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The Inaugural Donald J. Trump Awards

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The Inaugural Donald J. Trump Award Trophy, awaiting the engraving of Donald J. Trump’s name and massive accomplishments.

It’s been quite a year, which is just the way Donald Trump, a narcissist the likes of which the world has never seentm, wants it.

Almost.

Can’t you just hear him: “I do, I do, and I do some more, more than anyone else ever, and yet I don’t get all the accolades I deserve. Haters.”

Now sure, he got the inaugural Gianni “Human rights problems? What human rights problems?” Infantino FIFA Peace Prize. But he wanted more, as he believes is only his due. Sadly, so many other awards have been somehow given to other clearly underdeserving folks, and still other awards are just begging to be given but no one has had the imagination or chutzpah to actually award them.

Until now. May I have the envelopes, please?

The Donald J. Trump Award for Narcissistic Rebranding goes to . . . Donald J. Trump for The Donald J. Trump and John F. Kennedy Center for the Performing Arts. And how dare any mere jazz musicians object to this.

The Donald J. Trump Award for Nationalistic Rebranding goes to . . . Donald J. Trump for the Gulf of America. All the haters at the AP and elsewhere can just get a life.

The Donald J. Trump Award for Interior Decoration goes to . . . Donald J. Trump for the over-the-top golden decorations, the “live, laugh, love” style signage, and the stunning — really absolutely stunning — renovations of the Lincoln Bathroom at the White House. The Presidential Walk of Fame with its image of Biden the AutoPen and the jawdropping plaques recounting each president’s achievements is truly beyond belief.

The Donald J. Trump Award for Architectural Salvage goes to . . . Donald J. Trump for his efforts to save the nation from the abomination that was the White House East Wing and replacing it with a much more appropriate Donald J. Trump White House Ballroom. Specific plans for the ballroom remain vague – I believe the phrase “we have a concept of a plan” fits this project, among others – but simply removing the East Wing was something that clearly needed to happen. And why does FLOTUS need any office space anyway?

The Donald J. Trump Award for Services to the Legal Community goes to . . . Donald J. Trump for his amazing record of presidential appointments to remake the legal system. From his SCOTUS appointments at the top to his appointment of judges like Emil Bove in the middle and Aileen Cannon at the bottom, as well as his appointment of prosecutors like Jeanine Pirro and Lindsey the Insurance Lawyer, he has truly installed only the best peopletm and that would be enough to earn him this award. But Trump didn’t stop there. Add to this the way in which he pushed out career DOJ staffers and the manner in which he got Big Law to bend the knee in the private sector, and this award is a slam dunk.

The Donald J. Trump Award for Medical Advancements goes to . . . Donald J. Trump for his efforts to dismantle and destroy the World Health Organization. Reading what Johns Hopkins University’s Bloomberg School of Public Health describes as WHO’s role in the world, it is obvious that WHO is a clear nuisance that needs to go:

The WHO plays many roles—the visible, apparent roles that many people are familiar with, and the roles that are less visible. This includes:

  • Detecting, monitoring, and responding to emerging health threats, pandemics, and diseases of importance; we saw that during the COVID-19 crisis.
  • Gathering and evaluating data and information from all over the world in order to understand the status of health globally and detect emerging problems. This includes acute crises as well as larger trends in health—which issues are causing a higher burden of disease and which ones we’re making progress on and should sustain efforts to address.
  • Setting standards and developing guidelines that help people around the world, including here in the U.S., deal with various health threats and crises—not only infectious diseases, but all sorts of health issues.
  • Providing commodities and goods to improve health around the world, including vaccines and drugs for many diseases. The U.S.’s withdrawal from WHO impacts not only the people who receive those goods, but also the supply chain for them, which includes many people in corporate America.
  • Assisting with humanitarian response, which has important implications both for the populations who are affected by those crises and for global diplomacy and the role of our humanitarian responses in improving global diplomacy around the world.
  • Providing very important technical assistance to governments and partners around the world to be able to respond to health challenges. The U.S. plays a very important role in providing this technical assistance.

Yeah. Who needs all that? (The “Bloomberg” in the name of the school was a clear giveaway as to JH’s unreliable wokeness.)

The Donald J. Trump Award for Services to the Environment goes to . . . Donald J. Trump’s decision to shut down the National Center for Atmospheric Research in Colorado. As climate scientist Kim Cobb told PBS,

“We’re talking about unique, one-of-a-kind facilities like supercomputers, ticked-out [sic, should be tricked-out] airplanes, and most importantly, a staff of over 800 people who are at the top of their game in innovating in weather and climate science for public good, putting out data that is on every single climate scientist’s computer around the country, if not around the world, and a nexus of collaboration as well that is important training grounds for the next generation of leaders.”

Yeah. Who needs all that when we’ve got The Weather Channel, amiright?

The Donald J. Trump Award for Service to Diplomacy goes to . . . Donald J. Trump for his muscular engagement with Nigeria, Venezuela, Iran, Yemen, Syria, Somolia, among other nations. (Simply renaming the US Institute of Peace as the Donald J. Trump US Institute of Peace seems hardly enough of a recognition for Trump’s breathtaking diplomatic work.)

The Donald J. Trump Award for Economic Excellence goes to . . . Donald J. Trump for his truly amazing grasp of the power of tariffs. Just ask the Kentucky Bourbon industry, US soybean farmers, and the members of the chambers of commerce in cities and towns along the US/Canada border.

The Donald J. Trump Award for Civil Rights goes to . . . Donald J. Trump for his dismantling of anything that smacks of a lack of racial harmony throughout American history. The Stonewall Riots, the Civil War, and anything having to do with Native Americans are merely the tip of the iceberg on the list of things that need to be forgotten, for the good of the nation. Trump is Making America Great Again by going back to the basics. As the faculty senate of Haskell Indian Nations University put it, Trump’s cuts to Native American education “represents a continuation of the trail of broken treaties” that is all too familiar to Native Americans. (Rumor has it he is working on how to get the women back in the kitchen (barefoot and pregnant), the gays back in the closet, and the blacks back in the fields, but those are clearly just rumors. I think. I hope.)

And that’s just a start.

I’m sure there are awards I am missing, but I trust that the imaginative and creative Emptywheel commentators can add to the list. Because really, Alfred Nobel has six prizes with his name on them, and what did he do, really, except invent dynamite? Trump surely deserves many more awards with his name on them than Nobel’s six. or the few that I have listed here.

Trump is truly in a league of his own.

Happy New Year’s, everyone. May next year be better (OK, that’s a low bar, but I’ll take it.).

Aggressive Defense Of The Rule Of Law

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Trump and his henchmen have declared war on the rule of law. Defending it will require aggressive responses. It’s time for heavy use of Rule 11

Here are the relevant provisions of Rule 11:

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

snip

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney’s fees and other expenses directly resulting from the violation. …

Every pleading from the government should be closely examined. If there are reasonable grounds, the affected parties should immediately demand preservation of records proving compliance with Rule 11(b).

Example: Illinois Sanctuary City laws

DoJ sued Illinois, Cook County, and Chicago over our sanctuary city laws and the policies adopted pursuant to them. (Full disclosure: I am a Chicagoan.) The suit claims that the laws were intended to and do interfere with the ability of the feds to enforce immigration laws. There is a lot of bluster about this, but there isn’t a single specific example of active interference with the feds. There are no specific allegations of damage done by enactment or compliance with the laws and policies.

The complaint lays out the provisions of Chicago’s policy in ¶¶ 41-50. Then:

51. Upon information and belief, Chicago law enforcement officials have been chilled by these prohibitions.

52. Upon information and belief, Chicago law enforcement officials are also confused by the restrictions on them and thus do not provide even the permissible cooperation out of fear of punishment.

The defendants should demand preservation of all records showing that the lawyers who filed this suit had cause to believe that there is evidentiary support for these allegations, or that it is likely that discovery would uncover evidentiary support.

But, even if there is such chilling or confusion, it doesn’t prove the case alleged by the feds. For example, it is likely the case that the feds can seek clarification of the rules from the superior officers of the duty people. There is no allegation that any actual federal agent has been unable to obtain any result permitted by the law. That information is obviously available to the government’s lawyers if it existed.

It appears that Chicago has a powerful defense against these claims under the anti-commandeering doctrine. Here’s a report from the Congressional Research Service. It says that there are six district court opinions all holding in Chicago’s favor.  I haven’t checked to see if there is later precedent (but this indicates there isn’t any ). If that’s right, then a demand should be made for preservation of records regarding how and why this suit was filed. Was there an improper purpose, like a political purpose?

The demand should include any and all records at the Department of Justice in D.C., as well as documents in the possession or under the control of the US Attorney who filed the suit and all of the lawyers who signed the complaint. The demand should also cover all documents justifying a claim that anti-commandeering case law should be ignored or overturned, and documents related to that determination.

This demand will set up a possible counterclaim for abuse of process as well as sanctions under Rule 11.

Example: Birthright Citizenship cases

Trump’s executive order on birthright citizenship is at stake in several pending cases. Judge Sorokin of the District of Massachusetts issued a preliminary injunction against implementation of the EO in a 31 page opinion. Here’s footnote 8:

In fact, the defendants’ discussion of Texas in their papers verges on misleading. The language upon which they most heavily rely appears in a footnote quoted in their opposition memorandum and referenced during the motion hearing. Contrary to the defendants’ characterization, that footnote is not a “holding,” and it does not “foreclose[]” the State plaintiffs’ standing in this case. Id. Rather, it acknowledges that “States sometimes have standing to sue . . . an executive agency or officer,” and though it warns that “standing can become more attenuated” when based on “indirect effects” of federal action, it stops short of saying such effects could never satisfy Article III. Id. This case, in any event, concerns direct effects. Cites omitted.

That doesn’t verge on misleading, it’s misleading, and required the parties and the Courts to expend time and energy unraveling it.

The Judge also calls out the government’s argument that birthright citizenship requires “mutual consent between person and polity”. The child, of course, can’t consent so that falls to the parents. The government says that if the parents are here illegally, the polity, the US, did not consent to citizenship.

Judge Sorokin rejects that argument, saying[ that birthright citizenship is granted to the child. The parents are not involved. Second, all of the parents of enslaved people were here under duress, not by consent. Therefore the argument means the 14th Amendment doesn’t apply to children of slaves. The Court says this argument “verges on frivolous.” I’d say it crosses the frivolous line into stupid.

Both the state and private plaintiffs should move for sanctions under Rule 11. On its own, the Court should require all the lawyers who signed the pleading to attend three hours of ethics training and certify their attendance within 60 days.

One more example.

Out-of-state lawyers are usually required to apply for and receive permission to appear pro hac vice. Most right-wing litigation groups, like Americans Defending Freedom, use out-of-state lawyers. If sanctions are appropriate under Rule 11, there is nothing to prevent the court from imposing as a sanction termination of pro hac admission. Admission pro hac in future cases will set up the possibility of moving to deny or revoke admission on the grounds that the lawyer has been revoked in one court. That will certainly deter garbage filings.

Conclusion

I know courts are reluctant to award sanctions. But this administration is abusing the courts, just as Trump has done all his life. If courts refuse to protect themselves, and refuse to fully protect the people damaged by illegal actions, their already trashed reputation will sink into negative territory.

I also know that lawyers don’t like to ask for sanctions. It’s an unwritten rule tied to notions of collegiality.  I know it’s particularly difficult with government lawyers, because of the risk they’ll appear in another case where your clients might be hurt.

But. Adhering to unwritten rules has led to this: Trump walks free, free to abuse the courts, free to wreak vengeance, free to wreck what it took centuries to build. Fixing this is more important than fake gentility.

Who Needs Intelligence Sharing?

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On January 27th, an AP story appeared on the news website Military.com with the headline “Intelligence Sharing by the US and Its Allies Has Saved Lives. Trump Could Test Those Ties.” On the surface, it reads like one of those analysis pieces that come out when the White House changes from one party to the next, with the added twist of knowing what the first Trump administration was like.

The Associated Press spoke with 18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence. Many raised questions and concerns about Trump’s past relationship with America’s spies and their ability to share information at a time of heightened terror threats and signs of greater cooperation between U.S. adversaries.

The importance of trust

The U.S. and its allies routinely share top-secret information, be it about potential terror threats, Chinese cyberattacks or Russian troop movements. America’s closest intelligence partners are New Zealand, Australia, Canada and Britain, and it often shares with other nations or sometimes even adversaries when lives are at stake.

[snip]

Cooperation particularly between the U.S. and the U.K. is “strong and robust enough to withstand some turbulence at the political level,” said Lord Peter Ricketts, former U.K. national security adviser and current chair of the European Affairs Committee of the upper chamber of the British Parliament.

However, any strong intelligence relationship is underpinned by trust, and what if “trust isn’t there?” Ricketts said.

Ricketts’ question is no longer a hypothetical. This is the reality faced by intelligence services who in the past have been friendly with the US intelligence community. The AP put out their story on January 27th, and that seems like years ago. Today this reads like a warning.

The takeover of USAID that has played out this past week is *not* just a battle over who runs offices in DC. The bulk of USAID’s staff work overseas, alongside their local partners. When phone calls from these overseas missions back to DC go unanswered, and when US staffers abroad are told to stand down, all those local partners are going to get very, very nervous, and not just because their paychecks stop. They’re going to talk to others in their government, trying to find out what it going on. At the same time, they will be providing input (either directly or indirectly) to their own country’s intelligence service, as their spooks add it to whatever they are learning from elsewhere. In the US, folks worry about those who are losing their jobs; overseas, these fights will result in people dying, like those who don’t get the clean water, medical care, or disease prevention measures like malaria nets. Those other countries are watching with horror the stories of Musk’s minions breaking into sensitive databases, over the objections of trusted career people, and wonder what of their own information is now in the hands of a privateer, and if the same this is (or will be) going on at the CIA, DIA, and other US intelligence agencies.

I guarantee you that all these other countries are watching the battle over USAID much more carefully than folks in the US.

Or look at the targeting of General Mark Milley, widely respected by his counterparts among our allies and within their intelligence services. OK, Biden pardoned him to protect him, but Trump withdrew his security clearance, and also his personal security detail. On January 29th, newly confirmed Secretary of Defense Pete Hegseth launched a process to investigate Milley, seeking to strip him of at least one star, cut his retirement pay, and punish him further. Given what the US attorney for DC is doing by going after DOJ attorneys for investigating the rather noticeable break-in of the US Capitol on January 6, 2021, it’s not hard to imagine that Hegseth’s henchmen will be rather thorough in their work and ruthlessly push aside anyone who gets in their way.

Now imagine you are a member of a foreign intelligence service — perhaps the head, or perhaps a mid-level staffer whose specialty is the US. You see the USAID invasion. You see the public decapitation of the FBI. You see the targeting of career DOJ officials. You see Hegseth paint a target on the back of Milley (and others, like John Bolton and John Brennan). You see all this, much of it in the bright light of public reporting. You hear more from your contacts, who paint more detailed pictures of these purges and fights. You see all this, and you ask yourself two questions, over and over again.

1) Are the things we shared with the US intelligence community in the past safe from being revealed in public, and thus causing us harm?
2) Can we trust the US intelligence community with information we might share with them in the future?

Given what we’ve seen over the last week, the answers to these questions are becoming more and more clear: 1) no and 2) no.

I haven’t talked to those “18 current and former senior European and U.S. officials who worked in NATO, defense, diplomacy or intelligence” to whom the AP spoke. The AP headline was hypothetical – “Trump could test those ties” – but now on February 3rd, it’s real. Trump has been f’ing around with those intelligence service ties, and he’s about to find out what happens.

The short answer is becoming clear, as Trump’s vision of America First becomes America Alone.

 

 

The Michael Flynn Complaint For Damages Against The US

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As commenter David F. Snyder noted yesterday, yes Michael Flynn has filed a complaint for $50,000,000 damages against the US Government for all the perceived wrongs and grievances that he, his unhinged lawyers like Sidney Powell, and rabid MAGA Republicans have been carping about forever. A thread on this started out in Marcy’s “JUDGE UNSEALS DETAILS ON COOPERATING WITNESS IN DOUGLASS MACKEY CASE”, but I am going to bring it here so as to not pollute that post and give people a place to discuss Flynn.

I took a look at the docket for the fledgling case. It is filed in the Middle District of Florida, where Flynn resides. That is the only discernible nexus to MDFL as pretty much all facts, actors and witnesses would be in or about the DC District. Here is the docket entry for the complaint, which was actually filed on March 3, 2023:

NEW CASE ASSIGNED to Judge Mary S. Scriven and Magistrate Judge Christopher P. Tuite. New case number: 8:23-cv-0485-MSS-CPT. (SJB)

The complaint itself is attached to this Rolling Stone article by a detestable SCRIBD (seriously, nobody should ever convey documents by SCRIBD). It is 50 pages long, and I am not wasting my PACER account on it.

Marcy, in the earlier thread, said:

Not only does it not have legs, but if it survives the summary judgment stage (which is unlikely) it may catastrophically backfire on him.

I think that is right, but the case may not ever get that far. It may not even make it to a summary judgment motion, as it may well not make it past a 12b6 motion, which would be the initial attack by the government.

Couple of notes, the complaint alleges compliance with the FTCA (Federal Tort Claims Act), but claims the government never responded. Scriven is a Bush Jr. appointee and Tuite a Trump appointee to the magistrate bench. Sid Powell is noticeably absent from noticed attorneys, but Shawn Flynn, son of Michael’s brother, Gen. Charles Flynn, is listed. That could be interesting if Charles is to be a fact/damages witness, which would kind of be expected.

Very hard to see this matter gaining any real traction given all the facts and rulings against Flynn in the underlying criminal case in front of (now senior status) Judge Emmet Sullivan of DC District.

Where Is The J6 Committee Beef?

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From the Washington Post up all night desk:

Many close observers of the Jan. 6 committee are still looking for testimony transcripts, particularly with key White House advisers and campaign aides. Transcripts involving most of those names are still unreleased — and have been promised in the coming days. Many days of testimony by Trump aide Cassidy Hutchinson are not yet out, nor are transcripts for Trump’s family, lawyers and top campaign advisers. The committee talked to a remarkable number of people, and their exact words will be closely examined when the transcripts are released — including by Republicans looking for ammunition against the report.

Yeah, where are those?? It is Christmas weekend and they have released a whopping 34 of their supposed 1,000 or so transcripts. Why are they dribbling them out when their work is done? Have they given it all to the DOJ yet? My understanding is no, but cannot confirm that. DC, including DOJ, are going into holiday mode and this goofy Committee is still playing keep away. Why? What the hell are they doing? This is just ridiculous.

The Redacted Mar-a-Lago Affidavit DOJ Should Submit

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As you may know, DOJ is ordered by Magistrate Judge Bruce Reinhart to submit a “suggested” redacted version of the warrant affidavit for the Mar-a-Lago search executed on August 8, 2022.

The federal magistrate judge who authorized the warrant to search Donald Trump’s Mar-a-Lago estate emphasized Monday that he “carefully reviewed” the FBI’s sworn evidence before signing off and considers the facts contained in an accompanying affidavit to be “reliable.”

Magistrate Judge Bruce Reinhart offered his assessment in a 13-page order memorializing his decision to consider whether to unseal portions of the affidavit, which describe the evidence the bureau relied on to justify the search of the former president’s home.

“I was — and am — satisfied that the facts sworn by the affiant are reliable,” Reinhart said in the order.

Reinhart ruled last week that he would consider unsealing portions of the affidavit after conferring with the Justice Department and determining whether proposed redactions would be sufficient to protect the ongoing criminal investigation connected to the search. But in his order, Reinhart emphasized that he may ultimately agree with prosecutors that any redactions would be so extensive that they would render the document useless.

The last sentence of that quote is the key. Unless DOJ is going to capitulate to the clicks and reads voyeurism of the overly exuberant political press, nothing whatsoever should be released unless and until charges are filed against some defendant, whether it be Trump or otherwise. Why? Because that it how it is done, and properly so.

Reinhart has received abuse and threats. Is his willingness to even entertain a “redacted version” sound under such threat? His decision will yield the answer to that question.

In the meantime, I have a proposed example of what DOJ should submit to Reinhart. Yes, this example is from CAND, not SDFL, but it is exactly what ought be handed over to Reinhart. And if Reinhart grants any “redacted version”, DOJ should appeal immediately and fully. Leave the affidavit sealed. The voyeuristic public, and press, thinks they have an interest because Trump. But they really do not. Do it the right and normal way.

Who Will Be Forced to Walk the Plank on November 4th?

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Who will Trump force to walk the plank after the election?
(h/t Stacey Harvey for the image, [CC Attribution-NoDerivs 2.0 Generic (CC BY-ND 2.0) ]

Win or lose, Donald Trump will be looking for vengeance once the election is over. Either he will lose, and want to punish those he deems responsible, or he will win and want to punish the folks he’s had to put up with despite their failures to do what he wanted. One way or another, Trump will want to make certain people pay and pay dearly after the voting is over.

It might be to get rid of people who have angered him by not being sufficiently publicly loyal and submissive.

It might be to get rid of people who angered him by not being sufficiently good at making Trump look good before the election.

It might be to get rid of people who angered him by making him look bad, indecisive, or (gasp!) wrong.

It might be to get rid of people who stood up to him in private and made him back down on something, even if that backing down was only done in private.

It might be to get rid of people who stood up to him in public, and he had to simply take it at the time because Trump would have paid a price if he got rid of them when it happened.

Put me down for Trump demanding that the following people be forced to walk the plank:

  • Doctors Tony Fauci at NAIAD, Stephen Hahn at FDA, and Robert Redfield at CDC, along with HHS Secretary Alex Azar for not keeping these disloyal doctors in line;
  • Bill Barr for failing to deliver any indictments and convictions of any Bidens or Clintons, John Durham for dragging his feet on his reports that would have made that happen, Christopher Wray for being the FBI director and generally annoying, whoever approved letting Andrew Weissmann reveal that Manafort was breaking the gag order in his case by communicating with Sean Hannity, and a host of other US Attorneys who didn’t behave according to Trump’s rules;
  • General Mark Milley for publicly apologizing for taking part in the infamous Bible-waving photo op created by driving protesters out of Lafayette Park with chemical agents, various generals and admirals who refused to back Trump’s call to deploy US troops to American cities he didn’t like, and Secretary of Defense Mark Esper for not keeping these military folks in line;
  • Dr. Sean Conley, for not being more deceptive with the press around Trump’s COVID-19 status;
  • Mark Meadows for undermining Conley’s initial “he’s doing great” press remarks, as well as for more generally not keeping the WH functioning smoothly (as if that were possible, given his boss);
  • Mike Pompeo for failing to get Ukraine to do Trump’s bidding, as well as for not keeping folks like Fiona Hill in line.

But I must admit this is an incomplete list. Who else do you think might be on Trump’s Naughty List? Add your own thoughts in the comments.

Note: I also left off the list a bunch of folks like Mitch McConnell, Andrew Cuomo, Savannah Guthrie, and Cy Vance that Trump would demand walk the plank, but who remain outside his ability to make that happen. I also didn’t include Ivanka, Jared, Don Jr, or Eric, as he can’t fire his family. Though of course, he could disinherit them . . . for whatever that’s worth.

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

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

Judge Sullivan has engaged a hired gun.

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

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

Second, she has serious DOJ cred.

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

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

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

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

Ted Stevens, The “Toobz”, And The Idiocy Of The Internet

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Alright, this will be a fairly short post, but I would like to remind people of some things. Namely, regarding Ted Stevens. As background, Marcy wrote a serious, and important, post on the Trumps Organization’s curious, and semi-hilarious, use of Microsoft. And, yes, Marcy is right, it was amazingly stupid. From clackers whining that Hillary Clinton had insecure internet. If it was not so stupid, it would be extra laughable.

But I want to cut back to something different. In comments, Rayne Loled at Ted Stevens and, then, a relatively new commenter (like just today as far as I can tell), “CJ” chimed in with:

Bizarrely, it’s not an entirely bad metaphor, though that’s probably accidental on his part. See, e.g., Andrew Blum’s “Tubes: A Journey to the Center of the Internet”.

This is bunk. Blum, and his book, tried to make hay off of Stevens, and at his expense, but without giving him much of his due, nor acknowledging how the “tubes” of the internet falsely allowed the demonization of Stevens and cheerleader his prosecution. A prosecution that turned out to be false and craven. In a review in the New York Times in 2012, Dwight Garner noted:

Reading this, you wish Mr. Stevens, who died in an airplane crash in 2010, were here to savor it. “Inside those tubes (by and large) are glass fibers,” the author continues. “Inside those fibers is light. Encoded in that light is, increasingly, us.”

That is exactly right, although Blum never really went deeper into the fraud by the Department of Justice that took Ted Stevens down before his untimely demise by plane crash.

So, as a bit of retrospective:

Say what you will about Ted Stevens, and much of that may be fair. But what was done to him at the end was wrong and a travesty. And the DOJ could not even deal with that then. Much less the pervasive and consuming wrong that is at hand today with Bill Barr and the DOJ he now administers.

For anybody that does not remember just how egregious and blatant the government/DOJ action against Ted Stevens was, here is one of my takes from 2008, and yet another in followup, from 2012.

You can joke about Toobz Stevens, and we have here before, but what happened to him was a complete travesty of justice. And there are serious lessons from that to keep in mind today. Without the “toobz” of the internet, I am not sure the reckless and false case against Stevens could have ever made it as far as it did. There is great irony in that, and it is a lesson that ought remain remembered, not just joked about.

That was a different, and in popular lore, more benevolent and honest era. So, what do you think are the odds for far worse from Trump and Barr? Somewhere, Ted Stevens has an idea.

Reality Gets A Harsh Sentence

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With Update Below!

As many of you may already know, this morning was the sentencing for Reality Winner. She was sentenced to 63 months of incarceration and three years of supervised release upon completion of her term. The supervised release term is rather standard. She will be housed at the Federal Medical Center, Carswell in Fort Worth, Texas. The stated reason was because she is bulimic, but it seems more like a nod to her, and her family, who requested a Texas posting so they would be near. There is no pecuniary fine. I have not seen the official sentencing order yet, but have little to no doubt she will be credited with the time served in pre-trial detention since her arrest on June 3, 2017; i.e. nearly 15 months. So, assuming that, she should be released in about 4 years.

Okay, that is the hard nuts and bolts of Ms. Winner’s sentencing. If you want some more background, please see our old friend Kevin Gosztola at Shadowproof, who has been covering all the Reality Winner court appearances.

All that said, let me address a couple of things. First, the sentence was not unexpected, indeed it was stipulated to in the plea agreement Ms. Winner both signed and allocuted to in open court. While the court technically “could” have deviated downward, there was little to no chance it would given the plea language. Anybody shocked by today’s sentencing has not been paying attention.

Secondly, the government did not “block” Winner’s defenses. I had a discussion on this point with a good friend, Will Bunch, who has admirably written extensively on, and in favor of, Reality. Sadly, the law here is what it is, and not what Will and I would like it to be. Winner’s attorneys filed every motion they could, both to try to win and to protect the record. But those motions were never going to work, they never do, and they did not here.

Jeffrey Sterling also tried all of that. It did not work then, for him, either. Sterling got 42 months in prison. It is hard to compare disparate cases, but in the long run, I personally have a hard time seeing why Reality Winner was worse or more damaging than Jeff Sterling, and yet she got 1.5 times as much incarceration as Sterling. Different DOJ’s, different times and the Trump Administration was already on the record as head hunting for leakers when Winner fell into their lap. So, I guess it is not shocking. They were looking to make an example and there she was.

Now to the after show doings. The United States Attorney for the Southern District of Florida, Bobby L. Christine (never trust a man with two first names), cravenly issued a pompous press release on the sentencing. This is just a taste of the Christine hyperbolic:

The document Winner compromised did, in fact, contain TOP SECRET information about the sources and methods used to acquire the intelligence described in the report. That means it revealed how U.S. Intelligence Agencies obtained information. U.S. Government subject matter experts have determined that Winner’s willful, purposeful disclosure caused exceptionally grave damage to U.S. national security. That harm included, but was not limited to, impairing the ability of the United States to acquire foreign intelligence information similar to the information the defendant disclosed. This was, by no means, a victimless crime.

What’s more, Winner’s exceptionally damaging disclosure was not a spontaneous, unplanned event, but was the calculated culmination of a series of acts. She researched whether it was possible to insert a thumb drive into a Top Secret computer without being detected, and then inserted a thumb drive, WHICH THE GOVERNMENT NEVER RECOVERED, into a Top Secret computer. She researched job opportunities that would provide her access to classified information. At the same time, she searched for information about anti-secrecy organizations, and she celebrated claimed compromises in U.S. classified information.

Note the Trump like raging capital letters? Ooof. It was an unnecessary and prickish public release by somebody that had won and driven the vanquished into the ground. And while Bobby L. Christine took all the glory, he did not do diddly squat himself, the matter was handled by a team of career AUSA’s that he did not even have the common courtesy to mention. Very Trump like.

Okay, so why did Ms. Winner end up here? There are a lot of reasons. First off, while Winner would have pretty clearly been discovered anyway, she disclosed her material to The Intercept, which was far from the only cause of her discovery, but did her no favors either. And the Government, especially the NSA, hates, with a capital H, The Intercept. But again, Reality’s discovery was inevitable even despite that, but it is a factor.

Secondly, the Government has thought all along that she had more material than what The Intercept and Matt Cole received and published. In its sentencing memorandum, the government addressed other areas of concern as to Winner including: her insertion of flash drive into a TS/SCI NSA computer at Fort Meade; her Internet history (which other filings make clear included details on Anonymous, Vault 7, Hal Martin, Assange, and Snowden); her download of Tor; her seeking out employment at Pluribus; and her screenshots of secure drop information.

These bases were generally also why she was detained without bail. That does not make it right, and it is, and remains true, that there is far too much secrecy and cheap classification in the face of the American public’s interest. This is a textbook example of just that. But Reality Winner tried to be a whistleblower and fell into the lurch where there are no such protections for the acts she did. She paid an overly, and draconian, price for what she did because the Trump Administration needed a head on a pike. They got hers. And this morning’s sentencing was the ugly culmination of that.

UPDATE: alright, Trevor Timm at The Intercept, has posted an interesting coda to the Reality Winner goings on today.

WHEN THE INTERCEPT first published the top-secret document, reporters and editors went to the government — as they do every time The Intercept publishes classified documents — to hear the NSA’s views about any information that might truly harm national security. After listening to the agency’s arguments, and out of an abundance of caution, The Intercept redacted a few pieces of information from the document before publishing it.

A key phrase that the government wanted withheld was the specific name of the Russian unit identified in the document. The government was particularly insistent on that point. Since it wasn’t vital to the story that the unit’s name be revealed, nor was it clear — at least at the time — that revealing the unit’s name was in the public interest, The Intercept agreed to withhold it.

But in the indictment of alleged Russian military intelligence operatives that Mueller’s office released last month, the Justice Department revealed the same name: GRU unit 74455. (The unit is also known as the Main Center for Special Technology or GTsST.) The indictment went on to reveal information almost identical to that contained in the document Winner admits to disclosing:

In or around June 2016, KOVALEV and his co-conspirators researched domains used by U.S. state boards of elections, secretaries of state, and other election-related entities for website vulnerabilities. KOVALEV and his co-conspirators also searched for state political party email addresses, including filtered queries for email addresses listed on state Republican Party websites.

In or around July 2016, KOVALEV and his co-conspirators hacked the website of a state board of elections (“SBOE 1”) and stole information related to approximately 500,000 voters, including names, addresses, partial social security numbers, dates of birth, and driver’s license numbers

In or around August 2016, KOVALEV and his co-conspirators hacked into the computers of a U.S. vendor (“Vendor 1”) that supplied software used to verify voter registration information for the 2016 U.S. elections. KOVALEV and his co-conspirators used some of the same infrastructure to hack into Vendor 1 that they had used to hack into SBOE 1.

The Justice Department is trying to have it both ways: It’s OK for Mueller to publicly release this information in an attempt to prosecute alleged Russian hackers because it’s in the public interest. But at the exact same time, the government is also claiming that a document including very similar information causes grave harm to national security when disclosed to the public by someone else.

There is a lot more there at Trevor’s post. Without doubling the size of this post, I would like to second the expert opinions submitted by Bill Leonard that Trevor Timm describes and have been long a staple here. There literally is no greater expert on classification than Bill Leonard. That said, it is like the discussion in the main original post. The fight is against archaic, authoritarian and totalitarian laws and legal precedent. Until those are changed, there is reality, and then there is the regrettable case of Reality Winner.