The Statue Donald Trump Has Overturned

I apologize for my scarcity over the last week. I’ve got a bunch of personal things going on — I expect to be fairly scarce for the next week or so yet.

Thanks to Rayne, bmaz, and Ed for picking up the slack.

I’m having a particularly hard time with our nation’s celebration this year. It’s not just the things Trump is doing. It’s not just the many visible signs of where we’ve fallen short of the ideals our nation aspires to (though I double down on the idea that a Trump Effect, in which he makes things that have long been a problem visible, may serve us if and when we recover from his presidency).

This year, I’m wondering, myself, if I could have done anything more to serve the ideals of this country.

The same things that have kept me from writing saved me from watching yet another race-baiting speech from the President last night.

That said, I couldn’t help but observe, amid the coverage of his claim to be protecting the nation’s statues honoring dead racists rather than human beings facing a deadly disease, that there actually is a,

better place to celebrate America’s independence than beneath this magnificent, incredible majestic mountain and monument to the greatest Americans who have ever lived.

Sure, Washington, Jefferson, and Lincoln are key (and flawed) figures who have guided our country.

But the more obvious statue symbolizing our nation is the one sitting in New York harbor, the female figuring inviting your tired, your poor, Your huddled masses yearning to breathe free to be part of the great experiment that is our country, the one that welcomed so many immigrants who became key contributors to our nation.

It is that idea, the idea that any person, no matter how humble, can join this nation that has been so powerful an idea, when when he have fallen short from delivering on that dream.

And yet there was zero chance that Trump would have given a speech with that great female figure behind him, in the city he has fled (in part to hide his financial state). There’s no chance Trump would pay tribute to the abstract idea of freedom. There’s no chance Trump would risk a speech in a Blue State.

There’s sure as hell no chance that Trump would do anything to recognize how immigrants are the strength of this country.

Long before protestors started overturning statues honoring traitors to the United States, Trump overturned an ideal. He might well have held the Statue of Liberty underwater, shaking her violently as she drowned.

Donald Trump wants to run against those who’ve dared overturn those statues to traitors.

And yet he has betrayed the statue that better symbolizes what this country might be.

Maybe Trump Really Is Never Going To Leave

Now that Rayne has you all festive for the holidays, I am gonna leave you with one more little nugget of joy. Trump really is planning on not leaving even if he loses badly to Biden. I have kind of poo poohed this kind of talk, but this morning on Morning Joe, there was a discussion with former Colorado Senator Tim Wirth and Tom Rogers, a journalist and original founder of both CNBC and MSNBC. These are two very smart and credible people, and they are pretty convincing. If you can find a video clip of their appearance, post the link and I’ll add it in to the post, it is harrowing.

But they have an article out together now in Newsweek entitled “How Trump Could Lose the Election—And Still Remain President”. Also harrowing, and they are convinced that this is really Trump’s plan.

Wirth and Rogers lay out two paths they expect Trump to take. The first is the obvious one pretty much everybody is aware of, severe voter suppression and goon poll watchers challenging voters pretty much anywhere and everywhere, along with claiming fraud as to the vote by mail. But it is the second path that is truly frightening.

This spring, HBO aired The Plot Against America, based on the Philip Roth novel of how an authoritarian president could grab control of the United States government using emergency powers that no one could foresee. Recent press reports have revealed the compilation by the Brennan Center at New York University of an extensive list of presidential emergency powers that might be inappropriately invoked in a national security crisis. Attorney General William Barr, known for his extremist view of the expanse of presidential power, is widely believed to be developing a Justice Department opinion arguing that the president can exercise emergency powers in certain national security situations, while stating that the courts, being extremely reluctant to intervene in the sphere of a national security emergency, would allow the president to proceed unchecked.

With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election:

1. Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.

2. Trump immediately declares that the voting was rigged, that there was mail-in ballot fraud and that the Chinese were behind a plan to provide fraudulent mail-in ballots and other “election hacking” throughout the four key swing states that gave Biden his victory.

3. Having railed against the Chinese throughout the campaign, calling Biden “soft on China,” Trump delivers his narrative claiming the Chinese have interfered in the U.S. election.

4. Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.

5. The investigation is intended to tick down the clock toward December 14, the deadline when each state’s Electoral College electors must be appointed. This is the very issue that the Supreme Court harped on in Bush v. Gore in ruling that the election process had to be brought to a close, thus forbidding the further counting of Florida ballots.

6. All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the “national security” investigation is complete.

7. The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos.

8. The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president’s national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.

9. The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.

10. The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.

11. Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.

12. This vote would enable Trump to retain the presidency.

Is this nuts? Sure. Is it possible? Yes, given who and what Trump and Barr are, it may well be.

The Chicks Are Owed An Apology

Once upon a time, back when the United States was under the leadership of another fairly incompetent Republican President (yes yes, Bush and Cheney look a little better now compared to Trump and Pence, but only because they were actually semi-competent in their evil, but they were still very evil), there was was sensationally good crossover country/pop group known as the Dixie Chicks.

They were country, but never of the “stars and bars” Dixie kind. It was simply an appellation. In fact, they were all pretty forward and progressive thinking and talking. And man did they get in trouble for it. I guess the new term of the day is “cancelled”, which is kind of an idiotic term, but the howlers really did try to obliterate Natalie Maines, Emily Strayer and Martie Maguire. From Wiki:

On March 10, 2003, nine days before the invasion of Iraq, the Dixie Chicks performed at the Shepherds Bush Empire theater in London, England. It was the first concert of their Top of the World tour in support of their sixth album, Home. Introducing their song “Travelin’ Soldier”, Maines told the audience the band they did not support the upcoming Allied invasion of Iraq and were “ashamed” that President George W. Bush was from Texas. Many American country music listeners supported the war, and Maines’s remark triggered a backlash in the United States. The Dixie Chicks were blacklisted by thousands of country radio stations, and the band members received death threats. Maines issued an apology, saying her remark had been disrespectful; in 2006 she rescinded the apology, saying she felt Bush deserved no respect. The backlash damaged sales of their music and sales of their next album and tour.

In a September 2003 interview, Maguire told the German magazine Der Spiegel: “We don’t feel a part of the country scene any longer, it can’t be our home anymore.” She noted a lack of support from country stars, and being shunned at the 2003 ACM Awards. “Instead, we won three Grammys against much stronger competition. So we now consider ourselves part of the big rock ‘n’ roll family.” Some fans were dismayed, but the group made no clear response.

If you have forgotten, which is awfully easy to do in these pandemic days of Trump, this was a huge deal at the time. The United States government under the Bush/Cheney regime, and the entire country music scene hated on them and ostracized them. It was one of those kind of fulcrum moments. It was not just the Iraq war, it was torture, the unitary executive, free speech, protest…..everything was wrapped up, in a cultural way, in the actions of the Dixie Chicks. It was symbolic of the divide.

But Natalie Maines, Emily Strayer and Martie Maguire were bad ass and stuck to their morals and thoughts. They got hammered at the time, but they hung in and are still here bigger and badder ass than ever. They are now just The Chicks, having dumped the Dixie part of their original name. The Chicks are owed a debt of gratitude and an apology for the idiocy and bigotry they faced from the howlers during the Bush/Cheney years, and they are here to let you know they are still on the good side of the cutting edge.

The Chicks have a new song and video out. “March March”, and it is truly awesome. A song for this time. I saw it last night at Atrios’ joint, and it is really superb. Take a look. Expand it and watch it full screen, it is worth it. This is the music of protest, and in the best way. Music was key in the 60’s and it is key now. It spreads far and wide what people feel, whether they are in the streets or at home. The “at home” part seems even more pertinent now in the time of unabated pandemic at the hands of yet another evil Administration. And that is our trash talk for this weekend, get on it!

Sidney Powell’s Great Time Machine of Electoral Gaslighting

On January 4, 2017 at 9:43 AM, FBI lawyer Lisa Page emailed her boss, FBI General Counsel James Baker a citation for the Logan Act, referencing some prior discussion in the subject line: “Code section at question.”

Shortly thereafter, Peter Strzok emailed Page the text of the law, as well as a link to a Congressional Research Service report on the Logan Act. In it, he noted that the legislative history of the Logan Act did not deal with incoming officials (which might suggest that, contrary to all reporting, he was skeptical about its application). Page thanked Strzok, and then she sent the text of the law, but not the other discussion, to someone else.

Later that afternoon, Strzok started messaging FBI agents involved in the Flynn prosecution, asking them to hold open the Flynn investigation, noting that, “7th floor involved.”

The next day, representatives from the Intelligence Community briefed Obama on the Intelligence Community Assessment on Russian hacking. After the briefing, several people stayed behind to discuss the Flynn conversations with Sergey Kislyak. National Security Advisor Susan Rice described the meeting this way in a February 2018 letter sent to SJC.

… an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

In light of concerning communications between members of the Trump team and Russian officials, before and after the election, President Obama, on behalf of his national security team, appropriately sought the FBI and the Department of Justice’s guidance on this subject.

Rice’s memo to the file, written before FBI had interviewed Mike Flynn about his calls with Sergey Kislyak, described that President Obama, Jim Comey, Deputy Attorney General Sally Yates, Joe Biden, and herself attended the meeting. She recorded that Obama first instructed FBI (as he apparently already had) to do things normally.

President Obama began the conversation by stressing his continued commitment to ensuring that every aspect of this issue is handled by the Intelligence and law enforcement communities “by the book”. The President stressed that he is not asking about, initiating or instructing anything from a law enforcement perspective. He reiterated that our law enforcement team needs to proceed as it normally would by the book.

Rice describes how Obama then asked whether there was any reason not to share information with Trump’s incoming team.

From a national security perspective, however, President Obama said he wants to be sure that, as we engage with the incoming team, we are mindful to ascertain if there is any reason that we cannot share information fully as it relates to Russia.

Jim Comey responded with an ambivalent answer, stating that the FBI had not yet found Flynn to be sharing classified information, but observing that the sheer number of contacts between Kislyak and Flynn was abnormal. Comey stated that “potentially,” NSC should not share classified information with Flynn.

Director Comey affirmed that he is proceeding “by the book” as it relates to law enforcement. From a national security perspective, Comey said he does have some concerns that incoming NSA Flynn is speaking frequently with Russian Ambassador Kislyak. Comey said that it could be an issue as it relates to sharing sensitive information. President Obama asked if Comey was saying that the NSC should not pass sensitive information related to Russia to Flynn. Comey replied, “potentially.” He added he that he has not indication thus far that Flynn has passed classified information to Kislyak, but he noted that “the level of communication is unusual.”

On June 23, Mike Flynn prosecutor Jocelyn Ballantine sent Sidney Powell a “page of notes [] taken by former Deputy Assistant Director Peter Strzok.” She described that the page was undated, but that “we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.”

The notes record a meeting that — like the meeting Rice described — was attended by Obama, Jim Comey, Sally Yates, Joe Biden, and Susan Rice.

At the meeting, Obama told Comey to, “Make sure you [look at?] things — have the right people on it,” an instruction telling the FBI to conduct the investigation normally. Then, Obama asked, “Is there anything I shouldn’t be telling transition team?” Comey responded, though his response is unclear: “Flynn > Kislyak calls but appear legit.” Certainly, however, Comey’s response involves some kind of comment on Flynn’s calls with Kislyak. Parts of the discussion before and after this exchange are redacted, with no redaction marks explaining the basis for doing so (though a Bates stamp makes it clear that Mueller’s team had this document, so it is in no way “new” to DOJ).

When Sidney Powell released the notes, she asserted that the notes were, “believed to be of January 4,” which is not what DOJ told her (they said the notes could be January 3, 4, or 5).

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him.

Powell presents this meeting as new news, even though we’ve known about the meeting since Chuck Grassley made a stink about it to help her client in early 2018 (ten months before her client reallocuted his guilty plea). She did so, in part, to call attention to the comment from Joe Biden apparently raising the Logan Act, then repeated, falsely, that the investigation that had been since August 2016, was then in early January, and would be during his January 24, 2017 interview significantly focused on 18 USC 951, was only investigating the Logan Act.

According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act. That became an admitted pretext to investigate General Flynn

According to Powell’s narrative, then, Biden mentioned the Logan Act on January 4, which led the FBI to start investigating it the next morning. According to Powell’s narrative, then, Biden is responsible for what she falsely claims was the pretext under which her client was interviewed.

To believe that, however, you’d have to believe there were two meetings, both with the same attendees, in both of which Obama first directed the FBI Director to conduct the Flynn investigation normally, and then asked whether he should be cautious about sharing sensitive information with the Trump team. In both meetings, you’d have to believe, Comey provided an ambivalent answer. You’d have to further believe that such an exchange was so concerning to Susan Rice that she would document it on her last day in office, but document only the second instance of such an exchange, not the first one.

Now, perhaps there’s some reason Jeffrey Jensen and Jocelyn Ballantine profess uncertainty about when Strzok took these notes. Or perhaps DOJ, which has politicized this process so much already, would like to claim uncertainty so as to suggest that Joe Biden raised the Logan Act before the FBI did, while they’re also falsely claiming that Flynn was interviewed only for the Logan Act.

But the simplest explanation for these notes is that the guy who played a key role in investigating the Russian side of the operation seconded Comey for the ICA briefing (he had done at least one earlier briefing at the White House, in September 2016), and then, when everyone stayed behind to address Flynn — an investigation Strzok was in the management chain on — he remained as Comey’s second and took notes of the same exchange that Susan Rice memorialized 15 days later. [See below: Strzok was not at the meeting in question, which would suggest these notes came even longer after the Logan Act had been raised at FBI.]

Which would likewise mean that DOJ, on the eve of a hearing on how DOJ is politicizing everything, fed Sidney Powell with a document she could misrepresent (as she has virtually everything that DOJ has fed her), and have numerous Republicans HJC members similarly misrepresent, all to turn this into a campaign issue.

Ah, well. Now that DOJ has declassified comments (almost certainly covered by Executive Privilege) in which Biden said he had seen nothing like what Flynn had done in the 10 years he was on the Senate Intelligence Committee (Biden was on the Committee during Reagan’s crimes), reporters can ask him how unprecedented it is for the incoming National Security Advisor to be wooed by a hostile power’s Ambassador during the transition.

Update: Glenn Kessler says Strzok’s lawyer says Stzrok wasn’t at this meeting, which makes the conspiracy around it even crazier.

HJC Democrats Do Little to Limit Jim Jordan’s Assault on Public Health and Rule of Law

Jim Jordan, a self-purported libertarian, garnered the love of authoritarian Donald Trump by yelling. And yelling. And yelling.

But his normally obtuse manner of engagement didn’t undermine the dual threat he posed in today’s hearing on the ways Billy Barr is politicizing justice. Democrats failed to get him to abide by the committee rule that he wear a mask when not speaking (not even while sitting in close proximity to Jerry Nadler, whose wife is seriously ill). At one point, Debbie Mucarsel-Powell called him out on it. But Republicans on the committee thwarted the means by which Nadler was enforcing the rule — which was to not recognize anyone not wearing a mask — by yielding their time to Jordan.

Jordan used the time he got to attack the integrity of the witnesses unanswered, make repeated false claims about the conduct of the Russian investigation (both pre-Mueller and under him), and softball Barr’s own actions.

There were exceptions, mind you. Joe Neguse brilliantly got Michael Mukasey to talk about how normal it is — and was for him, when he had the job — for Attorneys General to show up for oversight hearings. Neguse then revealed that the last time an Attorney General had as systematically refused to appear for oversight hearings as Barr, it was Bill Barr, in his first tenure in the job. Val Demings got Mukasey to lay out that Barr himself has said the President was inappropriately interfering in investigations, but no one followed up on the significance of that admission. Likewise, after Demings got Mukasey to affirm a statement he made during confirmation to be Attorney General that he was never asked what his politics were, she didn’t follow up and ask whether it would have been appropriate for Mueller to ask prosecutors about their politics, or even for Republicans to ask Zelinsky about the partisan leanings of Mueller prosecutors in this hearing. No one used Jordan’s repeated questioning of Mukasey about the sheer number of unmaskings of Mike Flynn to ask Mukasey to lay out the real national security questions that might elicit such a concerted response to what was apparently one conversation, to say nothing of testing whether Mukasey actually understood what Jordan was misrepresenting to him.

Worse still, no Democrats asked Mukasey questions that would have laid out how complicit he is with some of Trump’s crimes, particularly the politicization of investigations into Turkey.

Then, long after Republicans sand-bagged anti-trust attorney whistleblower John Elias, presenting cherry-picked results of the whistleblower complaint he submitted, Mary Gay Scanlon circled back and laid out how he submitted the complaint, how it got forwarded, and laid out that Office of Professional Responsibility didn’t actually deal with the substance of his complaint, but instead said even if true, it wouldn’t affect the prerogatives of the department. Even there, neither she nor anyone laid out the significance of OPR (which reports to the Attorney General) reviewing the complaint, rather than DOJ IG, which has statutory independence. The way Elias got sandbagged should have become a focus of the hearing, but was not.

And no Democrats corrected the false claims Jordan made, particularly about the Flynn case, such as when he ignored how Bill Priestap got FBI to cue Flynn on what he had said to Sergey Kislyak or the date of notes released today that Sidney Powell had every Republican, including Mukasey, claim came one day before they had to have. No one even asked Mukasey why he was agreeing with Jordan about Obama’s pursuit of Mike Flynn when the prosecution happened under Trump (and recent documents have shown both Peter Strzok and Jim Comey working hard to protect Flynn). Mukasey would have made the perfect foil for such questions. He even could have been asked how often DOJ flip flops on its position from week to week, as Barr has in the Flynn case.

Even worse, no one circled back to get Aaron Zelinsky to correct the premise of Jordan’s questions about whether Amy Berman Jackson’s final sentence accorded with the initial sentencing memo or not, much less his cynical reading of one sentence out of context to falsely portray ABJ as agreeing with DOJ’s second memo.

Finally, Democrats did almost no fact-finding (indeed, it took Jordan to lay out the hierarchy of the politicization of the Stone sentencing). For example, while Eric Swalwell got Zelinsky to agree that the Mueller Report showed gaps in the investigations, he did not invite Zelinsky to describe what specific gaps he would be permitted to identify in the Stone investigation, such as that DOJ was not able to recover any of Stone’s texts from shortly after the election until a year later, in 2017. No one circled back to invite Zelinsky to explain that he had been able to describe Paul Manafort’s testimony implicating Trump directly in Stone’s work because descriptions of that testimony were hidden by DOJ and just got declassified — months after Stone’s sentencing. Hakeem Jeffries got Zelinsky to lay out one thing that prosecutors had been forced to leave out in the initial sentencing memo — Randy Credico’s testimony about how freaked out he was about Stone’s threats — but he left it there, without follow-up to learn if there had been anything more (like Stone’s discussions personally with Trump).

The testimony of the witnesses — especially Donald Ayer, who had to testify over Louie Gohmert’s tapping of a pencil to try to drown out his testimony — was scathing. But the Democratic members of the committee left them hanging out there, which is going to further disincent other witnesses from testifying. This hearing was far too important not to do better prep work to ensure the risks the witnesses took on will be worth it going forward.

Sometime today, Nadler said he’s reconsidering his earlier statement that the committee would not impeach Barr. But unless Democrats seriously up their game — both on preparation and on discipline — then any impeachment of Barr will be as ineffectual of the Ukraine impeachment, if not worse.

The Tussle in Tulsa: A Retrospective

I had been worried about the risk of violence in Tulsa this weekend given Trump’s tweet bordering on incitement ahead of his rally.

Fortunately my concern was for naught. Didn’t see a single Hawaiian shirt cross my Twitter feed while watching the lead up to and after the event, not a one in the approximately 6,600 attendees.

But the event itself didn’t live up to other expectations.

I have to believe Brad Parscale will be looking for new contracts. Or perhaps he’ll be retained just to keep him from mucking things up further somewhere else in the election cycle food chain.

He’d claimed 800,000 had reserved for the event, a number which seemed wholly unrealistic considering the population within a four-hour drive of Tulsa and the advertisements placed for non-white attendees. We know now a confluence of activist engagement via social media platform TikTok, K-pop fans, and mounting concerns about COVID-19 contagion as well as risk of violence may have artificially boosted reservations and kept attendance down.

Parscale’s claimed this morning that protesters blocked access to the venue, pointing to an AFP photo of a gate with a couple handfuls of protesters and what looks like an equal amount of media.

Unfortunately for Parscale, AFP took a photo of another gate with red-hatted, pale-skinned, maskless attendees streaming through the gate.

And other media outlets took photos outside the venue showing an awful lot of pavement.

The speech intended for outdoor overflow audience was cancelled. Wouldn’t even need a sound system to speak to this few people.

The big feat of the day: one-handed drinking.

Attendees were subjected to a 20-minute ramble about the “fake news” from his Westpoint speech last weekend after which he had difficulty walking down a ramp.

What a perfect example of the cobra effect — trying to defuse a problem but only making it worse. But Trump is too much of a narcissist to allow criticism of his person to go unanswered.

The lowest point in Trump’s speech yesterday was his remarks about COVID-19 testing.

He’s made comments before about the number of tests correlating to the number of cases. Comic Sarah Cooper has famously riffed on this.

But this time he’s expressed an intent to withhold health care from the public for personal aims — to keep the reported number of cases artificially low, without regard to the effect this would have on actual reduction of COVID-19 cases.

Aside from revealing again he’s so utterly toxic, this statement needs investigation. It’s impeachable if he both demanded a reduction or slow-down in tests, especially if he did so for the purposes of improving his polling numbers.

None of his efforts skewing reality have paid off as he’d like. We can see the tangerine emperor’s ass.

And nothing he’s done will make this grim number go away.


This is an open thread.

John Bolton Versus Navy Versus Egan

John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors.  They include:

  • Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public.  Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.
  • The decision to classify material here appears to be highly irregular.  The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information.  A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review.  It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information.  At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.
  • The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one.  Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.'”

Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.

However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.

The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.

Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.

And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.

Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.

What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.

Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:

  • On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112
  • On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114
  • On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116
  • As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118
  • At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120
  • During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”
  • After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122
  • When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123
  • Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.
  • On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126
  • On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127

It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.

While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.

And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).

Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.

Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.

Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.

What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.

In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.

So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.

A Tale of Two National Security Advisors

As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Defendant Barr’s Flip-Flops Finally Attract Press Attention

Bill Barr’s sloppy lying may finally be catching up to him.

The press should have stopped treating the Attorney General as credible after he obviously lied about the contents of the Mueller Report. But he continued to be accorded the courtesy of the office, through changing DOJ stories about his involvement in Trump’s effort to coerce a quid pro quo in Ukraine (and the impeachment that followed) and his cover stories to explain unprecedented interference in the prosecution of Trump flunkies.

But over the course of the last week, the press has gone from reporting anonymous DOJ scoops, to noting how later DOJ claims conflicted with that scoop, to outright debunking of Barr (even if they’re not yet treating him as the consistent liar they recognize Trump to be).

On Tuesday, WaPo had a scoop citing an anonymous DOJ official stating that Barr personally ordered the attack on protestors, perhaps an effort to shift the focus from Trump.

Attorney General William P. Barr personally ordered law enforcement officials to clear the streets around Lafayette Square just before President Trump spoke Monday, a Justice Department official said, a directive that prompted a show of aggression against a crowd of largely peaceful protesters, drawing widespread condemnation.

The claim took the heat off of President Trump.

In a presser on Thursday, Barr offered a more elaborate explanation. He claimed he made the decision to move the perimeter around the White House on Trump’s orders — to protect the White House from protestors — before the arrival of protestors on Monday.

On Monday, the president asked me to coordinate the various federal law enforcement agencies, not only the multiple department of justice agencies, but also other agencies such as those in the Department of Homeland Security. So we had a coordinated response and worked with the National Guard and also with the DC police. That morning, we decided that we needed more of a buffer to protect the White House and to protect our agents and secret service personnel who could be reached by projectiles from H Street. I made the decision that we would try to move our perimeter northward by a block to provide this additional protection. And later at 2:00 on Monday, I met with all the various law enforcement agencies and we set our tactical plan. And that plan involve moving our perimeter a block North to I Street. It was our hope to be able to do that relatively quickly before many demonstrators appeared that day.

Unfortunately, because of the difficulty in getting appropriate units into place, by the time they were able to move our perimeter up to I street, a large number of protestors had assembled on H Street. There were projectiles being thrown and the group was becoming increasingly unruly. And the operation to what… They were asked to three times if they would move back one block, they refused. And we proceeded to move our perimeter out to I Street.

In the same presser, he claimed that he saw “instigators” before the move to push them back, thereby claiming both advance planning but also an imminent threat.

I think one of the difficulties is that while there are peaceful demonstrators and participants in these protests, the instigators, those committed to violence, basically shield themselves by going among them and carrying out acts of violence. I saw the projectiles on Monday when I went to Lafayette Park to look at the situation. And as one of the officials said, he pointed out various knots of people where the projectiles were coming from and we could see… and it was a lot of demonstrators. And it’s hard to know exactly where they’re coming from. Frequently, these things are thrown from the rear of the demonstration, but we could not continue to protect the federal property involved and protect the safety of our agents with such a tight perimeter. And so our object was to move it out by one block. Next question, please.

On Friday, however, Barr started backing away from responsibility. That day, the AP reported that Barr had not given the tactical move to attack the protestors. Instead, some unnamed person who could not be directly tied to a Barr (and therefore a Trump) command did that.

On Friday, Barr told the AP that both he and U.S. Park Police were in agreement on the need to push back the security perimeter. He said he attended a meeting around 2 p.m. Monday with several other law enforcement officials, including Metropolitan Police Chief Peter Newsham, where they looked at a map and decided on a dividing line. Under the plan, the protesters would be moved away from Lafayette Park and federal law enforcement officials and members of the National Guard would maintain the perimeter line, Barr said.

[snip]

Barr said it was a Park Police tactical commander — an official he never spoke to — who gave the order for the law enforcement agencies to move in and clear the protesters.

“I’m not involved in giving tactical commands like that,” he said. “I was frustrated and I was also worried that as the crowd grew, it was going to be harder and harder to do. So my attitude was get it done, but I didn’t say, ‘Go do it.’”

Barr insisted there was no connection between the heavy-handed crackdown on the protesters and Trump’s walk soon after to St. John’s Church.

Finally, on Sunday, Margaret Brennan interviewed Barr on Face the Nation, one of the first times during this tenure as AG Barr has sat for an interview with someone who was neither (like Pete Williams or Pierre Thomas) someone he knew from the Poppy days, nor (like Catherine Herridge) a right wing stenographer. Brennan challenged a lot of these inconsistencies, leading to Barr to make a comment — that pepper balls are not tear gas — that has been widely mocked since.

MARGARET BRENNAN: I want to ask you about some of the events of the week. On Monday, Lafayette Park was cleared of protesters. You’ve spoken about this. The federal agents who were there report up to you. Did you think it was appropriate for them to use smoke bombs, tear gas, pepper balls, projectiles at what appeared to be peaceful protesters?

BARR: They were not peaceful protesters. And that’s one of the big lies that the- the media is- seems to be perpetuating at this point.

MARGARET BRENNAN: Three of my CBS colleagues were there. We talked to them.

BARR: Yeah.

MARGARET BRENNAN: They did not hear warnings. They did not see protesters–

BARR: There were three warnings.

MARGARET BRENNAN:–throwing anything.

BARR: There were three warnings given. But let’s get back to why we took that action. On Friday, Saturday and Sunday, OK, there were violent riots in- at Lafayette Park where the park police were under constant attack at the- behind their bike rack fences. On Sunday, things reached a crescendo. The officers were pummeled with bricks. Crowbars were used to pry up the pavers at the park and they were hurled at police. There were fires set in not only St. John’s Church, but a historic building at Lafayette was burned down.

MARGARET BRENNAN: These were things that looters did.

BARR: Not looters, these were- these were the- the violent rioters who were- dominated Lafayette Park.

MARGARET BRENNAN: But what I’m asking about–

BARR: They broke into the Treasury Department,–

MARGARET BRENNAN: –on Monday when it was a peaceful protest.

BARR: I’m going to- let me get to this, because this has been totally obscured by the media. They broke into the Treasury Department, and they were injuring police. That night,–

MARGARET BRENNAN: Sunday night?

BARR: Sunday night, the park police prepared a plan to clear H Street and put a- a larger perimeter around the White House so they could build a more permanent fence on Lafayette.

MARGARET BRENNAN: This is something you approved on Sunday night?

BARR: No. The park police on their own on- on Sunday night determined this was the proper approach. When I came in Monday, it was clear to me that we did have to increase the perimeter on that side of Lafayette Park and push it out one block. That decision was made by me in the morning. It was communicated to all the police agencies, including the Metropolitan Police at 2:00 p.m. that day. The effort was to move the perimeter one block, and it had to be done when we had enough people in place to achieve that. And that decision, as I say, was communicated to the police at 2:00 p.m.. The operation was run by the park police. The park police was facing what they considered to be a very rowdy and non-compliant crowd. And there were projectiles being hurled at the police. And at that point, it was not to respond–

MARGARET BRENNAN: On Monday, you’re saying there were projectiles–

BARR: On Monday, yes there were.

MARGARET BRENNAN: As I’m saying, three of my colleagues were there.

BARR: Yeah.

MARGARET BRENNAN: They did not see projectiles being thrown–

BARR: I was there.

MARGARET BRENNAN: –when that happened.

BARR: I was there. They were thrown. I saw them thrown.

MARGARET BRENNAN: And you believe that what the police did using tear gas and projectiles was appropriate?

BARR: Here’s- here’s what the media is missing. This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.

MARGARET BRENNAN: And the methods they used you think were appropriate, is that what you’re saying?

BARR: When they met resistance, yes. They announced three times. They didn’t move. By the way, there was no tear gas used. The tear gas was used Sunday when they had to clear H Street to allow the fire department to come in to save St. John’s Church. That’s when tear gas was used.

MARGARET BRENNAN: There were chemical irritants the park police has said–

BARR: No, there were not chemical irritants. Pepper spray is not a chemical irritant.

It’s not chemical.

MARGARET BRENNAN: Pepper spray, you’re saying is what was used–

BARR: Pepper balls. Pepper balls.

MARGARET BRENNAN: Right, and you believe that was appropriate. What I want to show you is what a lot of people at home who were watching this on television saw and their perception of events. So while the president says that he appreciates peaceful protest, around the same time, this crowd–

BARR: Well, six minutes- six minutes difference–

MARGARET BRENNAN: Right, around same time the area is being cleared of what appear to be peaceful protesters using some force. And after the speech is finished, the president walks out of the White House to the same area where the protesters had been and stands for photo op in front of the church where the protesters had been. These events look very connected to people at home. In an environment where the broader debate is about heavy handed use of force in law enforcement, was that the right message for Americans to be receiving?

Along the way, however, Barr’s explanation got more and more inconsistent.

What started out as an apparent effort to shield the President from direct responsibility for attacking protestors to clear way for his photo op became, by the end of the week, an effort to create a legal justification — protestors throwing things — while still distancing the time of the order from the photo op.

That’s a conflict Phil Bump highlighted in a particularly good job of shredding Barr’s statements, relying on an earlier detailed timeline he did. In addition to mocking Barr’s claim that pepper balls are not tear gas because they’re naturally occurring, Bump shows how Barr’s statements yesterday conflict with the justification for using tear gas.

“Here’s what the media is missing,” Barr said to Brennan on Sunday. “This was not an operation to respond to that particular crowd. It was an operation to move the perimeter one block.”

The problem with that framing is twofold.

First, it contradicts that same statement from the Park Police that serves as the backbone of the tear-gas defense. In that statement, the Park Police claim that protesters “began throwing projectiles including bricks, frozen water bottles and caustic liquids” at 6:33 p.m. This prompted the effort to clear the square to “curtail the violence that was underway.” There’s nothing about this being a planned operation.

What’s more, Barr himself made the claim to Brennan that the protesters were being violent at the time that the effort to remove them began.

“Three of my colleagues were there,” Brennan told him. “They did not see projectiles being thrown.”

“I was there,” Barr replied. “They were thrown. I saw them thrown.”

The timing of Barr’s visit is important, and we’ll get to it in a bit. But suffice it to say that video evidence from the period not only doesn’t back up the Park Police claim, it also doesn’t show Barr reacting to any such events.

It has been rare, possibly unprecedented, for the press to track Barr’s obvious lies this closely, even in the case of legal cases (like the Flynn prosecution) where Barr’s flip-flops are docketed.

I think a lot of things explain the unusual attention to Barr’s flip-flops. The assault on protestors and Trump’s tone-deaf photo op was so pathetic, the White House went into damage control. And because there were so many journalists at Lafayette Park, there were a slew of witnesses attesting to inconsistencies and inaccuracies in the official version of the story (starting with the Park Police’s flip-flops on the tear gas). Now, Barr is in a position of accusing three CBS reporters and at least one WaPo reporter, whose versions of this story differ dramatically from his own, of lying: His word against the reports of outside observers who have film to backup those reports.

But Barr’s changing excuses may also be partly explained by one other thing.

As noted, Barr’s first instinct seemed to be to distance the President from the order targeting peaceful protestors, and as he has repeatedly done, he took responsibilty (and Kayleigh McEnany happily gave him responsibility). But that created new problems: including why the Attorney General was ordering cops, many of them not within his chain of command, but more importantly, why Trump —  through orders given to Barr who executed those orders by issuing orders of his own — had responded to First Amendment protected activities with a violent assault.

The stakes of the answers to that question may have gone up with the filing of a lawsuit captioned, “Black Lives Matter v. Donald Trump:” Bill Barr is a named defendant.

Defendant William Barr is the Attorney General of the United States. He is sued in his individual and official capacity. He personally issued the order that resulted in the unlawful actions complained of in this lawsuit.

[snip]

At approximately 6:08 pm, Defendant Barr entered Lafayette Square.

At 6:10 pm, Defendant Barr was behind the law enforcement officials in Lafayette Square pointing north towards St. John’s Church. The Department of Justice subsequently acknowledged that Defendant Barr personally ordered that Lafayette Square be cleared.

Let me be clear: because this suit focuses on Bivens complaints about the violation of Constitutional rights, it probably won’t succeed in terms of the damages requested. Recent proceedings have largely gutted Bivens.

But what the suit does do is trace a link between Barr’s actions and the complaints of the plaintiffs (who include a 9-year old boy, a Navy veteran, and a former Eagle Scout). It does so through some of the same details that Barr is now trying to obfuscate.

And what the lawsuit may do is force a way to make the events that Barr is trying to cover up public.

Barr’s lies are consistent with all his other lies. He makes broad claims to power — not authority — and then he keeps changing the story as needed to try to give his claims retroactive legal cover.

This time, he may be forced to do so in court.

Update: WaPo did an unbelievably detailed piece showing no evidence for Park Police claims of dangerous projectiles, and making evident how the clearance of the Square led to the photo op.

Three Things: Loads of Bricks, White Chicks, Made-up Schtick

[NB: I want to make sure you take note of the byline. Thanks. /~Rayne]

Especially after last night this one’s been really bugging me so I’ll lay it out here first.

~ 3 ~

Why was riot gear more important than personal protective gear for the nation’s health care system back in March? This has bothered the hell out of me since I looked at the purchase orders and dates.

31-JAN-2020 — Trump declared a public health emergency under the Public Health Service Act

13-MAR-2020 — Trump issued two national emergency declarations under both the Stafford Act and the National Emergencies Act (NEA)

17-MAR-2020 — Federal purchase order from Veterans Affairs signed for POLICE PROTECTION EQUIPMENT FOR WASHINGTON D.C. VA POLICE IN RESPONSE TO COVID-19 OUTBREAK

18-MAR-2020 — Trump invoked emergency powers via Executive Order under the Defense Production Act

19-MAR-2020 — Trump named the Federal Emergency Management Agency (FEMA) as the lead agency in the COVID-19 emergency response efforts (designation previously held by the Department of Health and Human Services (HHS))

19-MAR-2020 — California issued Stay Home order

21-MAR-2020 — Illinois, New Jersey issued Stay Home orders

22-MAR-2020 — New York, Ohio issued Stay Home orders

23-MAR-2020 — CT, LA, MI, OR, WA issued Stay Home orders

23-MAR-2020 — Federal purchase order from Veterans Affairs signed for POLICE GEAR, DISPOSABLE CUFFS, GAS MASKS, BALLISTIC HELMETS, RIOT GLOVES

06-APR-2020 — FEMA seized orders of N95 masks
16-APR-2020 — FEMA seized orders of N95 masks
21-APR-2020 — FEMA seized orders of N95 masks

Why did the federal government seize private orders of N95 masks in April when it could have been ordering them instead of riot gear in March?

The government clearly had COVID-19 in mind because it’s spelled out in the order for POLICE PROTECTION EQUIPMENT entered Tuesday 17-MAR-2020 after the first national emergency declaration — the order uses PRESIDENTIAL ISSUED EMERGENCY DECLARATION, OR A MAJOR DISASTER DECLARATION as its emergency acquisition justification.

But why not order personal protective equipment for health care roles instead?

Why were they planning for riots in March, which is clear from the order for RIOT GLOVES on 23-MAR-2020?

They could predict rioting but not mass deaths from contagion?

Something really smells here.

I’d hate to think the White House used its power to acquire riot gear in order to pull off last night’s double-header campaign stunt-voter suppression gig.

Because that’s what this POS was.

Still can’t wrap my head around the U.S. Park Police and National Guard using tear gas and flash bang grenades on peaceful protesters to clear a path to St. John’s Episcopal Church in D.C. last evening so Trump could have an unauthorized photo-op in front of the church.

I don’t ever want to hear that Christians support Trump because he protects their religious freedoms when he just crapped all over them, especially if it turns out the White House planned for this months ago instead of working constructively to stem COVID-19.

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The press has been traumatized by police assaults on them as they covered the protests over the last several days. In my opinion this is deliberate; it keeps the media from investigating what were the triggering events moving police toward violence against peaceful if angry protesters, launching property damage which further triggered police abuse. Protesters repeatedly caught on camera white people, some times in clusters, taking active roles in beginning property damage.

There are videos of black protesters trying to stop white people — too often dressed in black, acting in teams — who were the original actors causing property damage.


They ignore the pleas of black people to stop the damage.

There are several videos in which piles of bricks are pointed out by black protesters — bricks where no construction is apparent, left on sidewalks or in the middle of the street. One video shows white persons dressed in black removing barricades around the bricks. An academic noted on Twitter that any images of brick piles documented in Fayetteville, AR were there because brick walkways are constantly under repair. But at least a couple images show bricks piled on ashphalt street surface or concrete sidewalk, with no obvious construction or repair work in progress.

Yet another video circulating shows a black-clad white man handing out what is believed to be cash to black persons and pointing them to construction materials for the purposes of a temporary barricade. Wish the person recording the video had asked questions of their subjects.

There are some other disturbing signs about the content shared about white people allegedly involved in the property damage. This one may be a fake — there’s nothing in local news about this person.


There are claims in the thread about this person I can’t validate because I don’t use Facebook. Something about this is synthetic. Claims made attributing the source of support behind some of these vandals are clearly false and have been debunked.

The police have done themselves no favors, failing to arrest many of these vandals — in some cases simply watching them. Note how black protesters make this white vandal stop and drag them to police who are watching, doing nothing until forced to do so.

Police have also de-legitimized themselves by failing their duty to protect and serve, instead attacking citizens who are exercising their First Amendment rights.

Something isn’t right here, whatsoever. It looks systemic — rather like COINTELPRO and yet potentially manufactured at another remove — and the media needs to stop licking their wounds and get digging.

The press also needs to ask itself why this was not the face of this week’s civil rights protests in the wake of George Floyd’s murder-by-cop.

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Meanwhile, this man on the left:

Senator Mitch McConnell (R-KY) with Confederate flag
continues to work on Trump’s and the GOP’s agenda:

deliberately ignoring this reality.

U.S. COVID-19 DEATH TOLL, JUNE 2, 2020 - 2:00 PM ET VIA WIKIPEDIA
Nearly a thousand more Americans have died since yesterday morning.

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One last thing: if you have time for a reading assignment, I recommend Anne Applebaum’s essay in The Atlantic, History Will Judge the Complicit. I’m so pissed off at Trump for making me miss John McCain right now.

This is an open thread. Bring it.

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