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Maybe Trump Really Is Never Going To Leave

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Was Facebook Biased or Was It Manipulated?

[Notez bien: Cet essai n’a pas été écrit par Marcy ou bmaz mais par moi. Merci. Oh, and some this is speculative. /~Rayne]

Facebook has been in the news a lot this last two weeks with regard to its sneaky surveillance of competitors and users by paying teens for their data as well as its 15th anniversary.

But that’s not what this essay is about.

This is about the 2016 election and in particular a claim I thought was peculiar when it was first reported.

Gizmodo, a former Gawker Media outlet, published two stories claiming that Facebook’s news feed was biased against conservative news based on feedback from contract editors.

It struck me as odd at the time because

  • the first story was published within the week that Trump became the presumptive nominee for the Republican Party;
  • conservative news outlets weren’t complaining about being suppressed by Facebook;
  • the story broke at a troubled outlet via a relatively new technology editor at a lesser technology outlet.

It’d already struck me as bizarre that Trump wasn’t using traditional campaign media practices to reach his base. He wasn’t spending money on ad buys and other media like a new-to-politics candidate would. The commercial media was all over him providing him enough coverage that he didn’t have to buy more. Media coverage of Trump suffocated the rest of the GOP field in addition to swamping coverage of Democrats’ primary race.

So why were these contract editors/curators complaining about Facebook’s bias if so much of the media was focused on a Republican candidate?

Gawker, as you may recall, had been under siege by billionaire Peter Thiel after its founder Nick Denton had allowed Thiel’s sexuality to be outed in an Valleywag article. Thiel helped former professional wrestler and celebrity Terry Bollea, a.k.a. Hulk Hogan, sue Gawker for invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, publication of private matter, and violation of the right to publicity. Gawker ultimately lost the case in March 2016 in a Florida court; it filed bankruptcy on June 10.

When Gawker lost to Bollea it was clear the media outlet suffered a mortal blow. Bollea won $115 million in compensatory damages and $25 million in punitive damages and Gawker didn’t have that much in cash or assets. It was only a matter of time before Denton would either fold or sell Gawker.

In that nebulous period when Gawker’s fate hung in the balance, Gizmodo ran two stories about Facebook’s alleged anti-conservative bias within six days’ time.

Why would Facebook’s contract editors reach out to an affiliate of troubled outlet Gawker? Facebook was the largest social media platform in the U.S.; why wouldn’t they have gone to a major U.S. newspaper instead of beleaguered Gawker?

One reason could have been Gawker’s financial vulnerability. A hungry outlet might publish any clickbait-y story when they have little to lose but paychecks.

Another reason might be inexperience. The reporter/editor whose byline appears on the Facebook stories didn’t have years-deep experience in technology reporting, unlike folks at competing dedicated technology journalism outlets. The journalist joined the organization in January 2016 and stayed with Gizmodo through Gawker’s subsequent acquisition; they left for another technology outlet mid-2017. Were they approached by sources because they were relatively inexperienced and working at a distressed outlet?

The journalist’s departure doesn’t appear to be neutral based on the observation a Gizmodo sister outlet, io9, published on his exit (cached copy). Perhaps it was a grumbly “break a leg” farewell a la Larry Darrell’s character in The Razor’s Edge (1984), but this doesn’t appear to be a regular practice at Gizmodo or other Gawker affiliates.

Once Gizmodo published the story, other outlets picked it up and repackaged it as original content. The New York Times stepped in and did more digging, treating this almost like Clinton’s emails with five pieces on Facebook and political bias inside May alone:

09-MAY-2016 — Conservatives Accuse Facebook of Political Bias
10-MAY-2016 — Political Bias at Facebook?
10-MAY-2016 — Senator Demands Answers From Facebook on Claims of ‘Trending’ List Bias
11-MAY-2016 — Facebook’s Bias Is Built-In, and Bears Watching
19-MAY-2016 — Opinion | The Real Bias Built In at Facebook

The story of Facebook’s alleged anti-conservative bias in news editing exploded with a huge push by NYT. (It didn’t stop in May; NYT published at least four more pieces before the election focused on Facebook and political bias though not all reflected negatively on Facebook.)

One outlet published a story based on Gizmodo’s second story seven hours after Gizmodo: the Observer, formerly known as The New York Observer, a small print and online media outlet based in New York city.

At the time it ran its story on Facebook’s alleged bias, it was owned by Jared Kushner.

The media editor’s story at the Observer noted the Gizmodo story trended on Facebook.

Facebook ‘Supression of Conservative News’ Story Is Trending on Facebook‘ published at 5:15 p.m. (assume this was local time in NYC).

Was it possible the Gizmodo article had been elevated by conservative news outlets and blogs rather than normal Facebook users’ traffic from reading the article itself, especially if the contract editors on assignment that day were still applying anti-conservative filters as alleged?

The last update to the Gizmodo article included this excerpt from a statement by Vice President of Search at Facebook, Tom Stocky:

…There have been other anonymous allegations — for instance that we artificially forced ‪#‎BlackLivesMatter‬ to trend. We looked into that charge and found that it is untrue. We do not insert stories artificially into trending topics, and do not instruct our reviewers to do so. …

If Facebook could not detect foreign interference at that time — and it was known by September 2017 the Black Lives Matter content on Facebook had been elevated by Russian troll bots — would Facebook have been able to detect any artificial elevation of the Gizmodo stories?

Was it possible pro-conservative contract editors set up this scenario in order to skew Facebook’s content so that it would be easier for the Russian Internet Research Agency to amplify what appeared to be conservative content?

Or were the Gizmodo articles used to identify conservative outlets based on their liking the article?

Or was this scenario a proof-of-concept revealing Facebook’s inability or unwillingness to detect artificial manipulation of content?

Was it possible the Observer’s media page had been prepared to cover this development long before other east coast and national news outlets?

The timing of the Gizmodo stories is awfully convenient:

26-APR-2016 — GOP primaries/caucuses in CT, DE, MD, PA, RI, all won by Trump.

03-MAY-2016 — GOP primary in IN won by Trump.

03-MAY-2016 — Gizmodo article published: Want to Know What Facebook Really Thinks of Journalists? Here’s What Happened When It Hired Some.

03-MAY-2016 — Ted Cruz withdrew from race.

04-MAY-2016 — Trump became presumptive GOP nominee.

04-MAY-2016 — John Kasich withdrew from race.

09-MAY-2016 — Gizmodo article published at 9:10 a.m.: Former Facebook Workers: We Routinely Suppressed Conservative News.

09-MAY-2016 — Gizmodo updated article noting the piece had begun to trend with pickup by conservative sites; time of update not specified.

09-MAY-2016 — Gizmodo posted a second update at 4:10 p.m., posting Facebook’s initial response to TechCrunch, BuzzFeed, other unnamed outlets inquiries; the social media company denied suppression of content by political ideology.

09-MAY-2016 — Observer article published at 5:15 p.m.: Facebook ‘Supression of Conservative News’ Story Is Trending on Facebook.

10-MAY-2016 — Gizmodo adds final update at 8:10 a.m. with a statement from Facebook denying again any suppression by political ideology.

10-MAY-2016 — GOP primaries in NE, WV won by Trump.

17-MAY-2016 — Guardian-US published an op-ed by a Facebook contract curator pushing back at earlier Gizmodo stories. The article does not stop a steady number of stories repeating the earlier claims of anti-conservative bias.

17-MAY-2016 — GOP primary in OR won by Trump.

24-MAY-2016 — GOP primary in WA won by Trump.

26-MAY-2016 — Trump attains 1,237 total delegates, minimum required to win nomination — after CO, ND, and PA unbound delegates pledged to support Trump.

And by the end of May the race for media coverage isn’t a fight on the right among a broad field of GOP candidates but just Trump against Hillary Clinton and Bernie Sanders for the next 10 days.

The too-convenient timing creates so many questions. It’d be nice to know if Facebook traffic showed an uptick of troll or bot interest promoting the Gizmodo story but Facebook has been less than forthcoming about traffic even though its business integrity was questioned.

It’d also be nice to know if the Observer had been tipped off ahead of the Gizmodo story trending and if the Observer’s report had other connotations apart from being a random story about social media.

But just as the Gizmodo journalist/editor who wrote the May 3 and May 9 stories moved on, the Observer journalist left their job, departing in late July 2016.

And the names of the Facebook curators/editors never appeared in subsequent coverage. Non-disclosure agreements may be the reason.

The kicker is another interesting bit of timing bookending Gizmodo’s stories:

19-APR-2016 — A domain for DCLeaks was registered.

. . .

06-JUN-2016 — Clinton attained 2383 delegates, the minimum threshold needed to earn the Democratic nomination.

08-JUN-2016 — A fake American identity posted a link in Facebook to a Russian GRU-associated website, DCLeaks, sharing content stolen from American servers including the DNC. The site “had gone live a few days earlier,” sharing small amounts of hacked material.

10-JUN-2016 — Gawker filed for bankruptcy.

By the time DCLeaks’ content was promoted by a fake account, the conservative commentariat from news sites to blogs had been primed to watch Facebook for a change in their coverage and Gawker as we’d known it under Nick Denton was on life support.

One other oddity about the Gizmodo stories about Facebook’s biased curation and the Observer piece observing Gizmodo’s Facebook pieces?

Trump’s name isn’t mentioned once in any of the three articles though his name had swamped all other media.

Hmm.

 

Treat this as an open thread.

The SCO Statement and Why Cohen Should Not Testify Feb. 7

Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.

As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.

As to what the target of the Mueller/Carr statement was, when Marcy says:

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.

Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.

The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.

That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.

First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So,  all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.

So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.

Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly,  I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.

Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.

The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.

[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]

The NY Times, Sekulow and Dowd’s Sophistry and Trump’s King Like Viewpoint

I have obligations that I seriously must run out the door for, but this need to be posted so that it can be dissected. The inestimable crew of Haberman, Schmidt et. al have posted a rather amazing letter 20 page letter issued on behalf of Trump by his attorneys at the time, Jay Sekulow and John Dowd. There is a minimum of mockery of the effort, which I will attribute to the contributions of Charlie Savage and Matt Apuzzo, who have the curious, too often for the Times, habit of actually appropriately reading legal things with an eye to what they really represent.

This “letter” is one of the most ridiculous pieces of legal sophistry I have ever seen in my life. It, without an iota of shame or self reflection, brazenly place Trump as not just a King, but a God like entity that far outstrips the importance of the rule of law or separation of powers the Founders intended.

So, I am leaving this here until either Marcy or I come back to it later. Read the damn thing. Weep for your country and the shreds of its Constitution before Trump and his lackeys burn what’s left.

Re: The Bogus Manafort Challenge To Mueller’s Jurisdiction

I said from the outset that the Manafort challenges to Mueller’s authority, both in DC District and Eastern District of Virginia were bogus and ill taken. Not that his attorneys should be faulted for protecting that record for later appeal, that is simply what decent criminal defense lawyers do. But the siamesed motions were never the compelling “legitimate question” the press made them out to be. Even taking into account the cantankerous probing of Judge T.S. Ellis in EDVA at oral argument on May 4, 2018, the claims of Manafort, and later blithely parroted by Trump that same day, Manafort’s arguments were discredited by Dreeben’s argument. Even at that hearing, that Trump Parroted, Judge Ellis indicated there could well not exist a convincing argument in the long run.

Well, okay. We still don’t know how Judge Ellis will rule, but we do now know how Judge Amy Berman Jackson ruled on pretty much the identical argument in DDC. Her decision was handed down yesterday.

This was a spanking of Manafort’s dismissal motion, from top to bottom. On every prong, and at every turn, Berman Jackson dismissed Manafort’s arguments. She even went so far as to opine that Mueller would have been effectively derelict not to have pursued these matters. The matter will proceed to trial in DDC, before Judge Berman Jackson, currently set for September 7, 2018.

So, that leaves the EDVA matter in front of the aforementioned cantankerous Judge Ellis. The decision by Berman Jackson will have to weigh heavily on Ellis as he drafts his decision on the parallel arguments in EDVA. Despite all the probing and disdain Ellis displayed at oral argument on May 4, Ellis is famous for just that. Over decades. Ellis could certainly find differently than Berman Jackson, that is his prerogative, but it is hard to see how he is going to. First off, the facts, pleadings and scope of authority demonstrated by Mueller, via Dreeben, simply do not warrant it. But, secondly, there is now a marker by Berman Jackson. Judge T.S. Ellis III may be commonly known as cantankerous, but he is not commonly known as a fool.

We shall see, but if I were Paul Manafort, I would not be sleeping easy. And Trump might want to stop cackling. So, enjoy the decision by Berman Jackson, it is worth the read if you are interested. And it is exactly why a few of us here were more than skeptical of Manafort’s motions.

Wilbur Ross Lets His Inner Trumpian George Wallace Bigot Freak Flag Fly

The real Mr. Magoo of the Trump Administration, Wilbur Ross, this morning went on a full court press, with the press, to promote the latest push from the Trump Administration. When did the US seek out pointed bigotry and otherism on the official census? 1950. Magoo Ross and his Commerce Department issued a racist manifesto:

“The reinstatement of a citizenship question will not decrease the response rate of residents who already decided not to respond. And no one provided evidence that there are residents who would respond accurately to a decennial census that did not contain a citizenship question but would not respond if it did (although many believed that such residents had to exist). While it is possible this belief is true, there is no information available to determine the number of people who would in fact not respond due to a citizenship question being added, and no one has identified any mechanism for making such a determination.”

Actually, that is exactly what it is going to do, and what will occur. Facts and intelligence no longer matter.

From Hansi Lo Wang at NPR:

“A lot of census watchers, former census bureau directors, other census experts have said that they are very, very concerned that there already is a lot of anti-immigrant sentiment, that already folks are very concerned about giving personal information to the federal government, that now if there is a citizenship question added as the Commerce Department is announcing that … a lot of immigrants, not only those who are undocumented, but anyone who maybe has ties to folks who are undocumented, may not want to … participate in the census and therefore they would not be counted, and that has direct impacts on how people are represented in this country.

“All census numbers are used to reapportion seats in Congress, specifically the House of Representatives, and also these numbers have an impact on how billions of dollars are distributed around the country … from the federal level all the way down to the local level of how school districts figure out how to divide up resources. So this could have a really big impact if immigrants are not participating in the census in 2020.”

And thank you Vanita Gupta, in the New York Times (also reinforced in an interview with MSNBC):

“Adding this question will result in a bad census — deeply flawed population data that will skew public and private sector decisions to ensure equal representation, allocate government resources and anticipate economic growth opportunities — for the next 10 years,” Vanita Gupta, the chief executive of the Leadership Conference on Civil and Human Rights and a deputy attorney general in the Obama administration, said in a statement Monday night. “The stakes are too high to allow this. We urge Congress to overturn this error in judgment.”

Dianne Feinstein issued a, for once, spot on press release:

“An accurate count of everyone living in the United States is vital to our democracy. Adding a question designed to depress participation in certain communities is an assault on the foundations of this country.

“Given President Trump’s toxic rhetoric and aggressive policies toward immigrants, it’s clear his administration wants to include this question to discourage participation in immigrant communities. Individuals living in mixed-status households may be afraid to participate, fearing their responses would be used to target them or their families.

“This is particularly troubling in states like California with high immigrant populations. Without an accurate census, our state will lose federal funding for infrastructure, schools and social welfare programs we are rightly owed. Even more troubling, an undercount of our population could lead to California losing seats in Congress, disenfranchising millions of California voters.

“The administration’s claim that this question is needed to ‘permit more effective enforcement’ of the Voting Rights Act is simply not true. A citizenship question has not been included on the census since 1950, 15 years before the Voting Rights Act was passed. Instead, that data is already collected on the American Community Survey, a longer set of questions sent to more than 3.5 million American households every year.

“The census should not be a political football, used to depress responses from immigrant communities and target states like California. I’m committed to ensuring an accurate census in 2020 and will work with California’s leaders to have this citizenship question removed from the census.”

Yes. And it is a real issue. Not since George Wallace tried to block the schools from the minorities he hated, has there been such an immoral and unmitigated assault, for craven political purposes, as Trump and his merry band of bigot henchmen are putting forth now. It is the sickness that is killing America, not that which will make us great.

Can’t wait for the “Constitutional scholars” of the Federalist Society to weigh in with their full throated support of yet more rank Trump Administration bigotry and hatred. And some more “Liberal Media” stories about racist hicks in diners that support this revanchism. This is Trump’s America. And, yes, Vlad Putin must be chomping on popcorn and loving it.

Stormy Weather Ahead

As you may have heard, there is an interview on CBS 60 Minutes tonight of former Trump paramour Stormy Daniels. In the last 48 hours, there have been a slew of Stormy biographies. From the New York Times, the Washington Post, and CNN. All worth a check if you are interested, but all paint a similar picture.

It is a picture of a modern empowered and self assured woman. She is no slouch, she is bright and ready. It was been all too casual for the press to early on slough her off and characterize her as a “porn star” like that automatically makes some throw away bimbo. Clearly, nothing is further from the case.

The picture that emerges on closer inspection is far different. She is an informed and savvy woman in full. She is a mother and businesswoman, and one who understands and worries about the conflicts between the two. Karen McDougal, in her Thursday interview on CNN came off as genuine and honest, even if somewhat lost in why she is here with all of the public now. Daniels has none of that. And her story is, within the salacious category Trump brings us to consider, far more compelling.

The stories of Daniels and McDougall were literally concurrent, starting with a golf tournament tete a tete at the Tahoe Pro Am. But McDougall presents as a jilted woman once in love, Daniels is flat out a smarter woman who knew then, and knows now, what was up, then and now, and just isn’t going to stand for the rank hypocrisy and lying by Trump and his goons like Michael Cohen.

The rushed out bios linked above largely track each other, but to my eye, the New York Times is the best:

Those who know her well have registered the moment differently. Ms. Clifford has subsisted amid the seamier elements of a business often rife with exploitation and unruly fare; more than a few of her film titles are unprintable. But for most of her professional life, Ms. Clifford has been a woman in control of her own narrative in a field where that can be uncommon. With an instinct for self-promotion, she evolved from “kindergarten circuit” stripper to star actress and director, and occasional mainstream success, by her late 20s. Why would a piece of paper and an executive legal team set her back?
….
“She was a very serious businesswoman and a filmmaker and had taken the reins of her career,” said Judd Apatow, who directed her cameos in the R-rated comedies “Knocked Up” and “The 40-Year-Old Virgin.” “She is not someone to be underestimated.”
….
She has a daughter, a third husband and an expensive hobby: equestrian shows. “She blends right in,” said Packy McGaughan, a trainer on the competition circuit.
….
“Just as these misguided arbiters of the mainstream view an adult entertainment star as an anathema to the political process,” she said, when she eventually decided against a bid, “so too do they view the dishwasher, the cashier or the bus driver.”

This woman is real. Please go read at least the NY Times story, if not the others linked. She is everything you think she is, and far, far, more. And she has no fear. Not of her career, and not of Trump. That has to terrify Trump.

Here is the other thing that is different: Stormy Daniels has Michael Avenatti as her lawyer. Never met or talked to Avenatti before, but I have heard of him in cases (and from auto racing things), and from friends, for several years. He is good.

After three years at O’Melveny, he joined Greene Broillet & Wheeler, a Los Angeles boutique litigation firm. While there, Michael spearheaded many high-profile cases, including a $10 million defamation case against Paris Hilton; a successful idea theft lawsuit involving the reality show The Apprentice and its producer, Mark Burnett, as well as Donald Trump; and a large corporate multi-national embezzlement case involving in excess of $42,000,000.

In 2007, Michael formed the law firm Eagan Avenatti, LLP (fka Eagan O’Malley & Avenatti, LLP), with offices in Newport Beach, Los Angeles and San Francisco. Since co-founding the firm, Michael has been responsible for securing a number of large verdicts and settlements as lead counsel, including an April 2017 $454 Million verdict after a jury trial in Federal Court in Los Angeles in a fraud case against Kimberly-Clark (NYSE: KMB) and Halyard Health (NYSE: HYH) that was featured on 60 Minutes (won every jury question as to every defendant); a $80.5 million class action settlement against Service Corporation International (NYSE: SCI) in another case featured on 60 Minutes and in the international press (settlement reached in the middle of trial); a $41 million jury verdict after a nearly five-week trial in New Jersey; a $39 million settlement in a case involving the alleged theft of trade secrets; and a $13 million plus verdict after a six week jury trial in Palm Beach, Florida (won every jury question as to every defendant). In 2015, Michael prevailed against the National Football League after a two-week jury trial in Federal District Court in Dallas, Texas after obtaining a court order requiring Jerry Jones to attend trial and be cross-examined.

I had heard of him before, but really first watched Avenatti when he took on the National Football League and Jerry Jones. Because of some sports law friends, some of whom were closer to that story, I paid attention. Avenatti is seriously that good, and he has the extra bonus of knowing how to be a good trial lawyer AND play the PR game, personally, well. There are not many such lawyers, and ones tending to the PR more than the law are routinely panned mercilessly here at this blog. For good reason.

If you don’t have a winning strategy with the press, don’t talk to the press. Even if you think you do, think twice and thrice before doing so. Or, by my book, just don’t do it. But Avenatti has a really special combination of savvy, and has proven it long before Stormy Daniels.

Nobody knows how it all ends up, and playing the press is a risky game even for those genuinely good at it. But, so far, Avenatti and Stormy have played Trump and the press like a Stradivarius.

And, if as Trump is reportedly contemplating, Trump decides to get personally aggressive, watch out. He may well have met his match with Ms. Daniels and Michael Avenatti. By my guess, they are almost making bank Trump will try that ill advised tact. Let it be. Please, let it be.

Dowd And Out

John Dowd is not just a bull in a china shop, he is a raging bull in a china shop. He blows things up. Still, he is a longtime, and big time, defense lawyer. He can be more than abrasive, but, unlike Jay Sekulow, he is a serious lawyer. And now he is gone.

From the New York Times:

The president’s lead lawyer for the special counsel investigation, John Dowd, resigned on Thursday, according to two people briefed on the matter, days after the president called for an end to the inquiry.

Mr. Dowd, who took over the president’s legal team last summer, had considered leaving several times in recent months and ultimately concluded that Mr. Trump was increasingly ignoring his advice, one of the people said. Under Mr. Dowd’s leadership, Mr. Trump’s lawyers had advised him to cooperate with the special counsel, Robert S. Mueller III, who is investigating Russia’s election interference and possible ties to Trump associates as well as whether the president obstructed the inquiry.

Mr. Dowd’s departure comes as the president has made clear he is seeking a more aggressive response to Mr. Mueller’s investigation. The president has in recent days begun publicly assailing Mr. Mueller, a shift in tone that appears to be born of Mr. Trump’s concern that the investigation is bearing down on him more directly. He has also privately insisted he should sit for an interview with the special counsel’s office, even though Mr. Dowd believed it was a bad idea.

Mr. Trump now is veering toward the combative approach supported by his longtime personal lawyer, Marc E. Kasowitz, who stepped back last summer but was still in contact with the president occasionally over the past several months.

There are bulls in china shops, like Dowd, and then there is bullshit in the house. In this case, the White House. That would be Donald J. Trump.

When a client is so full of shit and uncontrollable that even John Dowd has had enough and gives up……then what?

What if that client is the President of the United States? Then what? And who is the real raging bull in the china shop? I always had a question as to how much Dowd was Trump’s “lead lawyer”. From the start.

But, if not Dowd, then who? Joe DiGenova?? Sekulow? Ty Cobb that was supposed to walk even before Dowd? Who do they got? And, you know, this question matters. Even “dream teams” need leaders. Johnnie Cochran could do that. Several others could too. But who does Trump have?

The Mueller Subpoena Starts at the Moment a Real Estate Deal in Moscow Might Get Trump Elected

Axios got a copy of a subpoena someone got from Robert Mueller last month. It asks for all communications (including handwritten notes) “this witness sent and received regarding the following people.” The list of people includes a lot of people you’d expect, but it’s missing a few:

  1. Carter Page
  2. Corey Lewandowski
  3. Donald J. Trump
  4. Hope Hicks
  5. Keith Schiller
  6. Michael Cohen
  7. Paul Manafort
  8. Rick Gates
  9. Roger Stone
  10. Steve Bannon

Cooperating witnesses George Papadopoulos and Mike Flynn aren’t on this list, but cooperating witness Rick Gates is (which may date the subpoena to before Gates flipped on February 23). The order is of particular interest (or, maybe they’re just alpha order by first name): Page, the long term suspected Russian asset, followed immediately by Lewandowski, who was in the loop on the stolen email offer, followed by the President and those closest to him, followed by Manafort and his closest aide. Then Stone and then — in the same month he gave 20 hours of testimony — Bannon.

Neither Don Jr nor Kushner is on this list. Given the emphasis on communications “regarding” the listed people, and given the way that Abbe Lowell purposely avoided giving “about”communications to Congress (and possibly to Mueller), and also given that Jonathan Swan is Axios’ key White House scoopster, I actually don’t rule out the witness being Jared. Or, as I joked on Twitter, like Flynn and Papadopoulos, maybe he has already flipped and so isn’t on this list.

Whoever it is, the absences on the list are probably a function of who is legitimately in this person’s circle.

Perhaps most telling, however, is the timing: November 1, 2015, to the present. Recall that on November 3, sometime FBI informant Felix Sater sent Michael Cohen (on the list) an email promising that a real estate deal in Moscow might lead to Trump becoming President. (Here’s the original WaPo scoop on the story.)

On November 3, 2015, two months before the GOP primary started in earnest and barely over a year before the presidential election, mobbed up real estate broker and sometime FBI informant Felix Sater emailed Trump Organization Executive Vice President and Special Counsel to Trump, Michael Cohen. According to the fragment we read, Sater boasts of his access to Putin going back to 2006 (when the Ivanka incident reportedly happened), and said “we can engineer” “our boy” becoming “President of the USA.”

[snip]

Mr. Sater, a Russian immigrant, said he had lined up financing for the Trump Tower deal with VTB Bank, a Russian bank that was under American sanctions for involvement in Moscow’s efforts to undermine democracy in Ukraine. In another email, Mr. Sater envisioned a ribbon-cutting ceremony in Moscow.

“I will get Putin on this program and we will get Donald elected,” Mr. Sater wrote.

That’s the start date Mueller uses for potential communications among people including Trump’s closest aides, including Cohen (but not including Sater) in the Russian investigation.

Update: Adding, we know that on October 21, 2016, the FBI had investigations into Manafort, Page, Stone, and possibly Gates. Is it possible this list is the sum of all those against whom sub-investigations have been opened (or were at the time this subpoena was issued)?

The Trump Trash Talking of Puerto Rico

This spot in our week here at Emptywheel is supposed to be a set aside for light hearted banter on sports, especially football and Formula One. That is what we have done since our beginning over a decade ago.

But I just cannot summon the enthusiasm for that right now any more than I could last weekend when the Trump racism and narcissism were already raging.

There are 3.5 million American citizens in the lurch in Puerto Rico, suffering from dehydration, starvation and death. Because of a fundamental lack of fuel to move, and communications to know, the full extent of the damage is still not really known.

So, what is the most powerful leader in the world doing? Tweeting a bunch of racially bigoted trash at the people and leaders of Puerto Rico. Here is what our disgrace of a President blasted off this morning:

That graphic was posted on Twitter by Josh Marshall of TPM, and his annotations are perfect.

Trump’s conduct is disgusting and unconscionable. From a man fiddling golfing while Rome burns Puerto Rico dies. What did the Mayor of San Juan, the largest population center and capitol hub of Puerto Rican government say? She begged for her people via a tearful plea to all of the federal government:

“We are dying, and you are killing us with the inefficiency and the bureaucracy,”

That would be Mayor Carmen Yulín Cruz. She also had the temerity to call out Acting DHS Secretary Elaine Duke who made the horribly insensitive and asinine comment that Puerto Rico is a “good news story”. For seeking to keep her constituents from dying and calling bullshit on the actual bullshit of Elaine Duke, Trump now thinks Mayor Carmen Yulín Cruz is the functional equivalent of Kim Jong-Un. Even insanity has rarely run this far amok.

Where will you find Mayor Carmen Yulín Cruz? Perhaps there is a photo somewhere in an office, but since the Puerto Rican crisis began, I have never seen her portrayed by the press, or anybody else, as being anything other than tirelessly out in the streets and flooded destroyed neighborhoods with her devastated constituents. Like a real leader would be. This photo is indicative:

Remember General Russell Honore, who brought some long past due seriousness and reality to Katrina in NOLA? He is in San Juan now. Here is what he had to say when questioned on Trump’s attack on the Mayor:

“The mayor’s living on a cot and I hope the President has a good day at golf.”

Can’t argue with that. Maybe Trump can secretly meet with the Puerto Rican bondholders he so cherishes that put their craven investments ahead of the lives of American citizens, while he is relaxing at his fucking golf resort this weekend. It is simply who he, and they, are. It should NOT be who we are though. This country is better than that.

I would also like to, again, point out that the much ballyhooed by Sarah Sanders and Trump Administration “Jones Act Waiver was a complete fraud and sham on the press, public and, most of all, people of Puerto Rico. There are effectively little more than SEVEN days left on Trump’s bogus waiver and gift to craven bondholders and rapacious shippers. Trump insured he got good press for a news cycle and completely stiffed Puerto Rico of any meaningful assistance via relief from the hideously oppressive Jones Act. Heckuva job Trumpie.

If you want a couple of fantastic pieces of reportage on Puerto Rico today, go see the Washington Post piece “Lost weekend: How Trump’s time at his golf club hurt the response to Maria” as well as the superb interactive overview from the New York Times, “One Day in the Life of Battered Puerto Rico”. You will be better for having seen both.

As to the games. Eh, Pirate Mike Leach and Washington State pulled off a serious upset of USC last night. Leach had his usual awesome take. As to the NFL, the focus seems to be more on the pre-game than the real games. I will note that Tom Brady’s first start was 16 years ago today. The Patriots have since won 5 Super Bowls, 14 AFC East titles and 185 of his 238 starts. Kid can play ball. Also, this weekend is the Malaysian Grand Prix at the Sepang Circuit. Hamilton takes pole and Vettel starts at back of the grid due to a bad engine. That likely ends the Drivers’ Championship battle for yet another year.

That is it for today. Rock on, and put the thoughts of our fellow citizens of Puerto Rico in your hearts.