Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

I made at least one error in this post. I surmised, based on the exemptions DOJ had claimed in a reprocessed version of the Mueller Report released last month, that there might be ongoing investigations into Rudy Giuliani’s grifters reflected in it.

But the sentencing of George Nader a week later reminded me that it cannot be the case that DOJ did a full reprocessing of the Mueller Report. Warrants made it clear that Nader’s prosecution for child porn — which developed into a prosecution for sexually abusing a boy — was a referral from the Mueller team.

Yet the reprocessed Mueller Report continues to redact all the referrals in Appendix D not previously unsealed (that is, all but the Michael Cohen and Greg Craig ones), including one that must be the Nader prosecution, under b7A redactions signaling an ongoing investigation, quite possibly this one.

The Nader referral, because it was prosecuted, should not be redacted under any exemption. Well before this reprocessing, Nader’s prosecution was public (meaning the privacy exemptions are improper), and by the time of this reprocessing, his conviction had been entered, so was no longer ongoing.

The reprocessing did change two Stone-related referrals to the same privacy exemption used for most other referrals — b(6)/b(7)(C-4) instead of b(6)/b(7)(C-3). (These are the newly reprocessed redactions; compare with pages 240-241 of the initial FOIA release.)

The change from C-3 to C-4 signifies that the person involved was only mentioned in the report, but that category is unrelated to whether or not the person remains under a separate investigation. But all referrals still use the b7(A) exemption, even though we know at least one — that of George Nader — is no longer ongoing.

That’s a very complicated way of saying that we can be certain DOJ is claiming some of these referrals are ongoing investigations even though no investigation is ongoing, whether because — like Nader — the investigation has been completed, because the investigation was properly closed, or because Billy Barr intervened and improperly closed them (as might be the case for investigations known to be targeting Erik Prince and Jared Kushner).

And that’s why some filings this week in this lawsuit are so interesting.

A month ago, Judge Reggie Walton, after having reviewed an unredacted copy of the Mueller Report, canceled a public status conference and instead scheduled an ex parte hearing on July 20 at which DOJ would have to answer his questions about the redactions.

Knowing that it would have to answer Walton’s questions, yet claiming to respond to an earlier BuzzFeed/EPIC filing, DOJ offered up that it was preparing to reissue the report in light of the completion of the Roger Stone prosecution. It released that copy — the one that claims at least one investigation that has been completed is ongoing — on June 19.

Which brings us to this week. On Monday, Judge Walton ordered the government to answer questions he raised in an Excel spreadsheet addressing the redactions.

To accord the Department knowledge of the questions that the Court has regarding some of the redactions prior to the ex parte hearing, the Court has prepared an Excel spreadsheet that catalogues these questions, which is attached as Exhibit A to this Order. 1 To the extent that the Department is able to respond to the Court’s questions in writing, it is hereby

ORDERED that, on or before July 14, 2020, at 5:00 p.m., the Department shall file2 under seal its responses to the Court’s questions by completing Column G of Exhibit A. 3

SO ORDERED this 6th day of July, 2020.

1 Exhibit A will be issued under seal and will remain under seal unless otherwise ordered by this Court.

2 The Department shall coordinate with chambers regarding the delivery of a hard copy of its submission.

3 The Court will advise the Department as to whether the Department’s written explanations obviate the need for the ex parte hearing currently scheduled for July 20, 2020.

Judge Walton gave DOJ just over a week to answer the questions.

Yesterday, DOJ asked for more time. DOJ described that they needed to consult with other entities to respond to Walton’s questions, and explained that they had not yet gotten answers from some of the “entities” they needed to hear from.

The Department has been diligently working to comply with the Court’s Order. That work has involved consultations with numerous Department components, including the Office of Information Privacy, the National Security Division, the Federal Bureau of Investigation, and U.S. Attorney’s Offices. However, the Department requires one additional week—until 5:00 PM on July 21, 2020—to coordinate and provide responses to all of the Court’s questions. This additional time is necessary because the majority of Court’s inquiries concerning the redactions require the Department to consult with various entities with equities in the information at issue, both within and outside the Department. The Department has received information from some, but not all, of the entities. Once the Department has completed its consultation with these entities, the Department needs time to compile information received from those entities into a detailed response that addresses all of the Court’s questions. Those entities then need time to review the compiled draft responses before the responses are filed under seal with the Court.2 The Department’s goal with this process is to ensure fulsome responses to the Court’s questions that would obviate the need for a hearing. [my emphasis]

This paragraph is fairly dense, but two things are worth noting. First, after describing “Department components” it would need to consult, the filing then notes that the entities with which DOJ must consult aren’t all inside the Department. This reference may be innocent. After all, any investigations into Russians or other foreigners might implicate foreign intelligence agencies, and Treasury has an ongoing sanctions process working against Oleg Deripaska, another possible referral. So those non-departmental entities could be CIA, NSA, and Treasury, among others.

Or, those non-departmental entities could be the White House.

There has already been abundant evidence that DOJ is consulting with the White House on its response to the BuzzFeed/EPIC FOIA (or at least deferring to their goals), particularly with regards to the 302 releases. Perhaps they’re doing so in the guise of honoring executive privilege claims that Trump never claimed during the investigation. But particularly if this involves hiding details about the investigation into Don Jr and/or Jared, it would be particularly abusive here.

Meanwhile, the reference to US Attorney’s Offices, plural, strongly suggests that these questions get into b7(A) redactions, because the primary reason to need to ask US Attorney’s Offices about these redactions is if they’re investigating or prosecuting cases.

We know of Mueller referrals to, at least, DC, SDNY, and EDVA. The GRU indictment was sent back to WDPA, where it started. And there were reports that investigations into Jared, Tom Barrack, and Elliot Broidy were in EDNY (though it’s unclear which of those, if any, were referrals from Mueller).

That doesn’t necessarily mean these consultations are about unknown referrals. But a footnote to the DOJ filing strongly suggests they are.

2 Although “the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request,” in the interest of saving resources and promoting efficiency, if the Department determines during its review that there no longer exists a basis for a redaction, the Department plans to indicate as such in its response to the Court’s questions, withdraw the redaction, and reprocess the Report with the redaction lifted at the appropriate time. ACLU v. Dep’t of Justice, 640 F. App’x 9, 13 (D.C. Cir. 2016) (unpublished); see also Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). The Report was originally processed in spring 2019. A basis may no longer exist for a redaction if, for example, material was redacted concerning a prosecution that had been ongoing at the time of the redaction that has now been completed. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (stating that because a “proceeding must remain pending at the time of our decision,” an agency’s “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close”).[my emphasis]

DOJ directly addresses b7(A) redactions, claiming that if the investigation was ongoing when it originally did the FOIA review, it is not in violation of FOIA if it hasn’t since released the information (the filing is silent on the reprocessing done last month).

Mind you, DOJ will argue that all of these redactions are still proper under privacy protections. But on that point, DOJ (and Billy Barr personally) has outright lied publicly, claiming that these redactions only protect tangential third parties and not people like the President’s son or son-in-law.

Having looked at Walton’s questions, DOJ directly addressed redactions that originally protected ongoing investigations and contacted more than one US Attorney’s Office for consultations. That says he may consider ordering DOJ to release information about investigations that were started but did not end in prosecution.

Which makes the delay more interesting. It may be totally innocent, the slow pace of bureaucracy, particularly as offices still recover from COVID shut-downs. But one US Attorney’s Office of interest has undergone a sudden change of leadership between the time Judge Walton asked for this information and the time DOJ will respond. Last night, Billy Barr swapped EDNY US Attorney Richard Donoghue with PDAAG Seth DuCharme. While Barr has shown trust in both (he put Donoghue in charge of reviewing Ukraine related allegations), DuCharme has been one of the people who has orchestrated his efforts to undermine the Russian investigation. Whatever answers DOJ provides to Walton, then, will be answers that Barr’s newly appointed flunky will oversee. That’s by no means the most suspicious part of DuCharme’s appointment, but it is something DuCharme will review in his first week on the job.

DOJ may successfully argue that all of this should remain redacted for privacy reasons. And, with the possible exception of an Erik Prince referral, if they’re disclosed as closed investigations, it would not necessarily indicate whether they were closed through more Barr interference. But it certainly suggests Walton may be thinking that some of this should be public.

46 replies
  1. Desider says:

    Can Walton request Donoghue show up? Just under the logic of why have a newbie employee brief him exactly when he asked for a deep dive into specifics and background justifications? Otherwise Barr could just send his kindergarten granddaughter to wax poetic.

      • bmaz says:

        No, it is not. Donoghue is a supervisor as to his former post at EDNY, and is now on the highest levels of DOJ Main. You do not just blithely summons such folk.

        • Desider says:

          I did not consider it “blithely” – i asked if any valid legal justification based on the difference between familiarity with ongoing representations of the case. Donoghue’s new hot position can surely spare a few hours for one of the key judicial inquiries of the year?

        • earlofhuntingdon says:

          One might surmise that that was a reason Barr offered this particular enticement to Donoghue. Other reasons for using a larger carrot, though, would be Barr’s mistreatment of other USA’s and his boss’s deserved reputation for yanking the carrot – like Lucy’s football – and using the stick.

  2. Peterr says:

    As you noted in an earlier post, in Walton’s original order setting up the July 20 ex parte conference with DOJ attorneys, he also told them to keep July 21 and 22 clear on their calendars:

    ORDERED that the status conference currently scheduled for June 18, 2020, is VACATED.

    It is further ORDERED that, on July 20, 2020, at 9:30 a.m.,1 the Department shall appear before the Court for an ex parte hearing to address the Court’s questions regarding certain redactions of the Mueller Report.2

    1 The Department shall be prepared to appear before the Court for a continuation of the July 20, 2020 ex parte hearing on July 21, 2020, and July 22, 2020, if necessary.

    2 The Court will advise the Department as to the topics that the Department should be prepared to discuss at the July 20, 2020 ex parte hearing at a later date.

    Walton knew that this was complicated, and I suspect he raised the possibility of a multi-day conference (note one above) knowing that DOJ would need to consult with all kinds of folks to get his questions answered. The Excel spreadsheet Walton talks about here appears to be more than simply a list of topics that note two describes, and I think he did this in an effort to make the July 20 conference more productive.

    My WAG: in his own judicial manner, Walton is cranking up the pressure on DOJ by saying something like this:

    I’m giving you questions, not just topics, because I am interested in getting answers. Not prevarications like “we’ll look into that” or “someone else made that decision and we’ll have to talk to them to understand why” or “I’m not sure of the status of that particular thing.” I want answers.

    You made deliberate representations in my court, several of which have been contradicted by public statements of the Attorney General and other government officials. In the order that demanded the unredacted report, I said this: “considering the record in this case, the Court must conclude that the actions of Attorney General Barr and his representations about the Mueller Report preclude the Court’s acceptance of the validity of the Department’s redactions without its independent verification.”

    That’s exactly what we’re going to do here. We can do it the easy way, or the hard way – but whether it’s in writing, in person, or both, we *are* going to verify this.

    That word “verification” ought to scare the pants off whoever received that Excel spreadsheet, and especially worry whomever has to sign whatever response the DOJ submits.

    Finally, I read Walton’s offer to cancel the in-person conference as a polite statement encouraging DOJ to be fulsome and complete in their written replies to him. “Do a really good job with this, and I won’t call you into my office after all.” That said, I can’t imagine that they will be *so* fulsome and complete that Walton says “OK, no need to have an in-person conference about this.”

    • errant aesthete says:


      I greatly appreciate your hypothetical. IANAL, nowhere near, but I read to learn even when I don’t understand. The addition of your interpretation, buttressed with Marcy’s keenly-focused analysis, adds just enough narrative to heighten the story and/or plot as Walton might envision it. It greatly enhances the excellence and intelligence always to be found here. Collaboration at its finest.

    • emptywheel says:

      I didn’t include it but DOJ noted that Beryl Howell has canceled all hearings in Civil cases unless the judge arranges teleconference (which can’t happen here bc of classification).

  3. earlofhuntingdon says:

    Given the stand-up comic timing Trump and Barr have adopted, I would say the odds that the White House is the outside agency the DoJ needs to coordinate with are great. Plus, Barr knows how hard it is to get Trump to focus on anything but his hair, make-up, and Faux Noise applause. I don’t think stiffing Reggie with empty suits and non-responses would work, so this coordination must take even more time – and a lot of staff trips to McDonald’s.

  4. joel fisher says:

    At the end of the day what can the Judge really do? Issue an order. It gets appealed. If the DOJ loses the appeal? Appeal again. Order an appearance? Start talking about separation of powers and appeal. No information is leaving the DOJ that Barr doesn’t want exposed to the public.

    • OldTulsaDude says:

      It the court presses the matter, could or would Barr go so far as to claim that separation of powers affords no authority to the judiciary over the executive branch?

      • timbo says:

        He would. He’s already done it with regard to the President. Logically why wouldn’t this also apply to anyone else in the Executive Branch if the President chose to extend the Presidential protections down the line?

        • timbo says:

          Recently, the Supreme Court ruled that they aren’t fully buying this line of argument as yet. That doesn’t mean Twitler’s gang and, in particular, his current Consigliere, aren’t going to keep pushing their own narrative of how reality in this country should be. It’s unfortunate but we’re watching it before our eyes right now.

  5. Chetnolian says:

    I ask this question in the hope I will not get shouted at by bmaz , but would not that cut across the finding by by the Chief Justice yesterday that the powers of law enforcement are “assigned under our Constitution to the Executive and the Judiciary. ” Surely the statement is supposed to be read conjunctively and assumes that the two will work together. For the Executive to say it does not have to work with the Judiciary would effectively render the complete enforcement of law impossible.

    • OldTulsaDude says:

      I may not have a full understanding but isn’t Barr’s position on executive power that only impeachment and removal can check his executive authority? This gets to the heart of the matter: when you have elected a criminal cabal that chooses not to follow norms, there is no one left other than Congress to cause problems – unless the populace takes to the streets with pitchforks.

    • John Paul Jones says:

      Note that unlike most of WAPO, Mueller’s letter is not behind a paywall, at least as of Sunday morning. I seriously doubt whether the Muellers and the Barrs will be enjoying any more family BBQs, and given Barr’s heroic propensity for lying (even about his participation in student events more than 50 years ago), I wonder now whether his claim at his confirmation hearing that the two families were friends was another lie.

  6. earlofhuntingdon says:

    The effortlessly neoliberal Trump Republican version of Covid-19 deaths seems to be: “The sick, old, and fat were already gonna die. They just died sooner. Nothing government could or should have done differently.”

    Even putting aside the racial assumptions and disparity in that view, as various aspects of this regime make their way toward the Supreme Court, I wonder how many of the Court’s many Roman Catholics are gonna sign on to that view. Because it’s hard to distinguish that argument from the spoiled rich kid, who says, grandpappy was gonna die soon anyway. I just helped him along before he could change his will.”

    • Vicks says:

      Anyone involved in get out the vote programs this election needs to get the seniors involved.
      Getting them organizing in their communities and volunteering to make calls and stuff envelopes will give them a productive way to channel some of that rage they are feeling.

      • bmaz says:

        At least where I live, “seniors” are already very involved. But one problem is that they make up a huge percentage of precinct poll workers on election days, and may not feel safe coming out for that job these days. Hard to blame them in that regard.

        • Vicks says:

          Yes you are correct.
          I should clarify that I was referring to those that have never paid much attention to politics.
          There are millions of seniors “failing to thrive” in assisted living centers and nursing homes. No visitors, no activities they can’t even share a meal or take a walk with their neighbors.
          ALMOST as heartbreaking are the millions more of our elders living independently who relied on senior programs to keep active and engaged and often times to get around town suffering from the knowledge that there is no end in sight to this degrading new lifestyle of isolation and depending on others for the most basic of needs that has been forced upon them.
          It would take a lot of help from volunteers (perhaps the folks who would normally volunteer at the polls) and family members to get these people to outdoor gatherings or set up with zoom (I still have to go over and press the buttons on my mom’s iPad) but I see these men and women as a potential army of engaged and enraged citizens demanding that voting in this next election be accessible to everyone and be the living examples of what life could be for everyone if it’s not.

          • bmaz says:

            Yes. One of my best friends, going back to college days long ago, has a mother in one of those facilities. There was already a Covid outbreak there and she got it and survived it, miraculously. She is too old to work the precincts any more, but is one of the ones who very much used to.

            • Vicks says:

              Jeez, glad to hear there was a positive outcome, the odds certainly were certainly not on her side, your friend and his family must have been put through the wringer.
              Your friends mom may be a bit too low on energy right now but these are exactly the type of people that I believe can communicate to their peers that they have a voice, and United they have the power to demand change.
              IMHO these are powerful spokespeople for voter’s rights.

              • bmaz says:

                They are very much the people to work and stand up. Also, the very ones most at risk right now.

                It is a Catch-22; the ones that are usually there are the ones who are likely terrified right now, and rightfully so.

  7. earlofhuntingdon says:

    So, all of those “senior public officials” who are trying to salvage their careers by anonymously claiming to have counseled the president against pardoning or commuting Roger Stone’s sentence, we’ll be reading about their resignations in the morning, right? I mean, if a moron keeps throwing your counsel down the garbage chute, WTF would you stick around?

  8. Savage Librarian says:

    I’m glad ew and Judge Walton are focusing on redactions in the Mueller report. I’d especially like to hear more about the interactions between Deripaska, Millian, Nader, and Zamel at the 2016 SPIEF. And any other interconnections in relation to this. Even more mysterious to me is the 2015 SPIEF. Who might have been there that relates to hacking, for example? Or who relate to other matters at hand?

  9. earlofhuntingdon says:

    Would it be possible for MSNBC to find more direct, less dubious commentators? Claire McCaskill, for example, temporizes so much, I find it impossible to listen to her. MSNBC should at least give its guests program notes, reminding them that, “It’s not about you.”

  10. earlofhuntingdon says:

    This. In an unprecedented quest for efficiency, Trump’s Postmaster General has sent a directive to USPS offices that they should delay delivery of First Class Mail. That will generate unpredictable delays in processing primary and general election mail-in ballots in 2020, causing some of them not to be counted.

    Louis DeJoy, Trump hack and mega-donor, has been Postmaster General for a couple of months. He has experience with logistics, but none in running a mail or delivery service, none in running an organization the size of the USPS. Not knowing enough to do the job you’re hired for seems to be a prerequisite for Donald Trump. But Mr. DeJoy seems to be exceptional.

    Delivery was already lagging, as the USPS deals with unprecedented budget problems. The biggest comes from the 2006 statutory requirement that the USPS pre-fund seventy or more years of benefits. (A requirement that burdens no other public or private institution in America.) It is also still dealing with increased security requirements arising out of 9/11, such as “sanitizing” items and scanning each surface of a letter or package, generating the cost and complexity of creating and managing billions of images per year.

    More recently, it has been struggling with Congress’s refusal to fund its budget, a chronic problem made worse under Trump and McConnell’s Senate. Cuts have already led to reduced services and closures. Those already required, for example, that letters mailed in South Carolina be sent to North Carolina for sorting, before being delivered from, say, Charleston to Columbia. I know Trump fucks up everything he touches. But sometimes, it’s intentional.

    • P J Evans says:

      I know people have been pushing Congress to fund the USPS and remove or lower that prefunding requirement – which I suspect was done with the intent of killing the USPS, as the GOP has been wanting to do for decades. What I don’t know is whether anyone in Congress actually is doing anything.

        • P J Evans says:

          People buying on line are likely to get stuff by mail, because it’s less expensive than the package-delivery companies. Which Congress (and especially the GOP-T) seems to not understand. I wonder if it’s dawned on them how many people have incomes under 50K per year, before taxes.

    • madwand says:

      That was why I chose to vote in person in the primary and also plan to vote in person in the general. I simply don’t trust vote by mail anymore.

      • bmaz says:

        Vote by mail is safe, secure, and fine. Send it off early, and then followup to check for confirmation it was received and counted. This is, of course, easier in some states than others, so that is kind of a general observation.

        We will have to see in October what the lay of the land is for the general for November 3, but it is likely fine for primaries now, just send it off early.

        Earl’s thoughts on what is being done to the USPS is right though, and it indeed has been an ongoing thing by the GOP for a very long time. They simply do not want government to help people that are not their own benefactors. The current attack on the USPS is loathsome, but long ongoing. And telling as to where they are really centered. It is not on the salt of the earth farmers and people in the “heartland” or whatever, it is on the super rich. Mail voting is just the latest hook, even if the most detestable.

        • madwand says:

          Each state has its own merits or not. I’m in a southeast state with a history of manipulating the vote, though by force of numbers is starting to turn blue at least at the national and governor level. Senators and congressmen are another story. The point though since the elections for president and governor are literally too close to call, it’s best to insure your vote is counted. I do this by physically voting and putting my ballot into the ballot recording machine, the current method for in person voting. We have new voting machines and in the big city of the state, considerable problems existed in getting the machines to operate properly in the last primary and who knows how many votes were not counted or if they will solve those problems by November. I tend to think not but would like to be pleasantly surprised.

          Where I am, relatively suburban, this was not an issue and it went smoothly. When I lived in California I had trust that my mail-in ballot would be counted. Here I cannot say that. Here I insure that it is by voting in person and inserting my ballot in the ballot recording machine. They limit voting here by throwing people off the rolls if they haven’t voted since 2012. Recently that meant as much as 230,000 people would have to reenroll if they wanted to vote, a tough process for some. So it’s important to maintain voting privileges which is different it may be noted than a right. Moreover because of covid they are limiting precincts but not extending the hours of voting. Throw in the Russians and there is a lot of mistrust out there, but the important point is to vote.

          Incidentally, the number of confirmed Covid cases in my county just doubled in 7 days, the only time that has happened since March. This is a direct result of opening too soon and this has to play itself out.

          • bmaz says:

            Yes, as I said, easier and safer some places than others. I live in a smart municipality, but in an overall pretty stupid state. Vote by mail has been nevertheless good here statewide….so far. The USPS issue is real though.

  11. earlofhuntingdon says:

    Another day, another Trump milestone. The US reported a new record of 61,492 Covid-19 cases yesterday. Quickly responding to the sharp increase in cases, Donald Trump’s HHS issued new data reporting guidelines. The new protocol for hospitals, “will ELIMINATE THE CDC AS A DATA RECIPIENT, leaving health-care institutions to report information…to a federal contractor or to their state.”

    If that state happens to be, say, Florida, the numbers will drop down the memory hole until some whistleblower retrieves them. It’s as if Trump is doing everything possible to obstruct an informed, effective response to a national and global crisis. Apart from his general fear of competence, that might be part of his strategy to lose the election: “If I can’t win, then nobody’s gonna play, ’cause I’m tearing up the board.”

    The US has had about 3.25 million cases and over 134,000 dead. Global numbers are 13 million cases and about 570,000 dead. With only 4.3% of the world’s population, the US has 25% of the sick and 23% of the dead. So much winning. Do you want your school to re-open?

    • vvv says:

      Apparently Birx was one of the first to discuss the CDC thing; IMO, she has gone totally political.

  12. earlofhuntingdon says:

    The unemployment insurance lifeline is running out soon, and Mitch McConnell is sitting on his ears. He must assume that the unemployed – more than at anytime since the Great Depression – all vote Democrat. If they’re too tired, sick, overwhelmed, or dead, they won’t be able to vote for Joe.

    Here’s Mitch, trying to have his cake and eat yours, too: “There’s very little tangible evidence of this whole voter-suppression nonsense that the Democrats are promoting. My prediction is African-American voters will turn out in as large a percentage as whites, if not more so, all across the country.” (Quoting WSJ article, behind paywall.)

  13. earlofhuntingdon says:

    Dahlia Lithwick writes an excellent summary of Mary Trump’s forthcoming book on Uncle Donald. I think hers is better than the more pedestrian review by Michael Kruse.

    Kruse takes an introspective look at the details and origin stories about the cruel, vindictive, ignorant sociopath we know well. “We’ve read that book before,” says Lithwick. She looks more at Mary’s contribution about why Trump has so consistently failed up, with virtually no accountability. It’s not because of Trump’s self-proclaimed brilliance as a marketeer.

    Fred Sr. heavily invested in the sociopathic Donald, rather than in the brighter, more sensitive and aware older brother, Fred Jr. (Mary’s father.) Senior worked hard to crush Fred and replace him with Donald. Having succeeded – and like everyone who came after him – he could not free himself from the grasp of the stone statue he had carved. (Unlike Pygmalion’s, Fred’s never came to life.) It would require an admission of responsibility and guilt he would never contemplate.

    [They] came together to fail America, to leave vulnerable populations to fend for themselves, and…continue to lie and spin to pacify his ego. They do it because they can’t admit the payoff is never coming, and to save themselves from the embarrassment of having to admit they were catastrophically wrong.

    It’s a truism to say that Donald Trump is as much symptom as cause of the broken state of American politics. He plays that same role for America’s neoliberal capitalism. Failing up, for example, is a part of that, too, like wingnut welfare, finding a sinecure for the friend from your secret society, or rewarding the goombah who stayed silent rather than spill the beans about his patron.

    It’s hard to miss, for example, the latest story about a failed CEO, who has left their company (“resigned”) with a big payday: John Stumpf, Carly Fiorina, J.T. Battenberg, Richard Fuld, Travis Kalanick. (We read less about the repeated promotions that got them to that corner office.) The payday is misdirection, a pretense that failure was not part of the deal. It’s also an enforceable way to keep someone quiet about corporate failures, failures by absentee board members, executives, auditors, and lawyers. (That treatment extends to other officers, but the paydays aren’t as big.) Big banks and corporations are no more fond of accountability than they are of competition. Presidents and congressional leaders are just following in their footsteps.

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