Posts

The Government Screws Up Attempt to Distinguish between January 6 Insurrection and Anti-Kavanaugh Protests

The government is obviously getting fed up with some of Ethan Nordean’s legal challenges. I can’t blame them for being impatient with Nordean’s claims that, so long as cops at one of four barricades he passed on his way to insurrection weren’t knocked down, it means he had no way of knowing he wasn’t welcome.

But they fucked up, badly, in what would otherwise be an important argument to make. In his reply brief to his motion to dismiss his entire indictment (here’s the government’s response), Nordean made an argument that right wingers love to make, that the Kavanaugh protests were just like the insurrection, yet those protestors weren’t charged with the same felony charges that January 6 insurrectionists are being charged with.

About two years before the January 6 events, in October 2018, Congress held confirmation hearings for now Justice Kavanaugh. Of course, confirmation hearings are not ceremonial functions like the Electoral College vote count but are rather inquiries held pursuant to Congress’s investigatory power. Subpoenas are issued, sworn testimony is given. See, e.g., United States v. Cisneros, 26 F. Supp. 2d 24, 38 (D.D.C. 1998). As on January 6, Vice President Mike Pence was present and presiding over the confirmation vote.4 Hundreds of protestors broke through Capitol Police barricades.5 They burst through Capitol doors and “stormed” the Senate chamber. N.Y.Times, Oct. 6, 2018. There, they disrupted and delayed the Senate proceedings by screaming and lunging toward the Vice President and other people. As a report described the day, Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?” N.Y. Times, Oct. 6, 2018. Here are some of the images of protestors who broke through Capitol Police barricades and entered Congress that day, about 26 months before January 6:

Roll Call, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

NBC News, Oct. 6, 2018 (VP Pence presiding in Capitol Building)

Though they intentionally delayed the congressional proceedings, these protestors, numbering in the hundreds, were not charged with “obstruction of Congress” under § 1512(c)(2). Certainly, if the lack of case law supporting the government’s interpretation of “official proceeding,” the absence of any legislative history pointing towards that interpretation, and the DOJ’s own internal inconsistent position do nothing to provide “fair notice” to an “ordinary person” that such political protests constitute “obstruction of official proceedings,” the fact that hundreds of protestors were charged with no offense at all for conduct for which the indictment here charges Nordean does not provide that notice either. Moreover, the naked charging disparity between the episodes—legally similar, according to the government here—also implicates the vagueness doctrine’s concern for arbitrary and discriminatory law enforcement enabled by vague, shifting standards that allow “prosecutors and courts to make it up,” particularly in the context of the rights of free speech, assembly and petitioning of the government. Dimaya, 138 S. Ct. at 1212 (Gorsuch, J., concurring); United States v. Davis, 139 S. Ct. 2319 (2019) (Gorsuch, J.) (residual clause of § 924(c) unconstitutionally vague); Johnson v. United States, 576 U.S. 591 (2015) (residual clause of Armed Career Criminal Act unconstitutionally vague).

4 Kavanaugh is sworn in after close confirmation vote in Senate, N.Y. Times, Oct. 6, 2018, available at: https://www.nytimes.com/2018/10/06/us/politics/brett-kavanaugh-supremecourt.html.

5 See, e.g., Kavanaugh protestors ignore Capitol barricades ahead of Saturday vote, Roll Call, Oct. 6, 2018, available at: https://www.rollcall.com/2018/10/06/kavanaugh-protesters-ignore[-]capitol-barricades-ahead-of-saturday-vote/.

[my italics]

Nordean is conflating two different things in an attempt to draw this parallel. There were the protestors who were in the actual hearing room, who briefly yelled and then were removed. And then there were protestors who broke through a barricade at the Capitol (there were also protestors who broke through a police line at the Supreme Court and knocked on the door). The “hundreds” of protestors Nodean mentions were watching from below and then were on the steps.

Protesters broke through Capitol Police barricades and rushed up the steps to the Capitol Rotunda Saturday afternoon amid large demonstrations ahead of a Senate vote on Supreme Court nominee Brett Kavanaugh.

The metal barricades were erected Thursday to keep demonstrators on specific areas of the Capitol grounds.

[snip]

As each batch of arrestees walked down the stairs, the cheers rose from the hundreds assembled below on the east front stretching out to the street.

In an effort to conflate the two, Nordean invented things that weren’t in the NYT story he claimed to rely on, both that the people inside the hearing had “stormed” the Senate chamber and that those protestors were “lunging” at the Vice President.

As a chorus of women in the Senate’s public galleries repeatedly interrupted the proceedings with cries of “Shame!,” somber-looking senators voted 50 to 48 — almost entirely along party lines — to elevate Judge Kavanaugh. He was promptly sworn in by both Chief Justice John G. Roberts Jr. and the retired Justice Anthony M. Kennedy — the court’s longtime swing vote, whom he will replace — in a private ceremony.

[snip]

Republicans are now painting Democrats and their activist allies as angry mobs. Senator John Cornyn, Republican of Texas, delivered a speech on Saturday assailing what he called “mob rule,” while the majority leader, Senator Mitch McConnell of Kentucky, told reporters that “the virtual mob that has assaulted all of us in this process has turned our base on fire.”

The bitter nomination fight, coming in the midst of the #MeToo movement, also unfolded at the volatile intersection of gender and politics. It energized survivors of sexual assault, hundreds of whom have descended on Capitol Hill to confront Republican senators in recent weeks.

[snip]

Saturday’s vote reflected that fury, with the Capitol Police dragging screaming demonstrators out of the gallery as Vice President Mike Pence, presiding in his role as president of the Senate, calmly tried to restore order. “This is a stain on American history!” one woman cried, as the vote wrapped up. “Do you understand that?”

The government makes some of these points in their surreply, notably pointing out that the protestors who actually interrupted the hearings were all legally present in the public gallery, and had all gone through security to get there.

Defendant’s attempts to manufacture a parallel between the criminal activity during confirmation hearings for Justice Kavanaugh and the events of January 6 should remain on the Internet—they do not fare well when included in a legal brief. Among the distortions of fact and law in his brief, Defendant claims that on October 6, 2018, protestors “burst through Capitol doors and ‘stormed’ the Senate chamber” during confirmation hearings for Justice Kavanaugh. That is not accurate.2 The confirmation hearings were public, and the gallery of the Senate Chamber was open to the public on the day of the vote to confirm Justice Kavanaugh. See C-SPAN, Final Confirmation Vote for Judge Brett Kavanaugh, Oct. 6, 2018 available at https://www.cspan.org/video/?452583-11/final-confirmation-vote-judge-brett-kavanaugh. Indeed, Vice President Pence twice reminded the “guests” in the Gallery that expressions of approval or disapproval were not permitted. Id. Protestors who demonstrated inside the Senate Chamber on October 6 did so after lawfully accessing the building and being subjected to security screening. 3 See, e.g., Public seating at Kavanaugh hearing cut in half, then restored again, PBS News Hour, Sept. 5, 2018, available at https://www.pbs.org/newshour/politics/public-seating-at-kavanaugh[-]hearing-cut-in-half. No serious parallel can be drawn between the two events.4

[snip]

3 Those entering the earlier confirmation hearings reportedly had to pass through multiple identification checks. Members of the public were required to “first wait in line outside the building to go through an initial screening” before being “escorted in small groups to a holding area outside the committee room itself.”

The government twice mocked Nordean for using the wrong pictures in his brief.

While Defendant can claim to have “images of protestors who broke through Capitol Police barricades and entered Congress” on October 6, 2018 (Id. at *14), the Court will immediately recognize that one of the images depicts protestors on the steps of the Supreme Court.

[snip]

2 In his Reply, Defendant included two pictures of protestors who had “stormed” the Capitol. The pictures alone underscore the frivolous nature of Defendant’s argument. But there is another problem—the protestors in the second photograph were on the steps of the Supreme Court.

It would be a great gotcha if it were true.

It’s not. While there were protestors that day at the Supreme Court, and while the story Nordean mistitles and doesn’t include a URL for does describe protestors storming past a police line on the Supreme Court stairs, the picture Nordean used was, indeed, from the Capitol steps.

Here’s what the view of those same steps looked like after mobsters occupied them on January 6 (from the NYT documentary on it); by this point several windows were already broken:

I can think of no instance where rioters who only occupied those East steps were even arrested (there were several people who occupied the more violent West Terrace who were arrested, most commonly in association with a conspiracy or assault charge), suggesting the equivalent January 6 “protestors” were in fact treated more leniently than the protestors — some of whom were arrested — from the Kavanaugh protests. For example, Proud Boy Ricky Willden may never have entered the building from the East stairs, but he is accused of spraying cops with some toxin.

Here’s what the protest at the Supreme Court looked like (again, from the same NBC article), with the caption that makes this incidence of “storming” seem quaint by comparison:

It’s an unbelievably embarrassing error to make — to accuse Nordean of an error when in fact the government was in error, especially while suggesting that Judge Kelly would immediately recognize the Supreme Court. All the more so given that Joe Biggs’ re-entry through the East door is charged in this indictment. Getting this wrong is a testament that the government didn’t spend as much thought responding to Nordean’s comparison as they need to, not just to rebut his argument, but to reflect seriously on what the line between the civil disobedience of the Kavanaugh hearings and the terrorist attack of January 6 is such that the former resulted in over a hundred misdemeanor arrests onsite whereas the latter resulted in delayed arrests and felony charges.

There are clear differences, differences that go beyond the fact that the entire Capitol was shut down on January 6 whereas (as the government notes) protestors were legally present when they interrupted the Kavanaugh hearing. There’s no evidence any of the Kavanaugh protestors were armed, whether with baseball bats or bear spray or guns. There were no reports that protestors assaulted police, much less continued to march past them after causing injuries that required hospitalization. Contrary to Nordean’s invention, protestors did not lunge at Pence, and certainly didn’t threaten to assassinate him. In general, protestors were more compliant upon arrest than January 6 rioters (which is one of many reasons why the police succeeded in arresting them, whereas several charged January 6 defendants escaped or were forced to be released by other rioters). While protestors definitely criticized Kavanaugh’s alleged actions (and his own screaming), I’m not aware of any who threatened to injure much less assassinate him onsite. The threats against Senators — most notably, Susan Collins — were electoral, not physical.

This surreply brief provided the government an opportunity to make that case, make it soberly, and make it in such a way to respond to legitimate questions that right wingers who aren’t aware of these real differences might raise. The surreply also provided the government an opportunity to explain why Neil Gorsuch won’t find this to be a charging disparity when he eventually reviews this challenge — because he almost certainly will, which is obviously why Nordean put that nod to Gorsuch right there in his brief. How do you screw something like that up???

But the government didn’t do that. Instead, in rebutting Nordean, the government tried to dick-wag. And failed, badly.

I’m tired of some of Ethan Nordean’s bullshit arguments myself. But the legal question about what makes the insurrection bad enough to treat its masterminds as terrorists is a very serious one, one that needs to be treated with more care than the government did here.

Update: I’ve updated the comparison image for the East stairs and added the observation that few if any January 6 protestors who only climbed the East stairs were charged.

Election Day Countdown: 6 Days

Six days. Less than a week to Election Day.

If you haven’t yet voted and were planning on voting early/absentee, please make a plan which doesn’t rely on U.S. Mail especially if you live in a large city. There are too many reports of First Class mail taking longer than five days to arrive.

Judge Emmett Sullivan — same judge handling the Flynn case — seems a bit tetchy about the U.S. Postal Service handling of ballots:


Worth your time to read the highly-detailed order linked in the Politico article, particularly this bit about the U.S. Mail:

FURTHER ORDERED that by no later than 9:00 AM on October 29, 2020, Defendants shall distribute, in the same form and to the same individuals who were previously advised about the need to “ensure that completed ballots reach the appropriate election official by the state’s designated deadline,” a list of state-specific statutory ballot receipt deadlines, so that the USPS managers and employees can implement the Election Mail guidance that Defendants have recently issued. The parties shall confer and agree and substance of the list. …

You can bet there’s squealing and scrambling going on right now even as I type this at 4:00 a.m.

Will these suits against the USPS be the first cases the new Barrett-added SCOTUS hears if current Postmaster Louis DeJoy refuses to comply and contests Sullivan’s directive?

~ ~ ~

There’s another problem with the SCOTUS already, though this is the pre-Barrett/post-RBG version. Seems Justice Kavanaugh has demonstrated what a hack he is making absurd errors in an opinion on voter suppression:

One of his errors goes right to the problem with the U.S. Mail:

Mistake No. 5: No one thinks they can return their ballot by Election Day if they request it by Oct. 29.

Kavanaugh wrote: “No one thinks that voters who request absentee ballots as late as October 29 can both receive the ballots and mail them back in time to be received by election day.” He cites no support for this assumption, probably because it’s wrong. Many states explicitly allow voters to request absentee ballots even closer to Election Day and instruct them to mail their ballots back. A large number of voters do wait until the last minute to ask for a ballot, which is why a strict deadline disenfranchises so many people. In August, the Postal Service encouraged 46 states to change their deadlines, warning them that ballots requested and returned in accordance with state law might not make it back in time. The Postal Service would not have sent out this warning if “no one” thought the states’ existing deadlines were unrealistic. …

I know there’s been a lot of talk about rejiggering the formulation of the SCOTUS including expansion of the number of justices to ensure improved representation reflecting a center-left country.

But I think we need to have a chat about reformulation including corrections of the existing justices. This opinion by Kavanaugh is so shoddy Congress should consider impeaching and removing him under a Biden presidency. Because it’s ridiculous that Chief Justice John Roberts let this out of his court, Roberts needs to feel a little sting for this as well.

~ ~ ~

Trump’s super spreader campaign rally in Omaha, Nebraska was a disaster Tuesday night. A number of elderly attendees had to be taken by ambulance for treatment of hypothermia due to temperatures in the 20s and the distance from the rally site to the parking lot.

It’s bad enough Trump is making campaign stops in places which Trump won by double digits in 2016 — 25 points, to be more specific. But to do so at physical risk to voters who may not yet have cast a vote?

Utterly stupid.

The capper: the campaign is desperate not only for votes but money.

That’s one way to clean up that $421 million dollars of personal debt.

~ ~ ~

If you’ve already voted, thank you. Please help get other voters to the polls and make this election a massive blue tsunami — a wave so big they can’t steal this election.

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.

~ ~ ~

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.”

~ ~ ~

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.

~ ~ ~

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.)

In Defending His Whitaker Pick, Trump Attempts to Placate Both Republicans and Lawyers

President Trump flew all the way to Paris to (as far as we know) sit in the US Ambassador’s residence rather than attend the World War I remembrance he had flown all that way for. The stated reason was weather — basically some light drizzle in 50 degree temperatures.

I’m reminded that the other most prominent time Trump inexplicably blew off a high profile international event — when he had Ivanka sit in for him at the G-20 in July 2017 — he used the time instead scrambling with aides about how to craft a story about the June 9 meeting.

Given the way the Matt Whitaker appointment is blowing up — on top of persistent questions about the legality of the appointment, stories about the criminal investigation into his firm, (sketchy) claims that the White House knew nothing about his comments or past when they picked him, and additional reports of Whitaker’s radical legal belief, including that states can nullify federal law — I suspect he may similarly be huddled somewhere trying to prevent the Whitaker move from making his plight worse than it already was. (Though he’s demonstrably also working the phones in hopes of squeezing an extra Senate seat out of the process.)

Which is why I’m interested in the two tweets Trump made on the topic last night.

First, while also affirming his qualifications, Trump claimed (falsely) that he didn’t know Whitaker.

Yes, his claims here are narrower than the ones already debunked by his statements on Fox News the last time he tried to install Whitaker. He now admits to knowing Whitaker. But he falsely pretends that Sessions, not the White House, picked Whitaker. And he suggests, incorrectly, that he and others at the White House (including, per the NYT, Don McGahn when he was looking for an attack dog to work Trump’s defense) didn’t have direct contact with Whitaker.

President Trump first noticed Matthew G. Whitaker on CNN in the summer of 2017 and liked what he saw — a partisan defender who insisted there was no collusion between Russia and the Trump campaign. So that July, the White House counsel, Donald F. McGahn II, interviewed Mr. Whitaker about joining the president’s team as a legal attack dog against the special counsel, Robert S. Mueller III.

[snip]

The decision to fire Mr. Sessions and replace him with Mr. Whitaker had been in the works since September, when the president began asking friends and associates if they thought it would be a good idea, according to people familiar with the discussions.

The goal was not unlike the first time the White House considered hiring Mr. Whitaker. As attorney general, he could wind down Mr. Mueller’s inquiry like the president wanted.

Mr. McGahn, for one, was a big proponent of the idea. So was Leonard A. Leo, the executive vice president of the Federalist Society who regularly advises Mr. Trump on judges and other legal matters. Mr. Whitaker had also developed a strong rapport with John F. Kelly, the White House chief of staff. Nick Ayers, Vice President Mike Pence’s chief of staff, was a fan, too.

A team that has spent over a year claiming intermittently that Robert Mueller has a conflict because he interviewed to be FBI Director the day before he got named Special Counsel has made a guy who interviewed to be part of his defense team Attorney General.

All this creates an overwhelming appearance of a conflict, one DOJ’s ethical advisors — if they get the opportunity — would surely say disqualifies Whitaker from overseeing the Russian investigation.

So Trump, with his first tweet, is making false claims to try to deny these conflicts. It’s an appeal to lawyers — ethics lawyers at DOJ, constitutional lawyers questioning the legality of the appointment, and probably Mueller’s lawyers, who’ve been Hoovering up evidence relating to this latest obstruction of justice. This is the kind of performance tweeting Trump does all the time. It has no legal value — the lawyers he’s trying to influence will instead work with actual evidence — but it might lead his supporters to overlook egregious conflicts.

I’m more interested in his second tweet, posted 12 minutes later, touting that Republicans — most who worked or fought campaigns with him in IA — think highly of him.

Along with selling lawyers a lie, it seems, Trump feels the need to assure fellow Republicans (in the wake of losing many suburban women voters in part because of the Brett Kavanaugh confirmation process) that it will be worth fighting for Whitaker. Sure, Iowa politicians matter for anyone thinking of running for office. It definitely helps that the Chair of the Senate Judiciary Committee has driven to all Iowa’s counties with Whitaker.

But the key validator here, of course, is Leonard Leo, who has been pushing Whitaker as part of a defense strategy. That is, Leo is not (yet) pushing Whitaker to be a judge, though I think it likely that’s how he expects to be paid off, which makes Leo’s involvement even more suspect. For now, though, Leo is instead pushing Whitaker to help wind down the Mueller probe.

And Trump wants fellow Republicans, who just got shellacked in the House and may not even extend their advantage in the Senate, to risk political capital to defend Whitaker, all the while blowing up a half century of conservative beliefs about appointments.

Yet, even with these two bids to placate two different audiences about the Whitaker move (and all the related bullshit about not knowing what a hack Whitaker is), Trump simply doesn’t address all the glaring problems with Whitaker, starting with the question about whether the appointment is even legal.

It’s always a mistake to underestimate Trump’s survival ability, and it may be that he’ll find a way to persuade the two audiences he’s trying to reassure that Whitaker is worth the risk.

But these tweets suggest a heavy-handed move he probably imagined would bring him salvation has just added to his headaches.

No, Mueller Probably Didn’t Subpoena Trump, Yet

Nelson Cunningham, who has far better legal qualifications than I do but who, as far as I’ve seen, has written very little on the Mueller investigation has taken Politico’s very good reporting on a second appeal involving the Mueller inquiry and started a parlor game among people convinced this means Trump got a subpoena. Jay Sekulow has already denied the report.

Cunningham bases his argument on the following observations, along with the observation that the initial court filings came the day after Rudy Giuliani announced he had completed writing a challenge to an as yet unserved subpoena:

  • The parties and the judges have moved with unusual alacrity. Parties normally have 30 days to appeal a lower court action. The witness here appealed just five days after losing in the district court – and three days later filed a motion before the appellate court to stay the district court’s order. That’s fast.
  • The appeals court itself responded with remarkable speed, too. One day after getting the witness’s motion, the court gave the special counsel just three days to respond – blindingly short as appellate proceedings go. The special counsel’s papers were filed October 1.
  • At this point an unspecified procedural flaw seems to have emerged, and on October 3, the appeals court dismissed the appeal. Just two days later, the lower court judge cured the flaw, the witness re-appealed, and by October 10 the witness was once again before appellate court. Thanks to very quick action of all the judges, less than one week was lost due to a flaw that, in other cases, could have taken weeks or months to resolve.
  • Back before the D.C. Circuit, this case’s very special handling continued. On October 10, the day the case returned to the court, the parties filed a motion for expedited handling, and within two days, the judges had granted their motion and set an accelerated briefing schedule. The witness was given just 11 days to file briefs; the special counsel (presumably) just two weeks to respond; and reply papers one week later, on November 14 (for those paying attention, that’s 8 days after the midterm elections). Oral arguments are set for December 14.

I suspect the subpoena — if that’s what this is — is either for a White House figure (John Kelly or Don McGahn might be possibilities), a lawyer (Trump Organization lawyers Alan Garten and Alan Futerfas both had non-privileged conversations about the pushback on the June 9 meeting, as did Agalarov lawyer Scott Balber), or a journalist (Chuck Johnson and Lee Stranahan have denied having been contacted by Mueller; Hannity would be another possibility).

I’ve laid out the underlying timeline, below. There are three dockets involved in the mystery challenge: 18-gj-41-BAH, which is sealed, and 18-3068 and 18-3071 before the DC Circuit. For point of comparison, I’ve included Andrew Miller’s appeal of a grand jury subpoena in the timeline (which Cunningham doesn’t mention at all), in italics, as well; those docket numbers are 18-gj-34-BAH and 18-3052. I’ve also included some key public reports that Cunningham doesn’t mention that provide key context.

Miller’s docket easily disproves one of Cunningham’s arguments: that the appeal itself was very quick. Miller, like the mystery challenger, both filed their appeal within days (suggesting that timing came from Beryl Howell, not the appellants). With Miller, there was a pause to litigate the issue of Concord Management’s status, but that pause was litigated on the same accelerated schedule as the jurisdictional issue for the mystery appellant. With the mystery appellant, there appeared to be some slam dunk procedural issue for why the Circuit did not yet have jurisdiction. It was suggested to me that the mystery person may not have taken the legal step of being held in contempt before appealing, as Miller did, which would explain the quick jurisdictional response for the mystery challenger.

Miller’s docket also shows that the results of motion to expedite aren’t that dramatic. With no expedited schedule, Miller’s initial schedule (including the Concord litigation) provided him 24 days for his opening brief, gave Mueller 16 days to respond, and Miller 5 days to reply, with 41 days for the Circuit to consider the appeal or a total of 85 days after the filing. As Cunningham notes, the mystery appellant got just 11 days to file the initial brief, Mueller got two weeks to respond, and the mystery appellant got 7 days to reply. The Circuit gave themselves a month to consider the appeal, or a total of 65 days from second appeal. But that works out to be 81 days from the initial September 24 appeal, about the same amount of time as Miller’s appeal. The expedited time here mostly came out of the appellant’s time for the initial brief and the Circuit consideration (which might be a fair outcome given the appeal without jurisdiction); Mueller’s schedule remains roughly similar. It has been suggested that the mystery appellant’s decision to appeal in spite of that procedural flaw may have provided more urgency for the appeal (for example, if Howell had not stayed contempt for the mystery appellant, then the risk of jailing would be greater than it would be for Miller, for whom she stayed the contempt).

Finally, Cunningham doesn’t consider something else in the public record. On October 11, right in the middle of this litigation, CNN revealed that Mueller had given Trump — and Trump was working on — a set of questions pertaining to conspiracy. The other day, Bloomberg reported that Trump had finished answers to that question, but was withholding them pending the outcome of the election. It’s possible that the White House would voluntarily answer questions on conspiracy while litigating a subpoena for testimony on obstruction. Perhaps they would adopt that approach if their subpoena challenge pertains exclusively to actions Trump took as President, and if that were the case, that might explain the real reason Rudy was stalling on returning the answers, to see if the subpoena challenge worked. If that were the case, though, he would have to invent new reasons to explain the delay from November 6 past December 14, when the case will be heard (and he has promised to appeal any subpoena to SCOTUS). Alternately, Rudy could be stalling on the answers to await the appeal and using the election as his excuse just to avoid making this appeal public before the election.

One other thing that might support Cunningham’s argument that he doesn’t raise is Brett Kavanaugh’s confirmation on October 6. Having confirmed Kavanaugh might explain the decision to ask for en banc consideration of what is probably a slam dunk procedural issue, in hopes of short circuiting the route to SCOTUS. But everyone in this investigation, including Yevgeniy Prigozhin’s team, have tailored their actions to Kavanaugh’s presence on SCOTUS since even before he was confirmed.

Still, I think all that less likely than other explanations, not least because this White House has never kept things like this secret, nor would they if they could use it to argue that Trump needs a good electoral turnout to keep him safe, legally.

I’m at least as intrigued by the way the timeline overlaps with Don McGahn’s last big press push, around the same time as the initial filing before Beryl Howell. A lawyer like McGahn would also have reason to want to avoid the jurisdictional step of being held in contempt (indeed, if he had been held in contempt, it might explain one reason for the urgency of the appeal). It’s also one possible explanation for why someone would skip that step — another being that whoever is making this challenge is even less well-lawyered than Miller. Finally, if it were McGahn appealing a grand jury subpoena, Katsas’ recusal would be a no-brainer (though he has said he would recuse more generally).

There are, still, plenty of other possibilities, though. And Cunningham’s case is nowhere near as strong as suggested once you compare it with what happened with the relatively anonymous, powerless Andrew Miller challenge in the very same matter.

Timeline

6/13/2018: Date filed (18-gj-34-BAH) [For more on Miller’s stalling, since May 10, on this subpoena, see this post]

7/6/2018: Report that Emmet Flood had been contesting Mueller request for John Kelly testimony for a month

8/10/2018: Date of judgment (18-gj-34-BAH)

8/14/2018: Notice of appeal (18-3052)

8/15/2018: Clerks order to file initial submissions on 8/30/2018 (18-3052)

8/16/2018: Per curium order setting briefing Appellant 9/7/2018, Appellee 9/23/2018, Reply 9/28/2018  (18-3052)

8/15/2018: Rudy Giuliani states, “we’re pretty much finished with our memorandum opposing a subpoena”

8/16/2018: Date filed (18-gj-41-BAH)

8/18/2018: NYT story describing third Don McGahn interview claiming unprecedented cooperation for a White House Counsel

8/30/2018 : Statement of issues (18-3052)

8/30/2018: Motion to extend time to file to 9/10/2018  (18-3052)

9/10/2018: Motion to extend time to file to 9/11/2018  (18-3052)

9/12/2018: Appellant brief submitted; Length of Brief: 10,869 Words (18-3052)

9/19/2018: Date of judgment (18-gj-41-BAH)

9/24/2018: Notice  of appeal  (18-3068)

9/27/2018: Motion to stay underlying appeal  (18-3068)

9/28/2018: Per curium order directing response from Mueller (18-3068)

9/28/2018: Appellee brief submitted  (18-3052)

10/01/2018: Mueller response in opposition (18-3068)

10/01/2018: Appellant response  (18-3068)

10/03/2018: Per curium order dismissing case for lack of jurisdiction  (18-3068)

10/05/2018: Date of order  (18-gj-41-BAH)

10/05/2018: Petition for re-hearing en banc  (18-3068)

10/6/2018: Brett Kavanaugh confirmed

10/09/2018: Appellant brief submitted (18-3052)

10/09/2018: Notice of appeal (18-3071)

10/10/2018: Appeal docketed (18-3071)

10/10/2018: Joint motion to expedite  (18-3071)

10/11/2018: Report that Trump preparing answers to Mueller’s questions about conspiracy with Russia

10/12/2018: Per curium order granting motion to expedite Appellant 10/23/2018, Appellee 11/07/2018, Reply 11/14/2018:  (18-3071)

10/22/2018: Hearing scheduled for 12/14/201 (18-3071)

10/22/2018: Appellant brief submitted; Length of Brief: 12904 words (18-3071)

10/24/2018: Per curium order denying re-hearing en banc (with Greg Katsas recused) (18-3068)

10/29/2018: Rudy Giuliani states legal team has prepared written responses to several dozen questions from Special Counsel Robert Mueller but say they won’t submit them until after next week’s elections and only if they reach a broader agreement with Mueller on terms for the questioning

11/8/2018: Hearing scheduled (85 days after filing)

12/14/2018: Hearing scheduled (65 days after filing) (18-3071)

Judicial Watch’s Eighteen Month Soros Conspiracy Theory

Over the weekend, Judicial Watch’s head of investigations Chris Farrell went on Lou Dobbs and referred to the group of migrants Trump has dubbed a “caravan” as a,

highly organized, very sophisticated organization — I have that from the highest levels of the Guatemalan government — they’re investigating those groups criminally, and I strongly urge President Trump and his Attorney General Jeff Sessions to do the same here, a lot of these folks also have affiliates who are getting money from the Soros-occupied State Department, and that is a very grave concern.

When people noted that Farrell had been spewing the same kind of Protocols of the Elders of Zion conspiracy that Robert Bowers had embraced before shooting up the Tree of Life Synagogue in Pittsburgh and that such conspiracy theorizing had led Cesar Sayoc to send a bomb to Soros, Fox took down the segment (but not before showing it twice) and claimed it would no longer welcome Farrell.

Today, Radio Televisión Martí also pulled a Judicial Watch sourced segment attacking Soros in Cuba that Mother Jones pointed to in the wake of last week’s assassination attempt.

Radio Televisión Martí, a network overseen by the U.S. government that broadcasts to Cuba, pulled a video segment it produced months ago that relied on material from the conservative group Judicial Watch and referred to Democratic donor George Soros as a “multimillionaire Jew,” Mother Jones reported last week.

“George Soros has his eye on Latin America. But Judicial Watch, an American investigative legal group, also has its eye on Soros and what it sees as his lethal influence to destroy democracies,” the narrator of the segment says in the video, according to an English translation published by Mother Jones. “It describes him as a millionaire investor and stock market speculator who exploits capitalism and Wall Street to finance anti-system movements that fill his pockets.”

The video also refers to Soros as “the multimillionaire Jew of Hungarian origin whose fortune is estimated at $8 billion” and “a non-believing Jew of flexible morals,” according to Mother Jones.

While the assassination attempt has generated focus on Judicial Watch’s actions, what has not been explained, is how Judicial Watch came to include Soros on its beat, which otherwise for the last several years has remained focused on the themes of the 2016 election (and for basically the history of the organization has been focused unrelentingly on Hillary Clinton). They’re still looking for Hillary emails, and other than a break to push the Brett Kavanaugh confirmation, currently spend most of their time trying to discredit the Mueller investigation. They’re even still trying to use Tony Podesta’s involvement in Paul Manafort’s corruption to suggest John Podesta had a role in such things.

The organization is awful, but they’re not primarily awful in an unreconstructed racist sense.

There are some thematic sympathies, to be sure. JW has supported Trump’s Muslim ban. They’ve done some lawsuits on where refugees were resettled under the Obama Administration. JW sued for information on unaccompanied minors in custody under the Obama Administration, claiming they had ties to gangs and other crimes. Even before Farrell’s “caravan” comments, he and JW President Tom Fitton were calling to militarize the border.

Just as notably, the premise behind Farrell’s coverage of this issue and presence on Lou Dobbs’ show over the weekend (though he has been a very regular guest on Dobbs’ show) — that he recently took a fact-finding trip to investigate the “caravan” — is also a departure from Judicial Watch’s normal investigative approach, which involves endless FOIAs rather than reporting trips.

JW is pitching its coverage of the “caravan” as part of its “corruption chronicles” which are normally focused on the US government, perhaps based on its claim that there is financial support for migrants in Central America.

Here’s one of the reports from his trip — which seems more like an effort to air right wing governments’ propaganda about migrants than any evidence of corruption.

The migrant caravan marching northbound through Central America is an “elaborately planned” movement that’s benefiting human smugglers and bringing disturbing numbers of violent gang members and other criminal elements through Guatemala, according to government sources in the capital city. “MS-13 gang members have been detained and coyotes (human smugglers) are joining the march with clients who pay to get smuggled into the United States,” a Guatemalan official told Judicial Watch. People from Asian countries waiting to get smuggled into the U.S. through Central America are also integrating with poor Hondurans in the caravan, a high-level Guatemalan government source confirmed. Among them are nationals of Bangladesh, a south Asian Islamic country that’s well known as a recruiting ground for terrorist groups such as ISIS and Al-Qaeda Indian Subcontinent (AQIS). “There are lots of dirty businesses associated with this,” Guatemalan authorities told Judicial Watch. “There’s lots of human trafficking.”

Sandwiched between Honduras and Mexico, Guatemala has been overrun with the onslaught of migrants that began their journey last week in the northern Honduran city of San Pedro Sula. At last count around 7,000 have participated in the trek, a great deal of them rowdy, angry men ages 17 to 40. President Jimmy Morales has ordered the military and police to detain all of the migrants and facilitate their safe return back to Honduras, though thousands have already reached the Mexican border. In a morning interview with Judicial Watch at the Guatemalan Ministry of Defense, Secretary of Defense General Luis Miguel Ralda Moreno said more than 2,000 Hondurans have been sent back home on buses. “We’re doing everything possible to stop the caravan while still respecting human rights,” General Moreno said.

During an afternoon interview at the National Palace, President Morales said that Guatemala has absorbed the huge cost of mobilizing police and military to return thousands of people to Honduras. He would like the United States to help him find the organizers of the caravan so they can face legal consequences. “Mass immigration like this endangers lives,” Morales said. “This is unprecedented. We are in the process of investigating who is behind the caravan.” Morales assures that Guatemala is doing everything possible to curb illegal immigration and asked for cooperation from the United States.

But as it turns out, and as the Radio Televisión Martí piece makes clear,  JW’s attacks on Soros go back further, at least 18 months.

The effort publicly started in February 2017, as tensions between the right wing government and the opposition in Macedonia started heating up. At that point, JW accused Soros of engaging in a “clandestine” effort to overthrow the government, one based on a Viktor Orbán accusation (remember that Orbán is about to shut down Soros’ Central European University, an effort launched around the same time as this JW effort).

Here’s how the clandestine operation functions, according to high-level sources in Macedonia and the U.S. that have provided Judicial Watch with records as part of an ongoing investigation. The Open Society Foundation has established and funded dozens of leftwing, nongovernmental organizations (NGOs) in Macedonia to overthrow the conservative government. One Macedonian government official interviewed by Judicial Watch in Washington D.C. recently, calls it the “Soros infantry.” The groups organize youth movements, create influential media outlets and organize violent protests to undermine the institutions and policies implemented by the government. One of the Soros’ groups funded the translation and publication of Saul Alinsky’s “Rules for Radicals” into Macedonian. The book is a tactical manual of subversion, provides direct advice for radical street protests and proclaims Lucifer to be the first radical. Thanks to Obama’s ambassador, who has not been replaced by President Trump, Uncle Sam keeps the money flowing so the groups can continue operating and recruiting, sources in Macedonia and the U.S. confirm.

With a population of about 2 million, Macedonia has one of the more conservative governments in Europe. This includes the lowest flat tax in Europe, close ties with Israel and pro-life policies. The country recently built a border fence to crackdown on an illegal immigration crisis that overwhelmed law enforcement agencies. Between 10,000 and 12,000 illegal aliens were crossing the Greek-Macedonian border daily at the peak of the European migration crisis, a Macedonian official told Judicial Watch, and the impact was devastating. This is likely of big interest to Soros, a renowned open borders advocate who pushes international governance, diminished U.S. global power and an increase in Muslim immigration. Soros spent tens of millions of dollars to support Hillary Clinton’s presidential campaign. Just this month Hungary’s prime minister lashed out against Soros for funding groups to secretly influence the country’s politics. “Large-bodied predators are swimming here in the waters,” said Viktor Orban in his annual state of the nation speech. “This is the trans-border empire of George Soros, with tons of money and international heavy artillery.”

JW started suing for State documents on Soros’ involvement in Macedonia in April 2017. In May of that year, Mike Lee and five other GOP Senators started probing why State fosters democracy. This year, JW has sued for information on State-funded Soros programs in Romania, Colombia and Albania. The Radio Televisión Martí piece makes it clear they’re focusing on Cuba, too.

Perhaps most interesting, however, is a May 21 piece Farrell did on Lou Dobbs, (this came in the wake of the Concord Management filing complaining about the same, but I’m still working on pulling up the full episode to see if that’s what it was a reference to) in which he claimed that President Obama pursued a policy of regime change overseas, at times funded by Soros, which Dobbs suggested may have prompted Putin’s own tampering.

That is, not only are JW and Dobbs complaining that Soros is undermining right wing governments, but at least once, they made the argument that Soros’ open society work justified Putin’s own tampering in 2016.

Update: This InfoWars piece pointing to JW’s Albanian documents to sustain a claim that JW has proven the caravan is funded by Soros relies on both JW’s FOIAed documents and documents leaked by dcleaks in 2016. While I’m definitely not suggesting a link, by using both JW FOIAed documents and GRU stolen ones, InfoWars ties Putin’s 2016 effort to JW’s current ones.

Update: This post says the conspiracy theory linking Soros to the caravan dates to March.

The claims of a direct link between intentional SºRºS funding and the Latin/Central America ⊂⟑r⟑v⟑n appeared on March 30th. Of course, this was a different caravan. But it is the origin of the larger theme and keywords. It was amplified in April and May by TheBl⟑ze, WND, along with the usual actors, rage blogs, and sketchy K.⟑.G. cyborg accounts. And by MSN headlines, fact checks, and aggressive left-wing “retort” sites.

Let’s begin from the start. To be clear, I don’t mean all the SºRºS-funding rumors, but specifically the damaging Latin America-related ⊂⟑r⟑v⟑n-funding, midterm election impacting one.

Update: The employees behind the Radio Televisión Martí ads have been suspended and may get fired.

The federal government’s state-funded broadcasting arm is placing a number of employees on administrative leave and opening an investigation into how it ended up airing a story this year attacking liberal financier George Soros as a malignant “multimillionaire Jew.”

The story aired in May on Radio Televisión Martí, a Spanish-language broadcaster housed in the Office of Cuba Broadcasting in Miami. OCB is a division of the United States Agency for Global Media (USAGM), formerly known as the Broadcasting Board of Governors, an independent federal agency that oversees government-funded news organizations around the world.

[snip]

“Those deemed responsible for this production will be immediately placed on administrative leave pending an investigation into their apparent misconduct,” Lansing added. “Disciplinary action appropriate under federal law may then be proposed, including the potential removal of those responsible, depending on the outcome of that investigation.”

 

Photo: Pavan Trikutam via Unsplash

Three URGENT Things: POTUS’ Alert Text, Facebonked, Kavanuh-uh

Let’s get right to it, no time for preamble (and don’t forget to check the byline above).

~ 3 ~

There will be an unblockable nationwide test of the Presidential Alert system on all cell phones today at 2:18 p.m. ET.

This infuriates me to no end, especially after Trump’s insulting bullshit at his fan club rally last night in which he denigrated assault survivor Dr. Blasey Ford. It’s as if he’s going to grab us all by the privates at the same time today without our consent.

Think about it: so much of your private personal life goes through your phone and now Trump’s FEMA has decided it will inject itself into your phone?

Lifehacker has a decent article suggesting some methods for mitigating or avoiding the text if not blocking it — you can read about it at this link.

Make sure you tell friends and family ASAP about this alert so they don’t freak out and aren’t in the middle of something important when this alert shows up.

Pity the poor residents of Hawaii, having to face this crap first thing this morning.

Time zone conversion for the alert:

Eastern: 2:18 p.m. ET
Central: 1:18 p.m. CT
Mountain: 12:18 p.m. MT
Pacific: 11:18 a.m. PT
Alaska: 10:18 a.m.
Hawaii: 08:18 a.m.

Check time conversion at this link. I’m going to shut my phone off at 2:00 p.m. ET and take an hour-long break.

~ 2 ~

The half-assed FBI investigation will likely be finished today; don’t expect to see the Swiss cheese-y results riddled with holes where testimony wasn’t collected. It’s unlikely the public will see this report.

This means McConnell will likely pursue a vote on cloture today to end debate in order for the full Senate to vote on Kavanaugh before the end of the week.

Which in turn means CALL YOUR SENATORS. Yes, even the steadfast Democrats who are unlikely to sway because their offices are being flooded with right-wing calls demanding their poor rich white frat boy judge be seated for a lifetime on the Supreme Court.

Screw that. Just MAKE THE CALLS.

Congressional switchboard: (202) 224-3121

Need a script for your call? @Celeste_pewter has them broken into four categories:

– The Democrats who have already said yes, and won’t flip no matter what.
– The red state Democrats.
– The potential GOP flips.
– The GOP senators who will vote yes, no matter what.

And a universal, all-senators script.

Pick the appropriate script and have at it. (Thanks, Celeste!)

HOOSIERS: Make a special effort to thank Joe Donnelly who came out last night as a NO on Kavanaugh. He is surely being pummeled today by Indiana’s finest red staters.

NORTH DAKOTANS: Heitkamp is down but within margin of error of her Republican opponent. Make sure you call so that she doesn’t feel pressure to backslide.

Trouble getting through switchboard or full mailbox? Try contacting your senators’ local offices. Look them up at:

Contacting Congress: https://www.contactingcongress.org
Ballotpedia: https://ballotpedia.org/Who_represents_me%3F

~ 1 ~

Facebook’s massive breach exposes what a bad, BAD idea it was to allow a Facebook login to become a universal login for other applications. Let’s not forget Facebook has also appropriated users’ phone numbers for advertising without users’ consent. It’s a security cataclysm and Facebook is once again flat-footed.

NEVER LOG INTO SITES WITH FACEBOOK USERID.

Never use the same password for more than one site.

Use a password manager.

Read up here about the problem.

What did I do? I gave up Facebook years ago when it was clear to me they were a security cesspool.

~ 0 ~

Now get going. Run!

Treat this as an open thread.

One Question: Why Kavanaugh?

[NB: As always, check the byline.]

I don’t have anything new to add to the work Marcy has done so far in her analysis of SCOTUS nominee Brett Kavanaugh’s testimony and statements and those of Dr. Christine Blasey Ford. Nor can I add to bmaz’ criticism of the subsequent investigation.

Voluminous amounts of material have been generated by this confirmation process, including a redacted transcript of a Senate Judiciary Committee phone interview with Kavanaugh released last evening. Myriad questions have been asked about Kavanaugh’s past and his false statements. Given the confirmation process is a job interview, after all we’ve seen and heard publicly, it must be asked: Why Kavanaugh?

Why is the White House and the GOP portion of the Senate Judiciary Committee so deeply invested in Kavanaugh’s confirmation?

Why do they remain staunchly behind him when they’ve long had a list of other identified SCOTUS justice candidates?

Why were those candidates, the first 11 identified in May 2016 during the Trump campaign, inadequate such that Kavanaugh was added later in November 2017 to the candidate list?

Is the man we’ve seen and read so much about really the very best candidate this White House could produce for this lifetime appointment?

Why is a man whose behavior was so disrespectful of the Senate, of the Constitution, of the need for neutral nonpartisan mindset so important that the White House and GOP SJC are willing to burn down what little goodwill remains with centrists and with women and minorities?

Why the sustained commitment to a nominee who so easily lies under oath, in full view of the public?

Why stand so pat behind a nominee whose license to practice law could yet be suspended or worse because he has lied repeatedly under oath?

Do the White House and GOP SJC believe the average American would hire somebody who is supposed to be a careful arbiter of the law but who yells at and lies to his employers’ representatives during an interview?

Why are the White House and GOP SJC willing to risk exposing yet more unpleasantness about Kavanaugh given how much has already surfaced about his iffy finances and his lying about his behavior in high school and college?

Why are White House and GOP SJC willing to risk negatively affecting the mid-term elections with their commitment to Kavanaugh?

Why the investment in social media to prop up support behind Kavanaugh — both in the form of “revisions” to Wikipedia entries related to terms questioned during last Thursday’s hearing, and tweets from the SJC’s account?

Why was a Fox cable network interview necessary for the nominee of a nonpartisan job?

Media is marketing — why does this nominee need to be promoted with the public?

Why haven’t they teased an alternative nominee to test the public’s willingness to support them in lieu of Kavanaugh?

Given an alternative candidate of comparable educational and work history, would the average American as an employer offering a lifetime appointment really pick Kavanaugh over anyone else?

Why are the White House and the GOP SJC insisting Kavanaugh’s confirmation be rushed for what appear to the public to be wholly arbitrary reasons?

Everything about this confirmation process makes no sense; it undermines faith in the Senate Judiciary Committee and may taint the Supreme Court. We must know: Why Kavanaugh?

__________

This is an open thread.

Rachel Mitchell Is Not Very Good at Propaganda

The Senate Judiciary Republicans’ hand-picked sex prosecutor, Rachel Mitchell, has released a report that is generating the desired headlines from credulous journalists. It should take reporters no more work than to compare what Mitchell claims in her memo with what actually happened last Thursday to declare it a sham report. But since journalists are reporting it as an honest submission, I guess I’ll have to debunk it.

Mitchell’s report makes no mention of July 1

Start with the fact that Mitchell’s report makes no mention of the July 1 get-together that included all of the boys Christine Blasey Ford has claimed were at the event where she was assaulted. Here’s how Mitchell got Brett Kavanaugh to confirm that fact in the hearing.

MITCHELL: I would like you to look at the July 1st entry.

KAVANAUGH: Yes.

MITCHELL: The entry says — and I quote — “Go to Timmy’s (ph) for skis (ph) with Judge (ph), Tom (ph), P.J. (ph), Bernie (ph) and Squee (ph)”?

KAVANAUGH: Squee. That’s a nick…

MITCHELL: What does…

KAVANAUGH: … that’s a nickname.

MITCHELL: OK. To what does this refer, and to whom?

KAVANAUGH: So first, says “Tobin’s (ph) house workout”. So that’s one of the football workouts that we would have — that Dr. (inaudible) would run for guys on the football team during the summer.

So we would be there — that’s usually 6:00 to 8:00 or so, kind of — until near dark. And then it looks like we went over to Timmy’s — you want to know their last names too? I’m happy to do it.

MITCHELL: If you could just identify, is — is “Judge,” Mark Judge?

KAVANAUGH: It is.

MITCHELL: And is “P.J.,” P.J. Smith?

KAVANAUGH: It is.

So — all right. It’s Tim Gaudette (ph), Mark Judge, Tom Caine (ph), P.J. Smith, Bernie McCarthy (ph), Chris Garrett (ph).

MITCHELL: Chris Garrett is Squee?

As I have noted, Mitchell got Kavanaugh to confirm that Judge, PJ, and Kavanaugh — and other boys, as Ford has testified — were drinking at a suburban Maryland home on a weekday around the same time as Ford’s testimony said the event would have happened. This by itself refutes the key prong of Kavanaugh’s defense, that he was never at a party like the one Ford described, as Kavanaugh had claimed in response to Mitchell just minutes earlier.

MITCHELL: Dr. Ford described a small gathering of people at a suburban Maryland home in the summer of 1982. She said that Mark Judge, P.J. Smyth and Leland Ingham also were present, as well as an unknown male, and that the people were drinking to varying degrees. Were you ever at a gathering that fits that description?

KAVANAUGH: No, as I’ve said in my opening statements — opening statement.

He was at such a party, and the calendars he say validate his claims actually undermine his credibility.

But Mitchell makes no mention of the fact that, in her limited questioning of Kavanaugh, he had both provided possible corroboration to Ford and contradicted a statement he made minutes earlier.

The report makes no mention of Mitchell’s truncated questioning of Kavanaugh, at all

Of course Mitchell didn’t mention that, in her limited questioning of Kavanaugh, she obtained evidence from him that actually helps Ford and hurts Kavanaugh. That’s because she’s utterly silent about what happened in her questioning of Kavanaugh.

That’s important because it obscures both what did happen and what didn’t happen. The Republicans subjected Kavanaugh to just three rounds of questioning from Mitchell before Lindsey Graham took over in a rant almost as belligerent as the nominee’s. Over the course of those rounds, Kavanaugh showed visible discomfort — and a professed need to refer back to the definition of sexual behavior — after Mitchell provided that to him.

MITCHELL: I want you to take a moment to review the definition that’s before you of sexual behavior.

MITCHELL: Have you had a chance to review it?

KAVANAUGH: I have. I may refer back to it, if I can?

MITCHELL: Yes, please.

I’d like to point out two specific parts. Among the examples of sexual behavior, it includes rubbing or grinding your genitals against somebody, clothed or unclothed. And I would also point out that the definition applies whether or not the acts were sexually motivated or, for example, horseplay. Do you understand the definition I have given you?

KAVANAUGH: I do.

In round two, under Mitchell’s questioning, Kavanaugh offered up his first really troubling denial of drinking to excess, including a refusal to describe, in behavioral or even legal terms, what it means to drink too much.

MITCHELL: Dr. Ford has described you as being intoxicated at a party. Did you consume alcohol during your high school years?

KAVANAUGH: Yes, we drank beer. My friends and I, the boys and girls. Yes, we drank beer. I liked beer. Still like beer. We drank beer. The drinking age, as I noted, was 18, so the seniors were legal, senior year in high school, people were legal to drink, and we — yeah, we drank beer, and I said sometimes — sometimes probably had too many beers, and sometimes other people had too many beers.

MITCHELL: What do you…

KAVANAUGH: We drank beer. We liked beer.

MITCHELL: What do you consider to be too many beers?

KAVANAUGH: I don’t know. You know, we — whatever the chart says, a blood-alcohol chart.

MITCHELL: When you talked to Fox News the other night, you said that there were times in high school when people might have had too many beers on occasion. Does that include you?

KAVANAUGH: Sure.

MITCHELL: OK. Have you ever passed out from drinking?

KAVANAUGH: I — passed out would be — no, but I’ve gone to sleep, but — but I’ve never blacked out. That’s the — that’s the — the allegation, and that — that — that’s wrong.

Kavanaugh would go on to deny more specific questions about blacking out, but this initial response shows that Kavanaugh is too defensive about his drinking to be reliable.

Immediately after that second round of questioning, Kavanaugh took his first break.

In Mitchell’s third round, she got Kavanaugh to confirm that he had, in fact, been at a party the likes of which he said he had not been, though she didn’t call attention to that fact. Also in that round, she asked him about his interview with the committee about the alleged assaults.

MITCHELL: Since Dr. Ford’s allegation was made public, how many times have you been interviewed by the committee?

KAVANAUGH: It’s — it’s been a — three or four. I’m — I’m trying to remember now. It’s — it’s been several times. Each of these new things, absurd as they are, we’d get on the phone and kind of go through them.

MITCHELL: So have you submitted to interviews specifically about Dr. Ford’s allegation?

KAVANAUGH: Yes.

MITCHELL: And what about Deborah Ramirez’s allegation…

KAVANAUGH: Yes.

MITCHELL: … that you waved your penis in front of her?

KAVANAUGH: Yes.

MITCHELL: What about Julie Swetnick’s allegation that you repeatedly engaged in drugging and gang-raping, or allowing women to be gang-raped?

KAVANAUGH: Yes. Yes, I’ve been interviewed about it.

MITCHELL: Were your answers to my questions today consistent with the answers that you gave to the committee in these various interviews?

KAVANAUGH: Yes, ma’am.

MITCHELL: OK. I see I’m out of time. [my emphasis]

And that was it, Mitchell was yanked by Republicans before she asked any more questions that helped Ford and hurt Kavanaugh.

Mitchell held Ford’s statements to a much higher standard than she did Kavanaugh’s

Now compare that last bit — where Mitchell simply asked Kavanaugh to judge from himself whether his responses to her were consistent with just the interviews he had had with the committee — with how Mitchell asked Ford to review her statements and point out anything she would change.

MITCHELL: OK.

We’ve put before you — and I’m sure you have copies of them anyway — five pieces of information, and I wanted to go over them.

The first is a screenshot of a WhatsApp texting between you and somebody at the Washington Post. Do you have that in front of you?

FORD: Yes.

MITCHELL: The first two texts were sent by you on July 6th. Is that correct?

FORD: Correct.

MITCHELL: And then the last one sent by you was on July 10th?

FORD: Correct.

MITCHELL: OK. Are those three comments accurate?

FORD: I will read them.

(UNKNOWN): Take your time.

Ford did so, and corrected a number of things that were made, often in non-legal contexts, quite specifically. Her corrections of her non-legal statements were a key part of her credibility, because they showed her to be a careful person with attention to detail.

As a threshold matter, Mitchell assessing the consistency of Ford’s statements across five different kinds of statements: statements to her therapists, her spouse and friends, to the WaPo, before a polygraph, and to the committee. She’s only asking Kavanaugh to validate one kind of statement — his interviews with friendly staffers on the committee — with his responses to her questioning, and her questioning didn’t even touch on the topics of one of those interviews (that is, the other allegations). She specifically left out the Fox interview where (among other things), Kavanaugh defined “sexual assault” to be limited to vaginal intercourse, which is far different than the one Kavanaugh squirmed at when presented with it by Mitchell. That’s also where Kavanaugh claimed seniors were legal to drink, and everyone drank that much, and his friendship with girls extended just to those at sister Catholic schools, not Holton-Arms where Ford attended.

friendship, friendship with my fellow classmates and friendship with girls from the local all girls Catholic schools.

There was even an exchange where Kavanaugh might be taken to have claimed he never met Ford.

MACCALLUM: And to this date, no one has corroborated the story that she has told. As you accurately point out, but is there – so there’s no chance that there was something between the two of you that maybe she misunderstood the exchange that you had?

Nothing ever physical, you never met her, never kissed her, never touched her, nothing that you remember?

KAVANAUGH: Correct

Though earlier, he had said he may have met her, even though he claimed they did not travel the same circles.

KAVANAUGH: I may have met her, we did not travel in the same social circle, she was not a friend, not someone I knew—

And, of course, the Fox interview is where he claimed he was the last American virgin.

Particularly given the content of the hearing, where Ford testified that Squi was the guy through whom she met Kavanaugh, the judge’s claims that she didn’t travel in his same circles appear absolutely false, as do a number of other details Kavanaugh made public. But by narrowly.construing the validation she asked Kavanaugh to make (as compared to the broad comparison she demanded of Ford), Mitchell avoided making Kavanaugh swear that some of his obviously bullshit comments are true and in the process absolved herself of conducting the same assessment of whether Kavanaugh’s claims were consistent over time. And all that’s before you look at other claims — such as that he claimed the 65 women who signed a letter backing him knew him well, including those who went to Holton-Arms along with Ford, even though he claimed he was only friends with Catholic school girls. Or, his comments in the yearbook.

Kavanaugh’s statements would not survive the kind of apples to orange comparison Mitchell subjected Ford’s statements to

Mitchell’s failure to conduct the same scrutiny of Kavanaugh’s statements matters because that’s a key prong of her finding that Ford’s statements were not consistent, of which these two passages are representative of the problems with Mitchell’s claims.

Dr. Ford has not offered a consistent account of when the alleged assault happened.

  • In a July 6 text to the Washington Post, she said it happened in the “mid 1980s.” • In her July 30 letter to Senator Feinstein, she said it happened in the “early 80s.” • Her August 7 statement to the polygrapher said that it happened one “high school summer in early 80’s,” but she crossed out the word “early” for reasons she did not explain.
  • A September 16 Washington Post article reported that Dr. Ford said it happened in the “summer of 1982.”
  • Similarly, the September 16 article reported that notes from an individual therapy session in 2013 show her describing the assault as occurring in her “late teens.” But she told the Post and the Committee that she was 15 when the assault allegedly occurred. She has not turned over her therapy records for the Committee to review.
  • While it is common for victims to be uncertain about dates, Dr. Ford failed to explain how she was suddenly able to narrow the timeframe to a particular season and particular year.

[snip]

Her account of who was at the party has been inconsistent.

  • According to the Washington Post’s account of her therapy notes, there were four boys in the bedroom in which she was assaulted.
  • She told the Washington Post that the notes were erroneous because there were four boys at the party, but only two in the bedroom.
  • In her letter to Senator Feinstein, she said “me and 4 others” were present at the party.
  • In her testimony, she said there were four boys in addition to Leland Keyser and herself. She could not remember the name of the fourth boy, and no one has come forward.
  • Dr. Ford listed Patrick “PJ” Smyth as a “bystander” in her statement to the polygrapher and in her July 6 text to the Washington Post, although she testified that it was inaccurate to call him a bystander. She did not list Leland Keyser even though they are good friends. Leland Keyser’s presence should have been more memorable than PJ Smyth’s.

Note how central the WaPo is to this (and, though I won’t deal with it here, to her timeline of Ford’s disclosures). That is, Mitchell is holding Ford responsible for how a text submitted to a tipline gets developed into more specific timelines that appeared in the WaPo. And she may be holding Ford accountable to inaccuracies in the WaPo story and her therapist’s report, neither of which Ford had final control over.

Plus, Mitchell is absolute incorrect when she claims that Ford offered no explanation for how she narrowed in on the summer of 1982 for the assault — because, given that she didn’t drive, it must have been before she got her driver’s license.

MITCHELL: In your polygraph statement you said it was high school summer in ’80s, and you actually had written in and this is one of the corrections I referred to early and then you crossed that out.

Later in your interview with The Washington Post, you were more specific. You believed it occurred in the summer of 1982 and you said at the end of your sophomore year.

FORD: Yes.

MITCHELL: You said the same thing I believe in your prepared statement.

How were you able to narrow down the timeframe?

FORD: I can’t give the exact date. And I would like to be more helpful about the date, and if I knew when Mark Judge worked at the Potomac Safeway, then I would be able to be more helpful in that way.

So I’m just using memories of when I got my driver’s license. I was 15 at the time. And I — I did not drive home from that party or to that party, and once I did have my driver’s license, I liked to drive myself.

It’s remarkable Mitchell completed ignored this explanation, because mapping relationships in time via what friends drove him is something Kavanaugh did, too.

MITCHELL: And how did you know Patrick Smyth?

KAVANAUGH: Also ninth grade, Georgetown Prep. Went by P.J. then. He and I lived close to one another. Played football together, he was defensive tackle, I was the quarterback and wide receiver. We carpooled to school along with De Davis (ph) every year, the three of us for two years. I didn’t have a car, so one of the two of them would drive every day. And I’d be in the (ph), you know, they’d pick me up.

All of which is to say the key basis by which Mitchell declares Ford unreliable is a methodology she protects Kavanaugh from. Had she subjected him to the same treatment, he would have looked far more unreliable.

Both witnesses had short term memory loss

The same is true of Mitchell’s claim that Ford struggled to remember details of the recent past.

Dr. Ford has struggled to recall important recent events relating to her allegations, and her testimony regarding recent events raises further questions about her memory.

  • Dr. Ford struggled to remember her interactions with the Washington Post.

[snip]

  • Dr. Ford refused to provide any of her therapy notes to the Committee.
  • Dr. Ford’s explanation of why she disclosed her allegations the way she did raises questions.
  • Dr. Ford could not remember if she was being audio- or video-recorded when she took the polygraph. And she could not remember whether the polygraph occurred the same day as her grandmother’s funeral or the day after her grandmother’s funeral.

First, the second and third bullets are not memory issues at all — she treats the anxiety of coming forward, and the differing choices she made, as a memory issue rather than a stress one.

But as to the others, she holds Ford accountable for interactions with the WaPo, not all of which may be her doing. And she treats uncertainty about a foreign process, the polygraph, as a memory issue.

And Kavanaugh himself had troubles remembering something even more recent — how many times he had been interviewed by the committee, three or four.

MITCHELL: Since Dr. Ford’s allegation was made public, how many times have you been interviewed by the committee?

KAVANAUGH: It’s — it’s been a — three or four. I’m — I’m trying to remember now. It’s — it’s been several times. Each of these new things, absurd as they are, we’d get on the phone and kind of go through them.

There’s likely a good reason for this memory loss: the committee has only released transcripts from two conversations. So if there were four interviews, it suggests there may be two where he was massaging his story. Whatever the explanation, though, these interviews were just weeks and days before this hearing, and Kavanaugh couldn’t remember them.

In short, this report is an attack on Ford. It’s not a measure of a he said she said dispute. To assess such a dispute, Mitchell would have had to examine how badly Kavanaugh flubbed his responses to her.

And she wasn’t paid for that kind of scrutiny.

Kavanaugh’s Tell: “Revenge on Behalf of the Clintons,” Plural

There’s a part of Brett Kavanaugh’s bombastic statement Thursday that has stuck with me, because it reveals the foundational logic of his statement — indeed, his entire candidacy for a lifetime appointment on the Supreme Court.

After complaining about how the nomination has destroyed his family, he accuses a shady, largely fictional, mirror image of the Right Wing Noise Machine of seeking revenge.

This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election. Fear that has been unfairly stoked about my judicial record. Revenge on behalf of the Clintons. and millions of dollars in money from outside left-wing opposition groups.

This is a circus. The consequences will extend long past my nomination. The consequences will be with us for decades. This grotesque and coordinated character assassination will dissuade competent and good people of all political persuasions, from serving our country.

The guy who insisted that–

I am strongly opposed to giving the President any ‘break’ in the questioning regarding the details of the Lewinsky relationship — unless before questioning on Monday, he either (i) resigns or (ii) confesses perjury and issues a public apology to [sexual assault cover-up expert Ken Starr].

That guy thinks the scrutiny of his own sexual past is just “revenge on behalf of the Clintons,” plural. Not just Hillary for — as he explicitly mentions — “President Trump and the 2016 election.” But also Bill Clinton, the man whom Kavanaugh demanded describe details of his use of sex toys and enjoyment of blowjobs under oath, and perhaps even Chelsea, the young girl who had to watch her parents be humiliated before the entire nation.

In spite of Kavanaugh’s suggestion that this imagined campaign would have consequences for decades, his admission that it might be revenge means it must be revenge for something. For something done to the Clintons. Hillary. And Bill.

For a guy who is unashamed about using stolen emails, the notion that he considers this revenge for Hillary is troubling enough. If this is revenge, it is revenge for Hillary being wronged during the 2016 election, and a big part of that wrong was using stolen emails. And Kavanaugh is no more embarrassed about using stolen emails than the guy who appointed him.

Kavanaugh suggests, in the same breath, that Hillary was wronged, but that denying him a seat on the Supreme Court, even for behavior that resembles that wrong, would be an outrage, even if his nomination was due entirely to the fact that she was wronged.

Brett Kavanaugh is not going to quit, no matter if his entire nomination is illegitimate because Hillary was wronged.

Perhaps more plausibly, Kavanaugh’s use of the plural, “Clintons,” suggests he thinks this is revenge for his own actions 20 years ago, his own demand that a man and his family be publicly humiliated.

But, again, if this is revenge, it suggests what happened to Clinton — the insistence that Bill confess under oath to Kavanaugh about cumming into Monica’s mouth — was itself wrong.

And once again, Brett Kavanaugh, the guy whose career was launched by demanding to hear the sordid details of sex under oath, does not care. Kavanaugh does not care that (as David Brock laid out early in this process) he himself “set a perjury trap for Clinton, laying the foundation for a crazed national political crisis and an unjust impeachment over a consensual affair.” He may recognize this as revenge and in so doing acknowledge that it is akin to the coordinated campaign he wrongly assumes is amassed against him, but he does not care that Democrats are (he imagines) adopting his own playbook.

You may defeat me in the final vote, but you’ll never get me to quit. Never.

In using that word “revenge” and imagining that Democrats are exacting revenge for both the Clinton impeachment and the use of corrupt means as a means of winning the 2016 election, Kavanaugh admits that he’s just getting a taste of the medicine he once administered. But his response to that is not to take a step back from the edge of the abyss that he himself created (and imagines himself to be standing on), take a step back with the recognition that he himself is not immune from his own tactics, but instead to complete the next logical step, the adoption of those same measures on the highest court of the land.

Never mind that by imagining credible questions about his past treatment of women is solely about the Clintons strips the agency of the millions of women trying to prevent abusers from again getting promoted in spite of it.

Kavanaugh, wrongly, thinks this is revenge for tactics he pioneered long ago. Having faced those tactics and discovered how painful they are, he has doubled down.