SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.


Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).


To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.


Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

136 replies
    • Theodora30 says:

      I have been concerned about the SDNY because Rudy used to head that office and I have read that he still has ties to it. He definitely has close ties to the powerful NY FBI field office that works hand-in-glove with SDNY. Agents in that office are close to Rudy, their boss from the 90s Jame Kallstrom, and his close buddy and ex boss Louie Freeh. They are all right wing men who hate Democrats, especially the Clintons. Those men are also close to Trump and have been for a long time.

      IG Horowitz acknowledged in his first report (about the handling of Hillary’s emails) that those agents were pressuring Comey and other higher ups to make public statements that would damage Hillary’s campaign. Horowitz described how Comey had told AG Lynch that he had been shocked by the “visceral hatred” of Hillary in that office – which makes it clear that they said extremely negative things about her. Unlike Strzok and Page they suffered no consequences. (Strzok included a complaint about that in his lawsuit filing.)
      When Horowitz was testifying before Congress recently about his second report (the one that criticized the FISA warrant application for Carter Paige) Senator Leahy asked him about those agents in the NY FBI office and whether he was doing anything about them. Horowitz said he was STILL INVESTIGATING them, that he had the records of their (unauthorized) media contacts but not the content so basically there wasn’t much he could do. Because putting them under oath and asking them what they were communicating is not an option?
      The first IG report also described top advisors to Comey in the FBI and DOJ saying that pressure from the NY office played a big role in Comey’s decision to make both of those public statement about the emails which were so damaging to Hillary. (Comey denies this, naturally.) The report also said top FBI/DOJ officials that were senior agents who had “timed out” but had decided to stay on, so that there was little that could be done about them – a very frightening claim. Just because these men had earned their pensions (I assume that is what “timed out” means) shouldn’t make them untouchable. They were using their federal jobs to interfere in our election on behalf of Trump. Sure looks like a violation of the Hatch Act to me.

      Given the incestuous relationship between the NY FBI and Rudy and reports that Rudy still has close ties to SDNY I have been extremely worried that we could not count on that office to be objective about Trump. Barr makes that even more unlikely. The only hope is that investigations by the Manhattan DA and by the State of New York are followed through on.

  1. Rapier says:

    Trump might win another election and they have careers to consider. Then too how many are true believers, or will play one if that’s the way the wind is blowing. Plenty I would guess. I asked in another thread if anyone in SDNY is going to talk out of school. I suppose later. Much later. Which if this is as half as bad as it seems will just be sour grapes. The old “we act, you study” thing.

  2. Ed Walker says:

    Note the discussion of attorney-client privilege in Bondy’s brief:

    “[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.”

    This is also applicable to an attorney-client privilege claim Trump might make as to his communications with Rudy G. I mean, really, does anyone think Trump asked Rudy for legal advice?

    • P J Evans says:

      I think Trmp could easily have done that, given that Rudy claims to be his “personal lawyer” at the same time he claims to have executive privilege or some other protection-of-government claim. Neither one really understands what they’re talking about.

    • earlofhuntingdon says:

      Once created, A-C privilege can also be lost. One way is if the client discloses covered information to someone not his attorney or working for that attorney. Trump does that all the time.

  3. earlofhuntingdon says:

    As usual, I’m a little cornfused. The A-C privilege belongs to the client. Parnas should be free to disclose his own information to others, in or outside the JDA.

    If he discloses it pursuant to the JDA, the information remains privileged. If he discloses it outside of the JDA or to someone not his lawyer or working for him, he loses the privilege as to that information. But if the information originates with him, Parnas should be free to disclose it to whom he chooses.

    It’s possible that the JDA, as a contract, might contain further restrictions, but those terms would have to be pleaded as grounds for restraining Parnas’s disclosure to others.

    • bmaz says:

      Yes. It is the client that owns it. And it is his own material. The only reason there is a protective order at all is by stipulation. Effectively, he can pretty easily release whatever he wants. Bondy is a Mark Geragos knock off that is trying to play stuff through the press. That is not how you should do it.

      • P J Evans says:

        I wonder if he’s doing stuff through the press so that no one will be tempted to take out him or Parnas.

      • TXphysicist says:

        Doesn’t Parnas retain much more negotiating power for leniency by holding onto the worst bits for now? Parnas must be assuming that the SDNY is completely in Trump’s pocket, and his claims of being terrified of Barr in recent interviews seem to suggest the same, as does Marcy’s post above. I think this all ups the likelihood that the 83-minute Fruman recording was leaked by a disgruntled SDNY rank-and-file.

        You’re probably right that Bondy is running this as a PR campaign, in large part. It’s infuriating that Parnas/Bondy might be sitting on evidence that could force the Senate to convict (if that’s even possible, after almost no change following NYTimes publishing the Bolton excerpt). If they’ve passed some of this more damaging info to the HPSCI, what are the odds that the democrats are actually baiting the Senate into acquitting before releasing it, for maximum damage? That would upset me.

        I apologize for having to constantly ask questions and speak in probabilistic terms. I’m not a lawyer (obviously), just desperately trying to understand how and why our republic is quickly unraveling at the seams.

        Again, thanks for this site :).

        • bmaz says:

          Honestly, I don’t know exactly. SDNY does not seem that interested in Parnas cooperation. Prosecutors will usually sit down and chat with about any defendant willing to do so. But they have spurned Parnas so far, which is interesting. Time will tell I guess.

  4. Nehoa says:

    I have said it before, but feel a need to repeat – I would be very skeptical of any promise of a Trump pardon unless it benefits him significantly going forward. No loyalty for past service. These clowns should be cynical enough to understand that. I think Parnas certainly gets that.

    • TXphysicist says:

      Perhaps, but the plan could be that Trump pardons the 14-ish(?) people that were once his campaign aides, advisors, or donors, at the end of 2020, regardless of if he wins or loses the election. Hell, maybe pardons will be bandied about like candy, and any GOP-related anyone swearing fealty scores a pardon, then even a mid-level cabinet position.

    • Valley girl says:

      Ah punaise! Glad you are here. Is there a French idiom that expresses something like “up shit creek without a paddle” or such?

      • punaise says:

        Hey VG! Bonne année, avec du retard.

        More generically I’d go with “on est foutu” or “on est baisé” (we are screwed)

        There’s also “dans la merde jusqu’au cou” (up to our necks in shit)

        • Valley girl says:

          Thanks! I like the third one- much more evocative than the English version.

          Bonne année à toi, aussi

          • punaise says:

            Cussing in a non-native language is tricky, and finding the right degree is often a challenge (as Mme. punaise often has to remind me). I’ve heard many a Frenchie get it wrong in English.

        • rip says:

          Bringing back memories of learning French as an amerloque in Geneva/Paris in my teens. It seems that learning how to swear properly is the right way to get on board of a language. Va te faire foutre, sheisskopf may have been one of my first.

          Subsequently I tried to learn those terms of endearment for the pretty damsels – not successfully.

  5. Mitch Neher says:

    Ms. Wheeler wrote, “What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.”

    The lack of clarity may be attributable to the quaint notion that prosecutors are supposed to represent “the people” as impaneled in a Grand Jury and are not supposed to represent the defendants that that Grand Jury had indicted nor any suspects that those prosecutors may as yet have probable cause to investigate.

    I have reason to believe that some lawyers [but surely not all lawyers] remain the only creatures who could ever seriously think that they could sheath a warped surface with so many motions written on so many pieces paper so obviously made out of FUBAR-mache.

  6. omphaloscepsis says:

    Link to a long story from 6 months ago on Parnas and Fruman, used in a subsequent story in the Miami Herald shortly after their arrest.

    Link to a 2017 story on natural gas exports, Russia, and the 2016 election.

    Includes a map of all the natural gas pipelines running through Ukraine, from Russia to European customers.

    The Turkish Stream pipeline running under the Black Sea, covered later in the story, just had its opening ceremony a few weeks ago, with Putin visiting Turkey for the occasion.

    Another story from a month ago on natural gas pipelines, including a helpful timeline of events and players.

    • Crack of Don says:

      Yes, Exactly, “Lawyers making a mockery of due process”, though I am referring to the Senators and their oath of impartiality during the impeachment proceedings in the Senate. This is ‘in your face’ proof of our lawmakers making a mockery of the legal system and a demonstration of our ‘leaders” disdain for justice that doesn’t serve their personal interests.

      Elections won’t solve this rotten and corrupted state of affairs in our government. We are naive to think that elections can solve absolute corruption where the elections themselves are corrupted.

  7. harpie says:

    Related to Parnas and Robert Hyde’s stalking of Marie Yovanovitch [via Quinta Jurecic]:
    4:58 AM – 29 Jan 2020

    A Dutch Trump fan who claimed to have Marie Yovanovitch under surveillance has been masquerading as a U.S. federal law enforcement officer and told people he was starting a tech company that could track movements electronically

    Links to:
    Dutch Trump superfan who claimed he surveilled Ambassador Yovanovitch told people he was DEA Interviews with a half-dozen people who know Anthony de Caluwe and documents obtained by NBC News show that the Trump superfan has a shadowy past.
    Josh Lederman and Anna Schecter Jan. 29, 2020, 5:00 AM EST

  8. klynn says:

    This is a comment to EW’s Mulvaney tweet. Why would this be flagged as offensive content?

    “Loud Voice Guy
    Replying to
    It takes 20 of 53 Republican Senators who fear trump to side with the 47 Dems to remove all the fear and get Trump out of office.

    Its not fear that they do this, they have all the power over trump right now.

    Its they agree with this act and are as bad as him.”

  9. PeeJ says:

    We no longer have a department of justice. What happened to the left over indictments in the Mueller investigation? I really feel the fix is in and we’re going to have perpetual Republican rule. Barr and his DOJ can’t act this way unless they are sure there will never be another Democrat President. If there is another Democrat she/he must investigate what has gone on with Barr looking the other way and not investigating anything Trumpish. I’m making my prediction now… 4 Republicans will cross over and ask for witnesses, however Manchin will cross over and vote against witnesses. Somehow, Trump will get off and Manchin will take the place of a Republican who crosses over. The Democrats will “just barely miss again” and everyone will go home happy. It’s all a game…

    • Rugger9 says:

      Good question about Mueller’s open investigations since there are redactions in the various docs we’ve seen here pointing to “Harm to Ongoing Matter” as their reason for existence. Nonetheless, the slime oozes out but we haven’t seen many announcements or for that matter many court motions. So, it seems to be slow-walked for the purposes of hiding more Palace peccadillos.

      Speaking of which, it seems the consensus about the defense in the Senate was that there was no “defense” only justifications at best.

      MMMcT apparently doesn’t have the votes to spike calling witnesses (Hahahahaha), and IMHO we should thank Parnas and Bolton for derailing the show trial which was made possible by Pelosi delaying transmission of the articles. I would also have Schiff and the Bidens testify (even though they’re not fact witnesses) to leverage Bolton, Mulvaney and Pompeo. I think Schiff in particular (as an ex-prosecutor) would ginzu anyone trying to cross examine him because he did set out such a thorough paper trail in his committee.

  10. N.E. Brigand says:

    Would it be a good use of one of the Senate Democrats’ impeachment trial questions over the next two days to ask Donald Trump’s lawyers who the president is in a joint defense agreement with?

  11. The Old Redneck says:

    I’m not clear on how SDNY could object to Parnas releasing info from Apple’s files. The fact that it wasn’t originally in his possession would not, in itself, prevent him from sharing it. And if the SDNY thought it was privileged, maybe they shouldn’t have given it to him in the first place – at least not without a protective order governing further disclosure of it.
    Furthermore, if the House is asking Parnas for what he’s got, he has to respond in real time. He can’t pretend that the request was really made at a time before he received that material. In other words, if he has the Apple raw data by the time he responds to Congress, he has to give it to them, or at least make a explicit privilege claim to justify withholding it.

  12. Dave Karson says:

    OT: IANL, this is most likely a dumb question, and I would bet 99.9% that the answer is “never”, but given all the evidence on the table, the knowledge from Bolton’s book manuscript that Bolton has relevant, first hand testimony damaging to President Trump’s defense, when does the Republican Senate cover-up turn into a Republican Senate co-conspirators of Trump? It seems to be, IANAL, that they have reached and cross that threshold. TIA, Dave Karson

    • earlofhuntingdon says:

      Your first guess was correct: never. Impeachment-related matters on the Senate floor are covered by Speech and Debate clause protection. Their conduct is a political question that no prosecutor or courts would prosecute.

      That’s why it’s up to voters to display together and en masse their refusal to go along with this reprehensible conduct and the congresscritters who practice it.

  13. earlofhuntingdon says:

    Fifty US troops now diagnosed with headaches, uh, traumatic brain injury – up from thirty-four a short while ago – after the January 8th Iranian missile strike on Iraqi airbase.

    Paging President Bone Spurs….Please stop listening to your know-nothing dinner companions at Mar-a-Lago and tend to what the VA really needs. Or, leave a note for your successor, if you’re too busy golfing with your sports liaison from Duke. Thanks.

  14. harpie says:

    Derschowitz just argued that if the president BELIEVES his reelection to be in the public interest, then he cannot not be impeached for extorting a foreign government.


      • Vicks says:

        Yes it is also being argued that the president had a right to violate the impoundment act because he “truly believes” the bullshit about Ukraine meddling, Biden and Burisma.
        The guy also “believes” that windmills cause cancer and he can control the weather with his sharpie.
        I want to ask Mr Dershowitz
        What part of the constitution draws the line between being forced to endure a self serving liar with menacing “beliefs” and having to indulge a whack a doodle because being nuts isn’t a crime?

        • P J Evans says:

          I think Dersh needs to go back to school and study the Constitution and US history. Starting with grade school.
          (I think my niece the actual lawyer is having laughing fits.)

      • earlofhuntingdon says:

        The whirling Dersh’s quote probably sounded better in the original Tagalog. I think that’s from Duterte’s last campaign.

        The dictator-narcissist always assumes his re-election is “in the public interest.” He can’t distinguish himself from the state.

        Dersh’s pseudo-argument is a get-out-of-jail-free card for any presidential conduct. It is what one would expect from an acolyte of Trump, Epstein, Weinstein, and Barr. That Dersh said it out loud, though, suggests his judgment and mental state are as perilous as Trump’s.

        • TXphysicist says:

          How dare you question the integrity of Alan “kept my pants on during the massage, so I couldn’t have had sex at Epstein’s place” Dershowitz.

          But seriously, it’s confusing, because on the one hand, you’ve gotta question whether Trump is calling in a favor from Dershowitz because Trump got Barr to “suicide” Epstein, but then on the other hand, Dershowitz’s entire history is filled with behavior devoid of any principles or ethics, dragging the name of Harvard through the muck. With such a background, it’s a wonder that he’s not in some high-level cabinet position. Maybe he considers his impeachment defense an interview for just such a job?

      • Louis XIV says:

        “I am the State.” The quote may be over 200 years old, but I think it is the distilled essence of the Trump’s impeachment defense.

    • harpie says:

      As nycsouthpaw remarks, if this were the case, Nixon’s Watergate break in would NOT have been an impeachable offence.

      • Vicks says:

        This is out of control.
        Trump has a freaking mobster trolling him and watching the trial.
        The whole point of impeachment is to get rid of a leader who for various reason is unfit for office.
        Not to put him in jail, not to indict, but to put an immediate stop to the potential danger his remaining in office presents.
        Cops and soldiers are removed from duty because they can’t be trusted to have the backs of those they serve with.
        This nit picking bs on both sides is driving me nuts.
        We have enough evidence to be afraid of this president.
        People respond to fear. Leverage that.
        Half listening earlier, I heard someone say something about a “suicide pact” I don’t know the context, but with Lev Parnas lurking and the trickle of Bolton stories we are seeing, I will assume it was in reference to these republican senators clinging to some freaking imaginary flag.

  15. earlofhuntingdon says:

    I would argue that most of WH Counsel’s answers to questions delivered through Roberts are non-responsive. They’re working hard to answer questions not asked or to so qualify them that they avoid answering the question asked. That’s one reason the format created by McConnell is a clusterfuck.

    Real trials have witnesses. They give testimony subject to cross examination. Documents and other non-verbal evidence are submitted, when subject to authentication and examination of those who kept the records.

    McConnell’s arrangement, on the other hand, has defense counsel basing their arguments on blog posts and unsubstantiated interpretations of limited facts, not subject to cross. He should be made to eat this dog’s breakfast, first and foremost by being voted out of office in November.

  16. earlofhuntingdon says:

    A lot of blogs describe Alan Dershowitz as a professor of constitutional law or as an expert in constitutional law. In fact, his career and professorship at Harvard were in criminal law. The list of high-profile clients for whom he has acted largely as appellate counsel makes that clear.

    Dersh is no doubt book smart: he graduated first in his class at Yale Law, clerked for the Supremes, and became the then youngest law professor at Harvard at age 28. It is true, too, that criminal law includes constitutional criminal procedure. But Dersh’s focus has been the criminal law.

    Considered to be “out there, beyond the norm,” his entire career, his behavior the last decade or so suggests his judgment now is as frail as Rudy G’s. His behavior as defense counsel for Donald Trump also suggests that lying for him is no big deal.

    • P J Evans says:

      His claims make me wonder if he’s trying them out for when he’s tried for something criminal. (Like whatever he was up to with Epstein.)

    • Vicks says:

      Yet Dershowitz lacks the streets smarts to stay away from pedophiles somehow this great “scolar” missed 8th grade civics where every other kid in this country was taught the United States is the result of a revolution against abuses of a “king and his council” and the entire premise of our constitution WAS and IS to safeguard our United States from executive abuse (tyranny) and what the fancy pants like to call usurpation of power.
      He is resting is entire case on some magical dictionary or law book that says “maladministration” means the same thing as “abuse of power” and because the vague term “maladministration” was bounced by our founders it took abuse of power with it.
      Perhaps if he started his sentence with “EVERYONE KNOWS it means the same thing” he would had a better chance.
      Instead the pandering fool said “GOOGLE IT!!!”
      I’ll bite.
      5 sites later and not a single one helps his case, it gets even more surreal when you read how abuse of power is defined.
      Seriously, there are no ethics laws in place for these pandering ass-h*les for flat out lying?

      • Vicks says:

        *scholar not scolor (along with whatever i missed).
        I thought it was telling that last night that Republicans making the grounds were all reduced to calling Dershowitz muddy ramble “scholarly”

      • P J Evans says:

        I wish Roberts would admonish them when they get into that kind of alternate-history speechifying. Or at least ask them if they have a point somewhere that’s better than a first-year law-school dropout would try making.

  17. earlofhuntingdon says:

    Dersh is up again, foaming about “maladministration,” claiming that it includes all the things for which the Dems want to impeach the president.

    To get there, he has to ignore precedent and the opinions of most constitutional scholars. He references again English constitutional law, which has no bearing because it comes from the wrong period and because a constitutional monarchy is not a republic.

    Displaying his own bias and lack of objectivity, Dersh claims that those who disagree with him are victims of their own bias and lack of objectivity.

    He claims that Founders objected to vague criteria for impeachment, apparently ignoring the then contemporary understanding of “high crimes and misdemeanors,” which are additive to treason and bribery, not examples of them.

    Do not reject my argument, says Dersh, because the world as we know it would end. (My interpretation of the consequences.)

    Schiff mounts a counter to Dersh’s angst-ridden arguments.

  18. earlofhuntingdon says:

    WTF does MSNBC insist on trotting out the lame Chris Matthews for Ari Melber’s discussion panel? A dart thrown at the DC phone book would probably come up with a better commentator.

      • Eureka says:

        It is.

        Also, I was amused that Dersh thought he could take your blawg quip (“maladministration”) and like magic *poof* flip it into some hot lawfare. He clearly reads ew, just not closely enough. It’s a noun (to include Dersh, by extension), not a verb.

        • bmaz says:

          I have never seen any evidence Dersh reads here. Certainly possible I guess, but I have seen no evidence whatsoever, and that is not really his style.

          • Eureka says:

            I forgot the sarcasm tag.

            I was playing off the fact that PJ frequently refers to the Trump admin as ‘a/ this maladministration’ (as do others) (the only context, really, where I hear that word used).

        • P J Evans says:

          I was surprised to find it’s an actual legal term. I thought I’d made it up myself. (i need to find some law books – my father had a dictionary of Roman law and an elderly copy of Black’s law dictionary, and I think I’m going to need them both.)

          • bmaz says:

            Even an old copy of Black’s is wonderful. I still have one from, I think, law school, if not, shortly thereafter. An early Samoyed, Kayla (yes well before Kiki the recently departed Samoyed wonderdog) gnawed on part of the binding, so duct tape is now involved too.

          • Eureka says:

            Same, and I always think of it as “your” word, too.

            Around here, books like that tend to turn up at the church and school library sales (where they’ve taken bulk donations from the public). I’ve got some weird old science (or “science”) titles on my backlog (years-old, heck DECADES old at this point) to read yet.

            • P J Evans says:

              I may still have that Black’s, but I think I let the Roman law one go.
              My father had a habit of picking up old books that looked interesting. It resulted in a very eclectic set of shelves in his office. (Some of them were interesting reading: “Techno-Chemical Receipts” was a kind of do-it-yourself book for all kinds of things, some of which even the editors didn’t recommend. The late-20s CRC handbook I know I have – it contains formulas for darkroom solutions, and instructions for silvering mirrors and making crosshairs from spider silk (black-widow is especially strong) .)

                • P J Evans says:

                  Mine is 1972. I had a newer one – 1982, roughly – but gave it to my roommate. Most of the stuff won’t have changed enough to affect me.
                  (It was handy when I got the CT and PET scans – I asked the guy what the half-life was on the F-18; he said about an hour and a half. I checked when I got home; it’s actually about 110 minutes. Probably not a question he gets asked much.)

              • Eureka says:

                The thing is, those old instructional books are — or may soon become — kind of like their own versions of _How to Stay Alive in the Woods_ (coming from a sort of ‘prepper’* mentality for information and skill or service loss).

                *lol, more like ‘concerned,’ not actually preparing for anything. But information like that is gold (properly silvering a mirror; knowing how to use elements of the environment around you as tools, like the spider silk). And so it’s tough to get rid of books.

    • Vicks says:

      Dershowitz is not a genius that suddenly discovered a loophole in what is arguably this country’s most studied document.
      If the president has to commit a crime to be removed from office, why the hell do we need this whole impeachment thing?
      Why would our founders force us to listen to these fools debate POLITICS, if, as these lying-liars are trying to convince you, our founders excluded POLITICAL ACTS against the United States from impeachable defenses?

        • Vicks says:

          Awesome and helpful read, most likely it is what has me so pissed off.
          Dershowitz shouldn’t be able to fool a very average high schooler yet the party of Trump is soothing confused Americans by describing the muck they were hearing “scholarly.”
          In keeping with this condescending attitude, that sh*t Dershowitz dared Americans to Google the word “maladministration” and see for themselves if it didn’t mean the same as abuse of power.
          Where is the “great explainer” of how to use facts and common sense against this firehose of political bullshit?
          Why the hell won’t democrats ask what dictionary he would suggest and challenge other liars with the giant flaws in their case instead of trying to get more mileage out of what their own teammates already said?
          I don’t get it. Dems have the facts on thier side

          • bmaz says:

            “Where is the “great explainer” of how to use facts and common sense against this firehose of political bullshit?”

            I dunno, but this blog is a pretty good start.

            “I don’t get it. Dems have the facts on thier side.”

            I know a lot of folks tire of it, but that has been being pointed out here for a long time now. Probably I should have written more posts and less comments, but the information has been right here all along. There is nothing easy about these subjects, quite the opposite. It is a hard discussion.

            • Eureka says:

              I think you’ve done a great job with lots of truths and facts or complexities about situations that people don’t necessarily want to hear (and repeatedly).

              • bmaz says:

                This is not quite like torture back in the 2000’s, but almost as difficult. There are no great answers and solutions.

                • Bay State Librul says:

                  Adam Schiff is in my head.
                  I know Jerry Nadler is going through hard times with his wife’s pancreatic cancer, but whenever he goes to the mike, I either head for the bathroom or switch channels to the UMass basketball game.
                  I’m thinking that if we get a Dem for Prez, she should nominate Schiff to the Supreme Court to replace the Notorious.
                  Our nation is really fucked up.

                  • bmaz says:

                    Schiff has been spectacular. Nadler is a very smart and decent man, but he is simply not the live advocate Schiff is. None of the managers are, though Sylvia Garcia and Val Demings have been eye openly good. Demings I kind of knew about. Garcia not nearly as much, but she is pretty good.

                    If a Dem gets the Presidency back, and I am not sure that is any given at all, RBG should be replaced with another woman that will, and can, carry on her legacy.

                    For better or worse, Schiff is a politician now, SCOTUS is likely not his future.

                  • bmaz says:

                    BSL, will add one other thing, the reason Schiff is in your head is because he has the timing, the rhetoric, the inmate sense as to what seeds to plant, and when. That is a special gift.

                    Trump’s bullshit legal team and argument is going to win this impeachment thing. They are dissemblers and obstructionists. But, despite all the hand wringing over whether “there will be four crossover votes from Republican Senators for witnesses and evidence”, there was never going to be. And there is not going to be.

                    The Dems have fucked this up seven ways from Sunday. It will all be over by end of the night tomorrow, with McConnell giving cover to three at risk schlubs and still keeping the one vote to end it.

                    • Bay State Librul says:

                      So, when should I start drinking?
                      I’m also thinking of selling my stock and investing in Fidelity’s Massachusetts Municipal Money Market. Take my capital gain and run to daylight

                    • bmaz says:

                      Heh, I am not that smart, and have no clue. Put your investments somewhere safe. Who knew the Pats would be an investment of a lifetime? They were effectively the Cardinals until they were suddenly great, and among the best ever. Safety is good with money.

    • Vicks says:

      So tomorrow they will challenge the opposition with facts?
      Giving each side a stage to spin on for 5 minutes is really pissing me off.
      How is this helpful?

    • P J Evans says:

      I found a summary of that exchange over at Kos:
      Wednesday, Jan 29, 2020 · 5:36:34 PM PST · Mark Sumner

      Question from Elizabeth Warren inverts the question and says it would clearly be bribery if Zelensky had called Trump and offered to manufacture dirt on Joe Biden in exchange for millions, so why isn’t it bribery when the situation is reversed.

      Nadler handles the question, says that it is bribery, but gets somewhat mangled in his own response.

      Philbin does the response for the Trump team, again giving a claim that the House can’t say the word bribery without making one of the articles bribery.

      • P J Evans says:

        Philbin is using the same argument they used over “Quid pro quo”, that it’s only real if the exact wording is used. Which is bull excrement.
        Also, bribery is explicitly stated in the Constitution as a reason for impeachment.

    • harpie says:

      VIDEO here:
      8:36 PM · Jan 29, 2020

      WARREN Q: If Zelensky called Trump & offered dirt on his political rivals in exchange for him handing over hundreds of millions in military aid, that would clearly be bribery & an impeachable offense. Why would it be more acceptable and somehow not impeachable for the reverse? [VIDEO]

    • Eureka says:

      PJ and harpie, *thank you*, I could not find this — of course I did not look where you each did, and look at those timestamps, they cranked out the info fast!

      Of course it was a great Q, and of course (sigh) I cringed a little when Nadler tripped some. But that is of no matter, because even if he had answered “perfectly*, it’s not like the truth seems to matter to the GOP Senators anyway.

    • harpie says:

      This is what I was reacting to [my transcription, emphasis in original]:
      1:17:51 [about 8:43 PM ET]
      SASSE question to CIPPOLLONE:
      about his theory that there’s a “golden rule of impeachment”

      CIPOLLONE: In elaborating on the golden rule of impeachment, I would say principal number one, if we listen to what the Democratic senators said in the past and the House managers and other members of the House, that should guide us.

      And that principal is…and it’s a principal based in precedence, that you shouldn’t have, you shouldn’t have a partisan impeachment.

      If you have a partisan impeachment, that in and of itself is a danger sign. Because that means that there’s not the bipartisan support that even the speaker of the house has said you would need to even begin to consider the impeachment of a president because it is the overturning of an election. They don’t dispute that. It is the overturning of an election.

  19. harpie says:

    There’s something going on here: […what it is, ain’t exactly clear”]
    et6:19 PM · Jan 29, 2020

    Mark Warner, the ranking member on the Senate Intelligence Committee, asks the House Members whether they have additional information about, I think I heard, “Russia disseminating conspiracy theories” that the Senate should consider.

    Schiff says yes there’s more information and they should figure out how to get it to the Senators. So… that’s out there.

    For those wondering what that might be all about, think back to this November story saying senators had been briefed by intel agencies on what Fiona Hill said publicly—Russia was responsible for spreading the crowdstrike conspiracy [links to:Charges of Ukrainian Meddling? A Russian Operation, U.S. Intelligence Says NYT

    The NYT story is vague on this point, but a source familiar tells me that briefing about Russian disinformation wasn’t given all Senators, just the Intel Committee.

    Andrew Weissman, the former Mueller prosecutor, speculates on MSNBC that there is NSA information at the heart of this mystery.

    … which I guess is pretty much what Schiff said in the well of the Senate—there’s a body of intelligence the NSA has gathered but is refusing to turn over to congress.

      • P J Evans says:

        NSA is all-too-aware that some congresscritters are leakers (to the WH, at least), and some of them are on the intelligence committees.

        • Eureka says:

          Yep, but one of the many bone-chilling layers. Thinking about it all wiped out a piggyback* reference to
          Frida’s cheerier version (because 80s and because of the ‘promise’ the hijackers of our country will be gone):

          I know it won’t be long
          It won’t be long before you’re gone

          *harpie alludes to a real tune, and bears no blame for this ABBA-ness

  20. TXphysicist says:

    Surely, these are Trump et al.’s plans:

    1) Alan Dershowitz (fully clothed) proffers to the Senate that Trump can do whatever he wants to get re-elected, including accepting the aid of a foreign government, because Harvard and legalese.
    2) The Senate votes to acquit, Bolton or not.
    3) Trump does something 10x worse than what he pulled with Ukraine/Russia.
    4) The democrats attempt to impeach and convict Trump again, but Trump and the GOP point to Dershowitz’s “constitutional interpretations” as legal precedent.
    5) Trump is now magically immune to all consequences for cheating in an election, because it’s literally impossible to flip enough Senate seats to acquire a conviction vote on impeachment, maybe even through 2024.
    6) Eventually, Bill Barr realizes that Trump isn’t Jesus Christ II, and breaks with DOJ precedent, charging Trump with ninety-six crimes.
    7) Just kidding about #6, we’re totally fucked.

    • dimmsdale says:

      That’s pretty much how I read it too. I’m not tin foil hat prone, but can’t help wondering if the dim hope of “maybe 5 R’s voting for witnesses” from Tues. night morphed into a pretty firm “nahhh, maybe 3 tops” Weds., not only due to MMitch’s whipping, but also from threatening calls to toe the line from the American oligarchs who stand to gain so much from the death of the rule of law and the end of the regulatory state. To the teevee pundits shaking their heads and saying “The republicans will regret this,” I just have to laugh. Who’ll make them regret it? If they succeed in consolidating power, and what’s to stop them at this point, they’ll be writing the history themselves.

      • TXphysicist says:

        Correction: It was Patrick Philbin who made the arguments that the use of damaging information on political opponents from foreign sources to influence an election is perfectly acceptable, so long as the evidence is “credible”. (sorry, emptywheel)

        Anyway: Yep. Might not matter what the democrats have as evidence anymore. We are forced to confront the idea that if Trump is acquitted, not only will he *feel* a sense of empowerment, he will also have gained some measure of a “legal” basis for that empowerment, if only in the eyes of ~40% of the country.

        Blegh. I hate to do this. It’s so cheap, never 100% applicable, and opens me right on up to logical fallacy accusations, but………

        Ya know… Hitler had a damn fine economy. Financed by debts, in a market built on positive public economic outlook and military aggression.

        “Folks, of course I nuked, I took out, the strip, Gaza. It was time! Just time. No one not a criminal there, NO one. No NOT criminals were around, I can tell, everyone can tell you. And, Bibi Netanny.. Nathanyaywhoo!! My, Bibi, my great friend, get up, come up onto the stage, Bibi! He helped with every single thing for peace, every one, this Jewish genius, unlike Soros. Folks, did I ever tell you about how George Sor-“

  21. Vicks says:

    Anderson Cooper interview with Lev Parnas today was another head scratcher.
    The dots I connected were governors, Rick Scott, what’s his name Braun from Indiana and Lindsey all got campaign donations that Parnas was responsible for .
    They also all got special visits from Rudy.
    Oh and Parnas and his ankle bracelet were trolling the halls hoping to run into them so he could remind them to vote with their conscience.

  22. SteveR says:

    Anybody else find it curious that in the letter Bondy sent to McConnell today, he referred to “Vladimyr” Zelensky? Bondy, and everyone in his office, is deep in this stuff. Can’t be a typo, can it?

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