Trump’s Rump Coverer’s Other Mission: Militarized Voter Suppression [UPDATE-3]

[NB: Updates at bottom of post. /~Rayne]

We all know Bill Barr has been hard at work covering Trump’s ass since he was sworn in February 14th last year. What a nasty Valentine’s Day present for us.

His lies have been ridiculously egregious, from the manner in which he misled the public about the findings in the Special Counsel’s Report, to his lies to broadcast media about the election.

He’s also obstructed justice by politicizing and obstructing investigations, including removal of personnel overseeing their conduct.

A particularly low point in Barr’s tenure was his deployment of federal personnel to harass and intimidate peaceful protesters so that Trump could get a photo-op, occupying a church without clerical permission so Trump could wave a Bible upside down on camera.

It’s all of a piece, and it’s getting worse.

Federal personnel without clear identification have been snatching people off the street in Portland, Oregon.

Read the entire Twitter thread. This is like Pinochet’s Carabineros de Chile and secret police, disappearing civilians. It’s not clear what has happened to these people who’ve been grabbed — they aren’t Mirandized in public view, they aren’t told why they are being dragged away.

And the state and local government didn’t ask for this federal intervention, just as Mayor Bowser didn’t ask for Barr to deploy Department of Justice personnel in Washington D.C. to ensure Trump could get his obscene photo-op.

Worse, we can’t be certain exactly who it is pulling people off the streets. It could be white nationalists in cosplay.

Why aren’t local law enforcement demanding more accountability from Barr and his Stasi?

Oregon’s Senator Ron Wyden has been asking for answers after federal employees shot unarmed peaceful protesters hitting one in the face:

This is a clear violation of citizens’ First Amendment rights. But Wyden hasn’t yet asked about these secret federal police who are acting without state or local authorization, snatching citizens off the streets.

Trump has been warning/threatening to send federal agents to cities in blue states — this is pointed politicization of law enforcement, and more since these states have not requested federal help in policing protests.

But these Stasi aren’t there to de-escalate tensions. They’re deployed instead to suppress citizens trying to exercise their right to vote, like these National Guard in Philly’s streets on primary election day:

There’s no way around it: Bill Barr is setting up a secret federal security force which may end up working like death squads targeting anyone who protests Trump or his administration, particularly citizens in cities which vote for Democrats.

The threats are getting worse, what with White House press doofus implying Chicago may be targeted next.

Mayor Lightfoot isn’t having any of it, but where is Congress?

Both houses need to address this immediately before it gets any worse. Congress needs to investigate Bill Barr’s use of armed federal personnel who are not clearly identified while policing without the request of states and cities, violating citizens’ rights in the process.

GOP senators may argue they aren’t affected but can they really afford to lose any more votes because Barr overreached and suppressed their voters, too?

There’s enough here apart from Barr’s obstruction of justice that Barr should be impeached and removed from office.

 

UPDATE-1 — 10:00 P.M. ET —

Which agencies? Is it just U.S. Marshals Special Operations Group and Customs and Border Protection’s BORTAC or are there more involved so far? We need answers from their leadership about the lack of identification.

Portland’s mayor wants the feds out.

The federal agencies’ presence is not making things better, it’s making things worse.

Perhaps like Trump’s response to COVID-19 that’s the point: it’s about making things worse.

 

UPDATE-2 — 10:45 P.M. ET —

Not getting better. It looks like it’s getting rapidly worse. Somebody in DOJ or DHS want to explain why this vehicle is in Portland?

 

UPDATE-3 — 11:23 P.M. ET —

That’s it? That’s all DHS would provide? The utter arrogance of a department funded by our tax dollars.

Persons garbed like federal agency personnel are kidnapping American citizens off the street without any explanation and this is all the information the feds will share?

Bullshit. Unacceptable.

Happy ‘PRESIDENTIAL HARASSMENT’ Day! [UPDATE-5]

[NB: Updates at bottom of post. /~Rayne]

We’ve been waiting too long for this day.

Not this day:

But this day:

UPDATE-1 — 11:05 a.m. ET —

A reminder not to get too excited about tax documents being produced before November:

And Rep. Ted Lieu continues to press for expanded inherent contempt powers:

UPDATE-2 — 11:43 a.m. ET —

Could Trump be indicted by Vance’s office before November?

Fingers crossed.

UPDATE-3 — 11:58 a.m. ET —

Yup…and a specific reason why we can’t expect a speedy resolution.

This will have to work its way through the system.

UPDATE-4 — 2:08 p.m. ET —

Rep. Adam Schiff’s take on SCOTUS’ decision:

Another important SCOTUS decision today, which should not be lost to the hubbub over Trump v. Vance:

In a 5-4 decision, the Muscogee tribe of eastern Oklahoma has won in McGirt v. Oklahoma. Justice Gorsuch wrote the majority opinion.

JUSTICE GORSUCH delivered the opinion of the Court.
On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks, Arts. I, XIV, Mar. 24, 1832, 7 Stat. 366, 368 (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, preamble, Feb. 14, 1833, 7 Stat.418 (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty, Art. XIV, 7 Stat. 368.
Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word.

The opinion is filled with remarkable little bites which have pointed teeth, like the first sentence in Sect. II:

Start with what should be obvious: Congress established a reservation for the Creeks. In a series of treaties, Congress not only “solemnly guarantied” the land but also “establish[ed] boundary lines which will secure a country and permanent home to the whole Creek Nation of Indians.” 1832 Treaty, Art. XIV, 7 Stat. 368; 1833 Treaty, preamble, 7 Stat. 418. …

Right there, in the text of the law, even.

And then this closing in the last graf of the majority opinion — whew, this seems like a message to another audience altogether:

…If Congress wishes to withdraw its promises, it must say so. Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right.

This decision will likely result in a few death sentences being overturned, according to Sister Helen Prejean.

One might wonder at the impact on the ongoing threat to the Mashpee Reservation.

 
UPDATE-5 —  by Ed Walker, a very long comment

SCOTUS handed down two decisions in cases involving Trump’s tax returns: Trump v. Mazars USA, LLP, the House subpoena case, an Trump v. Vance, the New York State subpoena case. Here are some preliminary thoughts.

1. In both cases SCOTUS is forced to pretend that Trump is a normal President. This is from Vance, discussing Clinton v. Jones, the case about Clinton’s sex life.

The Court recognized that Presidents constantly face myriad demands on their attention, “some private, some political, and some as a result of official duty.” Id., at 705, n. 40. But, the Court concluded, “[w]hile such distractions may be vexing to those subjected to them, they do not ordinarily implicate constitutional . . . concerns.” Ibid.

No one thinks Trump is normal. His only time constraint is his TV schedule, and his need to spend quality time with his friends at Fox News. So, when reading these cases we have to remember that they apply to normal presidents of both parties, mostly, at least we hope so.

2. In Mazars, Roberts says that Congress can only issue subpoenas in pursuit of information needed for legislative purposes. Therefore, the only issue is whether this subpoena exceeds the authority of the House, considering that it makes demands on a different branch of government. SCOTUS makes up some considerations for balancing the need for information with the demands on the President. This makes sense in the normal run of things. As the Courts says, prior demands have been resolved without the courts. However a normal President doesn’t hide his tax returns, and doesn’t have significant business dealings with traditional enemies of the US.

This case exposes the Democrats as failures. They had information suggesting that Trump or his businesses or both had extensive business dealings with Russians, including some connected to Putin, and had reason to suspect that those relationships affected his official actions towards Russia. Two obvious points: Trump ignored and denied Russian meddling in US elections; and Mike Flynn explicit kowtowed to Putin over sanctions. Why wasn’t this the explicit rationale for the subpoena for his transactions with Deutsche Bank, which is thought to be the vehicle for those transactions. The grounds would be impeachment, which is a power solely reserved for Congress, and one in which the role of SCOTUS would be severely reduced.

This was a specific decision by Speaker Pelosi and the rest of the House Leadership Gerontocracy. Pelosi resisted demands for an investigation of the lies of the Bush/Cheney administration that led to the sickening attack on Iraq. She resisted any effort at serious investigation of Trump, and had to be forced into investigating the extortion of Ukraine.

3. The underlying problem in Mazars is the weakness of Congress. Trump and his contemptible lackeys refuse to cooperate with Congress. Bill Barr thinks the President has absolute authority, and can ignore Congress.

The Constitution provides that each house sets its own rules. Each house could easily set up its own rules about subpoenas and enforcement of subpoenas. One possibility would be that an administrative official who refused to comply with a subpoena could be held in contempt, and then that person and all underlings would lose all authority to act under any law or regulation.

4. The delay issue in Vance is similar. We’ve wasted a year on arguments that had no possibility of success except in the minds of Presidential absolutists. Now we can expect Trump to move to quash the Vance subpoena in New York state courts, starting the whole thing over. Neal Katyal disagrees; he thinks the matter can be settled quickly in New York courts. We’ll see.

5. Trump has damaged America and Americans while this case stumbled along. One obvious remedy is a law that Congressional subpoenas are deemed enforceable by Congress unless there is a final court decision within a short period, say two months. Current court rules ignore the speed with which legal matters can be handled with the internet. Legal research is easier and quicker, filing is trivial, and video-conferencing solves all travel and scheduling problems. The rest of us have had to speed up. So should Courts.

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.

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