Impeachment Hearing for December 4, 2019

As you may have heard there is an impeachment hearing in the House Judiciary today. Consider this your all purpose thread for comments and discussion on that. It is set up as a teaching class on “what impeachment is”. There are four witnesses, all Constitutional law professors. Noah Feldman, Pamela Karlan, Michael Gerhardt and Jonathan Turley. The first three are excellent voices, especially Pam Karlan. Pam is brilliant, and if I had my way, she would have been on the Supreme Court instead of Elena Kagan. She is really special. Feldman and Gerhardt are very good too. Turley is the annoying turd in the fishbowl, and that is exactly why the Republican minority is putting him up.

Frankly not sure anything worthwhile will be accomplished today. Doug Collins, Jim Jordan and Louis Gohmert are going to scream and shout. Nadler has never been good at controlling his huge and races committee. It will not be as lame as the Lewandowski hearing, but will likely be as bad or worse than the Mueller session. I’ll also add that the decision to pout up some professors instead of fact witnesses strikes me as silly. Today is also likely to show exactly why Pelosi is still derelict in how she has commanded the process. There should have been a select special impeachment committee in order to avoid this kind of nonsense.

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Links for streaming:

HJC’s site: https://judiciary.house.gov/legislation/hearings/impeachment-inquiry-president-donald-j-trump-constitutional-grounds

C-SPAN: https://www.c-span.org/video/?466833-1/judiciary-hearing-constitutional-framework-impeachment

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Additional documents:

House Intelligence Committee’s report based on their investigation and collected testimony

Just Security has testimony from today’s witnesses:

Noah Feldman — American author and Felix Frankfurter Professor of Law at Harvard Law School.
Michael Gerhardt — Samuel Ashe Distinguished Professor of Constitutional Law at the University of North Carolina School of Law in Chapel Hill.
Pamela Karlan — professor of law at Stanford Law School; former U.S. Deputy Assistant Attorney General for Voting Rights in the United States Department of Justice Civil Division from 2014 to 2015.
Jonathan Turley — professor at the George Washington University Law School; legal analyst in broadcast and print journalism.

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Twitter feeds to follow:

Marcy’s Twitter threads:

1) https://twitter.com/emptywheel/status/1202243842394775553

2) https://twitter.com/emptywheel/status/1202313357124083715

Brandi Buchman, Courthouse News: https://twitter.com/BBuchman_CNS/status/1202234420968726528

Adam Klasfeld, Courthouse News: https://twitter.com/KlasfeldReports/status/1202241007800197121

Aaron Rupar, Vox: https://twitter.com/atrupar/status/1202247284551016448

If you come across other journalists live tweeting this hearing, please share in comments.

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Characters to watch:

GOP committee members Doug Collins, Matt Gaetz, Jim Jordan, and Louis Gohmert are expected to engage in the worst sorts of performance art to frustrate the hearing process. (<- my $.02 /~Rayne)

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Updates to this post will appear here at the bottom.

Bill Barr’s Screed: Blindness about Current Threats

A lot of people are talking about the intemperate speech that Bill Barr gave to the Federalist Society yesterday. I’ll leave the detailed unpacking, about both its legal and historical claims, to others. To me, I find it unsurprising from a guy who used to be a serious authoritarian attorney but who has rotted his brain for the last two decades watching Fox News.

Obviously, Barr makes claims about “progressive” politics while ignoring that some things he celebrates — such SCOTUS letting conservatives gerrymander their fellow citizens out of representation — show that Republicans, not “progressives” are the ones “willing to use any means necessary to gain momentary advantage in achieving their end, regardless of collateral consequences and the systemic implications.” Relatedly, Barr absolutely disappears all trace of conservative opposition to Trump (or, for that matter, any other opposition aside from those who adopt the term “resisistence”), and they’re the people who actually fit the description of “conservative” that he imagines he can still claim.

Conservatives, on the other hand, do not seek an earthly paradise.  We are interested in preserving over the long run the proper balance of freedom and order necessary for healthy development of natural civil society and individual human flourishing.  This means that we naturally test the propriety and wisdom of action under a “rule of law” standard.  The essence of this standard is to ask what the overall impact on society over the long run if the action we are taking, or principle we are applying, in a given circumstance was universalized – that is, would it be good for society over the long haul if this was done in all like circumstances?

Donald Trump’s Republican Party is no longer conservative, in any way, and it is sheer denial for Barr to think he merits this moniker any more.

Given that fact, I’m amused, reading the speech, by the possibility that Barr’s own actions may (or may not) bring about the state he claims to fear, with the Executive actually being reined in. It is his own hubris, in fact, that poses the risk here.

I’m also struck by how he admits that his job is to “carry into effect the laws passed by the Legislature,” because it is here that Bill Barr, personally, has failed this country.

To be sure, Executive power includes the responsibility for carrying into effect the laws passed by the Legislature – that is, applying the general rules to a particular situation.

Congress passed (and the Executive approved) a law requiring entities to share information that the Federal Election Commission to do his job. This is a law that Barr’s DOJ continues to enforce. But his own DOJ broke the law by failing to share the whistleblower complaint with the FEC.

Congress passed (and the Executive approved) a law requiring Inspectors General to share whistleblower complaints with Congress within stated timelines. Barr’s DOJ broke that law, and in the process allowed the President to continue to extort Ukraine when Congress should have had warning.

Congress passed (and the Executive approved) the Budget Control Impoundment Act, a means of enforcing their power of the purse. If the President fails to spend money appropriated by Congress in the way they intend it to be spent, he must inform them, and provide them a timely way to override his actions. This is a crime that lies at the core of the impeachment investigation, but Barr has done nothing to pursue action even against Mick Mulvaney, who admitted that the Administration violated the law, to say nothing of the President.

Bill Barr complains that Congress is spending too much time conducting oversight and not enough time legislating (though he should take this up with Mitch McConnell, because the House is getting plenty of legislating done). But meanwhile, he has failed to do his duty, as he himself describes it.

But the most striking part of this speech is how he ends it. He suggests that the best moments in history (including Americas genocide of Native Americans and imperialism) have been accomplished through robust Executive power.

At every critical juncture where the country has faced a great challenge –

– whether it be in our earliest years as the weak, nascent country combating regional rebellions, and maneuvering for survival in a world of far stronger nations;

– whether it be during our period of continental expansion, with the Louisiana Purchase, and the acquisition of Mexican territory;

– whether it be the Civil War, the epic test of the Nation;

– World War II and the struggle against Fascism;

– the Cold War and the challenge of Communism;

– the struggle against racial discrimination;

– and most recently, the fight against Islamist Fascism and international terrorism.

One would have to say that it has been the Presidency that has stepped to the fore and provided the leadership, consistency, energy and perseverance that allowed us to surmount the challenge and brought us success.

He may have a point about some of these, especially the Civil War and Civil Rights.

Except Bill Barr appears to have zero clue what the biggest current threats to the country are. There’s no mention of climate change, of course, but President Trump has undercut efforts to respond to that emergency.

Closer to home for Barr, there’s a mention of what he calls “Islamist Fascism,” but no mention of white supremacist terrorism, which the FBI considers an increasingly grave threat. The President Barr enables fuels that terrorism, in large part because no one will rein in his worst behaviors.

Finally, there are the threats to our sovereignty posed by the ability of foreign powers — and Russia is just one — the buy up or compromise our politicians, starting with the President, and set US policy in ways that harm this country. This is the threat that Barr not only denies aggressively, but fosters, by flying around the world to find foreign propaganda to inject into our criminal justice system.

It may be true that some of our greatest moments as a nation were shepherded by a strong Executive. But in this particular case, the Executive that Barr is enabling is accelerating three of the greatest threats to this country. And making Trump stronger only exacerbates those threats.

Too Roger Stoned Trash Talk

As you may have heard, Roger Stone was convicted on all counts yesterday. Marcy’s post is here. A jury still deliberating on a Thursday is one thing, but they like to get the fuck out of Dodge by a Friday afternoon, and this one did. Predictable.

Not necessarily shocked they rendered verdicts of guilty on all counts, but do think Judge Amy Berman Jackson may give serious consideration to a post trial motion, at least as to the witness tampering verdict. It takes a lot for an honest trial judge, and ABJ is certainly that, to overturn a jury verdict, and I really doubt she does here. But think she will look hard at, at a minimum, the witness tampering evidence. We shall see.

Okay, what counts in the college ranks this weekend? Indiana has been on a serious roll of late, and this week plays Penn State. If the Hoosiers can beat PSU, they are for real, but not gonna bet on that. I still don’t think the Michigan Harbaugs are real, but they will likely beat an uncharacteristically off Sparty. Texas may run into a Brock Purdy buzz saw at Iowa State. Purdy is from right here in the Cactus Patch, and he is really good. The Dawgs of UGA at Auburn may be the best game of the day, with a soft nod to Oklahoma at Baylor.

In the Pros, there was a bit of a kerfuffle Thursday night, while beating the Steelerts, Cleveland’s Myles Garrett stripped the Steeler’s QB Mason Rudolph’s helmet and beat him on the head with it. Garrett has been suspended for the rest of the year, at least, maybe longer under the “indefinitely” designation. That is proper. But, too, TV twatwaffles like CNN’s Michael Smerconish are putting out public polls as to whether Garrett should also be criminally prosecuted. What the “public” thinks does not mean squat, this is a decision for professional prosecutors, not television audiences.

I am really looking forward to the matchup of Deshaun Watson and Lamar Jackson as the Texans visit Baltimore. These are transcendent talents, and it is hard to root against either one, but I’ll tai the Ravens at home. Dallas at Detroit probably depends on if Matt Stafford plays over his clear back injury, but even is so the ‘Boys are likely the safer pick. Jags at Colts is a pick em, but Jacoby Brissett looks to be back which favors Indianapolis. Who would have guessed we would see the Wagon Circling Bills at 7-3 after ten games, but they are likely to be so after a visit to Miami. Jets at Skins for the lulz. The best game is, obviously, New England at Philly in a replay of Super Bowl LII. Both teams come off a bye. Never bet against Bill Bel, but, damn, this could be epic. And it ought be on prime time instead of the crack ass placing of the Bears at Rams for SNF and Chiefs at Bolts for MNF.

This, for all the promise going into it, has been a boring and tepid Formula One season. Let it end, please. But Sunday is the Brazilian Grand Prix, a historically significant race, even if this year does not shape up for one. Only AbuDhabi remains after that on the schedule, thankfully.

Music this week is from Robin Trower and one of the truly great overall rock albums of all time, Bridge of Sighs. This is the studio cut, although I can attest it was even better live. Rock on.

ADDENDUM: Yearrgh, I screwed up and did not address Earl’s (and undoubtedly Ed Walker’s) game of Notre Dame and Navy. Early on, I thought the Irish were actually back with a great team. They proved that false with a loss to the Georgia Dawgs (a seriously good team by the way) and then to a sketchy Michigan team and barely eking out wins over what should have been far outmanned teams like USC and West Virginia at home in South Bend. Today the Wolverweenies play the Midshipmen of Navy. Also, again, in their South Bend home. Do the Irish ever have the balls to play a difficult opponent outside of their own stadium, unless forced to do so? Go Navy!

Boomtown Blues Trash Talk

As the kids are wont to say, that was a hell of a week, and I’m only talking about Thursday and Friday. Also, too, there seems to be a second IC whistleblower on the horizon, per the NY Times. Things are happening fast, and in real time.

First up is the collegiate athletics. By the way, I honestly think all the Fair Pay to Play acts are, well, not good. They will give a very select small few rights to earn big money, and be seen as different by all the other college athletes that will never benefit. It is a caste system, and empowerment of the 1% off of Wall Street and onto the NCAA landscape. That is not a good thing.

Here is a piece by Michael McCann at the newly decimated Sports Illustrated, that I actually agree with. If Fair Pay to Play is to be enacted, it is absolutely necessary that it be done on a national basis, not a bogus piecemeal state by state basis, as some over aggressive voices are pushing. If you are going to do it, do it right. Join the national effort, not just try to make a name for yourself in your particular state.

Fair Pay to Play Acts are really ratifying that only a select few will ever profit off of the toils of the many. And the only recipients will be, with very few exceptions, in only football and basketball. The theory is not as evil as the result it will create. Irrespective of that merits discussion though, the siren song of state fame seems to be stronger for some noisy advocates than joining in a legitimate national plan. Shocker!

Alright, back to actual college football. It is a rather weak week for interesting games. Iowa at Michigan may be one of the best,and that is pretty telling. The best game is, arguably, Auburn at Florida. Jim White’s Gators have been a bit of a surprise, while Auburn was maybe larger on the preseason radar. The game is in the Swamp, which is huge for Florida. Auburn seems for real this year though, on both sides of the ball. That is the one game I will be truly watching. Mostly a whole lot of nothing after that this week.

As to the Pros: The Squawks beat the Rams in a great Thursday Night game. Off the top of my head, I think the Thursday Night football this year is already of a better quality than past years. Scribe said Vontaze Burfict should be banned from the NFL. I did not necessarily disagree, because his miscreant conduct goes back to college, and he played a couple of years here for the Sun Devils. He is a bad character, banning was arguably a fair result. Instead he will be suspended for the remainder of the year.

The Patriots have a lot of injuries, but they are playing the Skins, who are simply, and totally, fucked. Washington will be starting Colt McCoy, who may actually be their best option. If the Cards and Kyler Murray cannot beat the Bungles, they may not win a game this year.

The game that may be the most interesting is Tampa Bay at New Orleans. Teddy Bridgewater is no Drew Brees, but the Saints are seriously good, and playing at their home dome. Give Jameis Winston a smidgen of credit though, he is markedly better under Bruce Arians’ tutelage. This could be an excellent game. Vikes at Gents could be interesting, even though irrelevant mostly.

In a nod to Scribe’s coming comments, the Ravens at Steelers should be very interesting. Mason Rudolph did well last week; the Ravens not so much in a blowout loss to Baker Mayfield and the Brownies. Two different styles, and two teams that really don’t like each other. Excellent!

Green Bay at Dallas you would think would be a great game. But, even though I am a lifelong Pack fan, this is a tough road to hoe. Have to favor the ‘Boys. Lastly, the MNF game of Cleveland versus Niners in Santa Clara (yeah, that is still a dumbass location for the Niners to be playing in; what a joke), could be very good. Mayfield versus Garrapolo. Both teams are really looking up this year. Edge to SF though. I think…..

This week’s music is Boomtown Blues by Bob Seger, and it is from an under-appreciated early 80’s album, The Distance. Not sure what made me think of it, I have not thrown that album on the turntable for years, but here we are. Making Thunderbirds is also a truly killer cut on The Distance.

Since blowing the whistle is all the rage currently, I am including a second Seger cut, Let It Rock, this from the much earlier Bob Seger System, and it is an old song originally credited to Edward Anderson. Thing is, Edward Anderson was an early pseudonym for the one and only Chuck Berry. Seger’s version is awesome.

Rock on folks.

Three Things: Kavanaughhh

It’s absolutely ridiculous Brett Kavanaugh was confirmed to the Supreme Court. It’s only more clear over time that he shouldn’t have been. Were Congress not under #MoscowMitch McConnell’s stranglehold as senate majority leader, Kavanaugh would be impeached — his lies alone are adequate reason.

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We’re revisiting this dreadful wretch because The New York Times published an article this weekend about him.

[Screenshot: The New York Times]


The piece, written by Robin Pogrebin and Kate Kelly, contains new reported content validating Deborah Ramirez’s claim that the now-seated Supreme Court jurist Kavanaugh sexually assaulted her while she was a student at Yale.

Of course the NYT can’t publish this to the front page where it belongs; it filed it under ‘News Analysis’ as you can see in the screenshot above, in their Opinion section of the Sunday Review.

A report of sexual assault on a woman, validated by multiple witnesses, is just an opinion. Entertaining reading on a Sunday morning over coffee in bed.

What utter goddamn bullshit.

Of course the NYT can’t leave that insult on its own. They must further buff this turd by turning this reported piece about a man who has serially assaulted women and lied repeatedly into a diversity piece, making the focus about Ramirez fitting into an Ivy League school.

Ramirez fit in just fine. Yale, however, should answer why it allowed abusive liars like Kavanaugh roam its halls, undermining the scholarship of women around him. The headline on this story should have reflected this problem which is comparable to MIT’s Epstein problem.

Why have highly-ranked universities allowed predators anywhere near students for decades?

And then the pièce de résistance: the tweet promoting this “opinion” piece.

Whoever drafted this now-deleted tweet needs to be interviewed by NYT’s management. They should be worried about an employee who so easily characterizes a form of sexual assault as “harmless fun.” A tweeted apology will only gloss over a deeper problem.

That it made it onto Twitter and wasn’t removed until there was an outcry may explain why NYT has done such a crappy job covering Kavanaugh up to this piece. The paper could have done the legwork Pogrebin and Kelly did to validate Ramirez’s and other accusers’ claims but they didn’t. But NYT didn’t because it’s the kind of news organization which only sees a drunken frat boy’s sexual assaults as “harmless fun.”

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And then the storm troopers came out to defend their poor little Kavanaugh now that the public has been reminded he’s serially assaulted women and lied repeatedly, meriting impeachment.

Last evening The Federalist’s Sean Davis attacked a witness who validated Ramirez’s claim.

Los Angeles Times’ Jackie Calmes rebutted this morning:

Following Davis, The Federalist’s MZHemingway came out to play character assassination:

Note the time — that’s 11:58 p.m. EDT *. What’s so important that The Federalist’s editors are tweeting on a Saturday evening after the NYT published an Opinion piece in the Sunday Review section?

One might wonder if this wrecking crew had a head’s up this piece might be published over the weekend; they published an article last week attacking Kavanaugh’s accuser Christine Blasey Ford.

Although a piece on/related to Kavanaugh in The Federalist isn’t much of a surprise; they’ve published 371 articles mentioning him or about him to date.

null

If they were paid by the piece they made some bank on Kavanaugh.

But The Federalist still does not publish information about its funding. The public can’t determine if there is a conflict of interest in whatever this conservative outlet produces on Kavanaugh and the jurist himself.

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While partisan volleys over the NYT’s piece, witness bashing, and victim blaming continues, we still don’t know who paid off Kavanaugh’s massive credit card debt.

We have no idea if any case in front of this current Supreme Court has been decided to the benefit of whoever bought Kavanaugh.

We can’t trust Kavanaugh’s filings about his personal finances because he hasn’t the receipts and he’s lied repeatedly.

Kavanaugh needs to go for these reasons alone. But there is one more extremely important reason he needs to be removed from the SCOTUS.

He’s the single biggest reason current House Democrats cannot rely on bringing any of the unsatisfied subpoenas before the SCOTUS.

The unanimous Supreme Court decision in United States v. Nixon, 418 U.S. 683 (1974), by which Richard Nixon was forced comply with a Congressional subpoena to give up damning audio tapes, was the most critical point of the impeachment process against Nixon. The court said there was no “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

In essence, the president is not above the law. They cannot withhold materials responsive to a subpoena because of a general interest in confidentiality.

Kavanaugh has said he believes United States v. Nixon was wrongly decided, however, in spite of a unanimous decision.

If he believes the SCOTUS can’t weigh in on a dispute between two co-equal branches, he’s allowing the president to run unchecked — above the law.

We can’t trust the logic of a serial liar, ostensibly owned by some unknown party, with a habit of ignoring a lack of consent.

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Treat this as an open thread.

(* I’m not sharing a link because I’m not driving traffic to any of The Federalist’s team. Attention = money and I’m not giving them any more than I have to.)

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.

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.

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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