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 typically Michael Horowitz’s usual 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.

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.

~ ~ ~

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.

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