Bill Barr Moves from Treating Understaffing at BOP as a “SNAFU” to a “Perfect Storm of Screw-Ups”

In its annual review of management and performance challenges, DOJ’s IG listed “Managing a safe, secure, and human prison system” first among all challenges, bumped up two positions and significantly expanded from where challenges running the Bureau of Prisons occupied in that report last year.

After listing contraband — including phones like the one Joshua Schulte allegedly used to leak more CIA secrets from MCC or the one an inmate used to arrange a guard’s murder — the report then focuses on BOP’s outdated cameras, inadequate monitoring, and insufficient staffing. While all three factored in Jeffrey Epstein’s ability to kill himself, the inmate monitoring section mentions the deaths in custody of both Epstein and Whitey Bulger, while showing that those two famous prisoners were part of a trend of less notorious prisoners.

In addition to the issues relating to security cameras, the BOP also faces challenges ensuring that its correctional officers monitor inmates at required frequencies and in accordance with policies to protect inmates, including reducing the risk of inmate homicides and suicides. From FY 2015 through July 2019, the BOP has experienced 46 inmate deaths by homicide and 107 inmate deaths by suicide, including the deaths of high-profile inmates, James “Whitey” Bulger and Jeffrey Epstein. Inmate deaths by suicide in BOP facilities have increased from 8.1 per 100,000 federal inmates in FY 2016 to 14.7 per 100,000 inmates in FY 2018. The OIG is currently investigating several recent inmate homicide and suicide deaths, including those of Bulger and Epstein, to assess any systemic issues that they present, and to ensure that BOP staff are conducting consistent and appropriate monitoring of the inmates in BOP custody to ensure their physical safety.

In short, the IG identified several of the factors that contributed to Epstein’s death to be among the most urgent problems facing DOJ.

Of course, all that was not just knowable, but known, months before Epstein’s death. As I noted at the time, four months before Epstein’s death, Republican Senators Shelly Capito raised concerns about BOP staffing levels, citing several deaths in West Virginia’s Hazelton prison, where Bulger was killed. At the time, Barr brushed off Capito’s question about budget cuts by calling it a SNAFU.

In response to a question from a Republican Senator about these issues, the Attorney General admitted failure. “I think this is an area where we have stumbled.” Rather than answering Senator Capito’s question about the budget, though (again, this was an Appropriations hearing), he instead explained that the problem wasn’t budget, it’s that the BOP doesn’t have all its assigned slots full because of how it hires.

I’ve been looking into this because it’s been very frustrating to me because I’ve always supported Bureau of Prisons in the past and think it’s a great organization and if we’re going to have people incarcerated we have to make sure they’re incarcerated under proper conditions. We are  — The way I look at it our authorized level is good and adequate. It’s that we’re four to five thousand people short of our authorized level.

Barr went on to provide evidence of a systematic underlying problem. “Every year we lose 2,600 of these correctional officers.” Without considering why turnover in the BOP is so high, he instead offered this solution. “My view is we just have to turn on the spigot and just keep these new entry level people coming in at a rate where we’re going to be able to get up to and maintain our enacted level. So I think this is largely a SNAFU by the department.”

Today, the AP has an interview (conducted on a flight to Montana) with Barr, in which he tries to assure the public that Epstein really did just kill himself by explaining that he, personally, reviewed the security footage, just like he claimed to have read the Mueller Report.

The attorney general also sought to dampen conspiracy theories by people who have questioned whether Epstein really took his own life, saying the evidence proves Epstein killed himself. He added that he personally reviewed security footage that confirmed that no one entered the area where Epstein was housed on the night he died.

He calls the several known factors that contributed to Epstein’s ability to kill himself “a perfect storm of screw-ups.”

Attorney General William Barr said he initially had his own suspicions about financier Jeffrey Epstein’s death while behind bars at one of the most secure jails in America but came to conclude that his suicide was the result of “a perfect storm of screw-ups.”

That he calls these “screw-ups” didn’t prevent his DOJ from filing a six count indictment this week against the guards on duty the night Epstein died, Michael Thomas and Tova Noel, an overarching conspiracy charge along with false records charges for each of five prisoner checks one or both of them had claimed to have done that night, but did not.

It’s an odd indictment.

It shows that in addition to Thomas and Noel, two other guards filed false records, one — along with Noel, for a 4PM prisoner check during which Epstein wasn’t even on the floor — and another –again with Noel, for a 10PM check.

Furthermore, there’s no evidence that they failed to complete the checks because they were trying to facilitate suicide. Indeed, Thomas is described as one of the guards who had found Epstein before his earlier suicide attempt succeeded on July 23. More importantly, when Epstein was found dead (the indictment is very unclear about who first found him, though the implication is Thomas was), both defendants immediately admitted they hadn’t done their job.

NOEL told Supervisor-1 “we did not complete the 3 a.m. nor 5 a.m. rounds.” THOMAS stated, “we messed up,” and “I messed up, she’s not to blame, we didn’t do any rounds.”

Additionally, there’s no time of death in the indictment, leaving open the possibility that Epstein died before Thomas came on shift at midnight, meaning one of the other guards would be the other responsible party.

While the conspiracy charge relies, in part, on a ConFraudUs argument — effectively arguing that by making false records claiming they had done their rounds, they impaired the lawful function of the government, the indictment also alleges they intended to impair “the investigation or proper administration” of government.

Sure, they impaired their supervisor’s ability to bust them for slacking (and, for two hours, literally sleeping) on the job. Sure, they impaired an escalating bed check system that was unnecessary in any case to find Epstein.

It’s certainly possible that the government suspects there’s more to this, that Thomas, having been involved in thwarting Epstein’s first suicide, he got recruited to facilitate his second one. It’s possible the government is suspicious about the fact that Noel walked up to the door of Epstein’s unit around 10:30PM. Certainly, by larding on six charges, they’re holding an axe over the guards’ heads to make them plead out quickly. Though there’s no reason to believe either one of them was involved in the more important failure, to make sure Epstein had a cellmate who could have called guards right away.

But as presented, the evidence presented in this indictment suggests not so much a conspiracy to make it easier for Epstein to kill himself, but instead, a conspiracy — one involving other guards on the SHU that night — to cut corners to make their thankless job easier. Part of that seems driven the pay and understaffing leading guards to take taxing overtime shifts; both defendants were working an overtime shift that night, with Noel working 16 hours straight that day.

I don’t mean to apologize for the defendants for behavior that, with several other factors, created the opportunity for Epstein to kill himself.

Rather, I mean to highlight how the grunts in this story are being threatened with long prison sentences, while the guy (once again) watching videos himself rather than fixing the systemic problems gets away with calling it “a perfect storm of screw-ups.”

Commuting Blago’s Wildly Excessive Sentence Would Be Right For Trump To Do

Another poster at the Emptywheel blog, okay, it may be Emptywheel herself, has today posted a very interesting take, and I think a good one, on the intersection of Jim Comey, Pat Fitzgerald and Rod Blagojevich.

If Trump were to commute Blago’s sentence…..it would be one of the few pardon power actions he has taken that would be justified.

The other was, obviously, the woman Kim Kardashian talked him into commuting.

Don’t get me started about governance by reality show/sex tape idiots like Kimye, but still that was good.

Here is the thing though. Hate on Rod Blagojevich all you want. Laugh at him all you want. Sure, all that is good and proper.

What was not, however, was his sentence. Judge James Zagel got a bug up his ass and sentenced Blago to twice as much time as was possibly appropriate for his purported offenses. There is a long history of Illinois Governors, criminal charges, and prison. But no sentence remotely like Zagel gave Blago.

Then there was Bob McDonnell of Virginia, who ended up not ever serving a day on things that were, mostly, more obvious pay to play corruption than Blago. Also, there was Don Siegelman, who arguably met potential charging elements, even if they were mostly innocuous acts, and who was only ever charged because of a Rove/Cheney effort to insure the same. Siegelman got just over six years.

Don’t get me started about Bob Menendez. The point being, even if Blago was corrupt, needed to be found guilty, and needed to be sentenced…..The sentence of 14 years Zagel gave Mr. Blagojevich was insane and ludicrous.

As big of a narcissistic and useless asshole as Trump is, he would be right to commute the insanely over sentenced punishment Zagel gave to Rod Blagojevich.

People, especially the more liberal than not among us, constantly scream for criminal justice reform. Abolish cash bail (a good thought, but one with far different and deeper implications than you think as Scott Greenfield at Simple Justice has noted), less incarceration, shorter sentences, better programs for those incarcerated. End the death penalty. Less solitary confinement. Etc. All good things.

But part and parcel of all of it is recognizing crazy stupid sentences too. Blago is pretty much a joke of a historical character. Fine. He was never Public Enemy Number One either. His sentence from Zagel was outrageous. If Trump is willing to commute it, he should, and that should be cheered.

But, because of pushback from the very same people that usually scream and squawk, and rightfully so, about criminal justice reform when it is not one of their pet pariahs, i.e. people on the left and, here, Blago, Trump will certainly chicken out from doing the right thing. Because Trump doesn’t know the facts, and he is a pussy that is too easily grabbed by Republicans and, in this case, bullshit liberals too.

Free Blago. It needs to be done.

In Epstein’s Wake: MIT Media Lab, Dirty Money, and Swartz [UPDATE]

[NB: This is definitely not by Marcy; contains some speculative content. Update at bottom. /~Rayne]

MIT Media Lab is in upheaval after the disclosure that its organization accepted financial support from now-deceased pedophile Jeffrey Epstein.

Ethan Zuckerman announced Tuesday he was moving his work out of the MIT Media Lab by the end of May 2020. He’s been a highly-respected director of the MIT Center for Civic Media, a subset of the Media Lab. Zuckerman explained his decision in a post on Medium:

… My logic was simple: the work my group does focuses on social justice and on the inclusion of marginalized individuals and points of view. It’s hard to do that work with a straight face in a place that violated its own values so clearly in working with Epstein and in disguising that relationship. …

His moral and ethical clarity deserves applause; Zuckerman stands out against the highly compromised tech sector, in both academia and the private sector.

While his announcement was as upbeat as it could possibly be considering the circumstances, a faint sense of betrayal leaks through. It must have been painful to learn one’s boss has undermined their work so badly they have no choice but to leave, even if one enjoys their workplace and their boss.

Joi Ito, director of the MIT Media Lab, offered his apology for his having accepted funding from Epstein through organizations Epstein controlled.

The explanation in Ito’s statement and his apology sound banal and will likely be accepted by the wider technology community given how little reaction there’s been from Silicon Valley.

One glaring problem: Ito is an lawyer, a visiting professor at Harvard. There’s little defense he can offer for taking  dirty money from a convicted human trafficker. It matters not if the money was ‘laundered’ through funds if they were under Epstein’s control. The money mattered more than the appearance, more than Media Lab’s ethics.

Ito still has considerable explaining to do. It won’t be enough fast enough to stem the tide, though.

J. Nathan Mathias, visiting scholar working on the CivilServant project at the Lab, has also announced he is leaving:

As part of our work, CivilServant does research on protecting women and other vulnerable people online from abuse and harassment. I cannot with integrity do that from a place with the kind of relationship that the Media Lab has had with Epstein. It’s that simple.

Epstein’s money didn’t directly fund CivilServant yet any of his dirty money funded the Media Lab it supported the infrastructure for CivilServant.

There will be more departures. Worse, there will be people who can’t leave, trapped by circumstance. Epstein’s poisonous reach continues beyond the grave.

~ ~ ~

When I read that Zuckerman was leaving MIT Media Lab, it occurred to me there was a possible intersection between MIT, law enforcement, and another activist who lived their values defending the public’s interest.

Aaron Swartz.

The government was ridiculously ham fisted in its prosecution of Swartz for downloading material from MIT for the purpose of liberating taxpayer-funded information. The excessive prosecution is believed to have pushed Swartz to commit suicide.

What could possibly have driven the federal government to react so intensely to Swartz’s efforts? One might even say the prosecution was in diametric intensity to the prosecution of Jeffrey Epstein a few years earlier.

Why was Swartz hammered by the feds for attempting to release publicly-funded material while Epstein got a slap on the hands — besides the obvious fact women and girls are not valued in this society as much as information is?

At the time I wondered whether it was research materials that might pose a threat to the existing stranglehold of fossil fuel industries. There was certainly enough money in that.

But in retrospect, seeing how Epstein made a concerted effort to inveigle himself into science and technology by way of investment, noting that researchers were among the compromised serviced by Epstein’s underage sex slaves, was it really research that Epstein tried to access?

What might be the overlap between Epstein’s outreach and the DOJ with regard to MIT and to Swartz’s activism?

Is it possible that something else besides scientific research might have interested both Epstein and the federal government, incurring the wrath of the latter?

I can’t help but wonder if Swartz’s work to liberate federal court archive Public Access to Electronic Court Records (PACER) documents might have been that something else.

In 2008, Carl Malamud of Public.Resource.org worked with Swartz, receiving what PACER documents had been downloaded from behind PACER’s pricey paywall.

Upon reading the downloaded content they found court documents rife with privacy violations, including

“names of minor children, names of informants, medical records, mental health records, financial records, tens of thousands of social security numbers.”

Malamud said they contacted

“Chief Judges of 31 District Courts … They redacted those documents and they yelled at the lawyers that filed them … The Judicial Conference changed their privacy rules. … [To] the bureaucrats who ran the Administrative Office of the United States Courts … we were thieves that took $1.6 million of their property. So they called the FBI … [The FBI] found nothing wrong …”

Was the harassment-by-excessive-prosecution intended to stop Swartz and Malamud from exposing any more confidential information exposed in federal prosecutions, shielded from the public by nothing more than a cost-prohibitive per page charge of eight cents?

Would politically-toxic sweetheart deals like the DOJ offered Epstein have been among those with privacy violations and poorly-/non-redacted confidential information?

Or given Epstein’s long relationship with senior members of MIT Media Lab, was Swartz cutting into someone’s turf by liberating data which might otherwise be salable — legally or illegally — if closely held?

~ ~ ~

Putting aside speculation, several things need to be dealt with immediately to remedy the mess post-Epstein.

First, all entities receiving public funding which also received contributions from Epstein-controlled funds must make full disclosure — ditto nonprofits which operate as 501(c)3 entities paying no taxes, like Epstein’s shady Gratitude America, Ltd. Who in each organization was approached, when, how did Epstein communicate his interest in funding their work, how were contributions made, and did any persons affiliated with the entities travel with, to/from an Epstein-controlled venue or Epstein-funded event? Everything these entities do is suspect until they are fully transparent.

It would be in the best interest of affected entities to make disclosures immediately; the court-ordered release of sealed documents from Virginia Giuffre’s defamation lawsuit against Epstein’s alleged procurer Ghislaine Maxwell is not yet complete. Only a portion has been published; failing to make disclosures ahead of the release has not helped Media Lab’s credibility. Nor has this:

MIT declined to comment on the money it received. “While donors, including foundations, may confirm their contributions to the Institute, MIT does not typically comment on the details of gifts or gift agreements,” MIT spokesperson Kimberly Allen told BuzzFeed News by email.

Second, in the case of MIT Media Labs in particular, a  complete narrative history and timeline of the Lab’s origin, work, and funding since it was launched is necessary. There isn’t one that I can find right now — not at the organization’s website, not even on Wikipedia. This lack of transparency is wretched hypocrisy considering the grief members of the Lab expressed upon Swartz’s death. Media Lab’s site Search feature offering content by range or years is inadequate and must be supplemented.

It’s not clear based on publicly available information what Marvin Minsky‘s exact role was and when with the Lab though he is referred to as a founder. Minsky, who died in 2016, is among those Virginia Giuffre has accused of sexual abuse. What effect including financial contributions did Epstein have on MIT Media Lab through his relationship with Minsky?

As Evgeny Morozov found when combing through papers, Epstein’s money could have been present as early as the Lab’s inception. Why can’t the public see this history readily, let alone the researchers, staff, students working in the Media Lab?

Even the work MIT Media Lab encompasses is not shared openly with the public. Mathias’ project CivilServant isn’t listed under Research — it can only be found through the Lab’s Search feature. How can the public learn what may have been shaped by Epstein’s funding if they can’t even see what the Lab is working on?

Third, Swartz’s work toward an Open Access Movement outlined in his Guerrilla Open Access Manifesto remains undone.

The effect of closed/limited access to publicly-funded information may be killing us and our planet. This can’t be stressed enough, based on one example from Malamud’s recollection:

… The last time Aaron had downloaded large numbers of journal articles was in 2008, when he downloaded 441,170 law review articles from Westlaw, a legal search service. He was trying to expose the practice of corporations such as Exxon funding a practice known as “for-litigation research,” which consisted of lucrative stipends given to law professors who in turn produced articles penned specifically so they could be cited in ongoing litigation. In the case of Exxon, they were trying to reduce their $5 billion in punitive damages from the Exxon Valdez Oil Spill. Aaron didn’t release any of the articles he downloaded, but the research he did was published in 2010 in a seminal article in the Stanford Law Review that exposed these ethically questionable practices in the legal academy. …

If Exxon did this for the Valdez Oil Spill, have they also done this with regard to climate change-related documents since the late 1980s?

Why isn’t this kind of work protecting the public’s interest against the malign use of corruptly-controlled data one of the Lab’s research programs?

Open access, too, must apply to MIT Media Labs. It must be as transparent as Swartz would have wished it to be.

You have to wonder how different the course of technology would have been as well as history had open access been baked into publicly-funded research at MIT Media Lab from the beginning.

UPDATE — 9:00 AM EDT 23-AUG-2019 —

Keep an eye on Evgeny Morozov’s Twitter feed as he’s been sharing more material on MIT Media Lab and Jeffrey Epstein.

Like this thread in progress by Media Lab fellow Sarah Szalavitz, who had warned against taking Epstein’s money. Alan Dershowitz pops up in that thread.

Note also community member foggycoast’s comment in which they share quite a few resources to help flesh out MIT Media Lab’s early years as well as Aaron Swartz’s papers.

I’d like to hear from more women who worked at Media Lab because I’m sure they won’t be as blind to predatory behavior as men have been. But then this asks people with less social capital, including some potential victims, to do the work of exposing this hidden form of corruption.

Bill Barr Refuses to “Comply First, Complain Later” with Congressional Oversight

A number of people have talked about how dangerous — and how outdated — is much of what Attorney General Bill Barr said to a police organization the other day. I’d like to take another approach with his speech: to show what it looks like when you replace “police” with a co-equal branch of government constitutionally empowered to police the Executive. The italicized words below have swapped out the original. I’ve underlined my own additions.

The anti-oversight narrative is fanning disrespect for the law.  In recent years, we have witnessed increasing toleration of the notion that it is somehow okay to resist oversight.

Previously, it was well understood that, regardless of the circumstances, legal resistance is unacceptable because it necessarily leads to a spiral of escalating resistance that endangers the ability of Congress to oversee the Executive.  For that reason, virtually all jurisdictions have made resistance a serious crime.

Not too long ago influential public voices — whether in the media or among community and civic leaders — stressed the need to comply with oversight commands, even if one thinks they are unjust.  “Comply first” and, if you think you have been wronged, “complain later.”

But we don’t hear this much anymore.  Instead, when an incident escalates due to a suspect’s legal resistance to oversight, that fact is usually ignored by the commentary.  Congress’ every action is dissected, but the suspect’s resistance, and the danger it posed, frequently goes without mention.

We need to get back to basics.  We need public voices, in the media and elsewhere, to underscore the need to “Comply first, and, if warranted, complain later.”  This will make everyone safe – the police, suspects, and the community at large.  And those who resist must be prosecuted for that crime.  We must have zero tolerance for resisting police.  This will save lives.

[snip]

These anti-oversight Attorneys General have tended to emerge in jurisdictions where the nomination process is undermined by an abuse of Vacancy Reform Act.  Frequently, these candidates get rushed through because the incumbent is an entirely unqualified flunky and their confirmations are sometimes accompanied by large infusions of money from outside groups.

Once in office, they have been announcing their refusal to enforce broad swathes of the criminal law.  Most disturbing is that some are refusing to prosecute cases of resisting oversight.

Bill Barr doesn’t believe any average American should ask questions before complying with those empowered to force them to abide by the law.

But his view is entirely different when it comes to his boss complying with the only body — given the OLC memos Barr has reinforced — with the authority to police Executive branch abuses. Indeed, he has (unsurprisingly) refused to enforce contempt citations, and has instead fostered the kind of disrespect for the law he claims to believe in.

Four Months Ago Attorney General Bill Barr Called BOP Staff Shortages that Led to Whitey Bulger Murder “a SNAFU”

At an Appropriations hearing in April, Republican Senator Shelley Moore Capito premised a question about cuts to Bureau of Prison staffing budgets by reminding, “We’ve had several murders at Hazelton,” the federal Maximum Security facility in her state of West Virginia. (The WaPo noted this exchange in one of their early stories on Jeffrey Epstein’s death, though without this context.)

She doesn’t mean just any murders. In addition to some inmates from DC that Eleanor Holmes Norton had raised concerns about last fall, Hazelton was the site of Whitey Bulger’s murder, a death in BOP custody of an inmate every bit as worthy of close attention as Jeffrey Epstein, a death that was every bit as predictable as Epstein’s.

Capito went on to list several of the same problems that appear to have permitted Epstein’s death in the Metropolitan Correctional Center: staffing shortages and people assigned to perform duties they’re not trained for.

We’ve had complaints from staffing that there’s staffing shortages, it’s not safe for our correctional officers, they’re being asked to perform different duties maybe than what they’re originally assigned for, and in the budget, there’s a funding reduction for correctional officer staffing and salaries in the budget. Could you help me square with that, and is this a national problem that you’re finding across the BOP?

After Bulger’s murder, correctional officer union representatives cited the same problems: severe understaffing and people hired for other functions filling in for guards.

“(The) reported death at USP Hazelton, while concerning, is unsurprising,” said J. David Cox Sr., president of the American Federation of Government Employees. “Federal prisons across the country are suffering from severe understaffing, and the situation is perhaps no more dire than at Hazelton.”

The union reported that one in five positions authorized two years ago is vacant, and teachers, administrative assistants and accountants have had to fill in shifts as officers and first responders to violent incidents.

In response to a question from a Republican Senator about these issues, the Attorney General admitted failure. “I think this is an area where we have stumbled.” Rather than answering Senator Capito’s question about the budget, though (again, this was an Appropriations hearing), he instead explained that the problem wasn’t budget, it’s that the BOP doesn’t have all its assigned slots full because of how it hires.

I’ve been looking into this because it’s been very frustrating to me because I’ve always supported Bureau of Prisons in the past and think it’s a great organization and if we’re going to have people incarcerated we have to make sure they’re incarcerated under proper conditions. We are  — The way I look at it our authorized level is good and adequate. It’s that we’re four to five thousand people short of our authorized level.

Barr went on to provide evidence of a systematic underlying problem. “Every year we lose 2,600 of these correctional officers.” Without considering why turnover in the BOP is so high, he instead offered this solution. “My view is we just have to turn on the spigot and just keep these new entry level people coming in at a rate where we’re going to be able to get up to and maintain our enacted level. So I think this is largely a SNAFU by the department.”

Senator Capito warned once more about staffing levels and noted that those staffing levels are one of the reasons why people — even in West Virginia — don’t want the jobs.

I’m glad to hear what you’ve said in terms of getting more people in because the ratios are going up and in certain situations can be very dangerous for the officers that are working there, and then it discourages people from wanting to stay. It’s a tough job.

In a statement the other day, Barr claimed that some of the things that led to Epstein’s death (whether murder or suicide) — the same understaffing leading to people playing roles they weren’t hired for that Capito warned of in April — were “severe irregularities.”

I was appalled – indeed, the entire Department was – and frankly angry, to learn of the MCC’s failure to adequately secure this prisoner.  We are now learning of serious irregularities at this facility that are deeply concerning and that demand a thorough investigation.  The FBI and the Office of Inspector General are already doing just that.  We will get to the bottom of what happened at the MCC and we will hold people accountable for this failure.

This afternoon, Barr took action against the MCC warden and the two staffers on whose watch Epstein died, temporarily reassigning the warden and putting the officers on leave, effectively blaming them for conditions he called a SNAFU back in April.

On Tuesday, Barr “directed the Bureau of Prisons to temporarily assign” warden Lamine N’Diaye to a regional office, pending the outcome of internal investigations into Epstein’s death, the Justice Department said in a statement. Two staffers who were assigned to Epstein’s unit at the time of his death were placed on administrative leave, the department said.

Back in April, Barr called staffing shortages in prisons “a SNAFU.” Now, having been warned and having acknowledged the problem, he’s claiming some of the same problems were not regular, but instead severely irregular, and he’s blaming the people on the front lines rather than those in charge of the “SNAFU.”

DOJ Should Just Give Andrew McCabe What He Wants, But They Won’t

185 paragraphs into his complaint against Bill Barr, Christopher Wray, and DOJ and FBI for unlawful termination, Andrew McCabe makes what is probably an untrue statement.

Had Plaintiff pledged his personal loyalty to Trump, voted for Trump in the 2016 election (or falsely told Trump that he had), not worn a T-shirt supporting Dr. McCabe’s campaign, and not been married to Dr. McCabe, Defendants would not have reached the decisions to demote him and terminate him, nor would they have proceeded on the accelerated schedule that deprived him of his full vested pension and related benefits.

The statement is true, insofar as they’re the issues that Trump bitched about for the year leading up to McCabe’s firing in part to discredit the Mueller investigation. They’re true because Trump has claimed they’re true, so there will be abundant evidence to submit to prove they are true. But they’re not true insofar as the Russian investigation is what led Trump to hunt down his perceived enemies, and the DOJ IG investigation is the claimed reason for McCabe’s firing.

But the claims nevertheless assert the principle that FBI employees can’t be forced to take a loyalty oath. And as such, the lawsuit seeks to uphold a principle at the core of our judicial system.

That’s not the only complaint McCabe makes. Along another First Amendment claim, he also makes two due process claims and one mandamus claim that gets into the legal fine print of the way that, in response to pressure from Trump, top DOJ officials fast-tracked an effort to get rid of McCabe.

The legal details are actually of real interest, given that Wray, then Associate Deputy Attorney General Scott Schools, and Jeff Sessions, among others, bolloxed the firing of McCabe. As Schools told McCabe while he was trying to accelerate the review of his termination in March 2018, “We’re making it up as we go along.” DOJ fucked up in two significant ways.

First, they didn’t get around to “firing” McCabe until 10:00 pm on March 16, 2018, after FBI clocked the final day McCabe had to put in before qualifying for retirement at 5:00 pm that same day. FBI registered that day as a full vacation day. By the time Sessions fired McCabe late at night, he claims, he was already legally retired. (Note, there’s a real tragicomic section describing Sessions’ role, including that the firing did not come with any of the official details like time of termination needed for such a firing, that are very similar to the way that Sessions himself would be fired 8 months later).

The other way they bolloxed McCabe’s firing is by demoting him on January 28, 2018. On that day, Wray gave McCabe a choice: to remain at FBI in a demoted role of his picking if he lied and said the demotion was voluntary, or remain in a lesser role of Wray’s choice if he refused to lie. Instead, McCabe took terminal leave, meaning he was no longer one of the positions that the Attorney General or Acting Attorney General could terminate directly. As McCabe described it, Sessions didn’t have the authority to fire McCabe.

Sessions publicly announced that he had terminated Plaintiff “[p]ursuant to [DOJ] Order 1202,”but that did not give Sessions the authority to terminate employees in Plaintiff’s position. DOJ Order 1202, promulgated pursuant to 5 U.S.C. § 3151, provides that the FBI Director alone has authority to terminate career FBI senior executives, except that the Attorney General and Deputy Attorney General retain authority to remove those who serve in certain enumerated “key positions.” After Defendant Wray removed Plaintiff from the role of Deputy Director in January 2018 and replaced him with Bowdich, Plaintiff remained a career FBI senior executive but did not serve in any of the “key positions” listed in DOJ Order 1202. Defendant Wray, as FBI Director, did not authorize Plaintiff’s termination and in fact previously refused Sessions’ request to terminate Plaintiff. Accordingly, Plaintiff was not, in fact, terminated before his retirement.

[snip]

Additionally, Sessions lacked any authority to terminate Plaintiff due to conflicts of interest and recusals, including Sessions’ March 2017 recusal from “investigations of any matters related in any way to the campaigns for President of the United States.” Defendants’ pretextual basis for Plaintiff’s termination arose from the OIG investigation of Plaintiff’s actions related to the 2016 U.S. presidential campaign, specifically his actions regarding campaign-related articles published in October 2016 by the Wall Street Journal. Sessions’ recusal, on its face, extended to the OIG investigation. Sessions’ recusal was therefore a “disability” under 28 U.S.C §508(a), meaning that he lacked qualification to participate in Plaintiff’s termination. As a result, Sessions had no authority to terminate Plaintiff.

The entire complaint is (as one would expect for a suit filed by four Arnold & Porter lawyers on behalf of a lawyer who happens to be a former top FBI official) very well lawyered in such a way that the legal issues are very narrow, even while invoking the entirety of Trump’s obstructive behavior along the way.

The easiest way DOJ could make this go away would be to grant McCabe’s request, to find that he had retired before he was fired, with the benefits accruing accordingly (McCabe refutes the findings of the DOJ IG investigation against him in more cursory fashion, though it’s key to his due process claims and his allegations reflect badly on the well-respected Michael Horowitz). But to do that, DOJ would rob Trump of one of his favorite petty wins.

So they probably won’t.

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.

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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.

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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?

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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

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