig,” dressing up the phone call as if there was a legitimate lawsuit about which Trump and his campaign were seeking a settlement with the state of Georgia. But Vance had found no active suit.

Why this effort, including the appearance of an attorney — Cleta Mitchell of lawfirm Foley & Lardner — who wasn’t really Trump’s attorney nor his campaign’s attorney, but compromised enough by her presence during the phone call that her employment was terminated on Monday by Foley & Lardner? This looks deceptive as heck.

Why was White House Chief of Staff Meadows involved at all, discussing an implied agreement in the offing? Yet another Hatch Act violation by a Trump staffer we’re supposed to swallow like a TicTac?

What really bothers me is the practiced ease with which Trump just rolled through this call. We know he tried to pressure Ukraine’s president into investigating Hunter Biden to produce evidence of malfeasance by both Hunter and his father Joe Biden while Biden was VP during the Obama administration. The approach was similar though Trump used bait in the form of aid rather than a threat of prosecution as he did with Raffensperger and Germany. We have yet to see a word-for-word transcript of the 2019 Ukraine call, having instead a memo providing most of the context. Would the full transcript buried in a classified file system sound more like the Trump-Raffensperger call?

How many other calls like this past Saturday’s has Trump made? How many in-person visits making similar solicitation and extortive attempts as well?

Did he use the same technique during that one golf game with Lindsey Graham after which Graham suddenly did an about-face toward Trump, becoming his lap dog?

Let’s not forget that same lap dog also called Raffensperger about finding votes for Trump. Did his call sound like Trump’s except Graham didn’t tweet about it afterward?

I hope we’re going to hear from other states soon whether they, too, were pressured to “find” votes.

And I hope each state pursues an investigation and prosecution where appropriate.

On Bill Barr’s Last Day, Trump Commits the Crime Barr Affirmed in His Confirmation Hearing

In Bill Barr’s confirmation hearing, he affirmed on three different occasions (each time with lessening force) that it would be a crime to offer a pardon for false testimony.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

In Bill Barr’s resignation letter, he explained he would “spend the next week wrapping up a few remaining matters important to the Administration and depart on December 23rd.” Barr stopped off at the White House yesterday for a short visit. He and his spox wrote his good-byes during the day and then left DOJ in charge of Jeffrey Rosen.

And then after all that, Trump pardoned Paul Manafort and Roger Stone. The Manafort and Stone pardons — for which the paperwork must have been done ahead of time but held until Barr was no longer Attorney General — only cover the crimes for which they’ve been found guilty. That means both men would ostensibly remain under investigation for their coordination with Russian Agents during the election (and both men assuredly did coordinate with Russian Agents during the election.

If Bill Barr didn’t find a way to permanently end that investigation.

The question now is whether Bill Barr, cover-up artist, managed to cover his tracks this time as well as he did in Iran-Contra.

Afraid? Who, Us? We’re Not Afraid!

h/t Flazingo Photos
[Attribution-ShareAlike 2.0 Generic (CC BY-SA 2.0) ]

Politico has an interesting piece up about whether Trump administration staffers, especially at the senior level, will face any difficulties in life after January 20, 2021. Will they have trouble getting a new job? Will they be treated like Alan Dershowitz in the Hamptons at Martha’s Vineyard, and find themselves off the best invitation lists for the Villager’s Dinner Parties?

On the one hand, these Trump folks make a good point: the fact that more than 70 million people voted for Trump indicates that this was not a top-to-bottom repudiation of Trump and everything he stood for. The fact that so many of the folks eyeing the 2024 GOP presidential nomination are embracing Trump and his quixotic challenges to the election result suggests that these staffers won’t have a shortage of people looking to hire someone who has Been Inside The White House, even if it’s Trump’s White House.

But there’s one thing that suggests they are still worried. There’s one thing that suggests that they are looking over their shoulders. There’s one thing that suggests that they are not as comfortable as their brave words declare them to be.

Here’s a hint:

“. . . said a White House official . . .”

“. . . some current and former Trump officials . . .”

“. . . One top official at the White House . . .”

“. . . Many top Trump advisers now say . . .”

“. . . said one of the president’s closest advisers.”

“. . . Interviews with numerous current and former Trump officials reveal . . .

” . . . Most Trump officials feel . . .”

“. . . as one Trump official called them . . .”

“. . . said an administration official. . . .”

“. . . said a senior administration official . . .”

” . . . said a Trump adviser . . .”

” . . . said a Senate GOP aide . . .”

” . . . said a former senior administration official . . .”

To Politico’s credit, they did manage to quote one person by name in this story:  Alexandria Ocasio-Cortez.

But back to those Trump staffers. For folks who are quite sure they will land on their feet, they are mighty nervous about putting their name next to their words. Maybe it’s because of this:

“None of the Trump officials interviewed for this story seriously believed that Trump would prevail in the election, and it was taken as a given that they would all soon be looking for work outside the administration.”

These unnamed Trump officials may not fear repudiation by the DC social circles for having been complicit in locking children in cages and taking them away from their parents, never to be reunited. They may not fear for their next job, despite enabling the feeble and fatal Trump administration response to the coronavirus pandemic. They may not fear poverty, because they’ve got their book deal lined up already.

But their unanimous unwillingness to allow their names to be used says they are afraid of something. Or should I say “someone”?

It’s Donald John Trump, and he’s not going away.

*That* is what worries these people. It’s one thing to say “Look at the Dubya folks – they did just fine as their Iraq War stuff and market crash faded into history.” But as long as Trump doesn’t fade away, neither will their enabling of his policies. And deep down, they know that Trump is not going to quietly ride off into the sunset. Ever.

Be afraid, Unnamed Senior Administration Officials. Be very afraid.

[The post has been edited to correct the object of Alan Dershewitz’s unrequited feelings. While it is possible the residents of the Hamptons may have just as much disdain for Mr. Dershewitz as the residents of Martha’s Vineyard, that is not a matter of public record. We regret the error of not giving the residents of Martha’s Vineyard their due.]

Election Day Countdown: There’s Got to be An Afternoon After [UPDATE-1]

The American left — or at least those comfortable voting for and identifying with members of the Democratic Party — is in the throes of their predictable mortification, self-flagellating atop their hair shirts.

Why wasn’t the massive turnout an obvious and immediate repudiation of the deeply racist and misogynist Trump? Why weren’t the numbers evidence of a blue tsunami in spite of the massive push for increased voter participation?

~eye roll~

We do this. It’s a standing joke. I don’t how many variations of this I’ve seen in Twitter today. Here’s a couple examples:

We need to snap the fuck out of it. We didn’t get our heads on straight going into the count last night, and we weren’t ready for Trump’s fascist bullshit lie claiming victory.

We are winning the White House. We are going to take back the entire executive branch, including new cabinet members who aren’t wholly corrupt motherfuckers (Jesus, Wilbur Ross is still serving on the board of a Chinese bank even though he’s been called out in the media about it).

We’re going to have a new attorney general and a civil rights division which will do more than sit on its thumbs and spin.

Investigations which have been corruptly shuttered or squelched before they could launch will begin.

We might stand a chance at making traction against climate change; we might even rejoin the Paris Agreement from which the U.S. formally withdrew yesterday.

We won’t immediately regain the trust of allies and trading partners, let alone the rest of the world, but a new competent and ethical secretary of state will make letters like this one sent out yesterday look less like a fucking joke.

We know we are about to win once the votes have been counted. We’re just waiting for the pretty red bow on top.

Act like it.

~ ~ ~

The Senate doesn’t look good. This I have to admit. It will make the next two years hell especially while trying to stem a pandemic.

But there are some very bright spots, achievements worth celebrating.

Justice Democrats kept all their incumbents including The Squad. They also picked up three more seats for their organization:

Raúl Grijalva AZ-03
Ro Khanna CA-17
Ayanna Pressley MA-07
Rashida Tlaib MI-13
Ilhan Omar MN-05
Alexandria Ocasio-Cortez NY-14
Pramila Jayapal WA-07

Cori Bush MO-01 (replaces Democrat William Lacy Clay Jr.)
Jamaal Bowman NY-16 (replaces Democrat Elliot Engel)
Marie Newman IL-03 (replaces Democrat Dan Lipinski)

Bush is the first woman of color to serve in Congress from her state.

Except for Newman, these Justice Democrats are all persons of color from a broad range of ethnic backgrounds. This is the future of the Democratic Party.

They are literally the future as they phased out more traditional, centrist Democrats.

Celebrate the arrival of more fresh faces, more new blood to the House of Representatives, bringing a more progressive perspective.

Also worth celebrating:

— Six indigenous Americans are now representatives elect;

— New Mexico’s congressional caucus is entirely women of color;

— 115 women of color ran for Congress this election, 82 of which were Democrats;

— Four Indian Americans won seats in Congress.

Change is coming. It’s not as fast as we’d like but some of that’s on us.

We should still celebrate it loudly, joyously. We should make it clear the changes are exactly what our government of, by, and for the people needs — it should represent us, it should look like us.

~ ~ ~

Lastly, drugs. All the drugs. Drugs won big last night.

I’ll admit I’m a bit hesitant to embrace decriminalizing every drug, but I haven’t read Oregon’s ballot initiative which does so. I’m good with the rest; we need to end the carceral state which in a large part is built upon drug-related convictions. We need to end the War on Drugs which has cost us a fortune we could spend on other public services while it both creates conflict in other nations and bolsters militarization of law enforcement.

Once again, change is coming.

~ ~ ~

What other good news do you have? Feel free to share it in comments.

~ ~ ~

UPDATE-1 — 8:30 PM ET —

NBC and several other outlets called the Michigan Senate race for incumbent Democrat Gary Peters. The margin of votes flipped back and forth through the day and ended somewhere around 47,000 votes. In no small part was this a win for Black Michiganders who cast votes for Peters and then worked diligently to count the mail-in ballots yielding Peters’ win.

Change is coming.

Who Will Be Forced to Walk the Plank on November 4th?

Who will Trump force to walk the plank after the election?
(h/t Stacey Harvey for the image, [CC Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0) ]

Win or lose, Donald Trump will be looking for vengeance once the election is over. Either he will lose, and want to punish those he deems responsible, or he will win and want to punish the folks he’s had to put up with despite their failures to do what he wanted. One way or another, Trump will want to make certain people pay and pay dearly after the voting is over.

It might be to get rid of people who have angered him by not being sufficiently publicly loyal and submissive.

It might be to get rid of people who angered him by not being sufficiently good at making Trump look good before the election.

It might be to get rid of people who angered him by making him look bad, indecisive, or (gasp!) wrong.

It might be to get rid of people who stood up to him in private and made him back down on something, even if that backing down was only done in private.

It might be to get rid of people who stood up to him in public, and he had to simply take it at the time because Trump would have paid a price if he got rid of them when it happened.

Put me down for Trump demanding that the following people be forced to walk the plank:

  • Doctors Tony Fauci at NAIAD, Stephen Hahn at FDA, and Robert Redfield at CDC, along with HHS Secretary Alex Azar for not keeping these disloyal doctors in line;
  • Bill Barr for failing to deliver any indictments and convictions of any Bidens or Clintons, John Durham for dragging his feet on his reports that would have made that happen, Christopher Wray for being the FBI director and generally annoying, whoever approved letting Andrew Weissmann reveal that Manafort was breaking the gag order in his case by communicating with Sean Hannity, and a host of other US Attorneys who didn’t behave according to Trump’s rules;
  • General Mark Milley for publicly apologizing for taking part in the infamous Bible-waving photo op created by driving protesters out of Lafayette Park with chemical agents, various generals and admirals who refused to back Trump’s call to deploy US troops to American cities he didn’t like, and Secretary of Defense Mark Esper for not keeping these military folks in line;
  • Dr. Sean Conley, for not being more deceptive with the press around Trump’s COVID-19 status;
  • Mark Meadows for undermining Conley’s initial “he’s doing great” press remarks, as well as for more generally not keeping the WH functioning smoothly (as if that were possible, given his boss);
  • Mike Pompeo for failing to get Ukraine to do Trump’s bidding, as well as for not keeping folks like Fiona Hill in line.

But I must admit this is an incomplete list. Who else do you think might be on Trump’s Naughty List? Add your own thoughts in the comments.

Note: I also left off the list a bunch of folks like Mitch McConnell, Andrew Cuomo, Savannah Guthrie, and Cy Vance that Trump would demand walk the plank, but who remain outside his ability to make that happen. I also didn’t include Ivanka, Jared, Don Jr, or Eric, as he can’t fire his family. Though of course, he could disinherit them . . . for whatever that’s worth.

Doesn’t Anyone in the Media Read the Actual Election Laws?

Election Resolution Judges
(h/t Lance Fisher and used under Attribution-ShareAlike 2.0 Generic [CC BY-SA 2.0])

Back in the day, when dinosaurs roamed the earth and all elections were conducted either with paper ballots or “pull the lever” machines, my high school government class was given an election season project. For the precinct around our high school, we were to do four things: (1) canvas the neighborhood to determine who was registered and who was not, (2) work to increase the number of registered voters, (3) try to get as many of these folks to the polls on election day as possible, and (4) report back to the teacher how it all went.

Shorter #4: It was a blast.

Oh, it was a lot of work, too. Lots of knocking on doors (and going back and back again when no one was home), and also lots of reading the elections laws. What were the deadlines? What did we have to do in order to be polling place observers, so that we could see who voted in the morning in order to start making calls or knocking on doors in the afternoon and evening? What were we allowed to do in the polling place, and what were we not allowed to do? Who would make the GOTV visits in the afternoon and early evening? Who had a driver’s license and a vehicle, so we could offer rides to the polls, if needed? Who could be available to babysit, if needed?

In a precinct that generally had turnout of around 30%, that year it hit 70%. We weren’t allowed to be advocates for a candidate or ballot proposition (this was a non-partisan school project, after all), but simply were trying to get as many folks as possible to the polls, and we did a damn good job. In the years that followed, I’m sure there were campaign strategists who looked at that number and figured it must have been a typo, because it never came close to that again.

Since high school, I’ve worked on a number of campaigns, from local school board stuff to Paul Simon’s presidential campaign and a bunch at every level in between. One thing I’ve never forgotten is simple: read the election law.

With all the “will we have a winner on Election Night?” blather, it seems few in the media have bothered to do that one very simple thing.

So let’s give it a try, OK? From the Missouri Revised Statutes, Chapter 115:

115.508. Certification of election prohibited prior to noon on Friday after election day.—Notwithstanding any other provision of law to the contrary, no election authority or verification board shall certify election results, as required under section 115.507, before noon on the Friday after election day.

What? You mean it’s illegal (at least in Missouri) for an election board – city, county, or state – to certify a winner before Friday?

115.507. Announcement of Results by verification board, contents, when due—abstract of votes to be official returns.—
1. Not later than the second Tuesday after the election, the verification board shall issue a statement announcing the results of each election held within its jurisdiction and shall certify the returns to each political subdivision and special district submitting a candidate or question at the election. The statement shall include a categorization of the number of regular and absentee votes cast in the election, and how those votes were cast; provided however, that absentee votes shall not be reported separately where such reporting would disclose how any single voter cast his or her vote. When absentee votes are not reported separately the statement shall include the reason why such reporting did not occur. Nothing in this section shall be construed to require the election authority to tabulate absentee ballots by precinct on election night.

What? You mean that each election jurisdiction has two weeks to submit their certification, and ballot counters don’t have to pull an all-nighter on election night?

115.430. Provisional ballots, used when, exceptions, procedure, counted when, how—rulemaking authority—free access system established—provisional ballot only used,when—no jurisdiction in state courts to extend polling hours.—
All provisional ballots cast by voters whose eligibility has been verified as provided in this section shall be counted in accordance with the rules governing ballot tabulation. Provisional ballots shall not be counted until all provisional ballots are determined either eligible or ineligible and all provisional ballots must be processed before the election is certified.

Here’s part of why you can’t certify a winner before Friday, and you get two weeks to finish the count. By Missouri state law, every individual provisional ballot has to be either accepted or rejected before ANY provisional ballots are actually tabulated and added to the regular count. If you get a lot of provisional ballots, or if there are lots of challenges to these ballots, this could take a while. And if you have both of those things, it *will* take a while.

What is reported on election night is — and always has been — unofficial. When you go to any state’s election website next Tuesday evening and frantically refresh the page to get the latest numbers, they will tell you that these results are unofficial. They aren’t official until at least a couple of days later, after every precinct has verified and counted all their provisional ballots, checked all their math, and filed a formal certification with their Secretary of State. Careful media voices may project a winner on election night, but it’s not official until the certification of the results is complete.

And at least in Missouri, that is not allowed to happen before the Friday after the election, and could be as much as two weeks after election day.

Look, I get it. I want to know who will win all kinds of different races as soon as anyone, but it’s not an automatic sign of any nefarious goings on if no clear winner is projected on Tuesday night or Wednesday morning. More than anything, it’s a sign that everyone from the election judge in your local polling place on up to the Secretary of State wants to be really sure that they got the count right before they declare it to be official.

I know that Donald Trump doesn’t know election law, or even the mechanics of how elections work once the polls close, and I have no illusions about educating him on that subject. I just wish the media would quit imitating his ignorance.

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