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GOP Denounces Barry Goldwater, John Tower, and Richard Nixon?

John Tower and Barry Goldwater, ca. 1963.

The Republican governors are all clutching their pearls over Biden’s announcement to use the power of the federal government to require many businesses across the country to ensure their employees are either vaccinated against COVID-19 or are regularly tested. The New York Times did a round-up of some their comments, many taken from either Twitter or Sunday morning talk shows. Here’s a taste . . .

Now, they [various GOP governors] are arguing that Mr. Biden’s plan is a big-government attack on states’ rights, private business and personal choice, and promise swift legal action to challenge it, setting up a high-stakes constitutional showdown over the president’s powers to curb the pandemic.

“@JoeBiden see you in court,” Gov. Kristi Noem of South Dakota wrote on Twitter. Gov. Mark Gordon of Wyoming said the new rule “has no place in America,” and said he had asked the state’s attorney general to be ready to take legal action.

In Texas, Attorney General Ken Paxton questioned President Biden’s authority to require vaccinations or weekly testing at private businesses with more than 100 workers.

“I don’t believe he has the authority to just dictate again from the presidency that every worker in America that works for a large company or a small company has to get a vaccine,” Mr. Paxton said, speaking on a radio show hosted by Steve Bannon, who served as a strategist for Donald J. Trump during part of his presidency. “That is outside the role of the president to dictate.”

[snip]

Gov. Greg Abbott of Texas called the actions an “assault on private businesses” in a statement on Twitter. He said he issued an executive order protecting Texans’ right to choose whether or not they would be vaccinated. “Texas is already working to halt this power grab,” he wrote.

Gov. Doug Ducey of Arizona wrote on Twitter: “The Biden-Harris administration is hammering down on private businesses and individual freedoms in an unprecedented and dangerous way.” He questioned how many workers would be displaced, businesses fined, and children kept out of the classroom because of the mandates, and he vowed to push back.

*sigh*

Friends, let me introduce you to Public Law 91-596, initially signed into law on December 29, 1970 by Richard Nixon, and amended variously since then. Below are the first two sections of the law. Notice, please, the language I’ve highlighted with underlining (bold is from the original text):

An Act
To assure safe and healthful working conditions for working men and women; by authorizing enforcement of the standards developed under the Act; by assisting and encouraging the States in their efforts to assure safe and healthful working conditions; by providing for research, information, education, and training in the field of occupational safety and health; and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the “Occupational Safety and Health Act of 1970.”

Footnote (1) See Historical notes at the end of this document for changes and amendments affecting the OSH Act since its passage in 1970 through January 1, 2004.

SEC. 2. Congressional Findings and Purpose
(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources

My, but the language of paragraph (a) sounds like Congress intended the US Department of Labor to regulate conditions that create or spread illnesses in the workplace, and paragraph (b) states pretty clearly where Congress claimed the authority for doing so is grounded in the Commerce Clause of the US Constitution.

Continuing on, the act spelled out some of the details of that “purpose and policy” with the following 13 sub-paragraphs (again, underlining is mine):

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under the Act;

(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;

(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;

(8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health; affecting the OSH Act since its passage in 1970 through January 1, 2004.

(9) by providing for the development and promulgation of occupational safety and health standards;

(10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this Act, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith;

(12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this Act and accurately describe the nature of the occupational safety and health problem;

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

And what kind of liberal cabal forced this clearly authoritarian legislation through Congress? I’m glad you asked.

The Senate vote was 83-3, with 14 not voting. Among the 83 were Barry Goldwater and John Tower — not exactly a liberal pair of folks. The only three senators to vote against this were James Eastland, Sam Ervin, and Strom Thurmond. Over in the House, the final vote was 310-58, with 65 not voting. Looking at the voting patterns of some of the state delegations, it’s plain to see that this was both bipartisan and widely accepted on their side of the building, too.

  • Kentucky (4D/3R) voted 7-0-0;
  • Wisconsin (5D/5R) voted 9-0-1;
  • Oklahoma (4D/2R) voted 5-0-1;
  • Florida (9D/3R) voted 6-4-2, with the 4 nays all Democrats and 2 who abstained both GOP;
  • Tennessee (5D/4R) voted 5-1-3 (the 3 included 2 Dems and 1 Republican);
  • Arkansas (4D/1R) voted 4-0-1 (the 1 was a D);
  • South Dakota’s (2R) voted 1-0-1;
  • Montana (2D) voted 2-0-0;
  • Wyoming’s sole GOP representative voted aye.

In other words, there were staunch conservatives who voted for this, along with plenty of non-conservatives. The bill that became Public Law 91-596 was seen by a wide majority of both the members of the House and Senate to be a good thing, and well within the powers of the Federal Government to undertake.

Go back to the text of the law above, and look at items 6 and 7. These both make clear that OSHA’s mission includes dealing with disease transmission in the workplace. Then skip down to 11, which says the Federal government should work with states, including providing grants for this work. You know, like providing a free vaccine to deal with disease transmission in the workplace.

OSHA has been around for more than 50 years, and no one has succeeded in challenging their the authority to regulate health conditions in the workplace under this act. There have been successful arguments overturning specific regulations, but the authority to regulate has not been overturned.

I’m not a governor or an attorney general, but I can read the plain text of the law. I can see the wide political range of legislators who voted to create OSHA, and given that OSHA is still here and going strong after 50 years, it’s clear that the ability of the federal government to regulate the workplace for safety and health has not been overturned or declared unconstitutional.

So if anyone reading happens to be in conversation with one of these pearl-clutching Republican leaders when they start in on their “This is unprecedented and un-American!” nonsense, ask them for a link.

Better yet, ask Governor Ducey why Goldwater voted for OSHA. Ask Governor Abbott and AG Paxton why John Tower voted for OSHA. Ask any of today’s so-called conservatives why a bunch of other conservatives voted with Goldwater and Tower to approve OSHA, and why a conservative like Richard Nixon signed it.

Amanda Gorman Made Silvester Beaman Sad, Joe Biden Happy, and John Lewis Dance

"https://youtu.be/lI1c-Lbd4Bw

The saddest person on the Inaugural stage was not Mike Pence, the outgoing Vice President. Indeed, after what he had to put up with from Trump for the last month, he’s probably relieved if not outright happy. The saddest person was not Amy Klobuchar or other presidential hopefuls who came up short during the primaries, who no doubt imagined themselves as the person taking the oath of office today. The saddest person on the stage today was the Reverend Doctor Silvester Beaman of Bethel AME Church in Wilmington, Delaware.

The happiest person on the stage was President Joe Biden, but it’s not because he was sworn in as the 46th president of the United States of America. It’s not because the inauguration went off without more violence. It’s not because he can finally *do* things to address all the problems he and we are facing, which had to have been incredibly frustrating as the transition floundered and foundered and blundered its way to today. It’s not because he accomplished what Beau wanted him to do.

The reason Beaman was so sad and Biden was so happy is this: Biden finished before Amanda Gorman spoke and Beaman had to follow her. Honestly, I half expected Beaman to step up to the microphone, ask “Can I get an Amen?”, and then drop the folder with his prepared benediction and sit down. Don’t get me wrong: Beaman’s words were good, but he had to know that he was following something epic.

When I saw Gorman come down the Capitol steps wearing her yellow power coat, her bold hoop earrings, her bright red wrap around the powerful tight braids atop her head, I just sat back and smiled. Michelle Obama looked great in her purple, but she was a member of the audience today. Lady Gaga and Jennifer Lopez both made their entrances before they picked up the microphone, and were fine, but Gorman owned those steps in a way that no on else did today. Seeing her enter reminded me of AOC stepping onto the House floor in her power red suit as she prepared to respond to being called a “fucking bitch” by Florida Congressman Ted Yoho. Before Gorman opened her mouth, it was clear that she had Something To Say and it was going to be good.

And make no mistake: she did, and it was.

It was incredibly powerful for three reasons. First, Gorman was unapologetically herself: young, African-American, articulate, and proud of all three. She did not cast herself as Maya Angelou or Robert Frost, two earlier inaugural poets. She spoke with the rhythms of rap that are the language of her generation and her community, embracing the whole heritage of Africans on this continent, and conscious of her power in this moment.

Second, Gorman was unflinchingly honest. She spoke of the ugliness of our history at times, at the tragedies we have been through, and the reality of what is going on right now. There were no pious platitudes to paper over the pain that far too many have had to deal with for far too long.

Most of all, Gorman was unimaginably hopeful. If she owned and possessed the four centuries of pain poured out on the Africans brought to this country in chains and their descendants who lived through slavery, official Jim Crow, and unofficial oppression, she also owned and possessed the strength that carried them through it all, forcing this country to slowly and painfully look at its past, decide to change, and actually make those changes begin to come to be.

But while democracy can be periodically delayed,
it can never be permanently defeated.
In this truth, in this faith we trust
for while we have our eyes on the future, history has its eyes on us.

This is the era of just redemption.
We feared it at its inception.
We did not feel prepared to be the heirs of such a terrifying hour,
but within it, we found the power
to author a new chapter,
to offer hope and laughter
to ourselves so while once we asked,
how could we possibly prevail over catastrophe?
Now we assert:
how could catastrophe possibly prevail over us?

We will not march back to what was,
but move to what shall be
a country that is bruised, but whole,
benevolent, but bold,
fierce, and free.
We will not be turned around or interrupted by intimidation
because we know our inaction and inertia will be the inheritance of the next generation.
Our blunders become their burdens.
But one thing is certain,
if we merge mercy with might and might with right,
then love becomes our legacy and change our children’s birthright.

And with these words, I thought immediately of John Lewis, the happiest person *not* on the stage today.

Gorman was not mindlessly repeating the words of an earlier generation of activists, but building on them. Just as the 23 year old John Lewis spoke on the steps of the Lincoln Memorial in 1963, so the 22 year old Amanda Gorman stood at the other end of the Mall, on the steps of the Capitol in which John Lewis served until he died, and she is taking this nation one more step forward. She isn’t asking permission to do this, or suggesting this be done. She is declaring reality: we will not be turned around or interrupted by intimidation.

I am glad that Joe Biden and Kamala Harris defeated Donald Trump and Mike Pence. I am relieved that we have made it through the transition between the election and today. I am still shaken by the insurrection of January 6th and what may yet lie ahead on that front. But I am dancing in my living room right now, and am convinced that John Lewis is dancing in heaven today, because in Amanda Gorman we see that the good troublemaking goes on.

How could catastrophe possibly prevail?

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Gate-Keeper for Propaganda Kash Patel Failed His First Test as DOD Chief of Staff

Yesterday, six US service members died in a helicopter crash in the Sinai Peninsula.

A UH-60 Black Hawk helicopter belonging to a US-led international peacekeeping force crashed in Egypt’s Sinai region on Thursday, killing eight people, including six Americans, officials said. One wounded US service member was airlifted to a hospital in Israel by Israeli Defense Forces (IDF).

“During a routine mission in the vicinity of Sharm el-Sheikh, Egypt, nine members of the Multinational Force and Observers (MFO) were involved in a helicopter crash,” the force said in a statement posted on its website.

As the WaPo pointed out, Joe Biden offered condolences to their families. Trump did not. He was too busy rage-tweeting and harming democracy.

Meantime, national security actions and requests for briefings from the president are drying up, the person said, and the team preparing updates for Biden and Vice President-elect Kamala D. Harris is “very frustrated.”

It was Biden who offered the first public condolences to the families of the service members who died in Egypt. “I join all Americans in honoring their sacrifice, as I keep their loved ones in my prayers,” he wrote on Twitter in the early afternoon Thursday.

By that time, Trump had issued nearly four dozen critical tweets and retweets about the election results and Fox News, including a baseless conspiracy theory from a far-right television network that alleged votes had been improperly tallied in Pennsylvania. He also found time to thank actor Scott Baio for posting a photo of a craft store’s candle display, which had been arranged to spell out, “Trump is still your president.”

But it’s not just President Trump — who focused his first election campaign on Hillary’s purported negligence during the Benghazi attack that killed four Americans — who let six Americans die with little notice.

It’s also newly installed Secretary of Defense Christopher Miller. As Barbara Starr noted on Twitter yesterday, it took over two hours after the deaths were announced before Miller issued condolences, and the Joint Chiefs did not make a statement until after she first tweeted it.

This is the kind of thing that, in a normal era, works like clockwork in the Pentagon.

But yesterday, days after Devin Nunes flunky Kash Patel was installed as Chief of Staff at DOD, that clockwork failed.

Kash Patel has done a spectacular job, throughout the Trump Administration, of ensuring that accurate information doesn’t get to his principals, whether that’s Nunes, Trump himself (Patel was at NSC pretending to be an expert on Ukraine during impeachment), presumably at ODNI when he led a house-cleaning effort there, and now DOD.

But there’s no reason to believe that preventing people from getting accurate information translates into being an effective Chief of Staff for one of the world’s biggest bureaucracies.

I guess it’s up to the Republicans who are enabling this attack on the country by the Lame Duck President to decide how much damage they want Trump’s flunkies to do in the interim.

Congratulations, America — Once More, with Feeling [UPDATE-1]

[NB: Updates at bottom of post./~Rayne]

FINALLY we can breathe again. I swear the White House minions must have worked together to push Trump to get out and go play golf so that the media could finally make the call.

Election coverage has now taken over the entire Washington Post site, which now shows Biden at 273 electoral votes to Trump’s 214. This number varies depending on the news outlet; some have already added Nevada though that state is still counting ballots in Clark County.

People are celebrating all over the country:

.

.

.

.

Nothing yet from central to western U.S. but probably just a matter of time. The relief is so palpable even over social media.

It’s difficult to convey the amount of joy women especially women of color feel right now.

Words fail trying to express what it means to have so many firsts finally achieved — first woman, Black, South Asian, Jamaican American as VP — when the Equal Rights Amendment remains unratified since 1972, when so many Americans of color were denied their right to vote by myriad forms of suppression.

There will surely be attacks on Joe Biden’s history; his role in the Anita Hill hearings remains a bone of contention for me. But by choosing Kamala Harris as his running mate he kept faith with more than half of this country which has been systematically denied representation in their own democracy.

And in choosing Harris, Biden has also ensured the executive office hasn’t lost sight of the transition of power from one generation to another.

We have a lot to celebrate, not only because we can finally see an end to the Trump administration in 74 days. We can celebrate real change is coming.

~ ~ ~

UPDATE-1 — 3:00 PM ET —

Still joy-scrolling through my timeline. Someone cracked wise and said the celebratory crowd in DC is bigger than Trump’s inauguration crowd. Based on the photos I’ve seen so far, I wouldn’t be surprised one bit.

Sure hope somebody gets a drone shot or two from a decent elevation so we can guesstimate a head count.

But this one made me sniffle:

It’s as if we’d been at war and the war is finally over. How horribly sad this is. And yet we really have been at war with the rest of the rational world; the U.S. formally left the Paris Agreement on climate change yesterday after Trump announced we would leave a year ago.

Now the work begins as we fix the damage, restore other allies’ faith in us, and return to work together on the existential crisis facing humans.

p.s. bmaz launched a Trash Talk post for those of you who still need a sports fix.

2020 Presidential Debates: The Battle of Nashville [UPDATE-3]

[NB: Updates will appear at the bottom of this post. /~Rayne]

Here’s a post for emptywheel community members’ discussion purposes dedicated to what was supposed to be the third and final presidential debates.

The debate is scheduled to begin at 8:00–9:30 p.m. ET — this is earlier than the second debate was scheduled before it was canceled. Tonight’s debate will be conducted at the Curb Event Center at Belmont University in Nashville, Tennessee.

Tonight’s moderator is Kristen Welker of NBC, the only woman of the three moderators chosen for the presidential debates. I wouldn’t be at all surprised if this is an issue during the course of the debate, especially since it’s been a bone of contention that incumbent Senator Mitch McConnell has been reluctant to have a woman moderator for a debate against opponent Amy McGrath.

Good luck to Welker; I hope she’s got nerves of steel. She’s already had to deal with sideswipes by Trump on Twitter:


Only surprised Trump and his mini-me loser son didn’t make it about Welker’s mixed race heritage (Native American and Black).

Speaking of which, racism may also factor in tonight’s debate considering the location — Nashville was built upon a slave economy and was the first Confederate state capital to fall to the Union during the Battle of Nashville in 1864.

The COVID-19 epidemic may likewise figure largely. Nashville was the site of another pandemic which took the life of a former American president. James Polk died of cholera in 1849 only three months after returning to Nashville upon leaving office.

Could lightning strike twice, one might wonder, given how deep we are into another pandemic, this one encouraged by Trump’s malign governance.

One factor which might make tonight’s debate more challenging for Trump: the decision by the Commission on Presidential Debates to implement a two-minute microphone mute to allow each candidate to answer a question uninterrupted.

The muting will work like this: At the start of each of the six segments of the debate, each candidate will be given two minutes to answer an initial question. During that portion, the opposing candidate’s microphone will be muted.

“Under the agreed upon debate rules, each candidate is to have two minutes of uninterrupted time to make remarks at the beginning of each 15 minute segment of the debate. These remarks are to be followed by a period of open discussion,” the commission said in a statement. “Both campaigns this week again reaffirmed their agreement to the two-minute, uninterrupted rule.”

Team Trump whined this was unfair, of course. Yes, it’s really unfair that we’re allowed to hear each candidate answer a question without Trump sowing chaos with unending yelling-at-clouds throughout the debate like he did during the first debate three weeks ago. Expect it, though — his behavior during his interview with Leslie Stahl was a combination of toddler, bully, and mobster:

Hard to believe Trump thought releasing this interview material ahead of the edited 60 Minutes program this weekend would be a benefit to his campaign. Being an asshole to Stahl isn’t going to help him with women voters who haven’t already voted. He’s just so ugly and tiresome, like an overgrown irritable baby in need of a nap.

My god, has it really been three weeks since the first debate? It feels like it’s been a bloody decade. I’ll be so damned glad when tonight’s over and the Union has once again taken Nashville.

~ ~ ~

Election Day is twelve days away. Are you registered? Have you double checked the status of your registration? Have you requested an absentee or mail-in ballot? Have you mailed or dropped off your ballot? Have you checked the status of your ballot if mailed/dropped off?

And have you talked with all your friends and family members to ensure they have done the same? Make plan — register, vote, and help others, but make a plan. And then execute it to win.

~ ~ ~

UPDATE-1 — 9:15 P.M. ET —

He didn’t let us down. Trump the malignant narcissist, who believes and acts as if everything is about him and him alone, showed up this evening.

Meanwhile, 222,620 Americans have died from COVID as of the beginning of tonight’s debate. Americans are dying at a rate of 45-50 per hour, which means at least one American died while he blathered for two minutes about himself.

Revolting excuse for leadership.

~ ~ ~

UPDATE-2 — 9:55 P.M. ET —

This is why I can’t watch Trump. Not at rallies, not in debates. When he gets a mic he lies and it hurts Americans.

He’s lied again tonight about his health care plan we’ve yet to see in +3.5 years. He’s preparing to take the Affordable Care Act in front of the Supreme Court within days so his stacked jurists can kill it along with more Americans.

Meanwhile, even more Americans have died from COVID over the last 40 minutes — an estimated 30 more families will be told their loved ones didn’t make it. For every one of these deaths there are at least 50 new cases of COVID, a number of whom will end up with long-term disability due to damage ranging from their lungs to their testicles.

And he’ll keep lying about health care for all of them just as he’s lied to Laura Packard.

~ ~ ~

UPDATE-3 — 10:45 P.M. ET —

Accurate.

Blowhard knows blowing hard.

Numerous accounts say Biden stuck the landing with his closing. Tell me in comments who’s got it right before the media proceeds to tell us what happened.

Steve Bannon, Guccifer 2.0, Glenn Greenwald, and Me: How Glenn Greenwald Defends “Smear Artist & Cowards”

Glenn Greenwald has appointed himself the guardian of suspected Russian disinformation on social media, spending much of the last several days wailing that Twitter and Facebook took measures to prevent a sketchy NY Post story from going viral on their platforms, and calling it censorship.

Glenn misrepresents why Maggie got attacked

Glenn’s story wailing about those measures is riddled with contradiction. For example, a man who spends most of his time making exaggerated or unsubstantiated attacks on journalists on Twitter, spent two paragraphs complaining about the treatment of Maggie Haberman after she retweeted the article — from her former employer — with no caveats.

BUT THE POST, for all its longevity, power and influence, ran smack into two entities far more powerful than it: Facebook and Twitter. Almost immediately upon publication, pro-Biden journalists created a climate of extreme hostility and suppression toward the Post story, making clear that any journalist even mentioning it would be roundly attacked. For the crime of simply noting the story on Twitter (while pointing out its flaws), New York Times reporter Maggie Haberman was instantly vilified to the point where her name, along with the phrase “MAGA Haberman,” were trending on Twitter.

(That Haberman is a crypto-Trump supporter is preposterous for so many reasons, including the fact that she is responsible for countless front-page Times stories that reflect negatively on the president; moreover, the 2016 Clinton campaign considered Haberman one of their most favorable reporters).

Glenn suggests a viral, organic response to Maggie’s RT — coming largely from regular users, not other journalists — was instead led by journalists. Glenn defends Maggie against being a “crypto-Trump supporter” in the same breath where he claims each and every person complaining about her initial uncritical response is a “pro-Biden journalist[].” And one of the most famously abrasive people on Twitter accused others of creating “a climate of extreme hostility” on the platform.

But the real problem is how he misrepresents Maggie’s role and the reason for the response. This was about virality.

In fact, at first, Maggie did not point out the flaws in the story. Importantly (because Matt Taibbi is claiming that the Steele dossier was reported on before the 2016 election without noting that the most important instance of this involved someone reporting on the investigative response to the dossier, not the dossier itself, and Glenn is similarly misrepresenting where and on what terms outlets reported on the dossier), Maggie gave the story credibility by quoting a line from the piece in such a way that it suggested the FBI might be investigating Hunter Biden because of the discoveries on the dodgy laptop rather than (as NBC has reported) investigating whether Hunter Biden was victimized by Russian spies.

Only after Maggie and Jake Sherman (who treated the Post story similarly) got criticized, did they begin to point to the obvious problems with the story.

Sherman even expressed regret for the way he had responded uncritically at first, tweets which Maggie RTed (though she offered no such mea culpa of her own).

The complaint was that two serious journalists were giving a shoddy story credibility before they had read it closely enough to see all the problems with it, which not only served to launch the story out of the frothy right (which Steve Bannon has said was entirely the point of packaging the story in this way), but with their significant follower counts, played a key role in making the story go viral.

In other words, while Glenn complains about the viral hostility in response to Maggie’s tweet, he doesn’t consider how her own tweet played a central role in making the story go viral.

Glenn presents a two social media platform effort to cut down on viral disinformation as a Democratic plot

Glenn then presents the social media decision to prevent the Post story from going viral on their platforms both as a response to the uproar over the initial viral response to it and as a Democratic plot.

The two Silicon Valley giants saw that hostile climate and reacted. Just two hours after the story was online, Facebook intervened. The company dispatched a life-long Democratic Party operative who now works for Facebook — Andy Stone, previously a communications operative for Democratic Sen. Barbara Boxer and the Democratic Congressional Campaign Committee, among other D.C. Democratic jobs — to announce that Facebook was “reducing [the article’s] distribution on our platform”: in other words, tinkering with its own algorithms to suppress the ability of users to discuss or share the news article. The long-time Democratic Party official did not try to hide his contempt for the article, beginning his censorship announcement by snidely noting: “I will intentionally not link to the New York Post.”

Twitter’s suppression efforts went far beyond Facebook’s. They banned entirely all users’ ability to share the Post article — not just on their public timeline but even using the platform’s private Direct Messaging feature.

Early in the day, users who attempted to link to the New York Post story either publicly or privately received a cryptic message rejecting the attempt as an “error.” Later in the afternoon, Twitter changed the message, advising users that they could not post that link because the company judged its contents to be “potentially harmful.”

He even accuses these social media platforms of working together to do this (an accusation that has legal implications), even while describing responses and explanations for those responses that are not actually the same, undermining his claim.

In sum, the two Silicon Valley giants, with little explanation, united to prevent the sharing and dissemination of this article.

Glenn is, as is his wont, being very selective about how he pitches these Silicon Valley companies. He chooses not to describe how Facebook board member Peter Thiel has, like Glenn, been chumming around with right wing racists. He chooses not to explain how Joel Kaplan, Facebook’s Global Public Policy head, had a far more senior job in the W Administration than Andy Stone has ever held. And in his tweets in aftermath of this post, which focus closely on the impact of Facebook’s monopoly position, Glenn makes no mention of a blockbuster WSJ story describing how Facebook tweaked its algorithms to disfavor Mother Jones and also describing private dinners that Mark Zuckerberg has had with Ben Shapiro (the story came out after Glenn originally posted his post though Glenn has updated the post after it was initially published). He also conflates one report saying tech workers lean — centrist — Democratic with the suggestion the entire industries do.

Glenn treats this response — the suppression of links to the article but not discussions of the content — as censorship, going on to conflate the suppression of virality with outright censorship.

Private-sector repression of speech and thought, particularly in the internet era, can be as dangerous and consequential. Imagine, for instance, if these two Silicon Valley giants united with Google to declare: henceforth we will ban all content that is critical of President Trump and/or the Republican Party, but will actively promote criticisms of Joe Biden and the Democrats. 

You need go no further than to Glenn’s endless rants about this to prove that the outlets are not censoring content. They simply attempted to avoid being willful tools in the viral dissemination of propaganda, not the information itself.

Glenn’s selective concerns about monopoly

Glenn goes on to say some funny things about monopoly. He quotes from an article citing an HJC report on Facebook’s monopoly status, but (while he links the report), not the report itself.

In June, the House Judiciary Subcommittee on Antitrust, Commercial, and Administrative Law launched an investigation into the consolidated power of Facebook and three other companies — Google, Amazon and Apple — and just last week issued a sweeping report which, as Ars Technica explained, found:

Facebook outright “has monopoly power in the market for social networking,” and that power is “firmly entrenched and unlikely to be eroded by competitive pressure” from anyone at all due to “high entry barriers—including strong network effects, high switching costs, and Facebook’s significant data advantage—that discourage direct competition by other firms to offer new products and services.”

The report doesn’t address Twitter (because Twitter is not a monopoly). So instead, Glenn cites how many journalists use Twitter.

While Twitter still falls short of Facebook in terms of number of users, a 2019 report found that “Twitter remains the leading social network among journalists at 83%.” Censoring a story from Twitter thus has disproportionate impact by hiding it from the people who determine and shape the news.

This suggests that Glenn is concerned about the same thing Bannon is, ensuring that this story breaks out of the right wing echo chamber to be magnified by people like Maggie Haberman.

Glenn then makes some batshit crazy comments about Section 230, suggesting that only behemoths like Facebook benefit from it, and equating Section 230 with a specific exemption on antitrust law.

Beyond that, both Facebook and Twitter receive substantial, unique legal benefits from federal law, further negating the claim that they are free to do whatever they want as private companies. Just as is true of Major League Baseball — which is subject to regulation by Congress as a result of the antitrust exemption they enjoy under the law — these social media companies receive a very valuable and particularized legal benefit in the form of Section 230 of the Communications Decency Act, which shields them from any liability for content published on their platforms, including defamatory material or other legally proscribed communications.

As Glenn surely knows, The Intercept, a mid-sized journalistic outlet, is protected by Section 230. Even teeny tiny emptywheel is protected by Section 230. To suggest that Facebook and Twitter uniquely benefit from it is simply ridiculous. We here at emptywheel monitor our comment threads fairly aggressively, but because of Section 230, we won’t go to prison if one of you decides to use the comment threads as part of your Russian intelligence operation.

Glenn endorses social media taking actions for the public interest but not the ones HJC suggested social media needs to take

From there, Glenn takes what — for a claimed First Amendment absolutist like he used to be — is fairly stunning. He suggests that the monopoly status of Facebook (and everyone else who benefits from Section 230, he suggests by context, but he cannot possibly mean that) means they owe a “dut[y] to the public interest.”

No company can claim such massive, unique legal exemptions from the federal law and then simultaneously claim they owe no duties to the public interest and are not answerable to anyone.

That is, in a piece that bitches mightily that Facebook and Twitter took steps to prevent a shoddy story that may have been seeded by documents stolen by Russia from going viral on their platforms, Glenn argues strongly that Facebook and Twitter should take steps to serve the public interest.

Let’s take this moment to go back to that report that Glenn links but does not cite. Glenn goes on at length about the dangers of concentration in social media, some complaints of which are valid and some of which are misstated. But here’s what the report from which he has been providing a second-hand quotation says about one major danger of concentration in social media: it helps spread dis- and misinformation and breaks down accountability in reporting.

Finally, because news is often accessed online through channels other than the original publication—including search results, voice assistants, social platforms, or news aggregators— journalism has increasingly become “atomized” or removed from its source and placed alongside other content.315 In the context of audio news, one market participant noted that aggregating different news sources can create a bad experience for users.316 The aggregation of different news sources without editorial oversight can also cause reputational harm to news publishers, such as when highly credible reporting appears alongside an opinion-based news source.317

Indirectly, the atomization of news may increase the likelihood that people are exposed to disinformation or untrustworthy sources of news online. When online news is disintermediated from its source, people generally have more difficulty discerning the credibility of reporting online. This process may also “foster ambivalence about the quality and nature of content that garners users’ attention,” particularly among young people.318

For example, during the Subcommittee’s sixth hearing, Subcommittee Chairman David N. Cicilline presented Facebook CEO Mark Zuckerberg with evidence of a Breitbart video that claimed that “you don’t need a mask and hydroxychloroquine is a cure for COVID.” 319 As he noted, within the first five hours of this video being posted, it had nearly “20 million views and over 100,000 comments before Facebook acted to remove it.” 320 Mr. Zuckerberg responded that “a lot of people shared that, and we did take it down because it violate[d] our policies.” 321 In response, Chairman Cicilline asked if “20 million people saw it over the period of five hours . . . doesn’t that suggest, Mr. Zuckerberg, that your platform is so big that, even with the right policies in place, you can’t contain deadly content?” 322 Mr. Zuckerberg responded by claiming that Facebook has a “relatively good track record of finding and taking down lots of false content.” 323

Moreover, because there is not meaningful competition, dominant firms face little financial consequence when misinformation and propaganda are promoted online.324 Platforms that are dependent on online advertising have an incentive to prioritize content that is addictive or exploitative to increase engagement on the platform.325 And the reliance on platforms by advertisers has generally diminished their ability to push for improvements in content standards. As a news publisher explained in a submission to the Subcommittee:

As advertisers have become more reliant on dominant search and social platforms to reach potential consumers, they have lost any leverage to demand change in the policies or practices of the platforms. In the era of newspapers, television, radio, or indeed direct sales of digital advertising online, there was a connection between advertising and the content it funds, creating a high degree of accountability for both parties in that transaction. This maintained high content standards, and enabled advertisers to demand or pursue change from publishers whose content standards fell. While many high-quality publishers continue to operate stringent policies in relation to the digital advertising that they permit to appear within their services, in a world of programmatic audience trading that self-regulated compact between advertisers and platform does not exist.326

During the Subcommittee’s sixth hearing, Representative Jamie Raskin (D-MD) raised this concern. As he noted, in July 2020, Facebook faced an advertiser boycott by hundreds of companies.327 This effort, which has been spearheaded by the Stop Hate for Profit campaign, a coalition of civil rights groups organizing in protest of “the rapid spread of hate messages online, the presence of boogaloo and other right-wing extremist groups trying to infiltrate and disrupt Black Lives Matter protests and the fact that alt-right racists and anti-Semitic content flourishes on Facebook.” 328

As a result of this campaign, more than a thousand major companies—including Disney, CocaCola, and General Motors—announced that they would pull $7 billion in advertisements on Facebook as part of the Stop Hate for Profit boycott.329 But as Representative Raskin pointed out during the hearing Facebook does not “seem to be that moved by their campaign.” 330

That is, the report that Glenn refers to approvingly but does not cite actually connects concentration in social media to the way platforms are more likely to spread disinformation, propaganda, and exploitative content. The report describes the specific consequences that can arise — people ignore best practice during a pandemic — when social media companies act too slowly to prevent disinformation from achieving virality on their platforms.

Effectively, then, the report that Glenn cites favorably says that the public interest is served when social media platforms prevent disinformation from going viral on their platforms.

Glenn endorses requiring that monopolistic social media platforms answer to the public interest, invokes a report laying out what that public interest would be, and then wails because two platforms have done precisely what his argument suggests they should do, limit how their platforms are used to spread disinformation, propaganda, and exploitative content.

Glenn utterly confuses content, source material, propagandistic packaging of that source material, and discussion of that propagandistic packaging

In the later part of his screed, Glenn makes some important points about the inconsistency of Twitter’s evolving explanation for why it is limiting the virality of the Post pieces. He’s absolutely right that there should be some transparency and thought put into these policies, and an attempt to apply them consistently both between partisan sides but also globally, where social media more often caters to the whims of local governments to crack down on dissidents.

But amid those very good points, Glenn ties himself in knots, confusing precisely what it is he’s talking about.

Remember, the problem Glenn is complaining about is that after the Post posted some stories that he admits make “overblown” claims, published scandalous photos for which there’s “no conceivable public interest in publishing,” and offered an “explanation of how these documents were obtained [that] is bizarre at best,” Facebook and Twitter chose not to let those stories go viral on their platforms.

Glenn focuses in his post on the NYPost’s storied history.

Founded in 1801 by Alexander Hamilton, only three U.S. newspapers are more widely circulated.

But he doesn’t discuss that the woman writing these stories appears to have been installed at the Post from Hannity solely to publish them at the Post (this kind of shell game within the Murdoch empire also facilitated the Seth Rich hoax, per discovery in the Rich family lawsuits).

Post deputy political editor Emma-Jo Morris’ reports on Biden this past week constitute the sum total of her professional bylines. (That is, other than some posts Morris wrote in the summer of 2015 as a college intern for the conservative Washington Free Beacon.)

Prior to joining the Post in early spring, Morris’ most prominent media job involved her three years and eight months as a producer for Hannity, the Fox News star who is one of the president’s closest advisers. Morris did not reply to requests for comment sent to her social media accounts.

That is, while Glenn nods to the problems with the Post story, he doesn’t even examine how the reporter came to show up there, only to have Rudy Giuliani and Steve Bannon (the latter of whom Glenn doesn’t mention) drop these stories into her lap, details which go to her reliability. He ignores those details in a column that complains that social media platforms are throttling the virality of the Post story — but not the underlying allegations.

To illustrate how this undermines Glenn’s claims of censorship, recognize that there are four levels of the story here:

  • The claims about Burisma (which have been debunked by expert witnesses testifying under oath); discussions of these claims have not been throttled at all
  • Emails that the Post allegedly learned about from Bannon and received from Rudy, who in turn claims to have received them (using his attorney as a cut-out) from a repair store, but which neither the Post nor Rudy nor Bannon will share with others; if these emails were made publicly available, Twitter might throttle access to them under its prior “hacking” rule, but not necessarily its revised one
  • Several stories by a Hannity producer installed at the Post just before she wrote these stories; two social media companies have taken measures to limit the viral sharing of the stories, largely by limiting how readily users can access the stories directly via links posted on the social media sites
  • Discussion of the story and its production, of which this post, Glenn’s column, and his social media rants are part; that Glenn can rant at length on Twitter is proof that the social media companies are not “censoring” the discussion about them

The only thing at issue here are the Post stories. Not the underlying allegations; not (yet) the emails, if Bannon and Rudy ever decided to share them; not discussions about the Post stories.

In the section of his column discussing the actions by Facebook and Twitter, Glenn correctly limits his discussion to the article itself (without always noting that the issue was links to the article, not discussion of it).

But in his discussion claiming censorship more generally, Glenn conflates [links to] the story with the content of the story itself.

Then there is the practical impact of Twitter and Facebook uniting to block content published by a major newspaper. It is true in theory that one can still read the suppressed article by visiting the New York Post website directly, but the stranglehold that these companies exert over our discourse is so dominant that their censorship amounts to effective suppression of the reporting.

[snip]

THE GRAVE DANGERS posed by the censorship actions of yesterday should be self-evident. Just over two weeks before a presidential election, Silicon Valley giants — whose industry leaders and workforce overwhelmingly favor the Democratic candidate — took extraordinary steps to block millions, perhaps tens of millions, of American voters from being exposed to what purports to be a major exposé by one of the country’s oldest and largest newspapers.

[snip]

Do we really want Facebook serving as some sort of uber-editor for U.S. media and journalism, deciding what information is suitable for the American public to read and which should be hidden from it after teams of journalists and editors at real media outlets have approved its publication? [my emphasis]

Preventing a story from being spread virally from a platform, without preventing it from being discussed, in no way prevents “tens of millions … of American voters from being exposed to what purports to be a major exposé,” (though, in fact, the stories mostly recycle the same old allegations that experts have debunked under oath). It simply requires those engaging in the discussion — including via Glenn’s rants on Twitter or via stories about the Post stories, including Glenn’s column, which Twitter has not throttled — to go find that story itself.

Glenn’s theory that authentic emails justify serving as a mouthpiece for Russian intelligence

I’m most interested in how Glenn sprinkles a theory in this column that he has espoused in the past to defend his regurgitation of emails stolen by the GRU in 2016. He suggests that — so long as emails or other source documents are authentic — it doesn’t matter if they’ve been packaged up by a hostile intelligence agency (or a Murdoch propagandist installed expressly for the purpose). In this case, he suggests that until the Bidens prove the emails are not authentic, then the story which Glenn acknowledges overhypes what is claimed to be in the emails might “corroborate” a story largely debunked by experts testifying under oath.

While the Biden campaign denies that any such meetings or favors ever occurred, neither the campaign nor Hunter, at least as of now, has denied the authenticity of the emails.

[snip]

While these emails, if authenticated, provide some new details and corroboration, the broad outlines of this story have long been known: Hunter was paid a very large monthly sum by Burisma at the same time that his father was quite active in using the force of the U.S. Government to influence Ukraine’s internal affairs.

[snip]

The Post’s explanation of how these documents were obtained is bizarre at best: They claim that Hunter Biden indefinitely left his laptop containing the emails at a repair store, and the store’s owner, alarmed by the corruption they revealed, gave the materials from the hard drive to the FBI and then to Rudy Giuliani.

While there is no proof that Biden followed through on any of Hunter’s promises to Burisma, there is no reason, at least thus far, to doubt that the emails are genuine. And if they are genuine, they at least add to what is undeniably a relevant and newsworthy story involving influence-peddling relating to Hunter Biden’s work in Ukraine and his trading on the name and power of his father, now the front-runner in the 2020 presidential election. [my emphasis]

As I noted on Twitter, if Glenn consulted with The Intercept’s security expert, Micah Lee, Micah could explain that — at least given the publicly available metadata — there very much is reason to doubt the emails as presented are actual emails.

But even disclaiming knowledge of the technical problems with the provenance of the emails, Glenn nevertheless admits that the Post’s explanation for how these emails dropped in its lap is “bizarre at best.” Having admitted that, though, he puts the onus on the Bidens to deny the authenticity of these emails, not the journalists reporting on them. It’s not enough for Joe Biden to provide solid evidence (his calendar) explaining why the allegation construed from these emails is not true, the Bidens must disprove the authenticity of the emails (which would entail treating this story as credible, and giving it air).

Crazier still, Glenn takes no responsibility himself to assess whether the emails actually prove what the Post claims they do, a distinction between the authenticity of emails versus the accuracy of the interpretation derived from the emails. He states, as fact, that if the emails prove authentic it will “provide some new details and corroboration” and “add to” the existing allegations about Burisma. Except that’s not true! They’ll only add corroboration if the content of the emails is read correctly and if that correct reading logically ties the evidence (a claim about a meeting that was offered but not scheduled) to allegations that are newsworthy, much less misconduct. What the Post has floated falls far short of that, yet because it included pictures Glenn doesn’t find newsworthy and a claim to have actual emails, Glenn doesn’t scrutinize whether the reading of the emails demonstrates both an accurate interpretation and news value.

In other words, Glenn has totally abdicated assessing for himself whether the emails dangled say what a biased presenter claims they say, and even if they do, whether that really backs the allegations that have been debunked by experts testifying under oath. Thus far, they don’t.

Glenn’s defense of the Post story replays his defense of his own publication of emails stolen by GRU

As I said, this is a theory of journalism Glenn has espoused before, when defending his willingness to publish emails stolen by the GRU. He uses that theory, for example, when asked to defend this October 9, 2016 article, presenting as “news” that the Hillary campaign:

  • Pitched Maggie Haberman on a story she subsequently gave “somewhat more critical than what the Clinton memo envisioned” coverage of
  • Specified what should be treated as on the record and off when speaking with journalists
  • Had a list of surrogates, some of whom were paid by the campaign, who would appear on cable news
  • Hosted off the record gatherings with journalists

As the story concedes, none of that was really newsworthy. Glenn justified posting documents from sources that had just been described as Russian cut-outs by saying the documents “provide a valuable glimpse” into how all campaigns work the press.

All presidential campaigns have their favorite reporters, try to plant stories they want published, and attempt in multiple ways to curry favor with journalists. These tactics are certainly not unique to the Clinton campaign (liberals were furious in 2008 when journalists went to John McCain’s Arizona ranch for an off-the-record BBQ). But these rituals and dynamics between political campaigns and the journalists who cover them are typically carried out in the dark, despite how significant they can be. These documents provide a valuable glimpse into that process.

Glenn has not, as far as I’m aware, reported on a far more interesting role Maggie played in 2016, where Rick Gates leaked information to her as a way to get it into Roger Stone’s hands. Perhaps he didn’t report on that because the documents were legally released as part of a trial, or perhaps because finding them would take actual work, rather than repackaging what an interested party fed him in much the same way that Hillary fed the press.

Glenn vetted that story the same way he seems to think the Post story should be vetted: by asking the victim if the documents are accurate and, absent a denial that they are accurate, publishing them as “news.”

Given more than 24 hours to challenge the authenticity of these documents and respond, [Nick] Merrill did not reply to our emails.

Here’s how, in a column published on October 9, Glenn justified publishing stolen documents that — he ultimately admitted — weren’t really newsworthy but for which he had been given an exclusive.

The emails were provided to The Intercept by the source identifying himself as Guccifer 2.0, who was reportedly responsible for prior significant hacks, including one that targeted the Democratic National Committee and resulted in the resignations of its top four officials. On Friday, Obama administration officials claimed that Russia’s “senior-most officials” were responsible for that hack and others, although they provided no evidence for that assertion.

As these internal documents demonstrate, a central component of the Clinton campaign strategy is ensuring that journalists they believe are favorable to Clinton are tasked to report the stories the campaign wants circulated.

Even here, Glenn muddles things. Guccifer 2.0 was a persona. While it claimed responsibility for the hacks, virtually all experts by this point in October 2016 had presented public evidence for why they believed GRU (which Glenn does not mention in the piece) was responsible for the hack. This is the move that Glenn has — for years! — defended by saying, about his decisions to publish stolen emails, that it is “fundamental” that journalists must “report on newsworthy information legitimately in the public interest,” even if the source is bad or had bad motives (or, Glenn doesn’t say this but implies it, is a hostile intelligence agency trying to tamper in an election).

Other than “harm to innocents,” there is no excuse or justification for journalists to refuse to report on newsworthy information legitimately in the public interest – including claims that the source of that information is bad or had bad motives. This principle is fundamental.

Note what Glenn doesn’t consider here: whether the source is bad and has been proven to be a liar.

It turns out that Glenn and I had a bit of an exchange with Guccifer 2.0 just days before he decided to post documents that weren’t newsworthy because he was given an exclusive.

On October 4, 2016 — just after WikiLeaks had promised to release files that everyone believed would be Clinton Foundation documents, Guccifer 2.0 posted some party documents claiming they were Clinton Foundation documents.

I tweeted, without linking the site or Guccifer 2.0’s tweet announcing the release, noting that the documents probably weren’t Clinton Foundation documents. Within twenty minutes, Glenn asked why I said that, and I noted, two minutes later, that the documents might be authentic, but they were not what Guccifer 2.0 said they were.

According to Glenn’s long-term standard — publishing documents believed to be authentic, so long as some thin public interest can be described — I guess he would support publishing them. According to journalistic standards, however, publishing something from someone who had recently been caught lying ought to raise real questions about reliability.

Forty minutes after my original tweet and about twenty after my exchange with Glenn, the persona RTed my tweet, explaining away my objections.

Shortly after RTing me, the Twitter persona followed me.

This makes Glenn’s decision to post those documents on October 9, 2016 all the more inexcusable. Less than a week before Glenn posted the least justifiable story of many of his unjustifiable 2016 uses of stolen documents, someone he (then) trusted had pointed out that the persona was a liar. But he posted the unnewsworthy documents, on the schedule that served the persona, anyway.

Those who make “slimy insinuations” based off authentic documents are “smear-artists & cowards”

Of course, this rush to publish documents simply because you have documents, even if they provide no new evidence to “corroborate” stories already debunked by experts testifying under oath, can end up tainting by insinuation. That’s the entire point, and that’s what happened with this Post story.

Don’t take my word for it. Take Glenn Greenwald’s.

Last year, when DOJ released the first bunch of 302s under the BuzzFeed FOIA for the Mueller Report backup, numerous people (I’m sure I was one of them), pointed out this reference in a February 2018 Mueller interview with Steve Bannon. In the context of a series of questions about his knowledge of Trump Organization’s ties to Russia, he was asked about what appears to be the fall 2017 story (which we now know was a limited hangout) of Michael Cohen’s efforts to pursue a Trump Tower Moscow with Felix Sater.

Bannon described how he claimed to assess the validity of the story: he reached out to “his contacts at the Intercept, Fox, the Guardian and ABC News,” who all had no further information, which did not surprise him. And, I guess at that point, he dropped the issue.

Understand, Bannon (the guy behind the Post story) is a liar, and this interview in particular was full of false story after false story. Bannon probably was lying in all his interviews about his knowledge of Trump’s business ties to Russia (including elsewhere in this same interview). It may be that when Cohen released a carefully crafted cover story, Bannon really did call up some news outlets rather than people who would actually know. It may be that Bannon invented the story about calling news outlets altogether.

It’s just weird, though, that Bannon named the Intercept before Fox, and frankly weird that Bannon would claim to call an outlet with zero expertise on this issue to find out if they had heard anything.

Whatever the explanation — whether it was the inexplicable truth, Bannon lied about calling these outlets, or Bannon lied about his knowledge of the Trump Tower deal — that he made the claim is curious.

When it was posted with absolutely no claims about what it meant, Glenn went ballistic, accusing people who screen capped a curious reference to be “using slimy insinuations about who it [sic] is without having the courage to say it explicitly.”

Using Glenn’s method, of course, one could have asked him if the 302 of an official investigation officially released by DOJ was authentic, and that would be enough — according to Glenn — to merit not just publishing it in a story, but doing so while making other insinuations not backed by the evidence.

When something far less intrusive, based off documents legally FOIAed, happened to Glenn, he accused those of posting screen caps from official 302s of being smear merchants.

But when Steve Bannon is behind it and even the claimed provenance of the documents is absurd and the more likely provenance is quite suspect, Glenn demands that such insinuations must be allowed to go viral on Facebook and Twitter — anything less is censorship.

2020 Presidential Debates: Missing ‘The Capital of Latin America’ [UPDATE-1]

[NB: Updates will appear at the bottom of this post. /~Rayne]

I pre-wrote posts for the presidential debates, scheduling them to post a half hour before the event began. Here’s the post I wrote about the now-canceled second debate, on which Trump and his team flip-flopped about his participation.

Here’s a post so emptywheel community members can discuss the second of three presidential debates.

Tonight’s second presidential debate scheduled for 9:00–10:30 p.m. ET . Tonight’s moderator will be Steve Scully of C-SPAN.

The debate — changed to a remote format after Trump’s hospitalization for COVID-19 — was to be held at the Adrienne Arsht Center for the Performing Arts in Miami, Florida. Moving to a remote or virtual debate model removes a key topic of discussion though it’s best for the safety of the candidates.

Miami has two nicknames: the Gateway to the the Americas, and the Capital of Latin America. I wonder how closely Central and South America will be watching the debate because the original location lent itself to discussion of foreign policy in the Americas.

Good luck to Steve Scully on keeping the tangerine hellbeast from running amok as he did during the first debate.

Of course we now know that roughly 26-28 hours after Trump’s participation in the first presidential debate, Trump tweeted that he and his current spouse tested positive for COVID-19.

This is Day 14 after that announcement, and still an unknown number of days since Trump’s positive test was administered. We don’t know how long the gap was between the time the test was administered and when he announced he was positive, let alone if more than one test was taken or the kinds of tests used.

It’s also an unknown number of days since his last negative test because Trump and his minions have steadfastly refused to answer this question. We’ve seen reports indicating Trump was not tested regularly.

We still don’t have any indication who infected him or when. We know Hope Hicks, whose positive test was announced on October 1, traveled with Trump on Friday September 25. RNC’s chair Ronna Romney McDaniel was also with Trump inside the 24 hours before the “Rose Garden Massacre” super spreader event.

An unknown number of people including senators and GOP political figures were infected at that event; as of this past Monday we could account for 34 but there have surely been more who either didn’t tell anyone for various reasons including Trump’s goddamned NDAs, or fear, or asymptomatic status.

We’re no closer to knowing how the super spreader event began.

Trump ultimately canceled this second presidential debate because of his COVID-positive status seven days before this debate, unwilling as he was to participate on a virtual basis.

But just because he canceled doesn’t mean we the people don’t have questions for the candidates.

~ ~ ~

Make sure to add the date of the third and final presidential debate to your calendar — format and location subject to change, of course, if not outright cancellation:

Thursday, October 22, 2020 8:00–9:30 p.m. ET
Location: Curb Event Center at Belmont University, Nashville, Tennessee
Moderator: Kristen Welker, NBC

~ ~ ~

UPDATE-1 — 8:30 P.M. 15-OCT-2020 —

I left this post unchanged while the situation gelled into this evening’s dueling town halls, with Biden on ABC and Trump on NBC.

Since Trump’s appearance on NBC was announced, there’s been a shit storm of outrage across social media platforms. Trump refused to debate on a remote basis, but he’s willing to appear on a network this evening at the same time as Biden?

Fuck that.

Many young people are tuning into ABC on multiple devices and streams to watch Biden’s town hall in order to boost his viewership ratings, knowing of course that Trump is hung up on audience numbers.

After the way in which K-pop fans skewed the reservation numbers for Trump’s Tulsa OK rally back in June, it’ll be interesting to see what youngsters can do this time against a forewarned Team Trump.

Not putting up Trump’s crap here tonight, especially after his rally appearance today in which he implied he authorized the extrajudicial execution of an anti-fascist protester.

DOJ Has Submitted Proof They Knew the January 5, 2017 Meeting Took Place on January 5, 2017

I’ve been harping on the process that facilitated Sidney Powell — and then President Trump — falsely blaming Joe Biden for raising the Logan Act in the context of the government’s response to Mike Flynn’s attempts to secretly undermine sanctions on Russia.

That process started on June 23, when prosecutor Jocelyn Ballantine sent an undated copy of Peter Strzok’s notes to Sidney Powell, explaining that they had been found as part of Jeffrey Jensen’s review. Using the royal “we,” she professed uncertainty about when those notes were written.

The enclosed document was obtained and analyzed by USA EDMO during the course of its review. This page of notes was taken by former Deputy Assistant Director Peter Strzok. While the page itself is undated; we believe that the notes were taken in early January 2017, possibly between January 3 and January 5.

Sidney Powell, referencing those notes, claimed they were believed to date from January 4 and asserted that they showed Joe Biden raising the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

Then, on September 23, Ballantine sent Powell a set of Strzok’s notes with a different Bates stamp than the first. When it was submitted — by Powell — to the docket, it had a date on it that did not appear on the earlier set: 1/4-5/17.

Then, five days after Powell (who has had multiple conversations with Trump’s campaign lawyer, Jenna Ellis, including about this case) loaded the now-dated notes onto the docket, President Trump publicly accused Joe Biden of giving “the idea for the Logan Act against General Flynn” in their first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

Thus it happened that an error introduced into the Flynn proceeding got turned into a campaign prop.

The thing is, DOJ has abundant proof that Jeffrey Jensen knew (or should have known) there was no uncertainty about the date when those notes were handed over to Powell. Indeed, if he did not know, then the entire premise of their motion to dismiss falls apart.

In Timothy Shea’s motion to dismiss, he obliquely attributed the radical change in DOJ’s view of Mike Flynn’s prosecution to Jeffrey Jensen’s review of the case, citing three dockets where Powell uploaded information that Ballantine had shared with the explanation (one, two) that the material came out of Jeffrey Jensen’s review.

After a considered review of all the facts and circumstances of this case, including newly discovered and disclosed information appended to the defendant’s supplemental pleadings, ECF Nos. 181, 188-190,1 the Government has concluded that the interview of Mr. Flynn was untethered to, and unjustified by, the FBI’s counterintelligence investigation into Mr. Flynn—a no longer justifiably predicated investigation that the FBI had, in the Bureau’s own words, prepared to close because it had yielded an “absence of any derogatory information.”

1 This review not only included newly discovered and disclosed information, but also recently declassified information as well.

All the purportedly “newly discovered” information, then, comes from Jensen.

Bill Barr cited Jensen’s review even more explicitly in an interview with Catherine Herridge.

What action has the Justice Department taken today in the Michael Flynn case?

We dismissed or are moving to dismiss the charges against General Flynn. At any stage during a proceeding, even after indictment or a conviction or a guilty plea, the Department can move to dismiss the charges if we determine that our standards of prosecution have not been met.

As you recall, in January, General Flynn moved to withdraw his plea, and also alleged misconduct by the government. And at that time, I asked a very seasoned U.S. attorney, who had spent ten years as an FBI agent and ten years as a career prosecutor, Jeff Jensen, from St. Louis, to come in and take a fresh look at this whole case. And he found some additional material. And last week, he came in and briefed me and made a recommendation that we dismiss the case, which I fully agreed with, as did the U.S. attorney in D.C. So we’ve moved to dismiss the case.

So this decision to dismiss by the Justice Department, this all came together really within the last week, based on new evidence?

Right. Well U.S. Attorney Jensen since January has been investigating this. And he reported to me last week.

In other words, both Shea and Barr represented that the case laid out in the motion to dismiss is the case that Jensen made that persuaded Barr to drop the prosecution.

That means we should expect Jensen to have deep familiarity with all the documents that — the motion to dismiss claims — formed the basis of his review.

I put a list of those exhibits here (along with an explanation that virtually everything cited in it was already known when DOJ first charged Flynn, when Michael Horowitz concluded the investigation was properly predicated, and when Bill Barr’s DOJ called for prison time in January).

Among those documents that Timothy Shea — and before him, Jeffrey Jensen — relied on to claim that DOJ should drop Flynn’s prosecution is the 302 from Mary McCord’s July 17, 2017 interview with Mueller’s team. The motion to dismiss cites McCord at least 26 times, relying on her interview to understand details of what happened in early January 2017, after the government discovered Flynn’s calls that explained why Russia didn’t retaliate for sanctions. Of particular note, the motion to dismiss that arose from Jensen’s analysis cites McCord’s interview regarding the discussion about the Logan Act — including that the investigation remained a counterintelligence one after discussing the Kislyak description. McCord’s description of the Logan Acti discussion reveals precisely who first raised it: ODNI GC Bob Litt.

General Counsel at the Office of the Director of National Intelligence (ODNI) Bob Litt raised the issue of a possible Logan Act violation. McCord was not familiar with the Logan Act at the time and made a note to herself to look it up later.

DOJ should never have let Powell form the conclusion that Joe Biden first suggested the Logan Act, because they were relying on a document that made it clear that Litt had already raised it. That’s where Jim Comey got the idea, before he went into that January 5, 2017 meeting.

Another document Shea and Jensen relied on in arguing that DOJ should end the Flynn prosecution is the 302 from Sally Yates’ August 15, 2017 interview with Mueller’s team. Shea’s motion to dismiss — based off Jensen’s analysis — cites Yates’ 302 at least 20 times, including in its discussion of the Logan Act. What Shea didn’t cite, but what shows up in the first substantive paragraph of the 302, is a description of how Yates first learned of the Flynn-Kislyak calls at a meeting at the White House on January 5, 2017.

Yates first learned of the December 2016 calls between (LTG Michael) Flynn and (Russian Ambassador to the United States, Sergey) Kislyak on January 5, 2017, while in the Oval Office. Yates, along with then-FBI Director James Comey, then-CIA Director John Brennan, and the-Director of National Intelligence James Clapper, were at the White House to brief members of the Obama Administration on the classified Intelligence Community Assessment on Russian Activities in Recent U.S. Elections. President Obama was joined by his National Security Advisor, Susan Rice, and others from the National Security Council. After the briefing, Obama dismissed the group but asked Yates and Comey to stay behind. Obama started by saying he had “learned of the information about Flynn” and his conversation with Kislyak about sanctions. Obama specified he did not want additional information on the matter, but was seeking information on whether the White House should be treating Flynn any differently, given the information. At that point, Yates had no idea what the President was talking about, but figured it out based on the conversation. Yates recalled Comey mentioning the Logan Act, but can’t recall if he specified there was an “investigation.” Comey did not talk about prosecution in the meeting. It was not clear to Yates from where the President first received the information. Yates did not recall Comey’s response to the President’s question about how to treat Flynn. She was so surprised by the information she was hearing that she was having a hard time processing it and listening to the conversation at the same time.

That long paragraph that very clearly describes the meeting at the White House captured in Peter Strzok’s notes directly precedes one that Shea (and so by association, Jensen) rely on heavily. According to Yates, Jim Comey was the one who raised the Logan Act in that meeting, not Joe Biden. And McCord, which they also rely on, makes it clear Comey got the idea from Litt.

Finally, the Shea motion to dismiss based on Jensen’s analysis relies on Jim Comey’s HPSCI testimony — one of just two documents that DOJ may not already have reviewed before Mike Flynn’s guilty plea. It cites the Comey transcript 16 times, including for a paragraph on the Logan Act.

As Sally Yates did, Comey described that the meeting at the White House involving the two of them took place on January 5.

I had not briefed the Department of Justice about this, and found myself at the Oval Office on the 5th of January to brief the President on the separate effort that you all are aware of by the Intelligence Community to report on what the Russians had done during the election. And in the course of that conversation, the President mentioned this [redacted] And that was the first time the Acting Attorney General, Sally Yates, had heard about it.

In no place does the Timothy Shea motion to dismiss, based off Jeffrey Jensen’s analysis, raise any questions about the veracity of these witnesses. Indeed, the motion relies on those documents as reliable descriptions of what happened in January 2017.

That means that either the DC US Attorney’s Office and Jeffrey Jensen are very familiar with the documents they rely on heavily to argue that Judge Sullivan must dismiss Flynn’s prosecution, in which case they affirmatively misled the court when they claimed to have no idea on what date the meeting described by both Yates and Comey occurred. That would mean, though, that Jensen affirmatively misled the court about a detail three months before the President used that error to make a campaign attack. And somehow an exhibit got altered to match that affirmative misinformation.

Alternately, none of the people claiming that these documents justify dismissing Flynn’s prosecution really know what these documents say.

Certainly, all parties should be on the hook for an exhibit that got altered to suggest the meeting could have taken place on January 4.

October Surprise: Didn’t Have COVID-19 on the Bingo Card [UPDATE-2]

[NB: Check the byline, thanks! Updates, if any, will appear at the bottom of the post. / ~Rayne]

So…back on August 22, I asked folks to offer their best bets on what Team Trump would pull for an October Surprise given the long history of such election gaming in American presidential politics.

I suspected Team Trump would try to force both the Durham investigation to announce a skewed finding, and development of a COVID-19 vaccine through testing and approval by some time in October.

But I didn’t have Trump testing positive for COVID-19 on the bingo card of possible surprises.

Only one community member, Terrapin, saw that as a possibility (and not with a good outcome).

But after all the squirrelly reporting around Hope Hicks’ positive test earlier on Thursday, it wasn’t clear when Trump and his wretched wife were tested and with what kind of test.

Is this being gamed, too?

Trump managed to shoot himself in the foot politically again by blaming military personnel as the source of Hicks’ infection:

… Trump suggested Hicks could have contracted it from members of the military or law enforcement.

“It is very, very hard when you are with people from the military, or from law enforcement, and they come over to you, and they want to hug you, and they want to kiss you because we really have done a good job for them,” the president said. “You get close, and things happen. I was surprised to hear with Hope, but she is a very warm person with them. She knows there’s a risk, but she is young.” …

Exposure to COVID-19 didn’t cause that kind of stupid.

The situation is annoying no matter how much anyone may like/dislike Trump. He’s still the White House’s occupant, still the president and commander-in-chief even if the means by which he came to those roles has been in question since day one. The American people deserve better transparency about the health of the person occupying the White House and whether he is or isn’t incapacitated at any time.

The other challenge before us: After mocking his opponent for wearing a mask, Trump was on stage this week with Joe Biden, and neither wore masks during their debate. Trump spent a lot of time pushing aerosols as he spoke and may have been contagious.

A whole host of other problematic scenarios emerge:

The October Surprise may be one we never thought of or planned for in August.

What other fresh surprises should we expect this month before the election?

~ ~ ~

UPDATE-1 — 12:00 P.M. 02-OCT-2020 —

No, fuck no. This Brit needs to do some basic research, like reading the U.S. Constitution before flapping off like this.

Trump tried to float this same lead balloon back in April. Not going to happen; that’s why he attacked the U.S. Post Office to damage its capacity to handle ballots on a timely basis.

Rick Hasen has already written about the possibility Trump leaves office due to illness or death before the election, and how that might be handled.

LOL GMTA

Just wish I knew how they’re going to wrap up this season — will it be a series finale?

Would be nice to know how to hedge this. My retirement fund is getting seasickness from all the ups and downs.

~ ~ ~

UPDATE-1 — 7:00 P.M. 02-OCT-2020 —

Trump has been taken to Walter Reed National Military Medical Center. His doctor says he’s been given Regeneron’s polyclonal antibody infusion — a drug cocktail which is still in testing phase. Earlier reports said Trump was running a low grade temperature.

Look, it’s time for media people to do a better job of reporting by which I mean GET THE TIMELINE OF EVENTS.

Did the temperature come on before/after going to Walter Reed?

Was the infusion administered before/after going to Walter Reed?

Do you see what I’m getting at?

Going through Twitter I can piece together part of the answers:

Mid-day — Trump did not attend a conference call for which he was scheduled; VP Pence attended in his place a planned discussion about COVID-19 support for at-risk seniors.

4:11 p.m. — Press Sec McEnany released via Twitter a copy of a memo from Trump’s physician, Sean P. Conley. Conley wrote that Trump received the Regeneron infusion as a precautionary measure.

4:18 p.m. — NBC News reported President Trump has a low-grade fever.

5:19 p.m. — CNN reported Trump would be transported to Walter Reed.

6:17 p.m. — CNN’s Jim Acosta reported Trump didn’t take questions as he walked to helicopter Marine One.

Based on what little I pulled together, it looks like Trump received an experimental drug administered by IV at the White House, that he continued to experience symptoms typical of COVID-19 including a temperature, and that he was then moved to Walter Reed.

Something is still missing in this tick-tock. Why did the President of the United States receive an experimental drug? When was it administered today, or was it administered last night before/immediately after the positive test was reported? Why was he moved to Walter Reed after the infusion rather than before it was administered?

Were they waiting for the goddamned market to close before they revealed he received this drug therapy? Or that they decided to move him to Walter Reed?

Pay attention to the timing.

And note the black holes: there’s no mention of hydroxychloroquine, no mention of Gilead’s remdesivir (though this may not be administered this early in the illness and only to more seriously ill patients).