July 21, 2019 / by 

 

Three Things: Two USAs and a Bear

[NB: Check the byline, thanks! /~Rayne]

These things aren’t worth a full post but perhaps they’re worth a brief look. They bugged me when I ran across them — now it’s your turn.

~ 3 ~

The sketchy work former U.S. Attorney and now-former Labor Secretary Alex Acosta did on Jeffrey Epstein’s prosecution — a non-prosecution — looks worse as time goes by and we learn more about Epstein’s recidivism.

(Which really isn’t recidivism since he wasn’t prosecuted by the feds, yes? He continued business as usual unabated.)

But Acosta wasn’t the first U.S. Attorney for the Southern District of Florida under the Bush administration. He replaced Marco Jimenez, conveniently in time to prosecute Jack Abramoff and investigate Jeffrey Epstein.

Jimenez’ departure to return to private practice in June 2005 didn’t draw much attention, though he was one of the relatively few USAs who served less than their full four-year term after appointment by the president. This seems odd given how much scrutiny the U.S. Attorneys received during the Bush administration due to “Gonzales Seven” scandal — the U.S. Attorneys dismissed en masse on December 7, 2006 by U.S. Attorney General Alberto Gonzales. Jimenez wasn’t one of the attorneys summarily fired by Bush.

At the time both Marcy and I had speculated about possible unifying reason(s) why the U.S. Attorneys were terminated. One of them was the possibility some of the USAs were LGBTQ and/or might be sympathetic to LGBTQ targets in prosecutions. Another reason was related to the handling of energy cases like Enron, FERC corridors, fracking, and pipelines.

But it didn’t occur to me that another possible unifying reason was human trafficking.

New Mexico’s U.S. Attorney was fired with the rest of the “Gonzales Seven.”

And Epstein not only had a residence in south Florida but in New Mexico.

What a coincidence.

David Iglesias was the USA for New Mexico until December 2006, succeeded by his assistant Larry Gomez. Gomez never received a nomination by Bush with Senate approval; he served the rest of Bush’s term as acting USA. Iglesias wrote in an op-ed for The New York Times that he believed he and the rest of the “Gonzales Seven” were terminated for political reasons.

Two GOP members of Congress — Representative Heather Wilson and Senator Pete Domenici, both now out of office — had pressed Iglesias to prosecute a corruption case. There had also been pressure to investigate and prosecute voter fraud.

Epstein’s New Mexico ranch is now under investigation.

~ 2 ~

Speaking of New Mexico, I’ve had this squirreled away for a while because I wasn’t certain what to make of it last October.

The acting U.S. Attorney for New Mexico, James Tierney, entered an agreement with the Trump administration in July 2017 about its “zero tolerance” policy pertaining to the El Paso Sector. The program separating children from family members was piloted through New Mexico, beginning there nearly a year before it was rolled out to the rest of the country.

The El Paso Sector should not to be confused with city of El Paso, which is located in Texas. Texas also has four USAs.

Why was the agreement with New Mexico’s USA alone and not with the USAs for all the border states — Texas, Arizona, California, and New Mexico? Why with an acting USA instead of waiting for a Senate-approved appointee?

Note also that Damon Martinez, appointed by President Obama, was forced out as U.S. Attorney for New Mexico in March 2017. Tierney was the acting USA until Trump nominee John C. Andersen was approved by the Senate in February 2018.

Sure would like to know what the trend is in New Mexico for human trafficking prosecutions.

I hope like hell children separated from their families or unaccompanied haven’t been trafficked out of U.S. concentration camps while the federal government looks the other way.

~ 1 ~

And now back to a tangent related to Epstein, who once worked for now-defunct investment bank Bear Stearns before he opened his own financial management services firm.

This is really more of a reminder, I should say: Trump and/or his organization had obtained alternative financing through Bear Stearns, some of which was tied up in the beginning of the 2008 crash.

Fusion GPS’ Glenn Simpson’s January 2018 testimony before the House Permanent Subcommittee on Intelligence mentioned Trump having had relationship with Bear Stearns:

[SIMPSON]… There’s the Trump vodka business that was earlier. And then ultimately, you know, what we came to realize was that the money was actually coming out of Russia and going into his properties in Florida and New York and Panama and Toronto and these other places.

And what we, you know, gradually begun to understand, which, you know, I suppose I should kick myself for not figuring out earlier, but I don’t know that much about the real estate business, which is I alluded to this earlier, so, you know, by 2003, 2004, Donald Trump was not able to get bank credit for — and if you’re a real estate developer and you can’t get bank loans, you know, you’ve got a problem.

And all these guys, they used leverage like, you know, — so there’s alternative systems of financing, and sometimes it’s — well, there’s a variety of alternative systems of financing. But in any case, you need alternative financing.

One of the things that we now know about how the condo projects were financed is that you have to — you can get credit if you can show that you’ve sold a certain number of units.

So it turns out that, you know, one of the most important things to look at is — this is especially true of the early overseas developments, like Toronto and Panama — you can get credit if you can show that you sold a certain percentage of your units.

And so the real trick is to get people who say they’ve bought those units, and that’s where the Russians are to be found, is in some of those pre-sales, is what they’re called. And that’s how, for instance, in Panama they got the credit of — they got a — Bear Stearns to issue a bond by telling Bear Stearns that they’d sold a bunch of units to a bunch of Russian gangsters.

And, of course, they didn’t put that in the underwriting information, they just said, we’ve sold a bunch of units and here’s who bought them, and that’s how they got the credit. So that’s sort of an example of the alternative financing. … [bold mine, excerpt pages 95-96]

We already know Trump and Epstein were friendly — enough so to party together. Was there some relationship between Epstein’s financial management firm and Trump’s business which might have helped Trump obtain access to Bear Stearns even while Trump was having difficulty getting credit elsewhere?

~ 0 ~

This is an open thread. What little stray things popped up recently that aren’t worth a post by themselves?


The Cohen Material Just Released By The Court

Okay, as you may recall, the Judge William Pauley in the Southern District of New York had indicated he would release additional materials from the Cohen case there. As some background, here is our friend Adam Klasfeld of Courthouse News (if you are on Twitter and not following Adam, you are doing it wrong). Here is a Twitter thread Adam did as background.

Here is a blurb from his original story on this:

The first time a tranche of search warrants against former Trump fixer Michael Cohen became public, U.S. prosecutors aggressively redacted those materials to protect what was then an ongoing campaign-finance probe.

Michael Cohen, President Donald Trump’s former personal attorney, stops to talk to a member of the press on May 4, 2019, in New York. Cohen reported to a federal prison on May 6 to begin serving a three-year sentence for campaign-finance violations, tax evasion, bank fraud and lying to Congress. AP Photo/Jonathan Carroll)
Announcing that investigation’s end, a judge ordered prosecutors on Wednesday to quickly disclose new information about how Cohen paid two women to silence their stories about supposed affairs with President Donald Trump.

“The campaign finance violations discussed in the materials are a matter of national importance,” U.S. District Judge William H Pauley III wrote. “Now that the government’s investigation into those violations has concluded, it is time that every American has an opportunity to scrutinize the materials.”

That moment is now. And, without further adieu, here are the newly released materials:

Cover Letter

Exhibit 1

Exhibit 2

Exhibit 3

Exhibit 4

Exhibit 5

Exhibit 6

Exhibit 7

Exhibit 8

Exhibit 9

Okay folks, this is a working thread. I have gotten it up as fast as possible, but there was a LOT of documents to download, and then upload. Have at it. There are many fascinating things in there, but many were known already. It is the newly unredacted stuff that is important. Happy hunting!


Ted Stevens, The “Toobz”, And The Idiocy Of The Internet

Alright, this will be a fairly short post, but I would like to remind people of some things. Namely, regarding Ted Stevens. As background, Marcy wrote a serious, and important, post on the Trumps Organization’s curious, and semi-hilarious, use of Microsoft. And, yes, Marcy is right, it was amazingly stupid. From clackers whining that Hillary Clinton had insecure internet. If it was not so stupid, it would be extra laughable.

But I want to cut back to something different. In comments, Rayne Loled at Ted Stevens and, then, a relatively new commenter (like just today as far as I can tell), “CJ” chimed in with:

Bizarrely, it’s not an entirely bad metaphor, though that’s probably accidental on his part. See, e.g., Andrew Blum’s “Tubes: A Journey to the Center of the Internet”.

This is bunk. Blum, and his book, tried to make hay off of Stevens, and at his expense, but without giving him much of his due, nor acknowledging how the “tubes” of the internet falsely allowed the demonization of Stevens and cheerleader his prosecution. A prosecution that turned out to be false and craven. In a review in the New York Times in 2012, Dwight Garner noted:

Reading this, you wish Mr. Stevens, who died in an airplane crash in 2010, were here to savor it. “Inside those tubes (by and large) are glass fibers,” the author continues. “Inside those fibers is light. Encoded in that light is, increasingly, us.”

That is exactly right, although Blum never really went deeper into the fraud by the Department of Justice that took Ted Stevens down before his untimely demise by plane crash.

So, as a bit of retrospective:

Say what you will about Ted Stevens, and much of that may be fair. But what was done to him at the end was wrong and a travesty. And the DOJ could not even deal with that then. Much less the pervasive and consuming wrong that is at hand today with Bill Barr and the DOJ he now administers.

For anybody that does not remember just how egregious and blatant the government/DOJ action against Ted Stevens was, here is one of my takes from 2008, and yet another in followup, from 2012.

You can joke about Toobz Stevens, and we have here before, but what happened to him was a complete travesty of justice. And there are serious lessons from that to keep in mind today. Without the “toobz” of the internet, I am not sure the reckless and false case against Stevens could have ever made it as far as it did. There is great irony in that, and it is a lesson that ought remain remembered, not just joked about.

That was a different, and in popular lore, more benevolent and honest era. So, what do you think are the odds for far worse from Trump and Barr? Somewhere, Ted Stevens has an idea.


Sweden Reopens Assange Rape Case

There was a bit of drama and excitement that went down in the middle of the night. The Swedish Prosecution Authority has officially reopened the case against Assange on the remaining rape allegation. Here is the official statement:

Deputy Director of Public Prosecution Eva-Marie Persson has today decided to reopen the Assange case that was previously discontinued.

The prosecutor will shortly request that Julian Assange be detained in his absence suspected on probable cause for an allegation of rape from August 2010. To be able to execute a detention order, the prosecutor will issue a European Arrest Warrant. An application for a detention order will be submitted to Uppsala District Court, as the suspected crime took place in Enköping municipality.

– On account of Julian Assange leaving the Ecuadorian embassy, the circumstances in this case have changed. I take the view that there exists the possibility to take the case forward. Julian Assange has been convicted of a crime in the UK and will serve 25 weeks of his sentence before he can be released, according to information from UK authorities. I am well aware of the fact that an extradition process is ongoing in the UK and that he could be extradited to the US. In the event of a conflict between a European Arrest Warrant and a request for extradition from the US, UK authorities will decide on the order of priority. The outcome of this process is impossible to predict. However, in my view the Swedish case can proceed concurrently with the proceedings in the UK, says Deputy Director of Public Prosecution Eva-Marie Persson.

Reopening the investigation means that a number of investigative measures will take place.

– In my opinion a new interview with the suspect is required. It may be necessary, with the support of a European Investigation Order, to request an interview with JA be held in the UK. Such an interview, however, requires JA’s consent, says Eva-Marie Persson.

Case number in Stockholm District Court: B 12885-10.

Here is a pdf of the full opinion and decision.

Few thoughts. It appears clear that Sweden will be filing a new European Arrest Warrant EAW), and I would expect they lodge that forthwith. Which will result in competing extradition requests from the United States and Sweden. There are many factors that will play into the decision by the UK of where to ship Assange when his sentence on the bail jumping offense is done. The final decision is in the hands of the UK Home Secretary Sajid Javid.

Several factors, but most critically the pending expiration of the Swedish statute of limitations in August 2020 militate in favor of giving the nod to Sweden over the US. Here is the excellent David Allen Green on that. Also, there is no question of “political prosecution” with the Swedish charge, where in many regards there are such concerns with the current, and potentially future, US charges.

If Assange was smart (no given), he might consider fighting extradition to the US and waiving it as to Sweden. I have always maintained that if Assange wants to fight US extradition, he is much better situated to do so from Sweden than he is from the UK. Several international law experts agree, for instance Mark Klamberg, as cited by Kevin Jon Heller in Opinio Juris gives some great background on that issue, even though Mr. Klamberg’s original post was written back in 2012.

Another interesting thing is the SwedishProsecution Authority has indicated they will request a formal interview with Assange via video link while he is in UK prison custody. That would appear to require consent by Assange, and it is far from certain he would give that.

Also, there is still the matter of what charges will be the final ones submitted by the US to the UK. The US has until June 12 to submit its final charges to the UK per a court order. As you may recall, the Rule of Specialty makes this a critical factor, as I detailed in this post a month ago. Adding to this issue is the US looks to get a long reprieve on that if Assange is sent by the Brits to Sweden first. At that point, the US would have to file a new extradition request with the Swedes, so, obviously, they would look to have a lot more time in that circumstance.

On another front, Ecuador will give Julian Assange’s embassy computers and files to the US. Not shocking, but it is news.

Lastly, the other factor is that Assange litigated extradition to Sweden previously, and lost in every court of jurisdiction. He could fight extradition to the US for a very long time, but looks dead in the water already as to Swedish extradition.

So, in closing, there was a lot of excitement early this morning, and there will surely be more to come regarding Assange


It’s Plane to See: A Plane with Assange or Another One? [Updated]

[NB: Check the byline – this isn’t bmaz (who beat me to publishing a post about Assange. LOL) Update is at the bottom of this post. /~Rayne]

A couple weeks ago Politico’s Jake Sherman tweeted about the USDOJ’s plane:

The plane left from Manassas Regional Airport which observers note is where the DOJ stations their detail which handles extraditions.

As you can see it returned days later on Saturday, March 23. It was about this time frame that WikiLeaks’ Julian Assange became jittery about possible extradition to the U.S.

It was hard to tell if Assange was right; every time WikiLeaks tweeted since the plane left UK’s London Luton Airport — where MI5 has a hangar — that extradition was imminent, nothing happened. Many folks had a chuckle watching the night-long tweet stream by journalists covering the Ecuadoran embassy in London, watching pro-Assange activists setting up camp but not seeing any resulting arrest and seizure.

Until this morning at roughly 10:00 a.m. local time London.

Assange was charged by the UK with breaching bail after he failed to report for Sweden’s extradition order; Assange plead Not Guilty. The Crown Court found him guilty; he may face 12 months in jail at a later date.

Read bmaz’s take on Assange’s extradition to the U.S. and the DOJ’s charges against him.

Now here’s where it gets interesting for me, given how upset many of us were with Attorney General Bill Barr’s appearance before Congress in which he hedged about the Special Counsel’s Report except to say it would be released next week:

Emphasis mine. Was the plane Barr mentioned a figurative one or a literal one?

This is an open thread.

UPDATE — 2:50 PM EDT —

AFP tweeted a graphic with a timeline of events preceding Assange’s removal from the Ecuadoran embassy:

It’s thin on entries, missing a date when the sexual assault charges were filed in Sweden for example. But it does give a feel for the manner in which events led up to Assange’s trip to Metropolitan Police station today.

Via Twitter, Marcy re-upped her post from last year related to prosecuting Assange:

Worth a re-read; in my opinion, Marcy’s November 2 post is also worth a re-read:

US Government Reveals It Has Video Evidence of Joshua Schulte Sharing Classified Information as Ecuador Restricts Assange’s Legal Visits

I don’t think Conspiracy to Commit Computer Intrusion (18 USC 371, 1030(a)(1), 1030(a)(2), 1030(c)(2)(B)(ii)) is enough to warrant extradition alone.

Otherwise a Leicestershire 18-year-old would have been looking extradition for his attempted hacking of U.S. officials in October 2015, instead of eight charges of “performing a function with intent to secure unauthorised access,” and two of “unauthorised modification of computer material.”

The waiting game continues.


The Assange Indictment and The Rule of Specialty

Alright, as most of you have discovered, Julian Assange had his asylum status revoked by Ecuador, and officers of the Met (and presumably Scotland Yard too) were allowed into the Ecuadoran Embassy in London to effectuate arrest of Assange. Don’t be fooled by the breathless cable news coverage, the primary arrest warrant was the UK one from Assange’s 2012 jumping of bail conditions, not the extradition request by the US. In short, Assange would still be in custody right now irrespective of the US extradition request.

To flesh out the rest of Assange’s status, to the extent we currently know it, I will pilfer some of the reportage of the excellent Daniel Sandford of the BBC. Assange was presented immediately to Court One at the Westminster Magistrate’s Court where it was made clear that there were two warrants he was arrested on, not just the US request. Assange pled not guilty. He was NOT ordered to present evidence on his failure to surrender (which is appropriate if he declines). The judge presiding, Michael Snow nevertheless, and quite properly, found Assange guilty of the bail offense. Assange will appear in the higher level Southwark Crown Court for sentencing on the bail offense at a future date not yet specified. He will be back in the Westminster Magistrate’s Court, as of now by video link from his detention facility, on May 2nd regarding the extradition matter.

With that background out of the way, let’s look at the more significant US extradition case. First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.

So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.

Why is that important?

Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.

I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.

The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.

So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.

It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play.

The death penalty could be an issue were Assange to be subsequently charged under 18 USC §794 (Espionage Act), which reads:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.

The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?

There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.


Three Things: Hey You, Mr./Ms./Mx. Pissed-Off

[NB: Check the byline, thanks. /~Rayne]

I get it. You’re furious, en fuego, royally pissed off. You’ve traveled through shock and traversed anger, raging for days now since Attorney General Bill Barr issue that POS four-page letter chock full of holes big enough to drive a 40-foot dry van through again and again.

And now you’ve hit bottom, burned out and blue having reached another stage in the grieving process.

We all know this isn’t the end of it, no matter how much gaslighting and abuse the White House, its proxies, the right-wing horde, and asshats like David fucking Brooks spew. You know what you saw in the speaking indictments, plea agreements, and sentencing memos produced over the last two years.

We all know who ‘Individual 1’ is no matter how much he and his myriad minions and handlers would like us to forget his role as an unindicted co-conspirator who denied the public the right to know the truth about his past during the 2016 election.

At least one conspiracy to defraud the American public is right there spelled in black and white under our noses, and again in congressional records as part of Michael Cohen’s testimony before the House. Trump worked with Cohen to lie to the voting American public, violating campaign finance laws in doing so.

“If the people don’t have the facts, democracy doesn’t work,” as Judge Amy Berman Jackson told former Trump campaign manager Paul Manafort during his sentencing hearing, another liar Trump brought into his team, allowing Manafort to change the Republican’s platform on Ukraine without a wide and open discussion among conservatives about it.

Trust your eyes and ears. You’re right to be angry and disappointed. Take a deep cleansing breath in and center yourself, feel that righteous burn of indignation, then let out the poison.

And then take another deep breath, roll up your sleeves, grab your phone, and let’s kick some ass.

~ 3 ~
What: Barr didn’t confine himself to his four-page POS summary on Sunday. Oh no. He had to make it really fucking personal for a huge swath of Americans by refusing to allow the DOJ to defend the Affordable Care Act. From the ABA Journal:

The DOJ’s new stance would strike down additional provisions that allow children to have coverage on their parents’ policies until age 26 and that guarantee “essential health benefits” such as mental health, maternity and drug coverage. The stance also would eliminate an expansion of Medicaid and free preventive services for people on Medicare.

Quite literally Americans could die because of this move.

Needed:
— Call your representatives and tell them you support the current ACA legislation in the absence of a better, Medicare for All replacement.
— Ask your reps to do what’s necessary to ensure the DOJ fulfills its mission to enforce the laws of this country, which at this time includes ACA.

You can see Barr is now setting a precedent for a unilateral executive branch which can pick and choose the laws it will enforce in spite of precedent backing existing laws. This can’t go any further.

Congressional Switchboard: (202) 224-3121

~ 2 ~
What: Betsy ‘Multi-Yacht’ Devos decided disabled Americans do not merit an opportunity to achieve; she’s proposed ending funding for Special Olympics.

That shallow, stupid wretch has no real idea what Special Olympics means to the disabled, especially children and their parents. One of my family members has worked for more than a decade at a Special Olympics camp, spending weeks with children who otherwise wouldn’t be able to go to camp like abled children. The kids meet other kids like themselves, make new friends, learn new skills, hone their physical abilities, begin to see themselves as capable of so much more. And their parents get a much-needed respite from caring for children who may need around-the-clock monitoring.

But as the former director of the Office of Government Ethics says, the cruelty is the point. Devos is Cruella De Ville who will kill puppies for their coats given the chance. Pro-life, my foot; she cares not a whit what life is like for the disabled after birth.

She quite literally wants to axe Special Olympics and take the money to give to charter schools, which fail at around 25% rate. The money she will steal from the disabled will literally go down a rat hole and nobody except the charter school profiteers will benefit from this scam.

In fact the amount we spend as taxpayers providing additional support to Special Olympics could be offset easily if Trump spent four less weekends at his golf courses on our dime.

There are those who argue it’s really Trump who insisted on this cut and Devos is merely is grunt doing the scut work of hurting the disabled. Sure — but a person whose values are genuinely aligned with caring for fellow humans would have told Trump to stick this sidewise and quit their post instead.

The chances of this proposal passing the House are slim to none, especially after Devos was grilled by Rep. Mark Pocan (D-WI) on Tuesday, but it’s a line in the sand we should draw.

Needed: Call your members of Congress in both houses and let them know this kind of cruelty to disabled Americans is unacceptable and it will not fix the inherent problem of making schools into privatized profit centers with an unacceptably high rate of failure.

Congressional Switchboard: (202) 224-3121

~ 1 ~
What: Acting Interior Secretary David Bernhardt is appearing before the Senate Energy and Natural Resources Committee as Trump’s corrupt nominee for Interior Secretary.

If you have a moment or two, watch for the swamp monster — the one in the green mask sitting behind Bernhardt, not Bernhardt (because when you’ve seen one of the fleshy pink swamp monsters, you’ve seen many).

Needed: This guy is selling out our national resources. Call your senators and tell them hell no on this dirtbag, we don’t need another swamp monster helming the Interior Department.

Congressional Switchboard: (202) 224-3121

~ 0 ~
Don’t forget to check your phone’s battery charge. Get calling!

This is an open thread, by the way.


FBI Finally Moves to Fix Its Text Retention Problem — and Mobile Phone Security

Back when DOJ IG released a report explaining its efforts to ensure it had reconstructed all of Peter Strzok and Lisa Page’s text messages, I pointed out that most people were missing the really important part of the story: FBI was making do with a vendor who — even after that scandal — still missed 10% of texts.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This is a huge problem in discovery in criminal prosecutions. Just as an example, DOJ claims it didn’t have texts between the Agents who were officially staking MalwareTech out in Las Vegas before they arrested him in 2017 and … other Agents. But if FBI doesn’t actually competently archive those texts, how can they make that claim?

More troubling still, FBI didn’t have a handle on what privileges their unnamed and squirrely data retention vendor had onto FBI Agents’ phones.

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

DOJ IG has now done what I was hoping they would: use the Strzok-Page incident as an opportunity to identify recommendations to fix the problem more generally. Most alarmingly, it says that the Subject Matter Expert it consulted in this process identified security vulnerabilities in its collection process.

[D]uring the OIG’s forensic examination of FBI mobile devices that were used by the two employees, the OIG discovered a database on the mobile devices containing a plain text repository of a substantial number of text messages sent and received by those devices.

Neither ESOC nor the vendor of the application was aware of the existence, origin, or purpose of this database. OIG analysis of the text messages in the database compared to ESOC productions of text messages during the same time periods when the collection tool was functional identified a significant number of text messages found in the database that were missing from the ESOC production. Furthermore, the Subject Matter Expert with whom the OIG consulted in connection with its forensic analysis of the devices identified additional potential security vulnerabilities regarding the collection application. The OIG has provided these findings to the FBI.

Remember: these phones were used by people read into the most sensitive counterintelligence investigations. They weren’t texting a lot about those investigations on those phones, but they were texting unclassified information about the investigations.

So now, two years after these texts were identified, DOJ’s Inspector General is recommending that FBI fix what even I recognized was a security vulnerability — as well as the other, unnamed ones their SME identified.

Coordinate with the collection tool vendor to ensure that data collected by the tool and stored on the device is saved to a secure or encrypted location.

Verify and address the security vulnerabilities identified by the Subject Matter Expert with whom the OIG consulted, which have been provided to the FBI. Current and future mobile devices and data collection and preservation tools should be tested for security vulnerabilities in order to ensure the security of the devices and the safekeeping of the sensitive data therein.

Accused defendants should not have to guess whether or not the FBI Agents investigating them discussed their case via texts that have disappeared forever. And the country, generally, should not have to worry that the phone of its top counterintelligence Agent might be compromised because of a dodgy vendor FBI hired to collect (some of) his texts.

Sadly, DOJ IG doesn’t include another recommendation that seems like a no-brainer: that FBI switch to iPhones over the Samsungs they currently issue, both because iPhones have better security, but also because there is better visibility on the supply chain.


Statement on Using “Big Dick Toilet Salesman”

In just a few minutes, Matt Whitaker will testify before the House Judiciary Committee. I will be live-tweeting it. Before I do, I want to explain why I use the term Big Dick Toilet Salesman to refer to him, in part because some have rightly pointed out that it is disrespectful.

During the Bush Administration, I used a lot of the common monikers for the President. In retrospect, I regret using some of those phrases. The exceptions are “W” (because it’s an easy way to distinguish him from Poppy) and “PapaDick” and “BabyDick” for Cheney and his daughter (because it emphasizes their continued corruption). I regretted using other derogatory terms because ultimately, the focus on coverage should be about someone’s actions, not their appearance or stupidity.

For that reason I’ve tried to avoid any of the monikers for Trump that similarly focus on his character flaws rather than the actions those flaws lead to.

But the entire point of Matt Whitaker’s appointment, the only reason he is a national figure, is about Trump deliberately choosing a fraudster to lead the Department of Justice in hopes of manipulating the rule of law. Whitaker is not qualified in any normal sense of the word. He is there exclusively because he managed to pitch himself to Trump using the very same skills he used to sell whacky patents for things like Big Dick Toilets. He should not have accepted the position, but did so because he was selling yet another oversold novelty.

That should always be at the forefront of discussions about Whitaker to emphasize how illegitimate his appointment was. And so I use the term.


Big Dick Toilet Salesman Matt Whitaker Crams for His Open Book Test

My goodness does Matt Whitaker seem worried about his testimony before the House Judiciary Committee on Friday. Between CNN last night and Daily Beast today, there are two DOJ sourced stories claiming that he has been working hard to prepare for his testimony before the House Judiciary Committee tomorrow. The Daily Beast story notes something I noted last night: DOJ is already late for a Jerry Nadler-imposed 48 hour deadline to invoke executive privilege for tomorrow’s testimony.

On Jan. 22, Nadler sent Whitaker a letter listing questions he plans to ask, including about his talks with President Donald Trump before he fired Jeff Sessions and his role supervising Mueller’s Russia investigation. And, importantly, Nadler also asked Whitaker to tell him at least 48 hours before the hearing if he planned to invoke executive privilege in response to any of those questions. Executive privilege refers to the president’s legal right to have private conversations with his staff about his presidential duties. Though the Constitution doesn’t use the term, the Supreme Court has ruled that this right exists.

The Justice Department did not make Nadler’s 48-hour deadline.

“We’re not aware of any rules that govern a set amount of time when one needs to invoke executive privilege,” one senior DOJ official involved in Whitaker’s preparation told The Daily Beast. “We do intend to respond, fulsomely addressing the executive-privilege issue in a letter before the hearing.”

In spite of DOJ’s effort to make it look as if the Big Dick Toilet Salesman running the joint has been preparing for this, I’ve heard differently.

HJC just pre-authorized a subpoena on a party line vote for Whitaker’s appearance tomorrow, so they can hold him in contempt when he refuses to answer questions.

In response (and after the Senate Judiciary Committee voted to advance William Barr’s confirmation, also on a party line vote, virtually ensuring DOJ will have a new, qualified Attorney General sometime next week), DOJ said the Big Dick Toilet Salesman won’t show up tomorrow unless he is given assurances he won’t be served with that subpoena.

The Justice Department told the House Judiciary Committee Thursday afternoon that acting Attorney General Matt Whitaker will not appear at Friday’s closely-watched oversight hearing unless he receives a written assurance by 6 p.m. ET Thursday that he will not be served with the subpoena the committee pre-emptively authorized to use if he avoids questions.

I suspect the reason DOJ is making this threat is because these questions that Whitaker is prepared to answer do not address all the questions that Nadler posed in advance.

The Acting Attorney General will testify that at not time did the White House ask for, or did the Acting Attorney General provide, any promises or commitments concerning the Special Counsel’s investigation. He will explain that, since he became Acting Attorney General, the Department has continued to make its law enforcement decisions based upon the facts and law of each individual case, in accordance with established Department practices, and independent of any outside interference. With respect to the Special Counsel investigation, the Department has complied with Special Counsel regulations, and the Acting Attorney General will make it clear that there has been no change in how the Department has worked with the Special Counsel’s office. The Acting Attorney General is also prepared to discuss the process and the conclusions of the ethics review by which he concluded that there was no need for him to recuse himself rom supervising the Special Counsel investigation.

We do not believe, however, that the Committee may legitimately expect the Acting Attorney General to discuss his communications with the President. If there are questions at the hearing that the Acting Attorney General does not answer to the satisfaction of the Committee, then the appropriate next step would be for the Committee to contact this office to initiate a joint effort by the Committee and the Department to negotiate a mutually acceptable accommodation under which the Department can satisfy the Committee’s legitimate oversight needs to the fullest extent, consistent with the Executive Branch’s confidentiality and other institutional interests. Should the branches be unable to reach an acceptable agreement, only then would it be time for the Committee to issue a subpoena and, if necessary and appropriate, for the President to determine whether to invoke executive privilege.

Those answers don’t address the majority of the questions Nadler posed in his January 22 letter.

  • President Trump fired former Attorney General Jeff Sessions November 7, 2018.  On or before that date, did you have any communication with any White House official, including but not limited to President Trump, about the possibility of your appointment as Acting Attorney General?  If so, when and with whom?  Did any of those communications discuss the possibility of your recusal from oversight of the Special Counsel’s investigation?
  • You announced your decision not to recuse yourself from the Special Counsel’s investigation on December 19, 2018.  Did you consult with the White House about that decision, before or after it was announced?  If so, with whom?
  • My understanding is that you consulted with a four-person team of advisors for guidance on the question of your recusal.  Who are these four individuals?  Did any of them consult with the White House about your decision not recuse yourself from the Special Counsel’s investigation?
  • Have you ever received a briefing on the status of the Special Counsel’s investigation?  If so, have you communicated any information you learned in that briefing to any White House official, including but not limited to President Trump, or any member of President Trump’s private legal team? 
  • It has been reported that President Trump “lashed out” at you on at least two occasions: after Michael Cohen pleaded guilty on November 29, 2018, and after federal prosecutors identified President Trump as “Individual 1” in a court filing on December 8, 2018.[1]
    • Did President Trump contact you after Michael Cohen pleaded guilty?  What did he say?  Did you take any action as a result of that conversation?
    • Did President Trump contact you after he was identified as “Individual 1” in documents related to the criminal sentencing of Michael Cohen?  What did he say?  Did you take any action as a result of that conversation?
    • In any of these conversations, did President Trump express concern, anger, or similar frustration with the actions of the Office of the U.S. Attorney for the Southern District of New York?
    • In any of these conversations, did President Trump discuss the possibility of firing or reassigning certain personnel who work for the Office of the U.S. Attorney for the Southern District of New York?
    • In any of these conversations, did the President discuss the recusal of Geoffrey Berman, the current U.S. Attorney for the Southern District of New York, from the Michael Cohen case and other matters related to the work of the Special Counsel?
  • Former Attorney General Jeff Sessions tasked John Huber, the U.S. Attorney for the District of Utah, with reviewing a wide range of issues related to former Secretary of State Hillary Clinton.  Have you ever received a briefing on the status of Mr. Huber’s work?  If so, have you communicated any information you learned in such a briefing to any White House official, including but not limited to President Trump, or any member of President Trump’s private legal team? 
  • On January 17, 2018, BuzzFeed News reported that federal prosecutors have evidence, in the form of witness interviews and internal communications, suggesting that President Trump had directed Michael Cohen to lie to Congress.  On January 18, the Special Counsel issued a rare statement describing some aspects of the BuzzFeed story as inaccurate.  Did you have any communication with the White House about the BuzzFeed report or the decision of the Special Counsel’s office to issue its subsequent statement?  If so, with whom?  What was discussed?

In other words, DOJ seems to be using the fact that Nadler will insist on answers to the questions to refuse to show up.

Copyright © 2018 emptywheel. All rights reserved.
Originally Posted @ https://www.emptywheel.net/department-of-justice/