John Bolton Versus Navy Versus Egan

John Bolton filed a motion opposing the government’s legal actions against him last night (it is both a memorandum in opposition to the Temporary Restraining Order as well as a motion to dismiss). It is particularly interesting because of some things Jack Goldsmith and Marty Lederman laid out in this post. As they note, the judge presiding over today’s hearing has no tolerance for Executive Branch bullshit, even on classified matters; the government’s own description of what happened raises lots of questions about regularity of the claim of classification, particularly as respects to whether there any compartmented information (SCI) remains in Bolton’s book; and the scrutiny of the government will be particularly stringent here, since it wants to censor something before publication.

This, however, might be a case in which a judge rejects or at least refuses to countenance the government’s classification decisions, at least for purposes of the requested injunction. That’s because of a confluence of unusual factors.  They include:

  • Several years ago, Judge Lamberth declared at a conference of federal employees that federal courts are “far too deferential” to the executive branch’s claims that certain information must be classified on national security grounds and shouldn’t be released to the public.  Judges shouldn’t afford government officials “almost blind deference,” said Lamberth.
  • The decision to classify material here appears to be highly irregular.  The career official responsible for prepublication review at the National Security Council determined after a long process that Bolton’s manuscript contained no classified information.  A political appointee who had only recently become a classifying authority, Ellis, then arrived at a different conclusion after only a brief review.  It is even possible that Ellis classified information in Bolton’s manuscript for the first time after Bolton was told by Knight that the manuscript contained no classified information.  At a minimum there were clearly process irregularities in the prepublication consideration of Bolton’s manuscript.
  • The D.C. Circuit in dicta in McGehee stated that the government “would bear a much heavier burden” than the usual rationality review of executive branch classified information determinations in cases where the government seeks “an injunction against publication of censored items”—i.e., in a case like this one.  Although it’s not clear whether that’s right, the First Amendment concerns raised by this case, in this setting, may affect how credulous Judge Lamberth is of the government’s classified information determinations and of the unusual way in which Bolton’s prepublication review was conducted.

Bolton’s motion answers a lot of questions that Goldsmith and Lederman asked in their post. For example, they ask whether Ellen Knight consulted with other top classification authorities before she verbally told Bolton the book had no more classified information in it; Bolton’s motion describes that on the call when Knight told Bolton the book had no more classified information, she, “cryptically replied that her ‘interaction’ with unnamed others in the White House about the book had ‘been very delicate,’ and that there were ‘some internal process considerations to work through.'”

Goldsmith and Lederman lay out a lot of questions contemplating the likelihood that Michael Ellis claimed the manuscript had SCI information after Knight informed Bolton that it had no more classified information, of any kind (remember, Ellis is likely the guy who moved Trump’s Ukraine transcript onto the compartmented server after people started raising concerns about it, so there would be precedent). Bolton’s brief lays out an extended description of why, if this indeed happened, it doesn’t matter with respect to the way his SCI non-disclosure agreement is written, because based on the record even the government presents, Bolton had no reason to believe the manuscript had SCI in it, and plenty of reason to believe it had no classified information of any type, when he instructed Simon & Schuster to move towards publication.

However, in its brief, the Government asserts for the first time that Ambassador Bolton’s book contains SCI and, therefore, that the SCI NDA applied to his manuscript and required that he receive written authorization from the NSC to publish it. See Doc. 3 at 12–14. This surprise assertion that the book contains SCI, even if true, would not alter the conclusion that the SCI NDA is inapplicable to this case.

The Government is not painting on a blank canvas when it asserts that Ambassador Bolton’s book contains SCI. Rather, the Government’s assertion comes after a six-month course of dealing between the parties that informs whether and how the NDAs apply. See RESTATEMENT (SECOND) OF CONTRACTS § 202(4) (1981); see also id. § 223. Ambassador Bolton submitted his manuscript for prepublication review on December 30, 2019. Over the next four months, he (or his counsel) and Ms. Knight exchanged more than a dozen emails and letters, participated in numerous phone calls, and sat through more than a dozen hours of face-to-face meetings, painstakingly reviewing Ambassador Bolton’s manuscript. Yet, in all that time, Ms. Knight never asserted—or even hinted—that the manuscript contained SCI, even as she asserted that earlier drafts contained classified information. 102 After conducting an exhaustive process in which she reviewed the manuscript through least four waves of changes, Ms. Knight concluded that it contains no classified information—let alone SCI—as the Government concedes. Doc. 1 ¶ 46.

Nor did Mr. Eisenberg assert in either his June 8 or June 11 letters that the manuscript contains SCI. Nor did Mr. Ellis assert in his June 16 letter that the manuscript contains SCI. Indeed, not even the Government’s complaint asserted that the manuscript contains SCI, even as it specifically alleges that it contains “Confidential, Secret, and Top Secret” information. Doc. 1 ¶ 58. The first time that anyone in the Government so much as whispered that the manuscript contains SCI to either Ambassador Bolton or the public was yesterday, when the Government filed its motion. For nearly six months, it has been common ground between the NSC and Ambassador Bolton that his manuscript does not contain SCI. Only now, on the eve of the book’s publication and in service of seeking a prior restraint, has the Government brought forth this allegation.

And here is the key point: Ambassador Bolton authorized Simon & Schuster to publish his manuscript weeks ago, not long after receiving Ms. Knight’s confirmation that the book did not contain classified information and long before the Government’s first assertion yesterday that the book contained SCI. 103 Thus, at the time Ambassador Bolton proceeded with publishing his book—a decision that has long-since become irrevocable—he had absolutely no reason to believe that the book contained SCI. Indeed, quite the opposite: the Government had given him every reason to believe that it agreed with him that the book did not contain SCI. And if the book did not contain SCI, the SCI NDA did not apply when Ambassador Bolton authorized the book’s publication.

Yet the Government now argues that the SCI NDA did apply based on its discovery of alleged SCI six months after the prepublication-review process began. If that argument is sustained—if, that is, an author may be held liable under the SCI NDA even though neither the author nor the Government believed that the author’s writing contained SCI through four months of exhaustive prepublication review—it would mean that any federal employee who signs the SCI NDA would have no choice but to submit any writing, and certainly any writing that could even theoretically contain SCI, and then await written authorization before publishing that writing. The risk of liability would simply be too great for any author to proceed with publishing even a writing that both he and the official in charge of prepublication review believe, in good faith, is not subject to the SCI NDA.

What Goldsmith and Lederman don’t address — but Bolton does at length in his brief — is the role of the President in these matters. Bolton lays out (as many litigants against the President have before) abundant evidence that the President was retaliating here, including by redefining as highly classified any conversation with him at a very late stage in this process.

Yet, the evidence is overwhelming that the Government’s assertion that the manuscript contains classified information, like the corrupted prepublication review process that preceded it, is pretextual and in bad faith:

  • On January 29, the President tweeted that Ambassador Bolton’s book is “nasty & untrue,” thus implicitly acknowledging that its contents had been at least partially described to him. He also said that the book was “All Classified National Security.”112
  • On February 3, Vanity Fair reported that the President “has an enemies list,” that “Bolton is at the top of the list,” and that the “campaign against Bolton” included Ms. Knight’s January 23 letter asserting that the manuscript contained classified information.113 It also reported that the President “wants Bolton to be criminally investigated.”114
  • On February 21, the Washington Post reported that “President Trump has directly weighed in on the White House [prepublication] review of a forthcoming book by his former national security adviser, telling his staff that he views John Bolton as ‘a traitor,’ that everything he uttered to the departed aide about national security is classified and that he will seek to block the book’s publication.”115 The President vowed: “[W]e’re going to try and block the publication of [his] book. After I leave office, he can do this.”116
  • As described in detail above, Ambassador Bolton’s book went through a four-month prepublication-review process with the career professionals at NSC, during which he made innumerable revisions to the manuscript in response to Ms. Knight’s concerns. At the end of that exhaustive process, she stated that she had no further edits to the manuscript,117 thereby confirming, as the Government has admitted, that she had concluded that it did not contain any classified information.118
  • At the conclusion of the prepublication-review process on April 27, Ms. Knight thought that Ambassador Bolton was entitled to receive the pro-forma letter clearing the book for publication and suggested that it might be ready that same afternoon.119 She and Ambassador Bolton even discussed how the letter should be transmitted to him.120
  • During that same April 27 conversation, Ms. Knight described her “interaction” with unnamed others in the White House about the book as having “been very delicate,”121 and she had “some internal process considerations to work through.”
  • After April 27, six weeks passed without a word from the White House about Ambassador Bolton’s manuscript, despite his requests for a status update.122
  • When the White House finally had something new to say, it was to assert its current allegations of classified information on June 8, in a letter that—by the White House’s own admission—was prompted by press reports that the book was about to be published.123
  • Even though the manuscript was submitted to NSC on December 30, 2019, and despite the exhaustive four-month review and the six weeks of silence that had passed since Ms. Knight’s approval of the manuscript on April 27, the White House’s June 8 letter gave itself until June 19—only four days before the book was due to be published—to provide Ambassador Bolton’s counsel with a redacted copy of the book identifying the passages the White House purported to believe were classified.
  • On the eve of this lawsuit being filed, in response to a question about this lawsuit, the President stated: “I told that to the attorney general before; I will consider every conversation with me as president highly classified. So that would mean that if he wrote a book, and if the book gets out, he’s broken the law.”124 The President reiterated: “Any conversation with me is classified.”125 The President added that “a lot of people are very angry with [Bolton] for writing a book” and that he “hope[d]” that Ambassador Bolton “would have criminal problems” due to having published the book.126
  • On June 16, the NSC provided to Ambassador Bolton a copy of the manuscript with wholesale redactions removing the portions it now claims are classified. Consistent with President Trump’s claim, statements made by the President have been redacted, as have numerous passages that depict the President in an unfavorable light.127

It is clear from this evidence that the White House has abused the prepublication-review and classification process, and has asserted fictional national security concerns as a pretext to censor, or at least to delay indefinitely, Ambassador Bolton’s right to speak.

While Goldsmith and Lederman focused, with good reason, on Ellis’ role, Bolton is focused on President Trump’s role. Bolton lays out abundant evidence that the reason this prepublication review went off the rails is because the President, knowing how unflattering it was to him, made sure it did.

And that raises entirely new issues because under a SCOTUS precedent called Navy v. Egan, the Executive has long held that the President has unreviewable authority over classification and declassification decisions. That doesn’t change contract law. And–given that the courts have already granted the President a limited authority to protect the kinds of things being called SCI here under Executive Privilege–it raises real questions about whether Trump is relying on the proper legal claim here (which may be a testament to the fact that Executive Privilege holds little sway over former government officials).

Still, courts have sanctioned a bunch of absurdity about classification under the Navy v. Egan precedent, arguably far beyond the scope of what that decision (which pertained to clearances) covered. Yet, I would argue that Bolton has made Navy v. Egan a central question (though he does not mention it once) in this litigation.

Can the President retroactively classify information as SCI solely to retaliate against someone for embarrassing him — including by exposing him to criminal prosecution under the Espionage Act? That’s the stuff of tyranny, and Royce Lamberth is not the judge who’ll play along with it.

Let me very clear however, particularly for the benefit of some frothy leftists who are claiming — in contradiction to all evidence — that liberals are somehow embracing Bolton by criticizing Trump’s actions here: Bolton’s plight is not that different from what whistleblowers claim happens to them when they embarrass the Executive Branch generally. Their books get held up in review and some of them get prosecuted under the Espionage Act.

What makes this more ironic, involving Bolton, is that he has been on the opposite side of this issue. Indeed, the Valerie Plame leak investigation focused closely on whether Dick Cheney’s orders to Scooter Libby to leak classified information — after which he leaked details consistent with knowing Plame’s covert status, as well as details from the National Intelligence Estimate — were properly approved by George Bush. Bolton was a party to that pushback and his deputy Fred Fleitz was suspected of having had a more active role in it. In that case, the President (or Vice President) retaliated for the release of embarrassing information by declassifying information for political purposes. But in that case, the details of what the President had done have remained secret, protected by Libby’s lies to this day.

In this case, Bolton can present a long list of evidence — including the President’s own statements — that suggest these classification decisions were retaliatory, part of a deliberate effort to trap Bolton in a legal morass.

So Bolton isn’t unique for his treatment as a “whistleblower” (setting aside his cowardice in waiting to say all this). He’s typical. What’s not typical is how clearly the President’s own role and abusive intent is laid out. And because of the latter fact — because, as usual, Trump hasn’t hidden his abusive purpose — it may more directly test the limits of the President’s supposedly unreviewable authority to classify information. So, ironically, someone like Bolton may finally be in a position to test whether Navy v. Egan really extends to sanctioning the retroactive classification of information solely to expose someone to criminal liability.

A Tale of Two National Security Advisors

As you no doubt heard, in addition to suing John Bolton for breach of contract over his Trump book, the Trump Administration has also asked for a Temporary Restraining Order against Bolton, purportedly with the goal of getting him to do things that are no longer in his control. At one level, the legal actions seem designed to make Bolton’s book even more popular than it would otherwise be — while starving him of any royalties for the book. Judge Royce Lamberth, who has a history of pushing back against Executive abuse (including claims involving classification) has been assigned the case; he scheduled a hearing for tomorrow.

I agree with the bulk of the analysis that these legal efforts will fail, to the extent they’re really trying to prevent Bolton from releasing the book. I also agree with analysis about the uphill climb Bolton faces to avoid having his profits seized.

That said, I can’t help but notice the way the filings set Bolton up — possibly, even for prosecution (which LAT reports remains under consideration), but also for a remarkable comparison with Trump’s first National Security Advisor, Mike Flynn.

Legally, the filings do what they need to do to seize Bolton’s profits, and will probably succeed (meaning you can buy the book and your money will go to the US Treasury). But, as noted, they’re not written to actually win an injunction, most especially against Bolton’s publisher, Simon & Schuster.

The filings do something else, though. They tell how Bolton apparently shared drafts of his manuscript before it had been cleared, which in turn got shared with the press.

35. On January 26, 2020, the New York Times published an article describing information purportedly “included in drafts of a manuscript” that Defendant, apparently without any protections for classified national security information, had “circulated in recent weeks to close associates.” The article set forth information allegedly contained in “dozens of pages” of the manuscript. A true and correct copy of this article is attached hereto as Exhibit F.

36. On information and belief, the January 26, 2020 article led to a tremendous surge in publicity for the pre-sales of the book, including hundreds of news articles, discussion on major television networks, statements by members of Congress, and widespread circulation of the article’s content on social media.

37. On January 27, 2020, the Washington Post published a separate article describing content contained in The Room Where it Happened, relying on the statements of “two people familiar with the book,” indicating, on information and belief, that Defendant had disclosed a draft of the manuscript to others without receiving prior written authorization from the U.S. Government. A true and correct copy of this article is attached hereto as Exhibit G.

38. Thus, notwithstanding this admonition, in late January 2020, prominent news outlets reported that drafts of Defendant’s manuscript had been circulated to associates of Defendant. These articles included reports from individuals supposedly familiar with the book, which indicates, on information and belief, that Defendant had already violated his non-disclosure agreements while purporting to comply with the prepublication review process. See supra ¶¶ 27, 29; see also Exhs. E & F

They lay out evidence that Bolton specifically knew the dangers of disclosing classified information, most ironically with a citation of his complaints about Edward Snowden (who also had his profits seized).

Defendant knows well the threat posed by disclosing classified information that might benefit the Nation’s adversaries. See John Bolton, “Edward Snowden’s leaks are a grave threat to US national security,” The Guardian, https://www.theguardian.com/commentisfree/2013/jun/18/edwardsnowden-leaks-grave-threat (June 18, 2013). Congress does as well, as reflected in its decision to criminalize the unauthorized disclosure of classified information. See, e.g., 18 U.S.C. §§ 641, 793, 794, 798, 952, 1924.

They provide multiple declarations — from Mike Ellis, the Trump hack who has politicized classified information in the past, from National Counterintelligence Director Bill Evanina claiming this is the kind of information our adversaries look for, from Director of NSA Paul Nakasone talking about the specific vulnerability of SIGINT, and from Director of National Intelligence John Ratcliffe, whose name the TRO misspells and whose experience looks exceedingly thin compared to the others, along with classified declaration from Ellis. Even though the declarations were obviously carefully curated by Ellis, these are nevertheless the kinds of things courts usually bow to, when the government makes claims about classification. While neither we nor Bolton or his lawyer will get to review the actual claims being made, such declarations are usually sufficient to get the desired recourse.

Perhaps notably, the filings include a letter from John Eisenberg (whose shenanigans regarding the Ukraine call Bolton made more significant), written on June 11, at a time when the White House already knew Bolton was moving to publish, accusing Bolton of publishing this information for financial gain.

Fourth, your self-serving insinuations that the NSC review process has been directed at anything other than a good faith effort to protect national security information is offensive. Your client has taken classified information, including some that he himself classified, and sold it to the highest bidder in an attempt to make a personal profit from information that he held in trust as a public servant–and has done so without regard for the harm it would do to the national security of the United States.

Effectively, this package of filings does nothing to prevent the book from coming out. But it very carefully lays a record to meet the elements of an Espionage charge. Given this notice, the government would be in a position to point to the publication of the book (that Bolton couldn’t stop now if he wanted) and prove that Bolton had an obligation to keep these things secret, he knew the damage that not doing so could cause, and yet nevetheless published the information.

Whether they will prosecute or not is unclear. But these filings make it far easier to do so.

The White House is preparing to claim that John Bolton is akin to Edward Snowden, solely because he aired Trump’s dirt in a book.

This all comes at the same time as the government is making extraordinary efforts to prevent Mike Flynn from being punished for secretly working for a frenemy country while getting classified briefings, and calling up the country that just attacked us in 2016 and discussing how Russia and the Trump Administration had mutual interests in undermining Obama’s policies.

The same DOJ that is magnifying Bolton’s risk for an Espionage prosecution found nothing inappropriate in Flynn calling up the country that had just attacked the US and teaming with that hostile country against the current government of the United States.

Nor was anything said on the calls themselves to indicate an inappropriate relationship between Mr. Flynn and a foreign power. Indeed, Mr. Flynn’s request that Russia avoid “escalating” tensions in response to U.S. sanctions in an effort to mollify geopolitical tensions was consistent with him advocating for, not against, the interests of the United States. At bottom, the arms-length communications gave no indication that Mr. Flynn was being “directed and controlled by … the Russian federation,” much less in a manner that “threat[ened] … national security.” Ex. 1 at 2, Ex. 2 at 2.

Indeed, the Attorney General even claimed the call was “laudable,” even while lying that it didn’t conflict with Obama’s policies.

But it’s not just in the courts where DOJ is working hard to protect the guy who really did harm the US. In an effort to sow the propaganda case for Mike Flynn, the Trump Administration has been on a declassification spree, including — by Ratcliffe — the transcripts of some (but not all) of Flynn’s calls with Sergey Kislyak, something that has never been done before. Significantly, the claims that Nakasone and Ratcliffe make in their declarations in the Bolton case, especially with regards to disclosing SIGINT burns the collection going forward, were clearly violated when Ratcliffe declassified the transcripts.

To be honest, I won’t weep if Bolton is prosecuted. He would have had more legal protection had he testified during the impeachment inquiry, which would have done more good for the country. It would be an abuse, but such abuse has been directed against far more vulnerable and admirable people.

But the comparison of the claims Mike Ellis is making about Trump’s third National Security Advisor with the treatment given his first — the guy who actively sold out his country rather than did so with his inaction — only serves to emphasize how Trump subjects what traditionally gets called national security to loyalty.

The greatest “national security” sin a Trump Administration official can commit, this comparison shows, is disloyalty to Donald Trump.

Lev Parnas’ Co-Defendant David Correia Tests the Send-Your-Phone Border Exception Work-Around

As much of a splash as Lev Parnas made during the Trump impeachment, his co-defendants are each mounting more intriguing defenses.

In the case of David Correia — who was charged in the marijuana side of the indictment — that includes an attempt to bypass the border exception (which allows authorities to search anything carried on your person through customs) by sending his attorney an iPhone, a Microsoft Surface Pro, a hard drive, and two notebooks he had with him before he returned to the United States to be arrested in October.

Are devices sent from overseas to an attorney covered by attorney-client privilege?

The issue first became public in March, when the government asked Judge Paul Oetken to order Correia’s lawyers, William Harrington and Jeff Marcus, to file a privilege claim over the package by March 23 (the government has been holding off accessing the evidence from the devices awaiting such claims). In a letter claiming that March 23 deadline was unrealistic given the COVID crisis, Correia’s lawyers claimed the government had totally misrepresented the attorney-client claim (and complained that the government had neither informed Correia right away about the seizure in October nor raised this issue at a status conference in February). With the government’s consent, Oetken gave Correia an extension.

Ultimately, Correia argued that he had sent the materials, “for the purpose of seeking legal advice,” The filing argued that because the FBI had ample notice that Marcus represented Correia (Correia lawyered up by August), and because Marcus negotiated a self-surrender upon Correia’s return from abroad, the government had to recognize that the DHL package was privileged when they obtained it. Correia further argued that because the notebooks include information that was clearly intended to solicit advice, the entire package must be privileged (that argument, however, was utterly silent about the devices). The lawyers also note that Correia did not send all the papers he had with him, which they point to as proof that the documents — to include the devices — that he did send were a selection specifically intended to get advice.

The government just submitted its response (note that one of the lawyers on this case, Nicholas Roos, also took part in the privilege fight over Michael Cohen’s devices). In it, they reveal that a privilege team reviewed the notebooks, after which prosecutors sent scanned copies of the notebooks and asked Correia’s lawyers to assert any privilege claims by January 20.

In the course of reviewing these materials for privileged information, the Government’s filter team identified items that potentially could be privileged. Accordingly, those items were withheld from the prosecution team and were redacted from the materials that are being produced in discovery. Since the filter team identified those items as only potentially privileged because the records do not contain adequate information to make a definitive assessment, the filter team will be providing the unredacted materials to you. If you believe any of the items that were redacted, or any other items, are privileged, please so indicate by January 20, 2020, and provide the factual basis for such a privilege assertion to the filter team. After that date, the materials in their unredacted form will be released to the prosecution team and produced in discovery.

After receiving that, Correia first claimed that everything in the package, including the devices, was privileged.

The government, however, cites Second Circuit and SDNY precedent holding that materials pre-existing attorney-client communications are not privileged.

Indeed, as the Second Circuit held nearly sixty years ago—rejecting a claim that the attorney-client privilege applied to various documents provided by a client to his counsel—“the attorney-client privilege protects only those papers prepared by the client for the purpose of confidential communication to the attorney or by the attorney to record confidential communications,” but “pre-existing documents and . . . records not prepared by the [client] for the purpose of communicating with their lawyers in confidence . . . acquired no special protection from the simple fact of being turned over to an attorney.” Colton v. United States, 306 F.2d 633, 639 (2d Cir. 1962); see also United States v. Walker, 243 F. App’x 261, 623-24 (2d Cir. 2007) (“putting otherwise non-privileged business records . . . in the hands of an attorney . . . does not render the documents privileged or work product (citing Ratliff v. Davis Polk & Wardwell, 354 F.3d 165, 170-71 (2d Cir. 2004))).

And it argues that they should be able to access anything pre-existing that is not privileged (the filter team continues to review the content of the devices).

The FBI’s preliminary analysis indicates that Correia’s hard drive contains tens of thousands of documents, images, and audio and video files; his iPhone contains tens of thousands of documents, images, and audio and video files, as well as other data such as internet browsing history and location information; and his Suface Pro computer contains hundreds of thousands of documents, images, and audio and video files. It is undisputed that these materials, as well as his notebooks, existed prior to Correia’s communications with counsel on this case. They were not, in toto, created at the direction or advice of counsel, and did not become privileged merely because Correia sought to send them to his counsel.

The government rejects Correia’s argument that by accessing the files, the government learned about what selection of materials Correia was seeking counsel. It argues that nothing in the package reflected instructions from Marcus to Correia (there was no note included at all), and the  government first learned that the selection of items in the package ended up there based on Marcus’ advice from Correia’s own filing.

Correia erroneously claims that by intercepting the DHL package, the Government learned what materials counsel had advised Correia to collect. On the contrary, the DHL package contained no such communication. The Government “learned” that fact—assuming it is true— only through counsel’s briefing on this motion. In any event, it is simply false to suggest that the DHL package contained a carefully curated selection of relevant documents. It contained the opposite: the entirety of Correia’s multiple devices and notebooks, with no indication as to what particular documents or portions of documents may be relevant. The seizure of those materials revealed nothing about counsel’s “defense planning” (Mot. 13)

[snip]

As counsel is well aware, the Government’s assumption had been that Correia simply sent his devices and notebooks to counsel so that they would not be in his possession and subject to seizure when he was arrested.

While the government doesn’t address the documents Correia had on his person on his arrest, they describe that he had no devices at all, just the charging cords for them.

Although Correia still had a phone case, multiple phone chargers, and charging cords with him, he did not have a single electronic device on his person.

Given how often InfoSec people have argued that this method — sending your lawyer sensitive devices before crossing a border — is the best way to protect them, the resolution of this issue has some wider legal interest.

But in this case, the resolution likely comes down to the fact that prosecutors told Judge Oetken, when getting a warrant for the DHL package, that it was sent from Correia to his lawyer.

This Court, based upon an affidavit that made clear the DHL package was sent by Correia to his counsel, found probable cause to believe that the package and its contents contained evidence, fruits, and instrumentalities of federal crimes.

[snip]

On or about October 21, 2019, the Court signed a search warrant authorizing the Government to search a package sent via DHL from Correia to his counsel (the “DHL Package Warrant”). The supporting affidavit explained the following, among other things: On October 9, 2019—the same day that Lev Parnas and Igor Fruman were arrested—agents with the Federal Bureau of Investigation (“FBI”) attempted to arrest Correia at his home, but learned from his wife that Correia was out of the country. Shortly thereafter, Jeff Marcus, Esq., contacted the FBI, identifying himself as Correia’s counsel. Counsel arranged for Correia to fly into New York on October 14, 2019, arriving on October 15, 2019, in order to surrender. Counsel confirmed that Correia was aware that he would be arrested by the FBI upon landing in the United States.1 On October 14, 2019, however, counsel advised the FBI that Correia had left his passport at a DHL store, where he was mailing something before flying back to the United States, and could not board the plane without his passport.

[snip]

The affidavit in support of the DHL Package Warrant further stated that “materials obtained from DHL” reflected that Correia had mailed the DHL package to his counsel. The affidavit noted that the package’s listed contents—provided by the sender, Correia—apparently included a phone, tablet, and hard drive, which “do not appear to be items that were created for the purpose of legal advice but rather appear to have been sent by mail so that they would not be on Correia’s person when he arrived in the United States to be arrested.” The affidavit stated that the Government would nonetheless “utilize a filter review process, including through the use of a filter team comprised of agents and prosecutors who are not part of the prosecution team, for review of the [DHL package and its contents].”

That is, Oetken has already weighed in on this matter, and the government has provided a good deal of Second Circuit and SDNY precedent far more on point than a single Fifth Circuit case, United States v. Hankins, that Correia relies on. One key detail seems to distinguish this seizure and search from any garden variety attempt to bypass the border exception: Correia knew he was going to be arrested when he landed, meaning he knew he was trying to defeat not just the border exception, but a search warrant for anything on his person.

Where did the seizure happen and under what legal authority?

All that said, there’s a detail that, while it probably doesn’t affect the legal argument, raises questions about how and when the government seized the package. As noted, Correia sent the package from a DHL office in whatever country he was in (he was somewhere in the Middle East, and wherever it is, flights to JFK all seem to involve red eyes). He left his passport at that office, so he was unable to board his scheduled flight on October 14. In explaining the one day delay in Correia’s self-surrender, Marcus unwisely told prosecutors that DHL was involved and only in later communications revised his explanation to say Correia had left his passport in a “local” store. It’s unclear whether the government seized the package in that foreign country or as it entered the US. Nor is it clear — from the scant details of the affidavit included in the government filing — whether the government had, or needed, a warrant to make that seizure. However they seized it, Correia is not challenging the legal sufficiency of the seizure itself on any but privilege grounds (though he may file suppression motions in May).

As Correia described it, when the package never arrived at Marcus’ office, they asked DHL where it had gone, and DHL ultimately claimed to have lost it.

In the following days, Mr. Marcus’s law firm never received the communication sent by Mr. Correia via DHL. Id., at ¶ 20. Mr. Correia made repeated inquiries to DHL about its status but was told several times that it was “lost” in transit and DHL was taking steps to locate the sent package. Id. Finally, on October 29, 2019, DHL informed Mr. Correia that “[a]fter conducting extensive searches of our Service Centers, including warehouses, docks, vehicles and lost and found facilities, we have not been able to locate your shipment.” Id. They also said they were ending their search.

DHL was either obeying a gag, or seem not to have received process from the government that would show up in their files.

So unbeknownst to Correia, the government somehow seized the package, and on October 21 (a week after Correia sent it), got Judge Oetken to approve a warrant to search the package and the devices in it.

Correia only learned details of what happened, serially, between December and January.

After a December 2019 court conference, the defense team learned that the Government said it was in possession of the telephone that Mr. Correia had sent to his lawyers via DHL. Id., at ¶ 21. The defense team also subsequently received a search warrant which indicated that the Government had intercepted and searched Mr. Correia’s communication to Mr. Marcus. Id., at ¶ 22. In a production letter dated January 10, 2020, the Government produced an agent’s inventory of Mr. Correia’s communication to Mr. Marcus which included two notebooks, a hard drive, a computer and a telephone.

The most likely answer, however, is that the government obtained the package with DHL’s assistance, which is not legally surprising, but something worth noting for those attempting to use this method to bypass border exceptions.

The pending superseding indictment

The government has said in past hearings that it plans to obtain a superseding indictment before May. Given how COVID has affected all legal proceedings, including grand juries, that likely will be delayed. But it seems clear that the government wants to obtain this information before that happens.

Chuck Grassley and His Two Republican Friends

After spending several days hemming and hawing about it, Chuck Grassley has sent a letter to President Trump, asking that he “provide more detailed reasoning for the removal of Inspector General Atkinson no later than April 13, 2020.”

The letter cites the basis for which Congress can make such demands: Inspector Generals work for both Congress and the Executive.

Further, the IC IG and indeed all inspectors general (IG) are designed to fulfill a dual role, reporting to both the President and Congress, to secure efficient, robust, and independent agency oversight. To ensure inspectors general are fully capable of performing their critical duties, and in recognition of their importance both to efficient administration and to the legislative function, Congress set clear, statutory notice requirements for their potential removal.

And it lays out how Trump’s move — not just putting Michael Atkinson on 30-day administrative leave (something Obama did , but also naming Thomas Monheim as Atkinson’s replacement immediately, something without precedent that Adam Schiff also raised concerns about.

Further, according to public reports, Mr. Atkinson already was placed on administrative leave, effectively removing him from his position prior to the completion of the statutorily required notice period.

[snip]

Please also provide your views on how the appointment of an acting official prior to the end of the 30 day notice period comports with statutory requirements.

The letter is precisely the kind of Congressional pushback on a removal that laws governing the appointments of Inspectors General envision. This is not just a show; Grassley has a long history of caring deeply about this stuff (and twice defended Schiff’s efforts to keep the identity of the Ukraine whistleblower secret).

The problem with his letter is this:

Just two of the Senators who co-signed this letter, Susan Collins and Mitt Romney, are Republicans (Gary Peters, ranking member on Homeland Security and Governmental Affairs Committee, also signed). Grassley unsurprisingly didn’t get the hackish Ron Johnson, who as the Chair of HGSAC should make a pretense of giving a damn about oversight, to sign on. He didn’t get the Senator with the biggest role in overseeing the ICIG, Senate Intelligence Chair Richard Burr, to sign on (though Mark Warner is Ranking Member on the committee). And he didn’t get any of the other Senators — like Lisa Murkowski or Lamar Alexander — who purportedly considered voting for impeachment to sign on.

And that means, without enough Republicans to be able to threaten that a majority of the Senate would back an effort to enforce this request, Trump can and might well just blow this request off.

DOJ’s Ukraine Fire Sale: The Jerry Nadler Questions Bill Barr Didn’t Answer

Yesterday, Natasha Bertrand posted a January 17, 2020 memo issued by Deputy Attorney General Jeffrey Rosen, which was cited in a response DOJ sent to a letter Jerry Nadler sent on February 10. In it, Assistant Attorney General for Legislative Affairs Stephen Boyd explained that — in addition to asking Scott Brady to manage intake of any disinformation Rudy Giuliani provides DOJ, Rosen “assigned Richard Donoghue, the U.S. Attorney for the Eastern District of New York, to assist in coordinating … several open matters being handled by different U.S. Attorney’s Offices and Department components that in some way potentially relate to Ukraine.”

Add Donoghue to the list of US Attorneys that Attorney General Barr has deployed in his effort to politicize the Department.

Because the Donoghue Ukraine news (and the suggestion that Donoghue may be overseeing an investigation into the Bidens) got so much attention, there has been little attention to the questions Nadler originally asked, most of which Boyd did not answer.

But those questions are perhaps more telling.

For starters, Bill Barr did not answer whether he intends to recuse himself from the Ukrainian grifter case.

In light of the allegations by Mr. Parnas against the Department and you personally, do you intend to recuse yourself from any and all communications relating to Ukraine? Have you done so already?

In addition, Barr did not answer several questions about communications between DOJ, Rudy, and the White House:

(8) Please state the dates of any communications between the Department and Mr. Giuliani regarding information relating to Ukraine or investigations of the Bidens. Please state who else, if anyone, participated in those communications.

(9) Has the Department shared any information it has received from Mr. Giuliani with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the information conveyed to the White House.

(10) Have you discussed the intake process with President Trump or any other White House official? If so, please state the dates of any such communications, the participants in any such communications, and the nature of the discussion.

The only answer Boyd gives to any of these questions effectively repeats DOJ’s September 25, 2019 press answer.

Finally, your letter poses questions regarding a September 25, 2019 press statement by the Department. That statement remains accurate. As Attorney General Barr has repeatedly affirmed, he has not discussed matters relating to Ukraine with Rudolph Giuliani.

In short, Bill Barr refused to answer a specific question about whether he should recuse from an investigation into which he has been personally implicated. And DOJ refused to explain precisely what kind of communications there have been between Rudy, DOJ, and the White House.

The Size of Bill Barr’s Cover-Up Hints at the Magnitude of What He’s Covering Up

After the Tuesday Afternoon Massacre — where four prosecutors withdrew from the Roger Stone case rather than be party to Bill Barr interfering in the prosecution of Trump’s rat-fucker — we learned on Friday that Bill Barr had deployed a third US Attorney — Saint Louis’ Jeffrey Jensen — to the DC US Attorney’s office as part of an elaborate cover-up for Trump’s crimes. I’m going to attempt to lay out the full scope of Barr’s attempted cover-up. This post will serve as an overview and I will update it with links to the known or suspected evidence and crimes that Barr is covering up. I’m not including efforts to launch or sustain investigations into those Trump perceives to be his enemies.

The cover-up has the following aspects:

Interim US Attorneys oversee investigations implicating Trump’s actions

Geoffrey Berman, Southern District of New York: For the most part, Berman seems to have operated independently after his appointment as US Attorney for SDNY, but there are recent concerns that investigations implicating Trump have been stymied:

  • Hush payments: After getting Michael Cohen to plead guilty to covering up Trump’s past sex partners during the election and obtaining testimony from National Enquirer, the investigation closed with no further charges on or before July 17, 2019.
  • Ukrainian grifters: There are conflicting stories about the scope of the investigation into Ukrainian grifters Lev Parnas and Igor Fruman, particularly with regards to how seriously SDNY is considering charges against Rudy Giuliani. WaPo reported steps taken implicating Rudy’s activities on February 14, 2020. But Parnas has insinuated that his sudden arrest on October 9 was an attempt to keep him silent; Barr visited SDNY that day and subsequently visited Rupert Murdoch at his home. SDNY showed unusual concern for the privacy of third parties as Parnas tried to share more information with the House Intelligence Committee. And Bill Barr has not recused in spite of a clear conflict and a request from Parnas.
  • Halkbank: Barr tried to pre-empt an indictment of Turkey’s Halkbank with a settlement.

Timothy Shea, District of Columbia: While Berman worked for several years without any show of corruption, that’s not true of Timothy Shea, a trusted Barr aide. The very first day he started work — having been installed by Barr with just a day’s notice — he started questioning the guidelines sentence of Roger Stone, who has promised to remain silent about details of Trump’s involvement in his efforts to optimize the release of emails stolen by Russian. Then, Shea worked with Bill Barr to reverse the guidelines sentence recommended by career prosecutors. In addition, Shea’s appointment coincided with the start of a “review” of other prosecutions and investigations of Trump associates in DC including, but not limited to, Mike Flynn and Erik Prince.

Confirmed US Attorneys “review” investigations into Trump and his associates

John Durham, Connecticut: In May 2019, Barr ordered John Durham to conduct an investigation into the origins of the Crossfire Hurricane investigation of Trump associates’ ties to Russia. He predicated the investigation, explicitly, on the absence of evidence. In clear contrast to the Mueller investigation, DOJ has produced no documentation regarding the scope of the investigation (including whether Durham could pursue crimes by Trump’s associates or even Barr himself if he found evidence of a crime), and Barr has remained personally involved, completely negating the entire point of appointing a US Attorney to conduct the investigation. Republicans have described the point of this investigation as an effort to discredit the Mueller investigation. It has included the following:

  • Bill Barr’s worldwide tour chasing the hoaxes rolled out through George Papadopoulos via the right wing echo chamber
  • Some disinformation likely fed via Rudy
  • The legitimate criminal investigation of FBI Attorney Kevin Clinesmith, the actual venue for which should be Washington DC
  • CIA’s 2016 determination — confirmed by more recent intelligence collection and reviewed approvingly by the Senate Intelligence Committee — that Russia not only wanted to hurt Hillary, but help Trump in the 2016 election
  • Communications between John Brennan and Jim Comey and Andrew McCabe

Jeffrey Jensen, Eastern District of Missouri: The “review” Jeffrey Jensen is conducting of DC US Attorney cases seems to couple with Durham’s investigation. It reportedly is second-guessing decisions made by prosecutors on the Mike Flynn and Erik Prince investigation, as well as other non-public investigations. The review is almost certainly assessing rumors started by known propagandists that have already been investigated three times, including by FBI’s Inspection Division, rumors already reviewed and dismissed in a meticulous 92-page opinion from Emmet Sullivan. This “review” seems to have been part of the installment of Shea at DC and may amount to an attempt to thwart investigations that Jessie Liu let proceed without political interference.

DOJ diverts disinformation from Rudy Giuliani to another confirmed US Attorneys

In recent weeks, Barr has appointed Scott Brady, US Attorney for Western District of Pennsylvania, to vet incoming information from Rudy’s foreign influence peddling in Ukraine. It’s unclear whether Barr did this to try to make something out of that disinformation, or to prevent evidence that might support foreign influence peddling charges against Rudy from getting to prosecutors in SDNY.

Richard Donoghue, Eastern District of New York: Donoghue is apparently “handling certain Ukraine-related matters.” In connection to that, Jeffrey Rosen put Donoghue in charge of coordinating all investigations that pertain to Ukraine,

to avoid duplication of efforts across Offices and components, to obviate the need for deconfliction at a later stage of potentially overlapping investigations, and to efficiently marshal the resources of the Department to address the appropriate handling of potentially relevant new information.

That in and of itself is not problematic. But by putting Jensen in charge of intake, presumably before it gets to Donoghue, Rosen has ensured that information that — because it is disinformation — would be incriminating to Rudy, not Joe Biden (or anyone else).

DOJ prevents full investigation of Ukraine complaint

Barr and his DOJ engaged in multiple acts of obstruction of the Ukraine complaint. First, Barr did not recuse from a complaint mentioning him by name. Then (knowing that Barr was personally implicated), DOJ did not conduct a full assessment of the whistleblower complaint, which would have identified a tie to the SDNY investigation of Lev Parnas and Igor Fruman. Then OLC invented an excuse not to share whistleblower complaint with Congress, which resulted in a significant delay and almost led Ukraine to make concessions to obtain aid. Then, DOJ did not share whistleblower complaint with FEC as required by Memorandum of Notification. Finally, DOJ made a comment claiming Trump was exonerated, precisely the abuse — speaking about ongoing investigations — that Jim Comey got fired for.

The Slow Firing of Robert Mueller[‘s Replacement]

On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Three Things: When the Hangover Ends

I debated about writing and publishing this but after last week Republicans are too relaxed and smug.

The not-a-trial of Donald J. Trump is off their backs and they can go back to whatever slacking off they were doing last year as Senate Majority Leader Mitch McConnell continues to sit atop a stack of more than 400 bills the House passed, waiting for this prospective legislation to suffocate and die.

They have a couple handy whipping boys — well, a boy and a girl — in Mitt Romney and Nancy Pelosi. Morons like Kevin McCarthy can make videos on the taxpayers’ dime, poking fun at Pelosi while celebrating the failure to convict Trump.

To Congress’s GOP caucus: Get a fucking grip on yourselves. We can see your emperor has no clothes and your asses are showing, too.

~ 3 ~

Trump was a whiny wretch at the National Prayer Breakfast on Friday, complaining about how he was treated during the not-trial.

He was a jackass during a speech about impeachment during which he was equally obnoxious, admitting to obstructing justice.

Here’s the thing: in these public performances voters see a malignant narcissist with some form of undiagnosed neurological disorder — likely a form of progressive dementia. The Republicans KNOW he’s ill but they are too afraid of him calling them names to do anything about it.

You have to wonder how many elderly parents these jerks have who are not in a safe place while suffering from dementia because the way they’ve treated Trump reflects who they are elsewhere.

The public has also seen this:

They’ve also seen this:

And this, because Trump’s neurological deficit has become a joke fit for television:

The Senate Republicans couldn’t convict him for this behavior BUT his behavior the House found impeachable — abusing office and obstructing Congress — in no small part arose from his increasing instability on top of his lifelong lawlessness.

After more of his suspicious sniffing, Trump admitted to obstruction of justice on camera, then swore at 4:44 in the above video clip. He’s not glued in and in need of constant narcissistic supply — Republicans surely must be able to see this.

He’s not going to get better. Trump’s not going to remain stable. Prescribed medications clearly couldn’t do much to stop his dystonic movements during the one annual speech a substantive number of Americans watch.

GOP attacks on Speaker Pelosi don’t redirect our attention. We can see through their maliciousness to their insecurity.

Republicans must start dealing with this. They must start talking about it — clearly the public already has. There’s been a group of health professionals publishing warnings for more than two years.

The GOP will have a lot more to fear than one failing old man with neurological problems if they don’t face this issue.

They’re chickenshit, Sen. Sherrod Brown (D-OH) was too nice to say in his NYT op-ed:

“…One journalist remarked to me, ‘How in the world can these senators walk around here upright when they have no backbone?’

[…]

For the stay-in-office-at-all-cost representatives and senators, fear is the motivator. They are afraid that Mr. Trump might give them a nickname like “Low Energy Jeb” and “Lyin’ Ted,” or that he might tweet about their disloyalty. Or — worst of all — that he might come to their state to campaign against them in the Republican primary. They worry:

‘Will the hosts on Fox attack me?’

‘Will the mouthpieces on talk radio go after me?’

‘Will the Twitter trolls turn their followers against me?’ …”

Except for Romney they’re pussies, letting Trump grab them by their short hairs.

They need to do the math. If more than 20 Senate Republicans had made a pact to stick together — say, all the Class II senators up for re-election in 2020, the two retiring senators and Mitt Romney — Trump and his horde would have a damned tough time overcoming that bloc slinging a few bad names at them. The public would have had a hard time accepting as legitimate the malignant narcissist’s harangue and his hideous family’s backup refrain.

Fox News would have a hard time coming up with a cohesive narrative to bat down this number. The right-wing Twitterati would likewise find themselves over their tiny heads. And Limbaugh isn’t in any condition to fight Trump’s fight, Medal of Freedom Fries or no.

If the Republican senators can’t organize a bloc they deserve what will eventually come for them — the utter dissolution of their power and authority, having already yielded both to a sick old man.

And they’d better get their shit together if he has a major meltdown and becomes incapacitated by Election Day. Or is that what they’re hoping for so they don’t have to expend any effort bucking the malignant-narcissist-in-chief?

~ 2 ~

Revenge. Retaliation. Retribution. That’s what the chickenshit GOP senate unleashed when they rolled over and voted to acquit Trump.

We knew it was coming because Trump’s fucking minions have huge mouths, no couth, and less smarts.

Ueland’s remarks suggest actions taken by the White House against witnesses and against states and federal services’ users has been premeditated. Given the number of White House staff and federal employees required to perform some of these retaliatory efforts there may be an ongoing conspiracy.

The firing of Lt. Col. Alex Vindman was bad enough, a retaliatory firing of a federal employee who testified on request before the House Intelligence Committee. But firing his brother who didn’t testify looks incredibly personal and punitive.

While I have no pity for hotelier and million-dollar Trump donor Gordon Sondland, his firing, too, was retaliatory — a reaction to his requested testimony before the House.

Donors will surely think twice about political appointments if not donations as Sondland’s business had already suffered a downturn once it became more widely known he was both a Trump supporter and a hotelier.

Four Republican senators — that’s all — tried to save Sondland’s job. They did nothing for the Vindmans, which looks utterly spineless:

But this is what looks really, really bad:


GOP senators applauding and laughing at Trump’s vengeful firing of federal employees.

They’re literally scoffing at their own laws.

The only reason why Republican senators are getting away with enabling behavior is their co-equal but separate status. Their true bosses may wish to have a word with them come November.

~ 1 ~

Trump’s unlawful solicitation of assistance from a foreign national to aid his 2020 re-election campaign may already have born fruit given Joe Biden’s flagging results in opinion polls and in the Iowa caucus.

But is Trump now using federal resources to interfere in his opponents’ campaigns, holding unnecessary rallies in states before the Iowa caucus and the New Hampshire primary?

Rally on Thursday 30-JAN-2020 in Des Moines, IA, the largest city in the state
Caucus on Monday 03-FEB-2020 across Iowa

Rally on Monday 10-FEB-2020 in Manchester, NH, the largest city in the state
Primary on Tuesday 11-FEB-2020 across New Hampshire.

Why would Trump hold a rally in these states when he has a 94% approval rating with his own political party?

Isn’t this a waste of taxpayers’ resources?

Is he really threatening to cut Medicare, Medicaid, and Social Security to pay down a deficit he created while making worse by spending more taxpayer money on his unnecessary rallies?

The kicker, though, is how bad he looks doing this:

~ 0 ~

This is an open thread. Bet you have a few things you want to get off your chest about our descent into autoritarianism — you can do it in comments.

Bill Barr Commits the Bruce Ohr “Crime”

Far be it for me to ever underestimate the possibility of Bill Barr nefariousness (and I’ll almost certainly have to eat these words), but I’m far less concerned about what Barr said the other day about a process to ingest Ukrainian bullshit from Rudy Giuliani than virtually everyone else. That’s because in his comments from the other day, he emphasized the import of vetting information from Ukraine, whether it comes from Rudy Giuliani or anyone else.

We have to be very careful with respect to any information coming from the [sic] Ukraine. There are a lot of agendas in the [sic] Ukraine, there are a lot of cross-currents, and we can’t take anything we receive from the [sic] Ukraine at face value. And for that reason we had established an intake process in the field so that any information coming in about Ukraine could be carefully scrutinized by the department and its intelligence community partners so that we could assess its provenance and its credibility. That is true for all information that comes to the Department relating to the [sic] Ukraine including anything Mr. Giuliani might provide.

This sounds like the kind of thing you’d do to placate your boss even while ensuring DOJ doesn’t accept a bunch of disinformation manufactured by mobbed up oligarchs to mess with America.

The WaPo’s report that Barr is sending all this to the US Attorney in Pittsburgh suggests Barr neither wants this stuff in Main DOJ but also is not sending it to either of the two places — John Durham’s inquiry or the SDNY prosecution of the Ukrainian grifters — where it might be used in an ongoing investigation.

A Justice Department official said Giuliani had “recently” shared information with federal law enforcement officials through the process described by Barr. Two people familiar with the matter said the information is being routed to the U.S. attorney’s office in Pittsburgh.

[snip]

It is not clear whether Scott W. Brady, the U.S. attorney in Pittsburgh, will play a similar role, or why his office was chosen. A spokeswoman for Brady’s office declined to comment.

So while I hope (again, probably over-optimistically) that this is just a convenient way to deal with a difficult boss and his criminal subject attorney, I also worry that it’s not being shared with the people investigating such information sharing as illegal foreign influence peddling.

Plus, it strikes me as a unbelievably hypocritical for Bill Barr to continue to ingest dodgy information probably sourced to corrupt oligarchs after the entire frothy right has demonized Bruce Ohr for continuing to accept information — some but not all of it sourced to Oleg Deripaska — from Christopher Steele.

Admittedly, no one can complain about the basis for which DOJ’s Inspector General relied on to make a completely irresponsible attack on Ohr — that he didn’t inform his superiors (even though they had, in fact, been informed). Barr is the boss! He has chosen who should deal with this information, in a way that Sally Yates and Rod Rosenstein did not.

But Barr is, nevertheless, doing what the frothy right complains that Ohr did: continue to accept problematic information — deemed partisan (inaccurately in the case of Ohr, because his information sharing with Steele long preceded the DNC project and much of what he shared during and after that involved entirely unrelated topics) — after it had been discredited.

Perhaps, along with issuing orders that suggest Trump can commit any crime he wants between now and November 2020, Barr should issue an order explaining how DOJ should accept such information — including manufactured dirt from Steve Bannon — as a rule, so we can stop working under different rules for different parties.

Midnight in Washington: Today’s Senate Vote [UPDATE-2]

[NB: Updates will appear at the bottom of this post. /~Rayne]

This post is dedicated to today’s U.S. Senate’s proceedings with regard to the trial of Donald J. Trump under articles of impeachment for abuse of power and obstruction of Congress.

The Senate is scheduled to convene at 4:00 p.m. ET* for the vote. Debate is underway already.

Senate live video link

C-SPAN live video via YouTube

C-SPAN’s live feed at their site

Eleven Films made a video in which House Intelligence Committee chair Adam Schiff’s closing arguments are the centerpiece.

There’s a weak chance that GOP members of Congress could prove me wrong and do impartial justice. There might be a few who vote to convict Trump.

But I doubt it, not when they have proven time and again to be weak and craven, like Sen. Susan Collins who could be persuaded with a little cash to claim Trump has learned a lesson from impeachment.

What a pathetic fool. Mainers deserve so much better.

The worst part of what’s to come? Just as Trump made his “perfect call” the day after Robert Mueller’s testimony before Congress, Trump will feel vindicated if he is not removed from office today.

His vile minions will manipulate him in his addled state into wreaking revenge.

And every one of the GOP members of Congress who did not vote to impeach and did not vote to convict and remove Trump will own what’s to come.

You’ll note I’m not holding my breath for impartial justice.

* Note the time change from 2:00 p.m. to 4:00 p.m. Debate speeches are still underway as of 3:25 p.m.

~ | ~ | ~

UPDATE-1 — 2:15 P.M. ET —

Give it up for Mitt Romney. I’m still in doubt this will persuade any other GOP senators to do the right thing and vote to convict.

ADDER: Oh gads Mitt’s splitting the baby. He’s going with one vote to convict on abuse of power, one vote to acquit on obstruction of Congress. I don’t even know how he could imagine ordering people not to comply with requests and subpoenas from the House isn’t obstruction.

UPDATE-2 — 4:50 P.M. ET —

As expected, the GOP senators voted along party line to acquit Trump. Mitt Romney was the exception, voting to convict on abuse of power but acquitting on obstruction of Congress.

You own all of this, GOP. Everything up to now, everything that follows now that you’ve turned your back on the rule of law. You are tied with a cord of steel to this forever.

The GOP senators who are up for re-election this year are:

Capito, Shelley Moore (R-WV)
Cassidy, Bill (R-LA)
Collins, Susan M. (R-ME)
Cornyn, John (R-TX)
Cotton, Tom (R-AR)
Daines, Steve (R-MT)
Enzi, Michael B. (R-WY)
Ernst, Joni (R-IA)
Gardner, Cory (R-CO)
Graham, Lindsey (R-SC)
Hyde-Smith, Cindy (R-MS)
Inhofe, James M. (R-OK)
McConnell, Mitch (R-KY)
Perdue, David (R-GA)
Risch, James E. (R-ID)
Rounds, Mike (R-SD)
Sasse, Ben (R-NE)
Sullivan, Dan (R-AK)
Tillis, Thom (R-NC)

Alexander, Lamar (R-TN) – retiring, seat is open.
Roberts, Pat (R-KS) – retiring, seat is open.

McSally, Martha (R-AZ) — is up for election; she’s an appointee who replaced a previous short-term appointee, Jon Kyl.

Find their opponents and give them a hand. Vote everyone of these scofflaws out of office.

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