How Many Podunk Local DAs Ought to Arrogate Themselves Federal Election Police?

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For anybody that has read me here, or followed me on Twitter, you know I have maintained from the start that Fani Willis, and her “investigation” is a complete joke.

Have also maintained the Trump conspiracy actions in Arizona were as bad as Georgia, if not worse.

Apparently the national media has caught on to what informed Arizonans have known from the start.

Arizona Governor Doug Ducey was hit up by Trump (so was the then Secretary of State).

So, why is the ladder climbing Fani Willis the only local DA trying to enforce federal election law, much less her completely bogus RICO posit?

There are now people in Arizona clamoring for this horse manure. Thanks to Fani Willis and her self serving showboating garbage.

Fulton County, where Fani Willis is the local DA, has approximately 1.1 million county residents. Maricopa County, where all significant acts in AZ occurred, has nearly 5 million.

So, should every pissant local county prosecutor arrogate upon themselves to control and charge federal election crimes?

No. Nor should local AGs. Leave this to the Feds.

Things are getting just absurd.

On Judge Aileen M. Cannon

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The New York Times is out with a long, interesting, piece on SDFL Judge Aileen M. Cannon by Schmidt and Savage. I won’t call it a hit piece, but it is extremely negatively framed, and in some regards disingenuously so. For a news article, there is no way not to view it as a position piece.

“Aileen M. Cannon, the Federal District Court judge assigned to preside over former President Donald J. Trump’s classified documents case, has scant experience running criminal trials, calling into question her readiness to handle what is likely to be an extraordinarily complex and high-profile courtroom clash.

Judge Cannon, 42, has been on the bench since November 2020, when Mr. Trump gave her a lifetime appointment shortly after he lost re-election. She had not previously served as any kind of judge, and because about 98 percent of federal criminal cases are resolved with plea deals, she has had only a limited opportunity to learn how to preside over a trial.”

That is the opening salvo. Okay, Cannon is a newish federal judge. So what? You take your federal judges as you get them, not as you want them. Criminal trials are not the only trials federal judges do, they also do civil trials. And complicated criminal hearings, including evidentiary ones, pre-trial that most often lead to pleas. The NYT did not delve into that, to any extent it may exist. The fact Cannon has only four criminal jury trials is not shocking in the least. Importuning that she is incompetent because of that is lame.

In Arizona state courts, I have Rule 10 right to notice a change of judge as a right within 10 days of arraignment or assignment of judicial officer.

There is no such availability in federal court. You get what you get. TV lawyer gadabouts like Norm Eisen are shouting that Cannon MUST recuse, and if not Smith must affirmatively move for her disqualification. Based on a ruling in a short civil matter involving Trump previously. Granted her action in that matter was dubious, to be overly kind. But even the hideous 11th Circuit slapped that down, and she complied with the edict. This is a non-starter, and Smith would be an idiot to attempt it. Attempt that and lose, and you almost certainly would, now you really have a problem.

Would Cannon self recuse? There is no evidence of that to date. My friend Scott Greenfield thinks she should for the sake of her career, while acknowledging there is little to no chance of forcing her off like windbags like Eisen clamor for.

I, which rarely happens, disagree with Scott. It would torpedo her career and be a tacit admission she is a right wing nut job incapable of presiding over any partisan issues. That would not be a good look, does not look like a career enhancer in a jurisdiction like SDFL to me.

Back to the NYT article. It reports:

“But the chances appeared low. Under the Southern District of Florida’s practices, a computer in the clerk’s office assigns new cases randomly among judges who sit in the division where the matter arose or a neighboring one — even if the matter relates to a previous case. Nevertheless, Judge Cannon got it.

That is completely contrary to the facts as I understand them. As I have related in comments previously, anybody who took the job seriously enough to check with the clerk’s office, and current status of the SDFL bench could have seen this coming. Not just as a freak chance, but arguably a likelihood. Smith chose to put his eggs in that basket, and did so.

Another portion of the report literally made me roll out of bed and laugh:

“At the same time, they said, she is demonstrably inexperienced and can bristle when her actions are questioned or unexpected issues arise. The lawyers declined to speak publicly because they did not want to be identified criticizing a judge who has a lifetime appointment and before whom they will likely appear again.”

Seriously?? That describes pretty much EVERY federal judge I have been in front of, irrespective of how long they have been on the bench. This is completely silly land.

Here is another one:

“The Trump case is likely to raise myriad complexities that would be challenging for any judge — let alone one who will be essentially learning on the job.

There are expected to be fights, for example, over how classified information can be used as evidence under the Classified Information Procedures Act, a national security law that Judge Cannon has apparently never dealt with before.”

Seriously? There are a LOT of very experienced federal District judges that have never had to meaningfully deal with CIPA at trial. And most of the ones that have are in DC or EDVA. Again Smith chose this locus, he, and we, will have to live with it. So too should the NYT instead of posting up a somewhat dubious and negative filled report.

The Times report goes on to belittle Cannon’s background and qualification to even serve. But Cannon is nowhere near as bad as many of Trump’s appointments. She is a graduate of Duke and then the University of Michigan Law School. She worked for years at Gibson Dunn and as an AUSA. She is fully qualified, even if you think she should not have been nominated. And the NYT citing “ABA” ratings as still being relevant in any regard seems quaint, at best.

Read the NYT article. I am sure it will inflame your passions. But this is federal court, and the law, where not your passions control things. Am I warm and fuzzy about Judge Aileen M. Cannon? No, not whatsoever, but that is irrelevant. Here is where the issue is, for better or worse. Unless Cannon self recuses, that is where it shall remain.

Jack Smith Knows his Justice Robert Jackson

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Justice Robert H. Jackson, lead US prosecutor at Nuremberg

Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.

The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.

Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.

But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:

We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.

[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]

As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.

Books and records . . .

Vanity and photographs . . .

“You will see their own conduct and hear their own voices . . .”

What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.

It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:

From 2008 to 2010, Smith worked as Investigation Coordinator for the Office of the Prosecutor of the International Criminal Court in The Hague.[11][10] In that position, he oversaw cases against government officials and militia members accused of war crimes and genocide.[3][9] 

[snip]

On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]

You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.

In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:

The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.

“Men of station and rank . . .”

“men who knew how to use lesser folk as tools . . .”

“reach the planners and designers, inciters and leaders . . .”

Marcy called the Trump indictment a “tactical nuke” and she explored how it ramps up pressure on Walt Nauta to come clean. But more than that, I see it as Jack Smith channeling his inner Justice Jackson.

Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.

Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.

Where Is The Proud Boys Verdict?

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Friday has come and gone without a jury verdict in the Proud Boys case in front of Tim Kelly in DC District Court.

Couple of days ago, somebody asked me when I expected a verdict. That is fools’ play, but I said probably Friday because juries want to get on with their lives, and not come back, yet again, the next week.

Apparently I got that all wrong. Go figure.

So why did the PB jury blow past an obvious chance to be done? I do not know that either, but there is a fair chance it is not about ultimate guilt or innocence, but about multiple defendants and the complexity of the seditious conspiracy charge so many people (even here) have long clamored for.

Sometimes you get what you asked for, and that may be the case here. Counts, charges and jury instructions matter. I hope that is not the holdup here, but very much fear it could be. And that is what happens when you do not keep things narrow and strong.

We shall see.

The Michael Flynn Complaint For Damages Against The US

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As commenter David F. Snyder noted yesterday, yes Michael Flynn has filed a complaint for $50,000,000 damages against the US Government for all the perceived wrongs and grievances that he, his unhinged lawyers like Sidney Powell, and rabid MAGA Republicans have been carping about forever. A thread on this started out in Marcy’s “JUDGE UNSEALS DETAILS ON COOPERATING WITNESS IN DOUGLASS MACKEY CASE”, but I am going to bring it here so as to not pollute that post and give people a place to discuss Flynn.

I took a look at the docket for the fledgling case. It is filed in the Middle District of Florida, where Flynn resides. That is the only discernible nexus to MDFL as pretty much all facts, actors and witnesses would be in or about the DC District. Here is the docket entry for the complaint, which was actually filed on March 3, 2023:

NEW CASE ASSIGNED to Judge Mary S. Scriven and Magistrate Judge Christopher P. Tuite. New case number: 8:23-cv-0485-MSS-CPT. (SJB)

The complaint itself is attached to this Rolling Stone article by a detestable SCRIBD (seriously, nobody should ever convey documents by SCRIBD). It is 50 pages long, and I am not wasting my PACER account on it.

Marcy, in the earlier thread, said:

Not only does it not have legs, but if it survives the summary judgment stage (which is unlikely) it may catastrophically backfire on him.

I think that is right, but the case may not ever get that far. It may not even make it to a summary judgment motion, as it may well not make it past a 12b6 motion, which would be the initial attack by the government.

Couple of notes, the complaint alleges compliance with the FTCA (Federal Tort Claims Act), but claims the government never responded. Scriven is a Bush Jr. appointee and Tuite a Trump appointee to the magistrate bench. Sid Powell is noticeably absent from noticed attorneys, but Shawn Flynn, son of Michael’s brother, Gen. Charles Flynn, is listed. That could be interesting if Charles is to be a fact/damages witness, which would kind of be expected.

Very hard to see this matter gaining any real traction given all the facts and rulings against Flynn in the underlying criminal case in front of (now senior status) Judge Emmet Sullivan of DC District.

Where Is The J6 Committee Beef?

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From the Washington Post up all night desk:

Many close observers of the Jan. 6 committee are still looking for testimony transcripts, particularly with key White House advisers and campaign aides. Transcripts involving most of those names are still unreleased — and have been promised in the coming days. Many days of testimony by Trump aide Cassidy Hutchinson are not yet out, nor are transcripts for Trump’s family, lawyers and top campaign advisers. The committee talked to a remarkable number of people, and their exact words will be closely examined when the transcripts are released — including by Republicans looking for ammunition against the report.

Yeah, where are those?? It is Christmas weekend and they have released a whopping 34 of their supposed 1,000 or so transcripts. Why are they dribbling them out when their work is done? Have they given it all to the DOJ yet? My understanding is no, but cannot confirm that. DC, including DOJ, are going into holiday mode and this goofy Committee is still playing keep away. Why? What the hell are they doing? This is just ridiculous.

Three Questions at the Start of an Intelligence Review

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Why? Why? Why not?

There’s been a lot of focus on the narrow legal battles over the documents seized at Mar-a-Lago, but sometimes stepping back to look at the big picture helps bring the conflict into focus. As a legal matter and a political matter, Trump, his lawyers, and his apologists are trying to make the claim that this is just a dispute about documents, like overdue library books. The passion with which the DOJ went after them since receiving the referral from NARA last February, especially the ferocity of the legal arguments and filings over the last two weeks, demonstrates how wrong the DOJ believes that framing to be.

I agree with the DOJ.

The documents are not really what is being fought over — the battle is over the damage  (hypothetical or actual) done to our intelligence services, our national defense, and our broader foreign policy by Trump’s possession of these documents at Mar-a-Lago. The documents are the first puzzle pieces the intelligence community [IC] has to put together, to fill in the whole picture and plan a way forward.

To understand why, let’s parse out what an intelligence review might look like. What follows is not based on any insider sources at the DOJ, ODNI, or any other federal agencies, but on my own experience (long ago) with classified materials and the general experiences of others I know with deeper and more recent work in classified matters, as well as analyzing other cases where classified materials were stolen from the government and passed along to foreign governments.

An intelligence review is designed to look at three things: what got exposed, to whom, and what dangers does that pose to intelligence sources, methods, and broader foreign policy objectives? These are all backwards-looking questions, to understand how this could have happened in the first place. They also serve as the starting point for forward-looking actions, as we and our allies pivot our overt and covert foreign policy approaches in a new context. Think of Klaus Fuchs, a German-born British scientist who passed US and British nuclear secrets to the USSR in the 1940s. A backwards looking intelligence review ultimately identified him as the spy and spotted the flaws in our security procedures, and a forward looking review pivoted the US and British policy toward a world with nuclear powers who opposed each other.

In the current case, the IC review begins with three interrelated questions:

  1. Why did Trump take government documents to Mar-a-Lago in the first place?
  2. Why these documents?
  3. Why not those other documents?

The second and third questions begin to move toward an answer to the first question, so let’s start there. Broadly speaking, I see five possible answers, each of which poses different dangers.

1: Vanity

If this is the answer to that first question, we would expect to find that Trump took documents that made him look good, that pointed to actions that he believed he could claim credit for, or that simply let him feel powerful because he knows stuff very few others know. Think of these as Extreme Presidential Souvenirs. These would be documents that shout to the world, “Look at how great Trump is . . .”

Danger: Simply having documents like this in his possession would likely not be enough for Trump’s ego. Trump’s ego would demand that he show them to others, so that they would know how great Trump is. The level and kind of danger depends on who the “others” are, and who they might have spoken to about what Trump showed them.

2: Fear

In this scenario, the IC review would see that Trump took documents that would help cover up his failures and/or possible crimes, such as a full transcript of the “Perfect Phone Call” with Zelenskyy. These would be documents that whisper in Trump’s ear, “This could get you into trouble. You better hide this . . .”

Danger: These are the documents least likely to be shared by Trump, so in that respect they are safe. On the other hand, they become prime material for blackmail if unfriendly parties realize he has them. Trump’s nightmare is getting a phone call about these documents, threatening to expose the documents to the “wrong” people. “I’d like you to do me a favor, though . . .”

3: Greed

Given Trump’s proclivity to monetize anything he can for his own personal gain, it is hard to imagine that Trump would not be looking at anything that crossed his desk to see how he might make money on it. (“Hmmm . . . I’m doing some traveling? OK, which of my properties are closest, and how much can I charge the Secret Service for staying there?”) Documents that showed him something that would let him make money would be particularly tempting to Trump. Think of this as corporate espionage, or a twisted form of insider trading. Perhaps he received knowledge of foreign government’s as yet unannounced plans to develop certain properties overseas, and figured he could jump in, buy the property first, and then get bought out for a profit. Or maybe he would buy the property next to the future development and cash in when the government project became public and went forward, driving up the value of what he purchased. Perhaps these were not projects led by foreign governments, but by US corporations acting abroad whose plans were picked up as part of a signals intelligence surveillance program aimed at less-than-friendly nations. Documents like this would be calling out to his wallet, telling him “Hey, you can really use this . . .”

Danger: Suppose Trump acts on this information in some way, and the foreign government in question starts wondering “Did Trump merely get lucky in choosing to invest right where our project was going in, or did US spies give him the information?” Questions like that might lead to the exposure of human assets (sources) and signals intelligence capabilities (methods), which in turn could lead to those sources being shut down/arrested/killed, those signals intelligence methods being countered, or either the sources or methods being turned and used to feed false information to the US.

4: Corruption

As bad as #3 is, this scenario is the IC nightmare: Trump took documents that he knows other foreign governments, perhaps some of our greatest enemies, would love to have, and then deliberately passed them along to those governments. It might be to get revenge on Biden and the Dems for beating him in 2020. It might be to sabotage the work of the current administration and cause great public political problems for the Dems, to enable his return to the White House in 2024. It might be that some foreign adversary has compromising information about Trump or holds a private loan to Trump, his family, or his Trump Organization, and that country demanded classified information from Trump in exchange for not revealing the compromising information they hold or for not calling in the loan he could not immediately repay.

Danger: Beyond the damage done to sources, methods, and US foreign policy objectives created by disclosing the classified information in these documents, this scenario is worse. It weakens our relationships with our allies and harms our position in the world, simply by indicating we can’t keep secrets and by making us weaker through whatever is revealed. Should Trump have provided classified intelligence deliberately, it only gives those folks more leverage over Trump, which they would use to push for more information and more favors. Once you’ve turned over classified information to a hostile power, those folks own you forever. “Nice resort you’ve got here. It’d be a shame if anything were to happen to it.”

And it is not beyond the realm of possibility that foreign governments might lean on Trump to use his family to further their goals. “You need to have Jared talk to his friends in the Middle East, and convince them to . . . “

5: Some/all of the above

Trump might have taken some documents to feed his ego, others to hide them, and still others to try to monetize their contents. He might have taken some for his own reasons, and others because he was pressured to do so by hostile powers. The permutations are . . . troubling.

Danger: some/all of the above.

HOW BAD IS ALL THIS? DON’T ANSWER YET . . .

On top of these five possible explanations of Trump’s motives, one other thing is absolutely certain. Documents like those that were seized by the DOJ would have been catnip for the intelligence agencies of other nations. Once word got out that Trump had taken highly classified documents out of the WH (or once folks even suspected he had done so), all manner of foreign spies no doubt became very interested in Mar-a-Lago – much more than they had been during the Trump administration itself. It’s hard as hell to get into the WH and take classified materials, or to plant electronic surveillance devices inside the WH. Mar-a-Lago, on the other hand, is a relative sieve, especially after Trump left office and the security around Trump was much more directed to protecting his person rather than protecting all the stuff around a sitting president. At Mar-a-Lago these days, you pay your membership fee, and walk right in for a grand tour. Whatever the reason Trump chose to take these documents, even if he simply wanted to hold onto them as presidential souvenirs and he does nothing with them otherwise, should foreign agents copy them or steal them from Mar-a-Lago, that’s almost as bad it as it gets for the US.

Danger: Exposing whatever classified information to the prying eyes of our adversaries not only exposes sources and methods of our intelligence services, but provides our adversaries with insight into our strengths and weaknesses, depending on what the intelligence said. It also opens Trump to blackmail, as noted above in scenarios #2 and 4. “Well look what we found at your home. It sure would be terrible if the FBI were to discover that you were so sloppy with security that we were able to waltz right in and take them.”

To sort out the likelihood of each of these scenarios and the specific dangers posed, those conducting the IC review will do a couple of things. First, the leaders of the intelligence agencies are likely going back to the original creators of these documents, to tell them they were found in unsecured locations at Mar-a-Lago, and therefore (a) the creators need to assess what the specific danger would be if this particular document were to be exposed, and (b) the creators should look around to see if they have any signs that these documents had been shared already. The former is to measure the hypothetical damage, while the latter is to assess the likelihood that this is not hypothetical. Did spies suddenly go quiet, or did the quality of their information suddenly become different? Did satellites that used to provide good, regular photos of intelligence targets begin to provide much less good intelligence? All the while, the IC reviewers know that this is likely even worse.

EVEN WORSE? HOW CAN THIS BE EVEN WORSE?

If any of this information came to the US IC through our partnerships with other friendly nations (like Five Eyes or NATO), that means going to the intelligence folks in those countries who trusted us with their secrets and telling them that their trust was misplaced, at least while Trump was in office. They are the folks who need to assess the danger that exposure of this information would create, and who would have to see if there were signs that this information had already been shared. Of course we would promise to do whatever we could to assist them in that analysis, but that’s like telling a shopkeeper that you will help sweep up the shards of all the broken crystal after your kid threw a bowling ball into the display case.

Danger: It’s bad enough if our secrets get exposed, but if we let their secrets get exposed, that’s going to make them less likely to trust us in the future. As I said before, this is why having career diplomat William Burns as head of the CIA was a stroke of genius by Biden, and why Burns and the rest of the IC is no doubt bending over backwards to help Garland get this right, and bending farther over backwards to help our allies get this fixed.

SO HOW MIGHT THIS REVIEW WORK?

This is why the analysis of what was taken and trying to determine Trump’s motive(s) is the starting place. It leads to other critical questions like these:

  • What does Trump’s selection of documents — classified and unclassified — tell us about what is going on?
  • Were the documents tucked away by Trump over a long period of time, or did they all get tucked away in a specific, relatively short time period?
  • And what else was tucked in the drawers, file folders, and boxes next to these classified documents? Are there notes or letters that appear to have been written based on the content of the classified materials?

Depending on what this initial analysis reveals, the reviewers will begin to talk to the counterintelligence people in their agencies, especially if there is some concentration of subject matters or particular time frames involved.

  • Have you noticed any unusual behavior in known foreign agents around those time frames?
  • Was there any unusual signals traffic between foreign agents here and their bosses back home?
  • Were there any new agents who arrived here, who have a particular focus to their work that meshes with the subject matters of the documents Trump took? What actions have they taken?

To dig into all this, the analysts will be looking at other information and also be in contact with the folks in the field who are managing the human sources or electronic surveillance methods, to see what insights they might have. They know that decisions will need to be made about protecting or extracting sources who might be in danger, shutting down electronic surveillance already in place (pull out/relocate bugs and cameras if possible, re-direct satellite orbits, change communications frequencies, reprogramming software, etc.), and otherwise working to replace these sources and methods in some way to avoid further exposure. They hope to restore secrecy to the people and programs, and restore quality to the intelligence that might have been harmed through exposure.

While all this covert review work is going on, the FBI will no doubt be doing an ordinary shoe-leather investigation into the folks who have been going in and out of Mar-a-Lago over the last 18 months after the security of the resort was scaled back to simply protect the former president. They will be looking at guests and staff alike, trying to see what can be learned from videos, logs of visits, work schedules, and in some cases interviews. They will be looking at the White House document handling, especially after December 18, 2020 when the head of the White House Office of the Staff Secretary resigned and no one was named to take his place — even in an acting capacity — until January 20, 2021. They will be doing deeper domestic investigations of any new foreign agents that were identifies by the IC analysts.

And then there’s the investigation that NARA is probably already trying to complete: what other documents from the Trump White House were not turned over?

This is all very time consuming and expensive. You don’t want to do this if it isn’t necessary, but you absolutely have to do it if these sources and methods are likely to have been (or actually were) blown. Only when the Why?, Why?, and Why not? questions have been answered can the forward looking work really begin in earnest.

There’s a lot more that can be inferred about what an intelligence review would contain, but one thing is certain. The panel of judges from the 11th Circuit Court of Appeals and Special Master Raymond Dearie are focused on what Judge Cannon does not want to recognize: this is not a case about misfiled documents, but a national security case in which documents hold the key to assessing the dangers posed and actual damage done to our nation, so that the current government can begin to address it.

What Family Rifts at Funerals can Teach Us About Pardoning Presidents

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Exhibit A of Step Two Behavior

Watching the coverage of the death of Elizabeth II, two questions seem to be on a constant loop. The first is political: “How will Charles change the monarchy?” The second is personal: “Will the funeral heal the rift between Harry and William/Charles/the rest of the family?” The discussions that follow, between television anchors, reporters, and “royal watchers” have provided me with great amusement. “Oh look: Charles said something nice about Harry and Meghan in his first broadcast after the Queen’s death! Perhaps all is well again!!” The wishfulness of the discussion — “Surely the funeral of their beloved mother/grandmother will bring the family together, and they can heal from the past unpleasantness” — says much more about the hopes that these media folks have and much less about the reality of how a family torn apart acts as a family funeral approaches.

As a pastor for more than three decades, I’ve never done a royal funeral, but I’ve done plenty of regular funerals, including those of matriarchs who had presided over a divided family. Most of the time, what I’ve seen is that either (a) the family members manage to sit on their frustrations with one another for a week or so as the funeral goes forward, and then they return to their earlier fighting, or (b) the funeral intensifies the fighting, as they argue about the decisions made around the funeral itself. Occasionally, the funeral does help to begin a healing process, as folks who have not seen “those monsters” in years are now in the same room for the first time again, and they realize that these other folks aren’t the monsters they have seen them to be in the past. It doesn’t happen five minutes after the burial, but with a willingness to work on both sides, healing is possible. But it sure isn’t the magic “If only Harry and William can sit next to each other at the funeral, everything will be fixed!” that so many commentators are looking for.

Which brings me to the other crazy question I’ve seen popping up more and more often between anchors, reporters, and political pundits. This is the question posed by Chuck Todd that NBC chose to highlight as they tease the Meet The Press interview with VP Kamala Harris that airs in full tomorrow:

Let me try to go to 60,000 feet. What do you say to the argument that it would be too divisive to the country to prosecute a former president?

Earth to Chuck Todd, and anyone else who asks this question: the country *is* deeply divided already.

Giving Trump a pass to “avoid division” is like that scenario (a) at the family funeral, except you are betting that everyone can sit on their frustrations not for a week but forever. Turning the question around — “Would it be too divisive to the country to give a former president a pass for illegal behavior?” — ought to make it clear how silly both questions are.

Step One in dealing with divisions — either at a family funeral or in national politics — is admitting your family/nation is already divided.

As an interim pastor, I work with congregations whose previous pastor has left. Maybe that pastor retired, died, took a new call elsewhere, or was run out of town on a rail. One of the things I often have to help the congregation deal with is conflict, either between the old pastor and the members, or between the members themselves. Whenever I hear “Yes, we had divisions, but now that the old pastor is gone, everything is just fine now” I have to figure out how get them to pull their heads out of the sand. “What’s going to happen when you disagree with your next pastor?” I ask them, knowing that for the immediate future, I am that next pastor. “What do you have to say to the folks around here who loved that old pastor and blame you for running that pastor off?”

Within the House of Windsor, simply coming up with the right seating chart at the funeral for Elizabeth will not wash away the pain that led the Duke and Duchess of Sussex to withdraw from royal duties and decamp to the US. Similarly, pardoning Trump, either by choosing not to prosecute or by an act of President Biden, will not heal the nation either.

What *will* help both the House of Windsor and the United States is to admit that divisions already exist.

Step Two in dealing with divisions, then, is to explore that divided reality. What, specifically, does that painful divided reality look like? What are the presenting issues, that anyone can see at the surface? What are the underlying issues, that lie deeper down, at the heart of the trouble? What are the triggers, that bring all that buried pain out into the open again? How is everyone being hurt by these divisions?

Looking at all that is not easy. It requires a willingness to dig into a painful past, to admit to past bad behavior (your own as well as that of others), and to accept just how bad things have gotten for everyone involved. Until you do that, all you are doing is papering over division and pretending things aren’t that bad.

In the US, the arguments about race and the causes of the Civil War are a perfect illustration of this. So long as a non-trivial part of the country denies that the Civil War was about slavery (“it was the war of Northern Aggression, fought over state’s rights”), our country will never be able to fully deal with how race continues to divide our country today. If you don’t think racism divides our country today, please go back to step one and try again.

Only when the divided congregation or family or nation has done the hard work of examining its own ugly past are they ready to move to Step Three.

Step Three is to look at what you’d like the future to be. What would a healthy House of Windsor look like? How would members treat one another, in ways that are different than what caused the fractures in the past? What would a healthy United States of America look like? How would those with different political views treat one another, in ways that are different from what caused the fractures in the past?

Step Four, then, is to figure out how to get to that future. That’s a conversation about rules, roles, and responsibilities, with unstated assumptions put out in the open and mixed expectations clarified. It’s about crafting behavior that rebuild trust, dignity, and belonging for everyone involved.

The big lesson in all of this is that THERE IS NO SHORTCUT.

You can’t just jump to step four, without doing all the work of the other three steps. You can try, but you’re just sticking your fingers in your ears and singing “La la la – I can’t hear you.” You don’t need to take my word for this. Just look at the House of Windsor.

When the Duke and Duchess of Sussex announced they were leaving their royal roles behind, that was Step One behavior. “Our family is painfully divided.” No more smiling masks, no more pretending all is well, and no more trying to ignore the pain.

When they sat down for their interview with Oprah, that was Step Two behavior. “Here’s what happened, at least from our point of view.”

Ever since then, the royal family had various private conversations to sort things out further, including such things as whether Harry and Meghan would be part of the Platinum Jubilee celebration last summer. (The answers at that time were that they were included in small family gatherings, but not the big public ones.) Now they are having similar conversations around the Queen’s funeral and the coming coronation ceremony that will follow in a few months. This is all Step Three and Step Four behavior.

To the extent that things are getting better for the House of Windsor, it’s because they’ve been working hard at Steps One through Three, not that they simply came together magically at a funeral and jumped to Step Four.

The US political press and political actors could learn a lot from the House of Windsor. Those who worry about prosecuting a past president need to recognize that this doesn’t cause division, but is a step along the way to healing – part of the hard work of Step Two that explores the divided reality in all its painful, ugly depth. The work of the January 6 Committee in the House of Representatives is Step Two behavior, and so is the work of the DOJ to investigate possible criminal behavior of the former president and his minions.

Until we as a nation are willing to honestly look at our ugly reality, we will never heal.

 

The Redacted Mar-a-Lago Affidavit DOJ Should Submit

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As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.

Merrick Garland Preaches to an Overseas Audience

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Alexander Vindman thanks Attorney General Garland

When Merrick Garland gave his brief press statement yesterday about the search of Mar-a-Lago, he had various audiences in mind. One was Donald Trump and his defenders, calling their bluff by announcing that the DOJ was moving to unseal the search warrant and list of items seized. Another was his own DOJ employees, to let them know that he had their backs and would support them when the rightwing attacked them. But as I listened to him, I thought that perhaps the most critical audience were the leaders of nations all around the globe — and especially the heads of their intelligence services. When hours later the story broke that some of the documents the DOJ were seeking were nuclear related, I dropped the mental “perhaps”. To build on one of Marcy’s previous posts, let me add that this is a huge foreign policy story, which is largely missing from the current discussion in the media.

Think back to the beginning of the Trump administration. On May 15, 2017, a disturbing story hit the news:

President Donald Trump disclosed highly classified information to Russia’s foreign minister about a planned Islamic State operation, two U.S. officials said on Monday, plunging the White House into another controversy just months into Trump’s short tenure in office.

The intelligence . . . was supplied by a U.S. ally in the fight against the militant group, both officials with knowledge of the situation said.

H.R. McMaster categorically denied it, and as the story unfolded over time, McMaster was lying through his teeth. The unnamed ally was later revealed to be Israel, who had a mole inside an ISIS cell. And Trump blithely blew the cover of that Israeli asset by bragging to Lavrov.

Shortly after this meeting (at which Trump also bragged about just having fired James Comey), US intelligence officials made a bold move. From CNN:

In a previously undisclosed secret mission in 2017, the United States successfully extracted from Russia one of its highest-level covert sources inside the Russian government, multiple Trump administration officials with direct knowledge told CNN.

A person directly involved in the discussions said that the removal of the Russian was driven, in part, by concerns that President Donald Trump and his administration repeatedly mishandled classified intelligence and could contribute to exposing the covert source as a spy.

The decision to carry out the extraction occurred soon after a May 2017 meeting in the Oval Office in which Trump discussed highly classified intelligence with Russian Foreign Minister Sergey Lavrov and then-Russian Ambassador to the US Sergey Kislyak. The intelligence, concerning ISIS in Syria, had been provided by Israel.

This was the opening act of the Trump presidency. From the very beginning, intelligence officers worried about how Trump handled classified information. Our intelligence officers worried, and so did the intelligence officers of our allies, as they asked themselves some version of the question “Will Trump say something or do something that will get us killed?” In a completely different way, so did the intelligence officers of our adversaries. If Trump were to rashly reveal something he learned about the capabilities of our adversaries, it could have disastrous consequences for those countries and their leaders, as the reaction to the revelation could easily spiral out of control in unforeseeable ways.

And the damage was done.

A lot of the work of intelligence services is, if not cooperative, then transactional. “I have some information you would like,” says an ally to us, “and we’ll pass it along to you in exchange for something we need.” That favor might be us passing information back to them on another subject, or supporting some foreign policy objective. That favor might be immediate, or something later. Among the Five Eyes nations (US, UK, Australia, New Zealand, and Canada) and the major NATO allies, that relationship was formalized into regular practice.

But now, with Trump’s first foray into intelligence matters, all these countries worried about passing things along that under previous administration they never would have hesitated to share. With good reason.

Fast forward four years, past all the bizarre meetings with Russia where notes were not taken, past the stunning press conference in Helsinki where Trump declared he trusted Putin’s word over the word of his own intelligence services, past all the coddling of authoritarians, past all the threats to withdraw from NATO, past all the insults to our allies around the world . . . Fast forward past all of that, and there came November 2020. On the Sunday after the election, when Biden was declared the president-elect and foreign leaders began to offer their congratulations, the New York Times discussed the deeper reactions of European leaders to Biden’s election:

David O’Sullivan, former European Union ambassador to the United States, said he looked forward to a renewal of American leadership — if not the hegemony of the past, then at least “America’s role as the convening nation” for multilateral initiatives and institutions.

But the world has changed, and so has the United States, where the Biden victory was relatively narrow and not an obvious repudiation of Mr. Trump’s policies. A fundamental trust has been broken, and many European diplomats and experts believe that U.S. foreign policy is no longer bipartisan, so is no longer reliable.

Biden, with his decades of experience with foreign policy, knew this was true, which meant that two of his most critical appointments would be his Secretary of State and his CIA Director. For State, he chose Anthony Blinken, who had served in the State Department under President Clinton and on the White House national security staff in both the Clinton and Obama administrations, and for CIA he chose William Burns.

Burns was not a product of the intelligence community. He was a career State Department diplomat, but not just any diplomat. From 2001 to 2005, as the US reacted to the attacks on 9/11, Burns was the Assistant Secretary of State for Near Eastern Affairs — that is, the Middle East. From 2005 until 2008, as Vladimir Putin tightened his hold of the office of President of Russia following the chaos of the Yeltsin era, Burns was the US Ambassador to Russia. From 2008 to 2011, Burns held the position of Undersecretary of State for Political Affairs – the #4 position at State and the highest office reserved for a career foreign service officer. By the end of his 32 year tenure, he held the rank of Career Ambassador – the State Department’s equivalent to a four-star general.

Beyond running the CIA, the new director had to rebuild all those broken international relationships and restore that “fundamental trust” between the US and the world. That’s what made Burns such a great choice.

When the National Archives discovered classified information had not been turned over when Trump left office, they brought the news to the DOJ. I have this vision of Garland swallowing hard, and then arranging a meeting with Burns, DNI Victoria Nuland Avril Haines [corrected], and the other US intelligence agency heads to let them know what Trump had done. I can see the shock on their faces, followed by the “of course he did” sighs of resignation. Then the wheels start turning as each tries to figure out how this affects their agency.

But I also imagine Burns, either in the meeting or in a private conversation, telling Garland one thing: “I have no doubts about your department and your passion for justice. If there is anything I can do to assist, just let me know. I won’t press you to share things with me that you shouldn’t share — you do your job and I’ll do mine. But there’s one thing you need to know. You may already know it, but let me reinforce it. The. Whole. World. Is. Watching. Our allies are just beginning to trust us again, and how you handle this will determine whether that continues or is blown to bits. From a foreign policy perspective, especially on the intelligence side, we *have* to get this right.” That’s total fantasy on my part, but I’m reasonably confident that something like that was communicated, one way or another.

Two days ago, when the search was first revealed, Garry Kasparov tweeted, “For those who live where the law exists only to serve the powerful and oppress the rest–as I did in the USSR and Putin’s Russia–the dictum that no one is above the law is nearly awe-inspiring.”

The American legal community is watching this all unfold very carefully, with an eye toward all the minutia of the various legal questions at issue. The US political folks on every side are watching this carefully, with an eye toward the midterms and 2024. US media organizations are watching this carefully, trying to figure out how to cover the story. Ordinary Americans are watching this carefully, for all kinds of reasons.

And beyond our borders, the whole world is watching, as that Kasparov tweet indicates. It shows that Garland is reaching that worldwide audience, even before the word “nuclear” became part of the story.

In his long-ago testimony before Congress about that “perfect phone call,” Alexander Vindman captured in three words the essence of US foreign policy, and he repeated them as a hashtag in that tweet above. In the actions of the DOJ this past week, Garland is giving Vindman a big “Amen.”

Russia, if you’re listening, listen to Vindman. #HereRightMatters indeed.

I know we’ve got a fair chunk of readers outside the US, and I’d love to hear in the comments what you all are seeing in the coverage your countries.

 

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