Maybe Trump Really Is Never Going To Leave

Now that Rayne has you all festive for the holidays, I am gonna leave you with one more little nugget of joy. Trump really is planning on not leaving even if he loses badly to Biden. I have kind of poo poohed this kind of talk, but this morning on Morning Joe, there was a discussion with former Colorado Senator Tim Wirth and Tom Rogers, a journalist and original founder of both CNBC and MSNBC. These are two very smart and credible people, and they are pretty convincing. If you can find a video clip of their appearance, post the link and I’ll add it in to the post, it is harrowing.

But they have an article out together now in Newsweek entitled “How Trump Could Lose the Election—And Still Remain President”. Also harrowing, and they are convinced that this is really Trump’s plan.

Wirth and Rogers lay out two paths they expect Trump to take. The first is the obvious one pretty much everybody is aware of, severe voter suppression and goon poll watchers challenging voters pretty much anywhere and everywhere, along with claiming fraud as to the vote by mail. But it is the second path that is truly frightening.

This spring, HBO aired The Plot Against America, based on the Philip Roth novel of how an authoritarian president could grab control of the United States government using emergency powers that no one could foresee. Recent press reports have revealed the compilation by the Brennan Center at New York University of an extensive list of presidential emergency powers that might be inappropriately invoked in a national security crisis. Attorney General William Barr, known for his extremist view of the expanse of presidential power, is widely believed to be developing a Justice Department opinion arguing that the president can exercise emergency powers in certain national security situations, while stating that the courts, being extremely reluctant to intervene in the sphere of a national security emergency, would allow the president to proceed unchecked.

With this, Trump has begun to lay the groundwork for the step-by-step process by which he holds on to the presidency after he has clearly lost the election:

1. Biden wins the popular vote, and carries the key swing states of Arizona, Wisconsin, Michigan and Pennsylvania by decent but not overwhelming margins.

2. Trump immediately declares that the voting was rigged, that there was mail-in ballot fraud and that the Chinese were behind a plan to provide fraudulent mail-in ballots and other “election hacking” throughout the four key swing states that gave Biden his victory.

3. Having railed against the Chinese throughout the campaign, calling Biden “soft on China,” Trump delivers his narrative claiming the Chinese have interfered in the U.S. election.

4. Trump indicates this is a major national security issue, and he invokes emergency powers, directing the Justice Department to investigate the alleged activity in the swing states. The legal justification for the presidential powers he invokes has already been developed and issued by Barr.

5. The investigation is intended to tick down the clock toward December 14, the deadline when each state’s Electoral College electors must be appointed. This is the very issue that the Supreme Court harped on in Bush v. Gore in ruling that the election process had to be brought to a close, thus forbidding the further counting of Florida ballots.

6. All four swing states have Republican control of both their upper and lower houses of their state legislatures. Those state legislatures refuse to allow any Electoral College slate to be certified until the “national security” investigation is complete.

7. The Democrats will have begun a legal action to certify the results in those four states, and the appointment of the Biden slate of electors, arguing that Trump has manufactured a national security emergency in order to create the ensuing chaos.

8. The issue goes up to the Supreme Court, which unlike the 2000 election does not decide the election in favor of the Republicans. However, it indicates again that the December 14 Electoral College deadline must be met; that the president’s national security powers legally authorize him to investigate potential foreign country intrusion into the national election; and if no Electoral College slate can be certified by any state by December 14, the Electoral College must meet anyway and cast its votes.

9. The Electoral College meets, and without the electors from those four states being represented, neither Biden nor Trump has sufficient votes to get an Electoral College majority.

10. The election is thrown into the House of Representatives, pursuant to the Constitution. Under the relevant constitutional process, the vote in the House is by state delegation, where each delegation casts one vote, which is determined by the majority of the representatives in that state.

11. Currently, there are 26 states that have a majority Republican House delegation. 23 states have a majority Democratic delegation. There is one state, Pennsylvania, that has an evenly split delegation. Even if the Democrats were to pick up seats in Pennsylvania and hold all their 2018 House gains, the Republicans would have a 26 to 24 delegation majority.

12. This vote would enable Trump to retain the presidency.

Is this nuts? Sure. Is it possible? Yes, given who and what Trump and Barr are, it may well be.

Trump’s America: Racism, Imperious Police and CNN Under Arrest in Minneapolis

There is a surreal situation going down in Minneapolis. The CNN crew covering it was literally arrested on live air. Not all of them understand you, just the reporter, Oscar Jimenez, that was a minority, the white correspondent a few feet away was, of course, not. The stormtroopers, and, yes that is exactly what they look and are acting like, were totally polite to the white guy.

And then they arrested the CNN camera guy documenting the bizarre arrest of the correspondent. While doing so, the camera was on the ground, still live, documenting it all for posterity. You could then see the camera being dragged off by a state trooper, still on and broadcasting. As I said, surreal.

When last seen the CNN camera was still on and broadcasting from a black space that appears to be the trunk of a police car. I guess the camera, though hostage to thugs, at least is alive and does not have a knee on its neck.

As they say, the situation is developing…..

Wait, there is an update! The camera is now in an elevator, and still live!

Oh, and what could have fomented all this? Yeah, The American President:

Judge Emmet Sullivan Makes A Serious Holiday Move on DOJ and Flynn

I have expressed some qualms over Judge Sullivan naming John Gleeson as the court’s amicus on the crazy Flynn situation. But today there is a new player on the pitch, Beth Wilkinson.

Judge Sullivan has engaged a hired gun.

Folks need to understand the Yoda like move Emmet Sullivan made in hiring Beth Wilkinson.

First off, she is an absolutely fantastic advocate and tough as hell.

Second, she has serious DOJ cred.

Third, she still has major friends at Paul Weiss, and that counts below the surface.

Fourth, Brett Kavanaugh may well owe his Supreme Court seat to her.

Fifth, her husband is David Gregory, the former NBC guy and now senior political guy at CNN. That is some media contact potential whether direct or indirect.

Also, again, she is really kick ass. Beth Wilkinson is a serious player, and a killer advocate. Judge Emmet Sullivan is not going quietly into the night. I actually thought that, given the short response time the DC Circuit ordered, Sullivan and his clerks might do the response themselves. Obviously they will still have major input, but this battle is joined, and in a very big way.

Trump Pride and DOJ Prejudice: The Flynn Volume

As Marcy has already reported, the DOJ has formally moved to dismiss the Flynn case. Here is the pleading they filed. (Marcy also addressed here) Trump is, of course, calling the DOJ who just did his command influence bidding “scum” and accusing them of “treason”.

Let’s start with a little Q and A:

Q: Can DOJ do that?

A: Sure, but it is bizarre beyond belief.

Q: Does this mean the case is over?

A: No. As I have repeatedly said, the plea has been accepted, after full allocution, not just once (Judge Contreras), but twice (Judge Sullivan) and, arguably thrice (also Judge Sullivan). There is a technical difference between a plea being entered and a plea being accepted. The Flynn plea was very much accepted. Multiple times.

Q: So, what does that mean?

A: It means that there was a formal finding of guilt entered by the court.

Q: So is that finding of guilt gone now?

A: No. The DOJ can file whatever it wants, the final decision still remains with Judge Emmet Sullivan.

Q: Does that mean “Flynn is an innocent man” as Trump is bellowing?

A: No. Flynn has sworn to his guilt under oath and penalty of perjury multiple times, and the court accepted his sworn guilt.

Q: So, what happens now?

A: Yeah, I don’t know the answer to that. We shall have to await Judge Sullivan entering in with his thoughts. I have no idea where Judge Sullivan will go. For the sake of the rule of law, and, frankly, legal sanity, I hope Judge Sullivan takes this as the full on broadside to law and intelligence that it really is. As I importune relentlessly, courts and law are a function of men and women. They are us. They speak and act for us. Judge Emmet Sullivan is not a man that will take this affront to justice lightly. Nor should he. It is absurd, the court should treat it that way, and, if anything, sanctions ought be imposed on Powell and Flynn.

Okay, where does that leave things? Now that is not a very easy question to answer. Here are a few thoughts though. The first one is “prejudice”. It is absolutely critical whether a dismissal request by the DOJ (or any prosecutor for that matter) is “with prejudice” or “without prejudice”. Here, Tim Shea, and it is crystal clear that means Bill Barr, demands that any dismissal be “with prejudice”. That means that no case based on these facts could ever be brought again. It is a pardon by a corrupt DOJ, without Trump ever having to even issue a pardon. Anybody, including the national press, that describes it differently is straight up lying.

The statute of limitations on a 18 USC §1001 charge for false statements is (as pretty much any charge possible against Flynn save for an ongoing conspiracy allegation) is five years, which is the general statute in federal criminal law. But, you see, that exceeds the time of Trump and Barr if Trump is not reelected. And therein lies the problem and why Mr. Barr and his lackeys Shea and Jensen, are apoplectic to make any dismissal “with prejudice”. Does this ever occur in real criminal justice life? No. Hell no. Of course not, in fact it is always “without prejudice”. Always, unless the government is caught by incontrovertible facts beyond dispute, and even then they usually demur to “without prejudice” dismissal.

But, wait, there’s more, I have other questions! Let’s talk about “materiality” for a moment. It is replete in the position taken by Bill Barr, through his cutout, Tim Shea. To be kind to Mr. Shea, he is an eggplant installed by Trump and Barr. And, here, the eggplant has signed this pleading on his own. Normally any such pleading would be signed by underlings, including career prosecutors. But not here. Why? That is not clear, but apparently no career track lawyer in DOJ would undersign this garbage. So there is that.

Back to “materiality”: Peruse pages 12-20 of the DOJ motion. Good grief, law review articles will spend hundreds of pages in the future laughing at the arguments Tim Shea has signed off on. Because, presumably nobody but a Trump/Barr appointed toady would even touch that. Yes, it is truly that absurd.

Okay, a parting shot: Normally, when a client puts an attorney’s work in dispute through claims of malpractice, all attorney/client privilege is waived. That is generally how it works. And if Flynn and his Fox News addled lawyer Sid Powell have not accused Rob Kelner and Covington & Burling of malpractice, then there has never been such an accusation. Privilege is waived.

While I thought Judge Sullivan should have disregarded the nonsense, denied all the the Powell crazy (arguably unethical conduct) and just sentenced Flynn. Marcy was right, and I underestimated just how sick the DOJ could be under Barr.

Well, here we are. Flynn and Powell have waived privilege. The DOJ under Barr and, here, Shea, is corrupt beyond comprehension.

But the irreducible minimum is that Judge Emmet Sullivan is the one with jurisdiction and control of this case. Not Trump. Not Barr. An honest and good judge, and one that has proven that over decades. Sidney Powell was right about one, and only one, thing: The Stevens case is a template for the court to find the truth.

Emmet Sullivan is a judge that can appoint an honest and independent special prosecutor to make sure real justice is done. Trump and Barr cannot fire the truth if Judge Sullivan seeks the truth and justice. And he should, for all of us. Judge Sullivan is a lion of justice that has done this before, and he should again.

Roger Gets Stoned by Amy Berman Jackson

I left a comment earlier about the decision by Judge Amy Berman Jackson of the US District Court for the District of Columbia in the Roger Stone case. ABJ denied the Stone motion on Stone’s motion for new trial, and it was scathing. As it should have been.

You might remember the transcript of Stone’s sentencing on February 20, 2020 and his lame motion for ABJ to recuse herself dated February 23, 2020, both of which went nowhere. Then he filed the motion for new trial, based on alleged juror irregularities, which has now also gone nowhere.

Here is the full decision. The whole decision is good, but if you want the court summary, reading the first nine pages will give you all that.

Given that federal courts speak usually in very veiled language, this is pretty blistering. Here are a few choice nuggets, starting off with the main conclusion:

The assumption underlying the motion – that one can infer from the juror’s opinions about the President that she could not fairly consider the evidence against the defendant – is not supported by any facts or data and it is contrary to controlling legal precedent. The motion is a tower of indignation, but at the end of the day, there is little of substance holding it up. Therefore, the request for a new trial will be denied based on the facts and the case law set out in detail in the body of this opinion, and which are summarized briefly here.

Ouch. But here are a couple of more:

Defendant contends that he is entitled to a new trial because this “newly discovered evidence” reveals that the foreperson answered questions falsely on her written juror questionnaire and when she was questioned in the courtroom, and that by doing so, she concealed the fact that she harbored bias against him. He also seeks a new trial based on an allegation that the juror engaged in misconduct during deliberations, tainting the verdict.

It is important to emphasize that the question before the Court is not whether the defense would have taken a different approach towards the juror if had it seen the posts earlier. The trial is over, and a verdict – which was based largely on the defendant’s own texts and emails, and was amply supported by this undisputed evidence – has been returned. At this point, it is incumbent upon the defendant to demonstrate that the juror lied, and that a truthful answer would have supplied grounds for the Court to strike her for cause. Also, a defendant seeking a new trial must establish that the information presented in his motion could not have been discovered earlier through the exercise of due diligence. Only if those criteria are met would one then assess whether the lack of the newly discovered evidence affected the conviction.
The defendant has not shown that the juror lied; nor has he shown that the supposedly disqualifying evidence could not have been found through the exercise of due diligence at the time the jury was selected. Moreover, while the social media communications may suggest that the juror has strong opinions about certain people or issues, they do not reveal that she had an opinion about Roger Stone, which is the opinion that matters.

There is a second reason why Stone’s motion fails: to the extent one could consider any of the social media posts to be inconsistent with the juror’s questionnaire, they do not warrant a new trial because they do not meet the legal test for something that has been “newly discovered.” The information in the motion could have easily been found with the exercise of due diligence: by posing a few pointed follow-up questions in person, or by using the same search engines that quickly brought the public social media posts to light the day the juror identified herself to the rest of the world. The evidence the defense claims was critical was never “concealed” – it was a few clicks of a mouse away.

Again, if interested, read the whole opinion. But at least read the first nine pages of summary, it is worth it.

A Few Thoughts On Carter Page Warrants, Franks v. Delaware and Michael Horowitz

Marcy Wheeler did a giant post on the Page warrants and the Horowitz report, one she just updated significantly this morning. I did a comment on there, but since this is pretty much my hobby horse from long before the Horowitz IG Report was released, I decided it needed at least a short standalone post.

This concerns the Franks v. Delaware standards for warrant affidavit review, how it should apply to Carter Page’s series of four warrants signed by four different experienced and sober judges, and the complete ignoring of said standards by the typical Michael Horowitz’s attempt to validate his own work and time.

First, there are two types of identifiable errors in warrant affidavits for Franks v. Delaware challenge purposes. The first is what I call the error of commission, i.e. affirmatively inserting materially false information, and the second is error of omission, i.e. leaving out materially critical information. Courts are generally much more loathe to grant relief on omission claims than commission claims. This is important as to the caterwauling about Page having talked to the CIA (long ago as Marcy notes) claim. Sorry, that is so old, stale and meaningless as to be completely irrelevant for these purposes. Nobody would ever get dinged for that nonsense. It is not like the IC was running Page as a asset, this is just nonsense. But that is what uninformed howlers like Page, Nunes and Chuck Ross roll with.

Secondly, when Marcy says “Franks challenges require the defendant to prove that false statements in a warrant application are false, were knowing, intentional, or reckless false statements, and were necessary to the finding of probable cause”, that is true. But it has to be established that the actual affiant knew that as opposed to some diffuse other government agent or person may have known. And the actual affiant gets every benefit in the world of “good faith” in this regard. Always. Darn near impossible to overcome. So, that isn’t going to work either for the reasons Marcy lays out.

Third. It is infuriating that Horowitz did not address one lick of any of this. In 435 pages of his “report” Horowitz could not find just a few to address the actual standards he should have been reviewing under. Not once. Couldn’t even be bothered to mention it in passing. And it has not entered many, if at all, other post hoc discussions, either, short of at this blog. That is just laziness.

Lastly, for now, I would suggest the law review article Marcy linked to above, specifically pps. 443-449. It is not the most complex dissertation of Franks v. Delaware law and review standards, but it is one easily understandable by the lay person, especially if you read the footnotes carefully too.

I have been successful on a couple of Franks attacks in days gone by….out of a LOT attempted. Very few defense attorneys can claim even that. I cannot possibly tell you how difficult it is. But I can, without any reservation, tell you I think there is about little to no chance that the Page affidavits would not stand up with sufficient probable cause if subjected to such a review. Since Page would have never gotten there, it was derelict of Horowitz to have not done so.

It is not that Horowitz did not identify some error, whether of commission or omission, in the Page applications, he did. But he very much overplayed how significant they are under extant warrant law. Now, the argument that FBI, and other law enforcement entities, ought to tighten up their policies for submission of affidavits, whether under FISA or Title III, is well taken. They should. All defendants and surveillance targets deserve that. But under the applicable law at the time, the thought that the Page affidavits would not stand up under the mere ex-parte probable cause standard is ridiculous. Of course they would have.

Horowitz

Crossfire Hurricane Glossary

Even before it went live yesterday, I was looking through Marcy’s incredibly awesome timeline on Crossfire Hurricane. It is a stunningly important and good thing, not only for those here, but those everywhere. I read things day and night, and have seen many timelines on this subject, but none that approach that which Marcy has produced. That said, if even I have to do double takes on what some of the names and acronyms are, I thought a guide was in order.

So, I thought an enduring glossary would help not even now, but going forward. What follows will be what appears appropriate now, and this post may be supplemented lated as necessary. I hope it helps. Maybe at some point I’ll come back an make it alphabetical, but for now I am just going from front to back in order of appearance.

Some are patently obvious and need no explanation, e.g. “CIA” for instance. As to the rest though, away we go:

ASAC: Assistant Agent In Charge, typically of an FBI Field Office.

Zainab Ahmad: Is a seriously kick ass former member of DOJ. Ahmad was a prosecutor with the DOJ who long specialized in investigating and prosecuting terrorism. She served as an AUSA in the Eastern District of New York until 2017, successfully prosecuting several high-profile terrorism cases. In 2017, she was reassigned to the Special Counsel for the United States Department of Justice team. After Mueller closed up shop, Zainab landed as a white collar and cyber security specialist at the NY office of Gibson Dunn.

Evgeny Burykov: A convicted Russian spy. He was arrested on January 26, 2015, charged with, and pleading guilty to, spying on the United States for the Russian Foreign Intelligence Service (SVR). Buryakov was a New York-based Deputy Representative of Vnesheconombank, Russia’s state-owned national development bank.

CHS-3: In addition to Steele (CHS-1) and Halper (CHS-2) there was another FBI informant who spoken on a number of occasions with George Papadopoulos. The person’s identity is unknown. Papadopoulos told him a version of the Joseph Mifsud in fall 2016.

Anne Conway: Conway is a GHW Bush nominated judge to the Middle District of Florida, and who serves on the FISC, since being do designated by John Roberts in 2016. Judge Conway approved a 2017 FISA Court warrant for Carter Page, a former adviser to the 2016 Trump Campaign.

Raymond Dearie: Is a well respected Senior United States District Court Judge from EDNY originally nominated by Reagan, and served on FISX between July 2012 and July 2019, after appointment by Chief Justice John Roberts.

Oleg Deripaska (Oligarch 1): Paul Manafort’s one-time paymaster, and also the client of a lawyer employing Christopher Steele in 2016. In that role, Steele repeatedly offered to broker a meeting at which Deripaska could provide derogatory information on Manafort. FBI belatedly considered whether Deripaska was a source of disinformation for the dossier.

Alexander Downer: Former Australian High Commissioner (ambassador) to the UK (2014-18), former leader of the Australian Liberal Party (1994-95), and former Australian Minister for Foreign Affairs (1996-2007). Definitely not a coffee boy, but met with one over a few drinks in London.

For bmaz, I note that he is a fan of V8 motor racing and has a CMAS racing license. (h/t EH)

Stu Evans: Stuart Evans, deputy assistant attorney general of DOJ’s National Security Division. He’s the person who insisted on adding a footnote alerting the FISC of Steele’s potential bias.

FIFA: The international governing body of soccer. A body Chris Steele gave work and information on to not just US authorities but worldwide ones too.

Michael Gaeta (Handling Agent 1): An FBI agent, previously an attache in Rome and one time handler of Christopher Steele. A specialist in Eastern European organized crime including in the Republic of Georgia, Russia, and Ukraine.

Taushina Gauhar: Is a (former) Deputy Assistant Attorney General (DAAG) in the Department of Justice National Security Division (NSD) and FISA lawyer specialist.

JD Gordan: Gordan is an American communications and foreign policy advisor, who served as a Pentagon spokesman during the Bush Administration and later a National Security Advisor to Donald Trump. He is also a crackpot gadabout on forums such as One America News Network, Fox News, Sky News, The Daily Caller, The Hill, and The Washington Times. He’s the guy who ensured that the Republican platform did not incorporate lethal aid to Ukraine.

Stefan Halper (Source 2): Ooof, this could go on even longer, but per Wiki, Halper is an American foreign policy spy and Senior Fellow at the University of Cambridge where he is a Life Fellow at Magdalene College. He served as a White House official in the Nixon, Ford, and Reagan administrations, and was reportedly in charge of the spying operation by the 1980 Ronald Reagan presidential campaign that became known as “Debategate”. Through his decades of work for the CIA, Halper has had extensive ties to the Bush family. Through his work with Sir Richard Dearlove he also has ties to the British Secret Intelligence Service MI6. For purposes here, Halper acted as an FBI informant for its investigation into Russian interference in the 2016 United States elections.

Kathleen Kavalec: Former Deputy Assistant Secretary of State who met with Chris Steele in October 2016.

Mary McCord: McCord was the Acting Assistant Attorney General for National Security at the U.S. Department of Justice from 2016 to 2017 and Principal Deputy Assistant Attorney General for the National Security Division from 2014 to 2016. She now teaches at Georgetown and contributes at Lawfare.

Sergei Millian (Person 1): A Belarus born businessman knee deep in everything Russia and a putative source for Chris Steele. He was also the subject of a counterintelligence investigation during 2016-17. Much still not necessarily clear about Millian.

NYFO: New York Field Office of the FBI.

OGC: Office Of General Counsel at the Department of Justice.

OI: The Office of Intelligence at DOJ. They’re in charge of writing FISA applications.

Bruce and Nellie Ohr: Bruce Ohr is a United States Department of Justice official. A former Associate Deputy Attorney General and former director of the Organized Crime Drug Enforcement Task Force (OCDETF). He is an expert on transnational organized crime and has spent most of his career overseeing gang and racketeering-related prosecutions, including Russian organized crime. Nellie is Bruce’s wife, and a longtime expert on all things Russian. She worked at one point for Fusion GPS as a contractor between October 2015 and September 2016.

Victor Podobnyy: An Russian SVR (foreign intelligence) officer worked under the cover as a banker who was recruiting Carter Page in 2013.

SSA: Supervisory Special Agent.

Scott Schools: Scott Schools was the “highest-ranking career civil servant at the United States Department of Justice”, serving as Associate Deputy Attorney General. For those who have been around long enough, he was, for a while, the “new” David Margolis. Schools, a putatively decent chap, is gone now, having been replaces by a Jeff Sessions designated mope named Bradley Weinsheimer.

Glenn Simpson: Former journalist for the Wall Street Journal and co-founder of Fusion GPS.

Paul Singer: An American billionaire hedge fund manager, activist, investor, vulture capitalist, and philanthropist. A hard line Republican promoter and shill, but also a longtime supporter of LGBTQ rights.

Bruce Swartz: Deputy Assistant Attorney General for International Affairs. Key to the story because of a purported effort by Kurt Volker to get Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine. Still a lot of questions open as to Swartz.

UCE: An FBI employee working undercover. A woman working under the pseudonym Azra Turk accompanied Stefan Halper on his interviews with George Papadopoulos.

Sally Yates: Former US Attorney for Northern District of Georgia, Deputy Attorney General, and Acting AG.

Will Rogers Was Right About The Democrats

Here are a couple of quotes from the inestimable Will Rogers. They were made so long ago, and are still so spot on correct:

“I’m not a member of any organized political party…. I’m a Democrat.”

“Democrats never agree on anything, that’s why they’re Democrats. If they agreed with each other, they’d be Republicans.”

Both are still so evidently true. Watching this morning’s “impeachment hearing” makes me want to puke. It is one of the most incompetent shit shows in history. The House Democrats, as led by Nancy Pelosi, and in this case Jerry Nadler too, could not legally litigate or argue their way out of a thin and wet paper sack. It is seriously pathetic and embarrassing.

Daniel Goldman is a tad better than Nadler and Barry Berke were, but the format is still ludicrous.

Probably we should talk about Hunter Biden more. Because members of corporate boards are NEVER hired for their names as opposed to expertise. Maybe cross-reference Theranos, but whatever.

Pelosi and Nadler have turned impeachment into such a craven shit and clown show that it is unbearable.

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.

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