Graphic: Quino Al via Unsplash (mod by Rayne)

Three Things: Take Action on Tax Bill, Net Neutrality, and a Courtroom Virgin

There’s a lot of crappy stuff going on, but three things need your urgent attention and action: Tax cuts for wealthy, net neutrality, and an unqualified federal judicial appointment.

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So-called Tax Reform Legislation

Tax cuts for people who don’t need them and won’t even feel them, paid for by the people who can least afford them — it’s a recipe for disaster. If Putin wanted to damage our economy he couldn’t have done a better job in one go. I could rant all day about the stupidity required to believe trickle-down or supply-side economics work, but this wealthy dude does a succinct job. As he says it’s a trickle-down lie; this bill is simply a wealth transfer from the lower deciles to the upper deciles.

You can also bone up by reading this Forbes article, and this Forbes article, and hello, another Forbes article.

This is a nightmare in the making which will tank our economy and literally threaten American lives by reducing access to healthcare. The only real driver behind this bill is extortion — the GOP’s biggest donors have threatened to shut their wallets if they don’t get their tax cuts, and GOP members of Congress are too fucking weak to tell them to pound sand.

Go ahead, selfish billionaires, primary GOP incumbents. You think you can rustle up more sycophantic (and pedophilic) candidates like Roy Moore and still retain control of the House and Senate in 2018, even if you suppress the vote? Hah.

More than half this country struggles to scrape up enough cash to pay for an emergency, like a car repair or a broken appliance, and the GOP thinks increasing their taxes and undermining their health care will magically make the economy better?

And now the kicker: Alaska’s Senator Murkowski, who has been a champion for health care, just agreed to support the repeal of the individual mandate included in this tax bill. The stupid, it burns. Or perhaps it’s some ill-considered kickback burning its way through Murkowski’s cred.

Here’s a script for your use, provided by the ever-helpful @celeste_pewter. Call Congress’ switchboard at (202) 221-3121 or look for your senators’ closest in-state office and leave a message there — all senators are home this week.

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FCC Chair Ajit Pai’s Blowjob for ISPs

It’s really far more than a blowjob and it’s definitely obscene. Allowing ISPs to discriminate against bits in the pipe by throttling, blocking, or additional charges to further their agenda is absolutely unacceptable. There’s far too much at risk, beginning with the end of moderately priced internet. Some industries will be damaged — filmmakers, for example, already have problems with releasing films across the U.S. over the internet, as users do not have the same quality of network. Streaming providers like Netflix will also experience problems; angry users will blame them for poor service, when it may be the ISP throttling them. Marketplace’s Molly Wood does a pretty good job reviewing the problems with Pai’s proposed changes and the challenges with the existing regulatory framework.

Let’s be frank: your porn will be affected, too, as removing net neutrality means ISPs can audit the content you request and block/throttle/demand more to release it, or strong arm you into using their brand of porn using a combination of price differentiation and delivery constraints.

And then there’s the issue of Pai’s handling of comments on this change, which New York’s AG Eric Schneiderman has been investigating — little cooperation with Schneiderman to date and a decision made based on a manipulated feedback process — all suggest the FCC is taking illegitimate action.

So, so shady. Ajit Pai should never have been approved by this Congress as FCC chair; Congress needs to reign in his overreach by legislating net neutrality. Could the existing FCC regulations be improved? Sure, but Pai’s proposal does nothing of the sort — Congress should address this.

ACLU’s prepared a short-and-sweet script for you use. Use the ACLU’s call routing through their website, or call Congress’ switchboard at(202) 221-3121.

@Celeste_pewter offers more detailed script with a more thorough ask at this link.

Also via miracle worker @celeste_pewter, here’s a script for writing to Ajit Pai at FCC. Please personalize your message — don’t just cut-and-paste. Take a stand.

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Incredibly Wretched Judicial Nominee Talley

What. The. Fuck? I can’t even begin to explain how awful a nominee Brett Talley is; he should never have been allowed to get this far. Read up on their hideousness here. How can the Senate Judiciary Committee think for a moment that ghost-hunting,White-House-lawyer-married, ABA-‘unqualified’, courtroom-virgin Talley, is well qualified for a lifetime appointment? This is a complete rejection of the Senate’s power to advise and consent.

Call your senators at (202) 221-3121 or their home state offices and ask them to vote NO on Talley, deny their consent. We can and must do better with these lifetime appointments. Need a script? Once again, Celeste is on top of it.

In my opinion, the Senate should refuse to approve any more judiciary nominees before the 2018 election. Talley is the latest of four Trump nominees the ABA found ‘unqualified’. If somebody is drafting articles of impeachment, these nominees should be cited as an example of Trump’s failure to faithfully execute this country’s laws.

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There’s so much more that’s wrong, like the lack of funding and inadequate labor for Puerto Rico and California wildfire recovery, Puerto Rico’s Medicaid funding, another horribly qualified nominee for U.S. Census, attacks on the DREAM/DACA/SECURE Acts, or the lapse of CHIP putting the health of NINE MILLION AMERICAN CHILDREN at risk. But the three issues listed above are the ones which will have the greatest affect on the largest number of Americans.

If you have Republican legislators, your calls are even more important, though Democratic and Independent legislators do need to hear from you so they can validate their resistance. Call your elected representatives pronto — don’t take this crap without a fight. Get out in front of these turkeys.

This is an open thread. Bring your comments here which are off topic in other threads, thanks.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

[US Oil Fund ETF via Google Finance]

The Curious Timing of Kushner’s visit to KSA and the U.S.’ EITI Exit

Trump’s son-in-law Jared Kushner — he of the shaky memory and a massive debt in need of refinancing — met with Crown Prince Mohammed bin Salman within the same week the U.S. withdrew from an anti-corruption effort and Saudi Arabia cracked down on corruption. What curious timing.

Let’s look at a short timeline of key events:

Tuesday 24-OCT-2017 — Saudi Arabia’s Crown Prince Mohammed bin Salman helms a three-day business development conference at the Ritz-Carlton in Riyadh, referred to as “Davos in the desert.” Attendees include large investment banks as well as fund representatives; one of the key topics is the impending IPO for Saudi Aramco.

Wednesday 25-OCT-2017 — Jared Kushner departed for an unpublicized meeting with government officials in Saudi Arabia.

Wednesday 25-OCT-2017 — Treasury Secretary Steve Mnuchin and Undersecretary for Terrorism and Financial Intelligence Sigal Mandelker traveled separately from Kushner to participate in bilateral discussions, which included the memorandum of understanding with the Terrorist Financing Targeting Center (TFTC). The U.S. and Saudi Arabia chair the TFTC while Gulf States form its membership.

Friday 27-OCT-2017 — Reports emerged that at least one Trump campaign team will be indicted on Monday.

Monday 30-OCT-2017 — Jared Kushner met with Crown Prince Mohammed bin Salman, discussing strategy until 4:00 am. News reports didn’t indicate when exactly Kushner arrived or when discussions began. (Paul Manafort, Rick Gates, George Papadopolous were indicted this day, but not Kushner; good thing “excellent guy” Papadopolous as a former Trump campaign “energy and oil consultant” wasn’t involved in Kushner’s work with Saudi Arabia, that we know of.)

Thursday 02-NOV-2017 — U.S. Office of Natural Resources Revenue sent a letter to the Extractive Industries Transparency Initiative (EITI), a multinational effort to reduce corruption by increasing transparency around payments made by fossil fuel companies to foreign governments. The U.S. had been an implementing member since 2014.

Saturday 04-NOV-2017 — At 7:49 am EDT, Trump tweets,

“Would very much appreciate Saudi Arabia doing their IPO of Aramco with the New York Stock Exchange. Important to the United States!”

Saturday 04-NOV-2017 — (approximately 5:00 pm EDT, midnight Riyadh local time) At least 10 Saudi princes and dozens of government ministers were arrested and detained under what has been reported as an anti-corruption initiative. Prince Alwaleed Bin Talal, a critic of Trump and a tech industry investor of note, was among those arrested this weekend.

Saturday 04-NOV-2017 — At 11:12 pm EDT Reuters reported Trump said he had spoken with King Salman bin Abdulaziz about listing Saudi Aramco on the NYSE. The IPO is expected to be the largest offering ever.

But wait…there are some much earlier events which should be inserted in this timeline:

Friday 03-FEB-2017 — Using the Congressional Review Act to fast track their effort, Senate passes a joint resolution already approved by the house, disproving the Securities and Exchange Commission’s Rule 13q-1, which implemented Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Section 1504, the bipartisan product of former senator Richard Lugar and Sen. Ben Cardin (now ranking Democrat on the Foreign Relations Committee),

“…a public company that qualified as a “resource extraction issuer” would have been required to publicly disclose in an annual report on Form SD information relating to any single “payment” or series of related “payments” made by the issuer, its subsidiaries or controlled entities of $100,000 or more during the fiscal year covered by the Form SD to a “foreign government” or the U.S. Federal government for the “commercial development of oil, natural gas, or minerals” on a “project”-by-“project” basis. Resource extraction issuers were not required to comply with the rule until their first fiscal year ending on or after September 30, 2018 and their first report on Form SD was not due until 150 days after such fiscal year end.” (source: National Law Review)

Section 1504 and SEC rule 13q-1 enacted the U.S.’ participation in the EITI’s anti-corruption effort.

Monday 13-FEB-2017 — Trump signed the disproving resolution. (Probably just another coincidence that Michael Flynn resigned this day as National Security Adviser.)

From the earliest days of this administration, both the Trump White House and the GOP-led Congress have been ensuring that extractive industries including oil companies will not be accountable for taxes, fees, and other miscellaneous payments (read: dark money donations and bribes, the latter being a bone of contention to Trump) paid to foreign governments.

Some of the immediate beneficiaries are Exxon Mobil, for which Secretary of State Rex Tillerson used to work, and the Koch brothers, among U.S. oil companies which claimed additional reporting requirements under Rule 13q-1 would make them less competitive with overseas oil producers.

What’s not yet clear: How is this reduced openness supposed to help track financing of terrorism, which Treasury was supposed to be working on?

What of transparency related to arms deals involving Saudi money or Aramco? What of transactions between U.S. oil companies and other foreign companies involved in deals with Russian fossil fuel firms like Gazprom?

Can Trump, Jared Kushner, their family and minions, and members of Congress profit from this increased lack of transparency?

What happens to the U.S. and global economy when oil prices rise without adequate transparency to the market to explain price increases?

Also not yet clear: what happened to the 19.5% stake in Rosneft sold last year, allegedly bought by Qatar’s sovereign wealth fund and Glencore (the same Glencore now embroiled in Paradise Papers scandal)? This massive chunk of Russia’s largest oil company has increased in value in tandem with crude oil’s rise, especially since the Saudi crackdown on Saturday. What’s to keep this massive amount of Rosneft shares from being laundered through stock markets as Deutsche Bank did between 2011 and 2015?

It’s all just so curious, the unanswered questions, the odd timing: Aided and abetted by GOP-led Congress, Trump pulls out of an anti-corruption initiative while Treasury Department appears to work on anti-corruption, and Kushner meets on the sly with the Saudi crown prince just days before an anti-corruption crackdown.

Hmm.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

Some Thoughts On The Manafort Indictment

In response to yesterday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site

The first shoe has dropped in the big indictment watch initiated late Friday with the news that an indictment had been rendered in the Mueller investigation. Paul Manafort and his longtime business partner Rick Gates have been told to self surrender this morning. Manafort has already arrived at the field office for processing as the attached picture reflects. Here is the NYT story:

The charges against Mr. Manafort, President Trump’s former campaign chairman, were not immediately clear but represent a significant escalation in a special counsel investigation that has cast a shadow over the president’s first year in office. Also charged was Mr. Manafort’s former business associate Rick Gates, who was also told to surrender on Monday, the person said.

Mr. Manafort walked into the F.B.I.’s field office in Washington at about 8:15 a.m. with his lawyer.

Mr. Gates is a longtime protégé and junior partner of Mr. Manafort. His name appears on documents linked to companies that Mr. Manafort’s firm set up in Cyprus to receive payments from politicians and businesspeople in Eastern Europe, records reviewed by The New York Times show.

Mr. Manafort had been under investigation for violations of federal tax law, money laundering and whether he appropriately disclosed his foreign lobbying.

The indictment is here and contains twelve counts for conspiracy, conspiracy to launder money, failure to file as foreign agents, failure to file proper financial reports and false statements. Notable also is the notice of forfeiture of both real and personal property, and any derivative property tied thereto.

The fact that the first shoe is Manafort is no surprise. What is surprising, to me at least, is that it does not appear that Manafort’s wife Kathleen was named. This may be a reflection as to the nature of the charges … the charges may only be for activity she was not involved in. Or not. But, make no mistake, she is involved in many of the charges for tax fraud and money laundering; she has solid exposure. Perhaps Mueller and Andrew Weissmann have already discussed this with Manafort and his lawyer, or maybe that is being reserved as leverage in a potential superseding indictment. But it is extremely interesting that she does not appear to be named yet. Stunning actually.

Add into the status of Kathleen Manafort that she and her husband are reported to be near broke as to liquid funds, and their real estate is already heavily leveraged and now subject to civil seizure at this point. And given the fairly recent outing of Manafort having a very expensive mistress half his age, things cannot be too cozy on the Manafort home front. This is total chum in the water for an aggressive prosecutor like Weissmann. Why did he not take it??

NBC News is reporting that the current charges were brought now because of statute of limitation concerns on some of them, and that further charges are absolutely not ruled out. Which makes it even more curious that Kathleen Manafort is not named.

Manafort is a high value target for the Mueller shop. But so too is his lesser known business partner Rick Gates. Gates was not only with Manafort on the Trump Campaign and DNC Convention, but stayed on in a significant role with Trump throughout the campaign and transition, including the inaugural committee, even after Manafort left. Gates, like Manafort, has close foreign ties, including with Russia and Ukraine.

Two people to keep your eye on are Dmitri Firtash and Oleg Deripaska, Putin allies. As as Spencer Ackerman says
in the money “behind pro-Kremlin party in Ukraine that hired Manafort. He’s indicted in IL. Watch what Sessions does”. Spencer is right about that. Here is some bits from Spencer’s report on Manafort, Rick Gates and Firtash back in August:

Asked whether any Manafort deals seemed particularly troubling in retrospect, a senior administration official replied, “You mean like this one?” and appended a link to a 2016 story on Manafort’s alleged attempts to launder a Ukrainian oil and gas billionaire’s ill-gotten fortune through New York real estate—including the Drake.

The Justice Department is now seeking the extradition of that billionaire, Dmitry Firtash, so he can stand trial for a 2013 racketeering indictment in a Chicago federal court. Two weeks ago, in response to a legal filing from Firtash seeking dismissal of the case, the acting U.S. attorney in Chicago termed Firtash and a deputy as “two organized-crime members” and people “identified by United States law enforcement as two upper-echelon associates of Russian organized crime.” Years before the indictment, Firtash was a major moneyman for the Party of Regions in Ukraine, the pro-Kremlin political faction for which Manafort consulted.

Firtash’s alliance with Manafort to acquire the Drake has been reported before. But far less attention has gone to the involvement of another party: Oleg Deripaska, one of the wealthiest men in Russia—and a longtime Putin associate. In 2006, according to the Associated Press, Deripaska signed a $10 million annual contract with Manafort for what Manafort pitched as political and economic efforts inside the U.S. to “greatly benefit the Putin Government.”
But Manafort was more than Deripaska’s political operative. They were business partners, as well.

“When Paul met with Mr. D last month he told Paul to lock in the other financing elements and then come back to him for the final piece of investment,” Gates wrote to two longtime business associates of Deripaska, Anton Vishnevsky and Andrey Zagorskiy, on July 1, 2008.

According to ex-prosecutors, a business relationship between a Kremlin-tied oligarch, an accused gangster and the manager of Donald Trump’s campaign is the sort of arrangement currently occupying Mueller’s time.

“Any financial dealings with Russia and Ukraine would be considered within the scope of [Mueller’s] current mandate,” said Barbara McQuade, the U.S. attorney in Detroit until Trump fired her in March. “With the search warrant executed on Manafort’s home, looking for bank records, tax records, and the like, it seems like this is the kind of thing that Mueller would be interested in.”

To sum up, today’s indictment news is quite a big deal. The spokes that look likely to come out of it lead directly to the biggest Russian interests imaginable. Ones that very likely lead to Trump as well, whether financial or in relation to potential collaboration and conspiracy to influence the 2016 election.

Time will tell where this goes, but this is an extremely significant and rollicking start.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

M&M Mars Candy, Trump and The Estate Tax Giveaway

[Ed Note: This is a guest post by our tax law expert friend Bob Lord. It is a particularized abject story of exactly what kind of interests are pushing the Trump “Tax Cuts” agenda, why, and how ridiculously corrupt and insulting to the 99.5% of America the effort really is.]

The Mars family has made billions selling us M&Ms, Snickers, and countless other Halloween treats for a century now. But when it comes to paying tax, the Mars family seems to be all tricks and no treats.

In fact, the family’s latest tax trick may have cost the U.S. Treasury a whopping $10 billion. What could $10 billion do? That’s the cost of delivering prenatal care to hundreds of thousands of expectant moms under Medicaid, an essential program that President Trump and the GOP Congress plan to cut by up to $1 trillion.

According to the current U.S. tax code, any American worth $25 billion can expect 40 percent of that, or $10 billion, to go to Uncle Sam in estate tax, the federal levy on the personal fortunes of deep pockets who kick the bucket. Forrest Mars Jr. had a $25-billion fortune when he died in July 2016. But the Mars family has apparently been able to avoid estate tax on that entire $25 billion.

How do we know? Researchers at Forbes and Bloomberg, the two business publications that track America’s billionaire wealth, have some fascinating numbers for us.

Forest Jr. and his two siblings started 2016 with personal fortunes in the vicinity of $25 billion. Now if Forrest’s fortune had been subject to a significant estate tax after he passed on, the collective wealth of his four daughters in 2017 would be substantially less than that $25 billion.

The just-released 2017 Forbes list of America’s 400 richest shows otherwise. Forbes puts the wealth of each of Forest’s four daughters at $6.3 billion, for a total of $25.2 billion. That’s almost identical to the 2017 fortunes of their Aunt Jacqueline and their Uncle John, each at $25.5 billion. The Bloomberg Billionaires Index reports similar numbers.

Should any of this surprise us? Not really. We’re seeing Mars family history repeat itself. Eighteen years ago, Forrest Mars Sr., the original Mars family billionaire, died. The Forbes 400 lists from the years surrounding 1999 show that the Mars family lost no wealth to estate tax back then either.

But the Mars family must at least be paying oodles of income tax, right? Nope. How could that be? This particular tax-avoidance story starts over a century ago, when Frank Mars incorporated his candy business.

Back then, the value of the stock in Mars Inc. had only minimal value. But over the years the stock appreciated considerably in value. By 1988, that appreciation had made the Mars family the wealthiest clan in America. The Mars billionaires still rank as one of America’s wealthiest families, in no small part because none of the gains in the value of the family’s Mars stock have ever been subject to income tax.

Is the Mars family content with its current level of tax savings? Apparently not. The family has joined with 17 other billionaire families and collectively spent $500 million lobbying Congress for reduced taxes on billionaires and the companies they run.

These companies face corporate income tax on their profits. Mars, Inc. has had to pay these taxes over the years. Unlike Mars family members as individuals, the Mars company hasn’t been able to sidestep its tax bills. But the Mars and other billionaire families have found a friend in President Trump and the current Republican-led Congress. The pending Trump-GOP tax plan would take a meat axe to corporate tax rates.

The resulting corporate tax savings, if this plan gets adopted, will likely translate into a multi-billion-dollar tax savings for Mars, Inc. — and a corresponding bump in the net worth of Mars family members.

The real prize for the Mars in the Trump tax plan? That may be in the elimination of the estate tax that the Trump White House is now pushing. Wait, what? How would the repeal of the federal estate tax help a family that’s already avoiding the estate tax?

For America’s ultra-wealthy, repealing the estate tax turns out to be more about the federal income than the federal estate tax. As Mars family history makes painfully clear, tax avoidance vehicles available under current law allow even billionaires to zero out their estate tax.

But billionaires, under current law, do pay an appreciable income tax price for their estate tax avoidance. Assets on which estate tax is avoided carry an offsetting income tax disadvantage. That disadvantage would vanish in a simple estate tax repeal.

What does that mean? Let’s say we have a billionaire who paid $10 million for stock now worth $100 million and does nothing to avoid estate tax on that stock The billionaire never has to pay income tax on that gain. Those who inherit that stock from the billionaire’s taxable estate can sell it for $100 million and not pay any income tax on the gain either.

But if that billionaire stashed that stock into a trust to avoid estate tax, he would forfeit that income tax advantage. The untaxed gain associated with the stock would be passed to the trust beneficiaries. These beneficiaries would face an income tax on the previously untaxed gain when they sell the stock.

If the Trump-GOP estate tax repeal takes the same final form as the estate tax repeal bill introduced in the House of Representatives in 2015, wealthy Americans will get to have it both ways: zero estate tax and the elimination of any untaxed gain at death.

And that would allow the next generation of Mars family members to avoid income tax on over a century’s worth of economic gain. Quite a trick, huh?

So enjoy the candy, America. The Mars family will keep the cash.

Happy Halloween!

[Robert J. Lord, a tax lawyer in Phoenix, Arizona and former Congressional candidate, is an associate fellow at the Institute for Policy Studies.]

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Jeff Sessions Can’t Remember Whether He Was Involved in Firing All the US Attorneys

One of the things that came out of Jeff Sessions’ testimony last Thursday was the news — elicited by Richard Blumenthal — that President Trump had personally interviewed candidates for two US Attorney positions, those in SDNY and EDNY, which was taken as a sign Trump wanted to install cronies in the districts that oversee most of his (and his family’s) activities.

But there was a counterpart exchange at the hearing that was, particularly because of Sessions’ inability to answer it, just as stunning.

After Mazie Hirono handed Sessions his ass for attacking a judge in HI for issuing a nationwide injunction, she then asked him who was involved in the decision to fire all the US Attorneys all at once.

Hirono: Who was involved in the decision to dismiss all of the US Attorneys without any warning. And why was it done when it was done?

At first Sessions just filibustered — Clinton Clinton Clinton.

Sessions: [stumped] We had gone for a number of months, about half of the United States Attorneys had already resigned, it’s traditional that they’re replaced by the next Administration, and President [pause] I believe President Clinton did the same, issued a single order, precedent, there’s precedent for it to complete the process of changeover.

So then Hirono asked what I imagine is the point: whether Trump made the decision entirely on his own.

Hirono: So it was totally President Trump who made that decision? You were not involved in that decision?

Sessions: I, I believe the responsibility is the President’s.

Hirono: You were not involved in that decision to fire them all?

But then when she double checks whether that’s true, he realizes he’s about to get his boss in a whole heap of trouble, and — literally mid-question!! — turns to ask a staffer what the correct answer is.

Sessions: Actually, actually, I think the Att —

[Sessions stops mid-sentence to talk to a staffer behind him]

Only after consulting the staffer did Sessions “remember” being involved in the decision.

Sessions: I can’t re — I can’t believe I can’t remember that. But it was an important issue. The President appoints United States Attorneys, and it was appropriate, I thought at that time to make the change.

Hirono: So you were involved?

Sessions: Yes, I was involved.

Thus far, the exchange is remarkable enough.

All the more so when you look back at the reporting from when it occurred, in early March. As NYT reported, it was a surprise to all the US Attorneys asked to leave.

The Trump administration moved on Friday to sweep away most of the remaining vestiges of Obama administration prosecutors at the Justice Department, ordering 46 holdover United States attorneys to tender their resignations immediately — including Preet Bharara, the United States attorney in Manhattan.

The firings were a surprise — especially for Mr. Bharara, who has a reputation for prosecuting public corruption cases and for investigating insider trading. In November, Mr. Bharara met with then President-elect Donald J. Trump at Trump Tower in Manhattan and told reporters afterward that both Mr. Trump and Jeff Sessions, who is now the attorney general, had asked him about staying on, which the prosecutor said he expected to do.

But on Friday, Mr. Bharara was among federal prosecutors who received a call from Dana Boente, the acting deputy attorney general, instructing him to resign, according to a person familiar with the matter.

And it was an apparent reversal from an earlier plan.

The abrupt mass firing appeared to be a change in plans for the administration, according to a statement by Senator Dianne Feinstein of California, the top Democrat on the Senate Judiciary Committee.

“In January, I met with Vice President Pence and White House Counsel Donald McGahn and asked specifically whether all U.S. attorneys would be fired at once,” she said. “Mr. McGahn told me that the transition would be done in an orderly fashion to preserve continuity. Clearly this is not the case. I’m very concerned about the effect of this sudden and unexpected decision on federal law enforcement.”

A statement from DOJ spox Sarah Isgur Flores does attribute the decision to Sessions.

“The Attorney General has now asked the remaining 46 presidentially appointed U.S. Attorneys to tender their resignations in order to ensure a uniform transition.”

But Acting Deputy Attorney General Dana Boente (one of just two to keep his job right away), not Sessions, made the calls to the US Attorneys.

In other words, it seems possible that Sessions really wasn’t involved, but he has to pretend to be, so that the decision to fire (especially) Preet Bharara doesn’t appear to be something Trump did on his own, partly in response to badgering from Sean Hannity.

In other words, this later exchange from the same hearing suggests that Trump first unilaterally fired all the US Attorneys, which even at the time was interpreted as an effort to fire one in particular, and now is exercising more control over his replacement than any President ever has before. Only, Sessions managed to remember being involved just in time to make that clear.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

[graphic: Hurricane Maria, 20SEP2017, via NASA GOES]

Three Things: Was Slow Response to Hurricane Maria Deliberate?

NB: First, a call to action at the bottom — come back and read this after you’ve read the call. Don’t let last night’s tragedy swamp effective action; Congress continues its work no matter what tragedies befall the rest of us.

Having worked in both site and systems administration with responsibility for business continuity, I can’t help wonder why the post-hurricane response to Puerto Rico’s devastation was so bad — so bad it looks deliberate.

~ 3 ~

As an administrator, I looked ahead a year or more to mitigate both costs and risks to my employer and stakeholders. Budget roof repairs expenses for this year, budget roof replacement capital next year; replace the analog alarm system with digital system, budgeted last year. It’s pretty dull stuff but all it takes is one break-in, or one bad storm, and the losses from damage and business disruption could easily surpass capital and expense budgets combined.

But what of states and territories? State/territory, local and federal governments do what they can within the plodding framework of legislation, regulation, and budgetary requirements and restraints. Sometimes things just can’t be addressed preemptively, like major storms. Fortunately, there’s adequate monitoring to help predict when they will hit and what the likely impact will be, and there’s the awesome power of the largest military in the world to deploy as needed.

We have monitoring like NASA’s GOES satellite imaging, which visually tracked Hurricane Maria from birth to death as a weakened tropical storm.

And NOAA’s Hurricane Center, which makes accurate assessments of timing and strength of a storm’s impact.

Not to mention whatever additional monitoring and reporting the Defense Department had to offer.

We know with certainty the U.S. government was aware from NASA and NOAA reporting that Maria was a Category 5 storm as it approached Puerto Rico. The National Hurricane Center issued 17 reports over four days warning of the storm’s size, strength, and timing of landfall. I can’t imagine government agencies offering any less now than they did under the last administration.

And yet the Trump White House did virtually nothing to prepare for storm response.

You’d think that a guy with experience managing real estate and businesses for continuity would have utilized these best-on-earth notifications to mitigate and recover injury and damage to Puerto Rican Americans and their property. But for some reason this same guy now occupying the White House spent his time harping about NFL players and golfing instead.

~ 2 ~

This tweet thread crossed my timeline last week; I wondered who leaked and why there was so little followup, because the claim it makes is quite serious. (Click to expand the thread in Twitter.)

If this claim is accurate, the Trump White House sat on its tiny mittens and did absolutely nothing to approve a response to a major catastrophe which was expected with a very high degree of certainty to devastate an American territory home to ~3.5 million citizens.

If this happened five days AFTER landfall, was nothing done by the White House BEFORE Maria made landfall?

It’s not as if taking proactive action was difficult, either. I am certain government agencies and the Defense Department were ready to move with plans they’ve had prepared for some time, tweaked for this particular event. All it would take is a simple verbal Yes to proceed.

Or an executive order which we all know this White House can produce like so much facial tissue.

~ 1-a ~

All the monitoring and reporting provided to the White House, from NOAA and NASA to Defense Department, was budgeted and authorized by Congress for the purposes of serving American citizens. The public expects a level of performance for the taxes they pay; monitoring and reporting on weather and risks from weather are but part of their expectations.

American citizens expect and pay for their government to deliver effective and timely response when their domestic tranquility and general welfare are disrupted, whether nation-state or weather- and climate-based threats. They do not expect to be left without clean water, no minimum shelter, no emergency health care, let alone an empty wallet depleted by taxation which paid for common defense they didn’t receive.

Why have Puerto Rican Americans not received the same level of government responsiveness and services their fellow citizens have received post-hurricane Harvey and Irma?

Why can’t we get a straight answer about the White House’s planning in response to Hurricane Maria two to three days after landfall? Is it because the lack of any response is as bad as the lack of preparation — utterly missing, perhaps deliberately so?

At some point this isn’t about the White House and its executive function. It’s about Congress which has failed to ensure the executive knows exactly what is expected of it and what action should be nearly automatic from the executive office.

Oh, but that’s too much legislation, conservatives will say. No — it’s inadequate existing legislation which has incorrectly assumed for too long a competent manager will execute U.S. laws. It’s too many sick, injured, dying, dead Americans in the wake of ineffective governance.

And it’s inadequate action on the part of Congress to tolerate an incompetent executive.

To be concise, more than one branch of government failed Americans.

And those branches now have blood on their hands.

Do something about this before more Americans die. Do more than hold a hearing.

~ 1-b ~

By the way, FEMA’s Brock Long has proven himself an idiot. He should be given the boot.

An under-funded agency could land two rovers successfully on Mars and operate them for years to conduct research, but humanitarian response to a predicted hurricane utilizing the largest standing military on earth is too complicated? Fuck that.

And fuck this guy — I don’t even know who this pasty slack-handed suit is, but he can take his lies and shove them sideways. The storm did NOT cause you and your co-workers to be idiots and liars, boy.

~ 0 ~

Call to Action: Congress continues to work on bills regardless of the tragedy in Las Vegas or the growing catastophic death toll in Puerto Rico. Your efforts helped kill the last ACA repeal attempt formerly known as Graham-Cassidy. These are our next challenges.

CHIP expired at midnight Saturday night. Congress left for the weekend allowing health care funding for 9 million American children to expire. Not much better than President Cheeto going golfing while ignoring Puerto Rico. Call your representatives and demand CHIP funding be addressed immediately. Script for the Wyden-Hatch bipartisan CHIP bill here — note also you may need to call your state officials as well.

Net Neutrality is back on the bubble. FCC chair Ajit Pai has consistently attacked it throughout his brief tenure, sucking up to the telecom industry while ignoring the public’s best interests. Call your representatives and demand net neutrality be assured by voting NO on another five-year term for Pai as chair. Script for your call here. VOTE IS SCHEDULED TODAY — HURRY. Get a leg on this before AT&T persuades the Supreme Court to wade in.

Guns on schedule this week: a bill to approve the sale of gun silencers. Las Vegas’s mass shooting last night should be proof enough that “hearing protection” for shooters is the last thing Congress should worry about. The bill also allows the sale of armor-piercing ammunition. Hell, no. Script for your House rep, and script for your Senators.

A vote to make abortion illegal at 20 weeks on tap tomorrow. No. No freaking way. You may not like abortion, but read this piece — imagine the emotional and physical horror for a woman and her family as she is forced by law to carry a non-viable fetus to term. This decision should be between her, her partner, and her doctor. Make the call.

Congress’ switchboard number is (202) 224-3121. Don’t be like the guy in the White House when you can see action is needed.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

The Trump Trash Talking of Puerto Rico

This spot in our week here at Emptywheel is supposed to be a set aside for light hearted banter on sports, especially football and Formula One. That is what we have done since our beginning over a decade ago.

But I just cannot summon the enthusiasm for that right now any more than I could last weekend when the Trump racism and narcissism were already raging.

There are 3.5 million American citizens in the lurch in Puerto Rico, suffering from dehydration, starvation and death. Because of a fundamental lack of fuel to move, and communications to know, the full extent of the damage is still not really known.

So, what is the most powerful leader in the world doing? Tweeting a bunch of racially bigoted trash at the people and leaders of Puerto Rico. Here is what our disgrace of a President blasted off this morning:

That graphic was posted on Twitter by Josh Marshall of TPM, and his annotations are perfect.

Trump’s conduct is disgusting and unconscionable. From a man fiddling golfing while Rome burns Puerto Rico dies. What did the Mayor of San Juan, the largest population center and capitol hub of Puerto Rican government say? She begged for her people via a tearful plea to all of the federal government:

“We are dying, and you are killing us with the inefficiency and the bureaucracy,”

That would be Mayor Carmen Yulín Cruz. She also had the temerity to call out Acting DHS Secretary Elaine Duke who made the horribly insensitive and asinine comment that Puerto Rico is a “good news story”. For seeking to keep her constituents from dying and calling bullshit on the actual bullshit of Elaine Duke, Trump now thinks Mayor Carmen Yulín Cruz is the functional equivalent of Kim Jong-Un. Even insanity has rarely run this far amok.

Where will you find Mayor Carmen Yulín Cruz? Perhaps there is a photo somewhere in an office, but since the Puerto Rican crisis began, I have never seen her portrayed by the press, or anybody else, as being anything other than tirelessly out in the streets and flooded destroyed neighborhoods with her devastated constituents. Like a real leader would be. This photo is indicative:

Remember General Russell Honore, who brought some long past due seriousness and reality to Katrina in NOLA? He is in San Juan now. Here is what he had to say when questioned on Trump’s attack on the Mayor:

“The mayor’s living on a cot and I hope the President has a good day at golf.”

Can’t argue with that. Maybe Trump can secretly meet with the Puerto Rican bondholders he so cherishes that put their craven investments ahead of the lives of American citizens, while he is relaxing at his fucking golf resort this weekend. It is simply who he, and they, are. It should NOT be who we are though. This country is better than that.

I would also like to, again, point out that the much ballyhooed by Sarah Sanders and Trump Administration “Jones Act Waiver was a complete fraud and sham on the press, public and, most of all, people of Puerto Rico. There are effectively little more than SEVEN days left on Trump’s bogus waiver and gift to craven bondholders and rapacious shippers. Trump insured he got good press for a news cycle and completely stiffed Puerto Rico of any meaningful assistance via relief from the hideously oppressive Jones Act. Heckuva job Trumpie.

If you want a couple of fantastic pieces of reportage on Puerto Rico today, go see the Washington Post piece “Lost weekend: How Trump’s time at his golf club hurt the response to Maria” as well as the superb interactive overview from the New York Times, “One Day in the Life of Battered Puerto Rico”. You will be better for having seen both.

As to the games. Eh, Pirate Mike Leach and Washington State pulled off a serious upset of USC last night. Leach had his usual awesome take. As to the NFL, the focus seems to be more on the pre-game than the real games. I will note that Tom Brady’s first start was 16 years ago today. The Patriots have since won 5 Super Bowls, 14 AFC East titles and 185 of his 238 starts. Kid can play ball. Also, this weekend is the Malaysian Grand Prix at the Sepang Circuit. Hamilton takes pole and Vettel starts at back of the grid due to a bad engine. That likely ends the Drivers’ Championship battle for yet another year.

That is it for today. Rock on, and put the thoughts of our fellow citizens of Puerto Rico in your hearts.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Trump’s Belated Jones Act Waiver for PR Is A Sham, Here’s Why

Finally, after eight days of delay, and after Trump noting how powerful lobby groups were opposed, which he was clearly paying attention to, the Trump Administration this morning issued a Jones Act waiver.

But that waiver is a complete sham, and a stiff thumb in the eye of a crumbling and dying Puerto Rico. First, the official DHS announcement, then an explanation of the sham:

WASHINGTON – Early this morning, in recognition of the severe impacts on Puerto Rico from Hurricanes Irma and Maria, Department of Homeland Security Acting Secretary Elaine Duke approved a waiver of the federal Jones Act. The decision follows yesterday’s request from the governor of Puerto Rico and the Secretary of Defense’s determination that a waiver is in the interest of national defense. The waiver will be in effect for 10 days after signature and covers all products being shipped to Puerto Rico.

“This waiver will ensure that over the next ten days, all options are available to move and distribute goods to the people of Puerto Rico. It is intended to ensure we have enough fuel and commodities to support lifesaving efforts, respond to the storm, and restore critical services and critical infrastructure operations in the wake of these devastating storms,” said Acting Secretary Duke.

The Jones Act prohibits the transportation of cargo between points in the U.S., either directly or via a foreign port, or for any part of the transportation, in any vessel other than a vessel that has a coastwise endorsement (e.g. a vessel that is built in and owned by persons who are citizens of the United States). The last Jones Act waiver was issued earlier this month, for petroleum products to be delivered for relief assistance in anticipation of the effects of Hurricane Irma.

Now, as to the sham. The waiver is only for ten days, and that time starts immediately.

How long do you think it will take foreign ships to get loaded and travel to Puerto Rico from their point of origination? It will be days, if not weeks.

As a comparison, the US Navy ship USNS Comfort, leaving from Norfolk Virginia will take at least five, if not more, days to reach Puerto Rico. At a speed of 17 knots, the Comfort travels at about the speed of an average container or fuel ship.

Even if a foreign fuel or container ship was already loaded and ready to go this morning, it is clear that very few, if any, could arrive and unload in less that 5-7 days.

This means, at the very best, Trump’s “waiver” has maybe five days of use to Puerto Rico, an island of devastated American citizens that will be rebuilding and recovering for years.

Trump’s “waiver” is a public relations fueled sham.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.

Three Things: So Many Questions, September Edition

It’s been a little busy in my neck of the woods, trying to tackle a long accumulation of honey-dos. But questions piled up, needing answers, so much so that I had to take time out to put bits and pixels to digital paper. Let’s begin, shall we?

~ 3 ~
PUERTO RICO POST-MARIA

Where the hell is the USNS Comfort, dispatched in 2010 to help after Haiti’s earthquake, and why isn’t it docked in San Juan, Puerto Rico, right the fuck now?

Why did we send 24,000 military personnel to help Japan after the 2011 earthquake but can’t muster them for a U.S. territory with a former navy facility and an active facility at Fort Garrison in San Juan?

Is Trump deliberately ignoring Hillary Clinton’s plea to send the USNS Comfort to PR because — well, it’s Hillary? (Yeah. Check that link. Even Fox News noted Hillary’s request.)

Has Trump deliberately ignored Puerto Rico’s urgent plight out of personal pique over the bankruptcy and losses from a Trump-branded, Trump-managed golf course located in Rio Grande, PR? He was trying to prop it up on Twitter back in 2013.

Are Trump’s tweets complaining about Puerto Rico’s debt yet more projection, since the failed golf course was built with government-issued bonds?

Why did the Senate approve as FEMA director — who only left to tour the island FIVE GODDAMNED DAYS AFTER MARIA MADE LANDFALL — the man who was the Hurricane Program Manager for FEMA under the Bush administration during Hurricane Katrina?

This, from The New York Times:

The head of the Federal Emergency Management Agency, Brock Long, has received widespread praise for his handling of the federal response to Hurricane Harvey, the first major natural disaster faced by the Trump administration.

Somebody get me a concrete citation of a real accomplishment attached to some of this “widespread praise” for anything besides being “a calming presence in press briefings.” Has the bar slipped this low that calmly stringing together cogent sentences is worthy of accolades? Can the NYT stop fluffing Trump and his band of co-conspirators?

Because right now American citizens are suffering and likely dying as a result of this administration’s gross ineptitude and negligence, if not outright malignance.

Now Trump says he’s going to Puerto Rico next Tuesday. That’s TWO WEEKS after the storm. Can’t disrupt his golf game over last or the next weekend, don’t you know. What I particularly despise about Trump’s response to this crisis is that he makes this guy’s fly-by two days after Katrina look so much better.

Call your members of Congress and demand action. Yeah, that’s not a question. Suck it up; you’ve got electricity, communications, and access to clean water if you’re reading this. Millions of your fellow Americans in Puerto Rico don’t. Let’s fix this.

~ 2 ~
GRAHAM-CASSIDY-HELLER-JOHNSON NOT-A-HEALTH-CARE BILL

Have you called your senator and asked them to vote NO on the debacle Sen. Bill Cassidy can’t explain and over which Sen. Lindsey Graham is ruining any cred as a rational human being, while disabled health care activists recover from being hauled away by capitol police yesterday before the Senate Finance Committee’s hearing on the bill?

Have you documented and shared publicly your senators’ position on Graham-Cassidy, especially if they are up for re-election in 2018?

The number is (202) 224-3121 if you don’t have it memorized already.

Need a script to make it easier? Here you go.

As wretchedly bad as this obscene joke of a bill is, I can’t help wonder if GOP members of Congress and their staff are gaming this. Have they been working on something even worse than previous attempts at ACA repeal just to game the stock market and make a few bucks on the backs of worried citizens?

[graphic: Health Insurance stock chart, via Google Finance]

For grins you should look at Aetna’s chart for last Friday and note the jump it took when Sen. McCain expressed his reluctance to support Graham-Cassidy. Price jumped about the same time capitol police arrived to arrest protesters. Easy money, that, conveniently ahead of the market’s close.

~ 1 ~
IRAN ~AND~ PUERTO RICO

What question do these two disparate places prompt?

First, Trump tweeted about an Iranian missile launch as if it had ~just~ happened, within 24 hours of a reconstituted travel in which Iran is listed. But the missile launch ~didn’t~ just happen; it took place more than six months ago but was mentioned only this week in Iranian news.

Second, Trump took his fucking sweet time ensuring FEMA went to Puerto Rico; Hurricane Maria made landfall on September 20th, visible to anyone who watched weather networks, NOAA, and NASA reporting.

Is Trump ignoring any and all U.S. intelligence and government experts on matters foreign and domestic, relying instead on some other criteria for responding to events, including cable TV? Should we believe for a second he’s simply and accidentally flooding his source of information?

In the case of Iran’s missile program, it looks more like he deliberately used stale news to defend a new travel ban while making propagandistic false statements to the public. The Supreme Court canceled hearing the travel ban after the travel ban was rejiggered — does this suggest his manipulation of perception worked, not only on the public but on the Supreme Court?

~ 0 ~
One more time: call your Senators to ask NO on Graham-Cassidy and get their position on the record. Call your members of Congress to ask for urgent response and funding for aid to Puerto Rico. The number is (202) 224-3121. Put it on speed dial.

Viajar bien, mis amigos y amigas.

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

Did President Trump Violate Federal Law With His Alabama Rant?

I wrote yesterday about the racial, social and football implications of Trump’s rant in the history and home of George Wallace.

But a new, and by all appearances excellent, commenter on that post noted this:

“It occurs to me that his tweets are at least arguably in violation of 18 U.S. Code § 227. That section prohibits the POTUS (among others), from “attempting to influence or interfere” in a private company’s labor matter, to urge a “political” firing. This is especially true where the basis for the POTUS’s urging of the firing of such a private company employee (union covered, collective bargaining agreement governed) — is (as here) centered on protected political first amendment expression.”

So, is that right? Well, it is a LOT closer call than most would dismissively think. Let’s look at the language of the relevant statute, 18 USC §277:

18 U.S. Code § 227 – Wrongfully influencing a private entity’s employment decisions by a Member of Congress or an officer or employee of the legislative or executive branch:

(a) Whoever, being a covered government person, with the intent to influence, solely on the basis of partisan political affiliation, an employment decision or employment practice of any private entity—
(1) takes or withholds, or offers or threatens to take or withhold, an official act, or
(2) influences, or offers or threatens to influence, the official act of another,
shall be fined under this title or imprisoned for not more than 15 years, or both, and may be disqualified from holding any office of honor, trust, or profit under the United States.
(b) In this section, the term “covered government person” means—
(1) a Senator or Representative in, or a Delegate or Resident Commissioner to, the Congress;
(2) an employee of either House of Congress; or
(3) the President, Vice President, an employee of the United States Postal Service or the Postal Regulatory Commission, or any other executive branch employee (as such term is defined under section 2105 of title 5, United States Code).

Read the statute. It is a lot closer call than you think. Will Trump’s own Department of Justice pursue this? No, no chance, nor probably should it be. Is it a viable question, and one that ought be discussed in the public and media, yes, absolutely.

As sports law “experts” would say, let’s break it down. There are elements to a crime. Trump is unequivocally a “covered person” within the ambit of the statute. Also unequivocal is the fact that his words in Alabama were meant to influence “an employment decision or employment practice of any private entity”, in this case, the National Football League.

The problem lies in section (a)(1) of the relevant statute, which requires:

takes or withholds, or offers or threatens to take or withhold, an official act

It is easy to see and admit that Trump would do just that in a heartbeat. But Trump did not do that per se in his Alabama speech.

No. That element cannot be met by Donald J. Trump’s Alabama Song of hate. So, no, there is no exposure to 18 USC §227.

It is a great thought and question though.

And it is a perfect example of the precipice of racism, bigotry and ignorance on which the political discussion in the United States, and our Article II Executive Branch, courtesy of President Trump, nows perilously treads nearly every day.

The events and actions in and from the NFL today, tomorrow, and in the next few weeks pale in comparison. They are a symbol and a voice. But it is so much more and bigger than that.

Bmaz is a rather large saguaro cactus in the Southwestern Sonoran desert. A lover of the Constitution, law, family, sports, food and spirits. As you might imagine, a bit prickly occasionally. Bmaz has attended all three state universities in Arizona, with both undergraduate and graduate degrees from Arizona State University, and with significant post-graduate work (in physics and organic chemistry, go figure) at both the University of Colorado in Boulder and the University of Arizona. Married, with both a lovely child and a giant Sasquatch dog. Bmaz has been a participant on the internet since the early 2000’s, including active participation in the precursor to Emptywheel, The Next Hurrah. Formally joined the Emptywheel blog as an original contributing member at its founding in 2007. Bmaz grew up around politics, education, sports and, most significantly, cars; notably around Formula One racing and Concours de Elegance automobile restoration and showing. Currently lives in the Cactus Patch with his lovely wife and beast of a dog, and practices both criminal and civil trial law.