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A Feud for Fun and Profit

[NB: Note the byline, thanks. /~Rayne]

I was doing my usual day’s end wrap up routine — shutting off the lights, checking the windows, reading the headlines to make sure the planet hadn’t blown up before I shut off my computer.

And this bullshit came up at Google News, just below the Epstein-Acosta coverage:

I’ve seen in my Twitter feed all day the hullabaloo about Alexandria Ocasio-Cortez’ chief of staff’s remarks and the subsequent flurry of feedback between different factions among the House Democrats. Some of it is hotly reactionary, some of it is measured, and a lot of it swings wildly in between.

But that snapshot of my Google News front page is EXACTLY what the real problem is: the internecine conflict is a fulcrum on which the right-wing and foreign agents can act to divide the party at a time when it can least afford it.

And the right-wing media like Fox News is using that same point for its own amusement and profit.

Even neutral-to-left media is using the tensions to gin up clicks and increase readership.

They have zero interest in the manifold crises on which the entire spectrum of Democrats — from stick-in-the-mud conservadems to hot-under-the-collar progressives — must work together. The media is only in this for fun and profit.

Meanwhile there’s a wholly corrupt, malignant narcissist intent on undermining everything on which our country was founded. House Democrats need to quit their circular firing squad and get their heads together. They need to focus on that wretch and the debris field he’s making of our nation instead of allowing themselves to be used as a profit center by the media.

Focus on the fact only 86 House Dems have committed to supporting an impeachment inquiry. ~132 more votes are needed to pass a resolution kicking off the process.

We are now nearly 191 days into the 116th Congressional term. Trump continues to lock up children in cages and take babies from their parents at the border, leaving them in concentration camp conditions which wouldn’t be tolerated for dogs. He continues to trash the Constitution from threatening war to ignoring Supreme Court decisions. That an impeachment inquiry hasn’t already been launched reflects badly on the entirety of House Democrats, from Speaker Pelosi to the 2018 Blue Wave freshmen.

~ ~ ~

This weekend I have a couple of voters staying with me who identify as independents. They tend to vote for Democrats but they won’t commit to being Democrats. They’re 25 years old, college-educated, and they actually watched the Democratic presidential candidates debates a couple weeks ago, rushed home from work to make sure they caught both nights in full.

These young people are fed up. They’re worried, angry, disgusted. They want real and rational leadership, especially because they’re deeply concerned about the pace of climate change.

They are NOT impressed by the inability of House Democrats to pull themselves into a cohesive cohort to stop Trump.

The more senior House Dems need to understand social media presence and follower count may not convert to votes on the House floor now, but these convert to votes in primaries next year. They convert to many small donations online between now and November 2020 as well as shoe leather when canvassing and GOTV matter. These two independents visiting me are exactly the people who’ll be persuaded by what they read in their Twitter feed and watch at YouTube; they have the disposable income to make regular donations. They’re not impressed by representatives who suck up to corporations over individuals especially when there’s campaign donations involved. They’re impressed by accessible representatives who do their homework and then do their best to ensure government oversight.

They want House Democrats to get their act together and stop Trump.

None of the tweeted and reported bullshit I saw being slung between House Democrats gets them any closer to doing what the 2018 Blue Wave told Democrats needed to be done. I don’t have a good explanation for these young voters as to when House Dems will pull out of their navel-gazing spiral. I can only hope it’s soon.

This is an open thread.

Trump’s 200 Million Inauguration Visitors and $15 Million Net Worth: The Scale of His Border Lies

Tonight, Trump will take over the airwaves to lie about the southern border in what will either be a last ditch effort to persuade Senate Republicans to stay the course supporting his temper tantrum, or will include a declaration of emergency that would pave the way to reopen government while saving face, all while creating an unbelievably dangerous precedent in the process.

Yesterday, NBC reported just how enormous are the lies the Trump Administration is telling about the southern border.

It describes that while the Administration claims to have stopped 4,000 known or suspected terrorists last year, in reality, CBP stopped just six.

U.S. Customs and Border Protection encountered only six immigrants at ports of entry on the U.S-Mexico border in the first half of fiscal year 2018 whose names were on a federal government list of known or suspected terrorists, according to CBP data provided to Congress in May 2018 and obtained by NBC News.

The low number contradicts statements by Trump administration officials, including White House press secretary Sarah Sanders, who said Friday that CBP stopped nearly 4,000 known or suspected terrorists from crossing the southern border in fiscal year 2018.

That number six is itself an exaggeration. In a piece predicting that, “the Intelligence Community is almost certainly not able to stand publicly behind what the White House and DHS are saying,” former National Counterterrorism Center Director Nick Rasmussen explains what (he correctly suspected) that number represents: visa denials based on a possible link to terrorism.

[T]hose visa denials or SIA encounters hardly equates to disruption of a terrorist plot or the “capture” of a known terrorist. Our watchlisting system is predicated on a carefully calibrated risk management approach. When the intelligence community acquires information that points to a potential link to terrorist activity, individuals are not permitted to travel to the United States. But it should not be assumed that every individual who was denied the opportunity to enter the U.S. because was in fact a would-be terrorist intent on doing us harm.

Plus, the 4,000 number equates to all such stops, not just those on the southern border.

In other words, the White House has been telling an unbelievable exaggeration to attempt to ratchet up fear to justify Trump’s tantrum.

It is, even among Trump’s fantastic lies, remarkable. Trump used a number, 4,000, that is actually 666 times higher than even a conservatively high number, 6.

To show just how big a lie it is, I calculated what two of Trump’s other most famous lies, exaggerated on such a scale, would be.

In an effort to avoid looking inadequate as compared to President Obama, whose inauguration had record crowds (much to the chagrin of those us of caught in the Purple Tunnel of Doom), Trump claimed more people attended his inauguration than ever before, meaning more than the 1.8 million who attended Obama’s first inauguration. In reality, the number was likely between 300,000 and 600,000. Take the smaller of those two numbers, exaggerate by as much as Trump is exaggerating the threat of terrorist infiltration on the southern border, and he’d have to claim 200 million people would have attended his inauguration, many more times the crowd Obama got.

Or take his net worth, another of his most epic lies.

Trump has claimed his net worth is $10 billion; the company, too, claims to make that much in a given year. Last year Forbes calculated Trump’s net worth was actually closer to $3 billion.

But if we take Trump’s exaggerated claim of $10 billion, and assumed he is exaggerating by the scale that he’s exaggerating the threat at the southern border, and it’d say his real net worth was just $15 million.

I mean, that’d make Mitt Romney far richer than Trump. Richard Blumenthal, too, would be worth more than the President. The Senate might not even let a pauper like that join their club! According to some calculations, Nancy Pelosi would even be worth more — in monetary, and not just human, worth — than Trump if he exaggerated this much.

The point is this lie is not just egregious and fact-free. It is, even among Trump’s lies, a whopper.

And Trump will go on teevee tonight to try to spread lies on an epic scale.

On Narrating Donald Trump: “Shoot me like I’m shot on ‘The Apprentice'”


Pretty much everyone I know is recommending this New Yorker profile describing how Mark Burnett created Donald Trump’s current image (and with it his electoral prospects).

Along with describing how both Trump and Burnett came to turn the popularity of the show into a marketing vehicle and a Trump’s telling claim that he initially hesitated before signing onto reality teevee because the, “contractors, politicians, mobsters, and everyone else I have to deal with in my business … don’t like, as they’re talking to me, having cameras all over the room,” the piece describes how the show depicted not reality, but a heavily edited narrative trying to retroactively justify Trump’s capricious firing decisions each week.

The result created the illusion that a serially bankrupt joker was, instead, a king.

Burnett has often boasted that, for each televised hour of “The Apprentice,” his crews shot as many as three hundred hours of footage. The real alchemy of reality television is the editing—sifting through a compost heap of clips and piecing together an absorbing story. Jonathon Braun, an editor who started working with Burnett on “Survivor” and then worked on the first six seasons of “The Apprentice,” told me, “You don’t make anything up. But you accentuate things that you see as themes.” He readily conceded how distorting this process can be. Much of reality TV consists of reaction shots: one participant says something outrageous, and the camera cuts away to another participant rolling her eyes. Often, Braun said, editors lift an eye roll from an entirely different part of the conversation.

At the end of each episode, Trump determined which competitor should be “fired.” But, as Braun explained, Trump was frequently unprepared for these sessions, with little grasp of who had performed well. Sometimes a candidate distinguished herself during the contest only to get fired, on a whim, by Trump. When this happened, Braun said, the editors were often obliged to “reverse engineer” the episode, scouring hundreds of hours of footage to emphasize the few moments when the exemplary candidate might have slipped up, in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense. During the making of “The Apprentice,” Burnett conceded that the stories were constructed in this way, saying, “We know each week who has been fired, and, therefore, you’re editing in reverse.” Braun noted that President Trump’s staff seems to have been similarly forced to learn the art of retroactive narrative construction, adding, “I find it strangely validating to hear that they’re doing the same thing in the White House.”

Such sleight of hand is the industry standard in reality television. But the entire premise of “The Apprentice” was also something of a con. When Trump and Burnett told the story of their partnership, both suggested that Trump was initially wary of committing to a TV show, because he was so busy running his flourishing real-estate empire. During a 2004 panel at the Museum of Television and Radio, in Los Angeles, Trump claimed that “every network” had tried to get him to do a reality show, but he wasn’t interested: “I don’t want to have cameras all over my office, dealing with contractors, politicians, mobsters, and everyone else I have to deal with in my business. You know, mobsters don’t like, as they’re talking to me, having cameras all over the room. It would play well on television, but it doesn’t play well with them.”

“The Apprentice” portrayed Trump not as a skeezy hustler who huddles with local mobsters but as a plutocrat with impeccable business instincts and unparalleled wealth—a titan who always seemed to be climbing out of helicopters or into limousines. “Most of us knew he was a fake,” Braun told me. “He had just gone through I don’t know how many bankruptcies. But we made him out to be the most important person in the world. It was like making the court jester the king.” Bill Pruitt, another producer, recalled, “We walked through the offices and saw chipped furniture. We saw a crumbling empire at every turn. Our job was to make it seem otherwise.

[snip]

Trump took to his part more nimbly than anyone might have predicted. He wouldn’t read a script—he stumbled over the words and got the enunciation all wrong. But off the cuff he delivered the kind of zesty banter that is the lifeblood of reality television. He barked at one contestant, “Sam, you’re sort of a disaster. Don’t take offense, but everyone hates you.” Katherine Walker told me that producers often struggled to make Trump seem coherent, editing out garbled syntax and malapropisms. “We cleaned it up so that he was his best self,” she said, adding, “I’m sure Donald thinks that he was never edited.” [my emphasis]

Throughout, the piece both implicitly and explicitly suggests that the White House is adopting techniques from the show in burnishing Trump’s power. Or, at least, Trump is asking that his handlers replicate the same frames of power that Burnett used.

The show’s camera operators often shot Trump from low angles, as you would a basketball pro, or Mt. Rushmore. Trump loomed over the viewer, his face in a jowly glower, his hair darker than it is now, the metallic auburn of a new penny. (“Apprentice” employees were instructed not to fiddle with Trump’s hair, which he dyed and styled himself.) Trump’s entrances were choreographed for maximum impact, and often set to a moody accompaniment of synthesized drums and cymbals. The “boardroom”—a stage set where Trump determined which candidate should be fired—had the menacing gloom of a “Godfather” movie. In one scene, Trump ushered contestants through his rococo Trump Tower aerie, and said, “I show this apartment to very few people. Presidents. Kings.” In the tabloid ecosystem in which he had long languished, Trump was always Donald, or the Donald. On “The Apprentice,” he finally became Mr. Trump.

[snip]

Trump has succeeded in politics, in part, by borrowing the tropes of the show. Jonathon Braun pointed out to me that when Trump announced his candidacy, in 2015, he did so in the atrium of Trump Tower, and made his entrance by descending the gold-colored escalator—choreography that Burnett and his team had repeatedly used on the show. After Trump’s announcement, reports suggested that people who had filled the space and cheered during his speech had been hired to do so, like TV extras, for a day rate of fifty dollars. Earlier this year, the White House started issuing brief video monologues from the President that strongly evoke his appearances on Burnett’s show. Justin McConney, a former director of new media for the Trump Organization, told New York that, whenever Trump works with camera people, he instructs them, “Shoot me like I’m shot on ‘The Apprentice.’ ” [my emphasis]

One of the most interesting details in the piece is that Democrats actively (and successfully) lobbied musical talent to blow off Trump’s inauguration, themselves performing a kind of script-writing that has haunted Trump since.

A Democratic political operative who was involved in a back-channel campaign to dissuade big-name stars from appearing at the event told me that Burnett had tried to enlist musicians to perform. “Mark was somebody we were actively working against,” the operative said. Trump’s wish list included Elton John, Aretha Franklin, and Paul Anka—who, he hoped, would sing “My Way”—but they all claimed to be otherwise engaged. The event ended up with sparse crowds and a feeble roster of performers.

Because I dawdled before reading the piece, I was reading it at the same time as reading coverage of the shutdown. That coverage highlights the results of running a Reality Teevee star as President. There’s NYT report that the reason why Trump has shut down the government to get Congress to fund him a wall is because Sam Nunberg and Roger Stone (and Steve Bannon) used the wall as a mnemonic device to get Trump to repeat his lines.

“How do we get him to continue to talk about immigration?” Sam Nunberg, one of Mr. Trump’s early political advisers, recalled telling Roger J. Stone Jr., another adviser. “We’re going to get him to talk about he’s going to build a wall.”

[snip]

“As a messaging strategy, it was pretty successful,” [anti-immigration activist Mark] Krikorian said. “The problem is, you got elected; now what do you do? Having made it his signature issue, Trump handed the Democrats a weapon against him.”

We’ve shut down the entire government because an entertainment professional always refused to memorize his lines (or as someone on Twitter noted, use a teleprompter), and so the unstable hacks who managed him early on invented a policy promise that not even hardline anti-immigration experts want.

And Trump seems to be judging the advice on the shutdown he receives based on how sycophantically his interlocutors judge his “performance” trying to ratchet up pressure for a wall.

Trump spent much of Saturday on the phone with allies, talking through his positioning on the shutdown and hearing their reviews of his Rose Garden performance, according to a person close to him. Two people regularly on his call list — Rep. Mark Meadows (R-N.C.) and Sen. Lindsey O. Graham (R-S.C.) — have encouraged Trump to take a hard line and refuse to agree to reopen the government unless wall funding is secured, the person said.

Trump, who doesn’t understand the successful tycoon that starred in The Apprentice was the product of heavy editing, has now taken to editing himself, trying to fulfill the things the Campaign Reality Teevee star said over and over, based off what Mark Meadows and Lindsey Graham  tell him.

The New Yorker profile, however, offers scant solutions to the problem that Burnett created — just his ex-wife imploring him to tell Trump he’s not actually living a reality show, as if that will fix the problem.

One day this past fall, Burnett got a call from his first wife, Kym Gold, with whom he remains friendly. Gold was upset about what was happening in the country, and asked Burnett to intervene with Trump. “We had it out,” she told me. “I said, ‘You’ve got to help our children, for the future and safety of this country.’ ” Gold implored Burnett, “Tell him this is not a reality show. This is real life. You’re the President. You’re saying things you cannot say—to reporters, to other world leaders.”

But that wouldn’t fix it even if Burnett were willing to risk losing access to Trump by telling him.

The problem, and any potential solutions, is something I’ve been thinking about for some time. No one is going to cure Trump of his addiction to being framed to look powerful. If he doesn’t get that high from his White House handlers, he will continue to fire them and look elsewhere, to people who are even better trained at flattery than Burnett. Trump now believes he can produce himself, based largely on the feedback of nutjobs like Ann Coulter and Sean Hannity.

I’m not actually advocating letting Trump frame himself as a king. But I also think that much of Democrats’ response involves trying to fact check Trump rather than reframe him. Your typical Trump voter isn’t going to give a damn that Trump is lying until some policy he has bragged about (up to and including the shutdown, but also his trade wars) ends up making them feel personally betrayed.

Mind you, I think Nancy Pelosi understands all this. She understands (like that other great female politician, Angela Merkel) that Trump will lose more if he is shown looking weak next to a woman than if someone proves his 100,000th lie.

That last of the self-imagined productive sycophants left with John Kelly. Trump now has a temporary Chief of Staff, one who will be gone once Trump decides to internalize Mick Mulvaney’s labeling of Trump’s position on the wall as “childish.” That creates a vacuum in the function of framing Trump’s image.

Update, January 12: This important op-ed from an OLC veteran describes how lawyers there do much the same as what editors on The Apprentice does.

But when I was at OLC, I saw again and again how the decision to trust the president failed the office’s attorneys, the Justice Department and the American people. The failure took different forms. Sometimes, we just wouldn’t look that closely at the claims the president was making about the state of the world. When we did look closely, we could give only nudges. For example, if I identified a claim by the president that was provably false, I would ask the White House to supply a fig leaf of supporting evidence. Or if the White House’s justification for taking an action reeked of unconstitutional animus, I would suggest a less pungent framing or better tailoring of the actions described in the order.

I often wondered, though, whether my attempts to remove the most basic inaccuracies from the face of a presidential order meant that I was myself failing to carry out my oath to protect and defend the Constitution. After all, the president had already submitted, through his early drafts or via Twitter, his reasons for issuing a particular order. I sometimes felt that, rather than engaging in professionally responsible advocacy, my OLC colleagues and I were using the law to legitimize lies.

I felt more than a twinge of recognition this month when reading a New Yorker article about Trump and the reality-TV show “The Apprentice.” Jonathan Braun, an editor on “The Apprentice,” described how editors would “reverse engineer” episodes after Trump made impulsive decisions about firing a contestant. The article described editors “scouring hundreds of hours of footage . . . in an attempt to assemble an artificial version of history in which Trump’s shoot-from-the-hip decision made sense.” Like a staff member at “The Apprentice,” I occasionally caught myself fashioning a pretext, building an alibi.

Impeachment and the Narcissist’s Off-Ramp

Welcome to the 116th Congress, where Democrats in the House will finally exert some check on the unmanageable man sitting the Oval Office.

There’s a lot I’m excited about in the new Congress: the unprecedented diversity, some rules and agreements that should give progressives more sway in the House, and a fierce, talented leader holding the Speaker’s gavel (even if I disagree with some of Nancy Pelosi’s moves, such as Pay-Go).

Pelosi is taking a really aggressive approach with Trump. In an interview on NBC this morning, Pelosi suggested he doesn’t know how to deal with women in power or women with strength. She dinged Trump because he “may not know this, but Hawaii is part of the United States,” and wondered whether Trump actually “observed the religious holiday of Christmas.” (Here’s the actual interview; I have yet to find a transcript.)

Remarkably, given the way Pelosi categorically ruled it out in 2006, she spoke at length about impeachment (partly, though not entirely, because Savannah Guthrie pushed her repeatedly on this point). After agreeing with her past comments that an impeachment would be “sad and divisive” to impeach the president, Pelosi suggested that the law does not prohibit indicting a sitting president.

Asked if Mueller could legally indict a sitting president, Pelosi said: “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”

The Office of Legal Counsel’s guidance, issued in 2000, says, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

“It’s not the law,” Pelosi told Guthrie. “Everything indicates that a president can be indicted after he is no longer president of the United States.”

Guthrie asked, “What about a sitting president?”

“Well, a sitting president when he is no longer president of the United States,” Pelosi answered.

Guthrie pressed again, asking, “A president who’s in office? Could Robert Mueller come back and say, ‘I am seeking an indictment?'”

“I think that is an open discussion,” Pelosi said. “I think that’s an open discussion in terms of the law.”

She also did not rule out impeachment proceedings against Trump.

“We have to wait and see what happens with the Mueller report,” Pelosi said. “We shouldn’t be impeaching for a political reason, and we shouldn’t avoid impeachment for a political reason.”

I’m totally okay with Pelosi making comments that will emasculate Trump in front of his base, particularly when it highlights his failed campaign promises, starting with his idiotic promise that Mexico would pay for his wall. I think making him appear as the weak coward he is is a necessary step to begin to chip away at unquestioning support among his supporters.

But I keep thinking back to something I raised in this post, where I pointed out that the increasing likelihood Trump Organization might be targeted by prosecutors might change Trump’s calculus as he tries to retain power.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

I think this is true not just of the presidency, though. I think it was almost immediately true of the Russian investigation, as exhibited by the emails KT McFarland sent from Mar-a-Lago as the Trump Transition responded to Obama’s sanctions on Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

There are many reasons that might explain why Trump responded to punishment of Russia the way he did: because he knew the Russians did have some role in his win, because he is a paranoid freak who always suspects an ulterior motive to hurt him.

Ultimately, though, it’s about his narcissism. Trump cannot admit any failures, any weakness. And admitting that he didn’t win the election fair and square would be like admitting that he had fewer inauguration visitors than Obama did.

I’m fairly confident that Trump thoroughly compromised himself with his eagerness to deal with the Russians for a Tower, for election help, for whatever else they demanded in response. I’m fairly confident that Putin has receipts from that compromise which creates a real dilemma for Trump on whether Mueller or Putin poses the biggest threat.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

But ultimately there is one other factor that makes Trump more self-destructively defensive about this investigation than he otherwise would be: his narcissism.

And while I’d welcome his utter humiliation before the world stage, I also believe that any single-minded pursuit of that humiliation will only increase the likelihood he’ll dig in, regardless of the damage that doing so will do to the country.

Even if we do get to the point where indictment or impeachment became viable (and I’m not sure we will), it’s worth thinking about whether pursuing either one might just trigger a narcissistic response that will only lead Trump to do further damage to this country. If we provide Trump an off-ramp that allows him to preserve some of his destructive ego, it may do less damage to the country.

Update: Fixed Guthrie’s first name–apologies to her for the error. h/t jk

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Moving Parts: The Walls Come Down around Trump

The other day (I forget which day it was, to be honest) I wondered aloud whether, as it became clear the walls were collapsing around Trump, he’d make a rash move to pay off his debts, perhaps to salvage something for his post-Presidenting life.

I’m not sure we’re quite at that point yet. But in recent days, a ton has happened it’s hard to make sense of.

This post doesn’t pretend to offer answers. I just want to write down everything I think is happening in one place — blogger’s prerogative, call it.

Mattis resigns, citing Trump’s fondness for authoritarians

The most alarming news is not that James Mattis resigned, but how he did so. In his resignation letter, he cited the importance of NATO, and China and Russia’s authoritarianism that leads them to promote their interest over that of their neighbors, America, and our allies, before he made it clear that Trump disagrees with Mattis in rejecting those authoritarian values.

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9-11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Similarly, I believe we must be resolute and unambiguous in our approach to those countries whose strategic interests are increasingly in tension with ours. It is clear that China and Russia, for example, want to shape a world consistent with their authoritarian model — gaining veto authority over other nations’ economic, diplomatic, and security decisions — to promote their own interests at the expense of their neighbors, America[,] and our allies. That is why we must use all the tools of American power to provide for the common defense.

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

Because you have the right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. [my emphasis]

The precipitating event, though, was Trump’s decision to pull out of Syria.

Officials said Mr. Mattis went to the White House on Thursday afternoon in a last attempt to convince Mr. Trump to keep American troops in Syria, where they have been fighting the Islamic State. He was rebuffed, and told the president that he was resigning as a result.

One source says that Trump’s decision to close the Special Forces base in Syria is part of the problem.

The US is set to shut a special forces base in Syria that has been the subject of repeated Russian complaints, and that some US officials have cast as a key part of US efforts not just to defeat ISIS but to counter Iranian influence in the country.

Muhannad al-Talla, a rebel commander at al-Tanf, a US base near the Syrian border with Jordan, told BuzzFeed News that the base would see the withdrawal of the US troops who have trained and fought alongside rebels there.

I’m wondering if this base was involved in the shellacking of Putin ally Yevgeniy Prigozhin’s mercenaries.

Another is Erdogan’s threat (or promise) to massacre our longstanding Kurdish allies.

Defense officials tell me Mattis went to the White House to discuss Syria & that he was livid after reading reports that Turkey’s Defense Minister threatened to kill US-backed Kurds & put them in ditches once the US withdrew. He was incensed at this notion of betrayal of an ally.

Effectively, it seems, Mattis told Trump, “it’s me or Vladimir Putin” … and Trump chose Putin.

Erdogan exercises leverage — or is he the messenger boy?

But it wasn’t exactly — or just — Putin that finally got Trump to deliver on the payback he started delivering 14 hours after polls closed in 2016. It was Recep Tayyip Erdogan. As I noted, Trump met with Erdogan in Argentina but not — after the Michael Cohen allocution made it clear Putin was enticing Trump with a Tower deal in 2016 — Putin.

Multiple reports say a call Trump had with Erdogan on Friday was the precipitating factor. Here’s a really alarming account of that call.

That leads me to wonder what leverage Turkey, specifically, has over Trump, such that he’d pull out of Syria in response to a threat to massacre the Kurds, which will make it easy for Turkey to massacre the Kurds.

And I have to believe Turkey’s ploy with the Jamal Khashoggi execution is part of it. Erdogan never gave a shit that the Saudis lured a dissident to their soil to dismember alive. Erdogan himself pursues such repression, even if he conducts it with a bit more cover.

Indeed, whatever Erdogan has over Trump also has him considering extraditing Fethullah Gulen to Turkey for what would certainly be similar treatment — the payoff Turkey was requesting back in December 2016 when Trump’s chosen National Security Advisor was still hiding that he had been an unregistered agent for Turkey.

Perhaps Turkey has proof not just implicating Mohammed bin Salman in the execution, but Jared Kushner in green-lighting it, or possibly even Trump?

Mueller’s moves toward endgame

It’s hard — particularly given comments from people like Nancy Pelosi — to separate all this from what feels like an approaching Mueller (attempted) endgame. The lead-up to Flynn’s aborted sentencing featured the following:

  • Flynn makes an ill-considered attack on the legitimacy of the Mueller probe
  • Emmet Sullivan orders the release of the documents with which Flynn was attempting to undercut Mueller
  • Sullivan orders the far more damning Flynn 302 that, among other things, reveals that Turkey and Russia both had compromising information on Trump and Flynn
  • DOJ indicts Flynn’s business partners for hiding how Turkey angled to force DOJ to extradite Gulen
  • At Flynn’s sentencing hearing, Sullivan emphasizes that Flynn had been an agent of Turkey while ostensibly working for Trump and mentions the word treason

Plus there’s evidence that Jared Kushner — who has been the boy plaything for all these ruthless players — probably tried to attack Flynn even while he was having a grocery store tabloid pimp the Saudis.

And it was revealed that the Mystery Appellant refusing to provide information to Mueller is a foreign-owned corporation, probably a Russian or Middle Eastern bank or sovereign wealth fund funneling money to Trump or Jared. The company appears to have asked for an en banc review today.

Mueller also asked for and got the House Intelligence Committee to release its transcript of Roger Stone’s testimony. The timing of this is the interesting thing: Mueller chose to do this when Republicans had to (and did) vote to expose Trump’s top political advisor to indictment. He could have waited, but didn’t. That suggests either he wanted Republican buy-in, or he needs the transcripts now, to finalize his case against Stone before Democrats take over in a few weeks.

The day after SSCI released materials on James Wolfe, he was indicted.

So things are moving to a head in the Mueller probe, and in a way that both Russia and Turkey may be implicated.

Matt Whitaker performs a headfake before taking the corrupt step he was hired to take

Then there was the news today on big dick toilet salesman Matt Whitaker. This morning, multiple outlets reported that DOJ had told Whitaker he didn’t have to recuse from the Mueller probe. After that became the headline, however, multiple outlets revealed that the truth was the opposite: an ethics advisor had told Whitaker he should recuse, and having heard that, Whitaker consulted a hand-picked committee that predictably told him not to.

Within days of the president’s announcement in early November that he had put Whitaker in the role on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on his new job, according to a senior Justice Department official. Their guidance included the question of whether Whitaker should recuse himself from Mueller’s investigation because of his past statements regarding that probe and because of his friendship with one of its witnesses, the official said.

Whitaker never asked Justice Department ethics officials for a formal recommendation, nor did he receive one, this official said.

However, after Whitaker met repeatedly with Justice Department ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call” but that Whitaker should recuse himself to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, they said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for that, and doing so now could create a bad precedent for future attorneys general.

That big dick toilet salesman Whitaker did this is not surprising.

That he chose to roll out this admission today is worth noting. One outlet reported that, up until today, Whitaker had not been briefed on the Mueller probe. Apparently, in the wake of a judge raising treason concerns after having reviewed Mike Flynn’s behavior, Whitaker has made the move to become Trump’s mole on the Mueller probe.

Update: BuzzFeed got a hold of the DOJ letter here. It makes it very clear Whitaker ignored advice to recuse.

Update: Marty Lederman notes that this letter fails to conduct a key part of the recusal analysis: why he would make a more appropriate supervisor for Mueller than Rod Rosenstein.

Trump prepares to shut down government

All this is happening as Trump prepares to shut down the government because Fox News laughed at him for getting pantsed by Nancy Pelosi.

Fox & Friends co-host Steve Doocy said the Democrats had won the showdown, and Trump had lost.

He launched into a tirade saying the president “loses, and the Democrats will win everything” based on his apparent decision to compromise with House Speaker Nancy Pelosi and Sen. Chuck Schumer.

Doocy said Trump’s defeat would not only risk his campaign commitment to build the wall, but also bring into question his electoral promises to curb the rest of the government’s spending.

In response, over the course of today, Trump told Republicans he’d veto any continuing resolution that didn’t include $5 billion for his steel slat wall, making it much more likely we’ll have a shutdown as Trump skedaddles to Mar-a-Lago to take calls from his authoritarian buddies.

This may be entirely unrelated. After all, Fox and Friends is Trump’s bubble, that’s the only place where he considers losses to matter, and after the truth that Pelosi had bested him started to seep through, the narcissist-in-chief had no choice but to make a rash demand that Republican politicians sacrifice their careers in deference to his tantrum.

Which is to say that this behavior is precisely what we should expect when a narcissist’s mirror tells his he has been bested by someone he must demean.

Or maybe it is related?

Putin — or someone else — is calling in receipts

As I’m thinking about these things, I keep thinking back to an argument I made in August. I argued that Putin had compromised Trump not with a pee tape, but by ensuring his people kept receipts every time Trump got sucked deeper and deeper into a deal with Russia.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

It has since become clear that not just Russia, but at least also Turkey and whatever bank is fighting a demand from Mueller that it turn over evidence of Trump’s graft, also have receipts.

Nevertheless, at the moment where it has become increasingly clear that Mueller knows much of whatever blackmail these partners have over Trump, Trump has chosen, instead, to alienate the Senators who might keep him from being impeached by evacuating from Syria and, later reports make clear, Afghanistan.

Trump is, on a dime and without warning to our closest allies, rolling up the American Empire. And he’s doing it not because he’s a peacenik — as far too many self-described progressives are trying to claim — but because ruthless, committed authoritarians have convinced him he needs their continued approval more than he needs the approval of even the Republican hawks in the Senate.

Update: I forgot to mention that the stock market is crashing. It started in response to Trump’s trade wars and bullying of the Fed, but accelerated given his threats to shut down the government.

[Photo: National Security Agency, Ft. Meade, MD via Wikimedia]

Jack Goldsmith and Susan Hennessey Run Cover for Those Giving Jeff Sessions Unreviewable Authority to Criminalize Dissent

I’m used to Susan Hennessey partnering with Ben Wittes to write apologies for NSA and FBI that ignore known facts. I’m a bit surprised that Jack Goldsmith did so in this defense of Democrats — like Adam Schiff and Nancy Pelosi and nineteen Democratic Senators — who have voted to give Jeff Sessions unreviewable authority to criminalize dissent using certain privacy tools.

NSA did not fix “abouts” problems before the issues became public

There are numerous problems with this post. The one that irks me the most, however, is the claim that the “system itself” identified and addressed problems with “abouts” collection before they became public.

We acknowledge that the program has raised hard legal questions as well as difficult compliance issues, primarily involving “abouts” collection. But these problems were identified by the system itself, long before the issues became public, and the practices were fixed or terminated.

This claim, one I’ve corrected Hennessey for on numerous occasions on Twitter, is false, and should be retracted.

I say that with great confidence, because I wrote about the problems on August 11, 2016, well before NSA failed to disclose the full extent of the problems in an October 4, 2016 hearing, which led the worst FISC judge ever, Rosemary Collyer, to complain about NSA’s institutional “lack of candor.”

At the October 26, 2016 hearing, the Court ascribed the government’s failure to disclose those IG and OCO reviews at the October 4, 2016 hearing to an institutional “lack of candor” on NSA’s part and emphasized that “this is a very serious Fourth Amendment issue.”

As a reminder, the problem (the FISC has) with “abouts” collection is not so much that it collected entirely domestic communications — that’s the complaint of the rest of us. It’s that NSA never ever complied with John Bates’ 2011 requirement that NSA not conduct back door searches on upstream collection, because it might result in searches of those entirely domestic communications. In my August 2016 post, I noted that reviewers kept discovering that NSA continued to do back door searches on upstream data in violation of that prohibition, and kept refusing to implement technical fixes to avoid them.

I also raised concerns about the oversight of 704/705(b), which is how the NSA first realized how badly non-compliant their upstream searches were, on May 13, 2016, That’s about when NSA first reported to DOJ “in May and June 2016” that “approximately eighty-five percent of” queries using a tool the NSA employs with 704/705b queries “were not compliant with the applicable minimization procedures.”

I’ll grant that I’m remarkably attentive to documents that get declassified years after the fact. But I’m nevertheless “the public.” If I’m identifying these problems — and NSA’s refusal to make the technical fixes to avoid them — before they get fully briefed to DOJ or FISC, then it is absolutely false to claim that “the system” fixed or terminated the problem long before they became public.

Again, Lawfare should issue a retraction for that claim.

Update, January 19: On Twitter yesterday, Hennessey claimed I misread this quote, and that her proof that the system works was that the NSA had gotten away with ignoring Bates’ orders for five years, but finally shut it down before the public learned that NSA had been ignoring FISC’s orders.

This is still factually false — as I responded to her, the NSA was still identifying problems for eight months after I wrote about the problems, even assuming it had found all of them by April 2017, which was the last declassified reporting on it. But her explanation actually makes the comment downright damning for the NSA. It suggests a lawyer who was at NSA during the period it was not in compliance believes that getting away with violating the Fourth Amendment for five years, but fixing it before documents released on a three year delay (and only because of Snowden) is a sign of a law-abiding agency.

A portrait of a guy who doesn’t know key details as a rigorous overseer

The fact that I was harping on the “abouts” problems before any overseers of the program managed to fully investigate and fix them by itself disproves the claims that Hennessey and Goldsmith make in their hagiography of Adam Schiff.

He is the ranking Democrat on the House intelligence committee and one of the most knowledgeable and informed members of Congress on intelligence matters. Schiff has not hesitated to be  when he sees fit. He has watched the 702 program up close over many years in classified settings in his oversight role. He knows well its virtues and its warts. We suppose it is possible that Schiff would vote to give the president, whose integrity he so obviously worries about, vast powers to spy on Americans in an abusive way. Given everything Schiff has publicly said and done over the last year, however, a much more plausible inference is that he knows not only how valuable the 702 program is but also how law-constrained and carefully controlled and monitored it is.

Plus, I’m not sure why they think that Schiff’s attempt to fix the Section 215 phone dragnet only after Edward Snowden made it public proves that Schiff “never hesitated to be critical of intelligence community practices.” On the contrary, it proves that he did hesitate to do so before excessive programs became public.

The distinction is utterly critical given something I’ve pointed out about this bill. The bill itself is an admission that the intelligence community is out of control, and that congressional overseers can’t get information they need to adequately oversee the program without demanding it in legislation. That’s because it requires the IC to provide information on two practices that Congress cannot be deemed competent to legislate on without having answers about first.

For example, the bill requires an IG Report on how FBI queries raw data.

(b) MATTERS INCLUDED.—The report under subsection (a) shall include, at a minimum, an assessment of the following:

(1) The interpretations by the Federal Bureau of Investigation and the National Security Division of the Department of Justice, respectively, relating to the querying procedures adopted under subsection (f) of section 702 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1881a(f)), as added by section 101.

[snip]

(6) The scope of access by the criminal division of the Federal Bureau of Investigation to information obtained pursuant to the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.), including with respect to information acquired under subsection (a) of such section 702 based on queries conducted by the criminal division.

(7) The frequency and nature of the reviews conducted by the National Security Division of the Department of Justice and the Office of the Director of National Intelligence relating to the compliance by the Federal Bureau of Investigation with such querying procedures.

I have explained (and I know Hennessey regards this as a problem too) that since 2012, FBI has devolved its access to raw 702 data to field offices. The FBI already conducted far, far less oversight of the back door searches it conducts than NSA does. But because the DOJ/DNI 702 review teams visit only a fraction of the FBI field offices with each review, and because FBI’s querying system doesn’t collect enough information to do oversight remotely, it is possible that the offices that are least familiar with 702 requirements are — for the smaller number of 702 queries they conduct — getting the least oversight.

You can’t pass a bill that effectively blesses FBI’s use of back door searches on Americans about whom it has no evidence of any wrongdoing, while admitting you don’t know how FBI conducts those back door searches, and make any claim to conduct adequate oversight. Rather, the bill permits FBI to continue practices it has stubbornly refused to brief Congress on, rather than demanding that FBI brief Congress first, so Congress can impose any restrictions that might be necessary to adequately protect Americans.

The bill also requires a briefing within six months to explain how DOJ complies with FISA’s legally mandated notice requirements (because notice under 702 is treated as notice under 106(c), this covers 702 surveillance as well).

Not later than 180 days after the date of the enactment of this Act, the Attorney General, in consultation with the Director of National Intelligence, shall provide to the Committee on the Judiciary and the Permanent Select Committee on Intelligence of the House of Representatives and the Committee on the Judiciary and the Select 10 Committee on Intelligence of the Senate a briefing with respect to how the Department of Justice interprets the requirements under sections 106(c), 305(d), and 405(c) of the Foreign Intelligence Surveillance Act of 1978 (50 14 U.S.C. 1806(c), 1825(d), and 1845(c)) to notify an aggrieved person under such sections of the use of information obtained or derived from electronic surveillance, physical search, or the use of a pen register or trap and trace device. The briefing shall focus on how the Department interprets the phrase ‘‘obtained or derived from’’ in such sections.

The public treatment of DOJ’s serial, obvious failures to give notice to defendants is a nifty trick. When DOJ fails to give notice, it clearly violates the law, but notice is not included in minimization procedure review, so therefore is not reviewed by the FISC. When surveillance boosters like Hennessey and Goldsmith say there have never been any willful violations of the law, they manage to ignore the notice violations that have allowed some pretty problematic practices to avoid judicial oversight only because by breaking the law DOJ ensures no court will find them to be breaking the law.

Catch 22: Heads legal violations never get reviewed by a court, tails surveillance boosters can claim the surveillance has a clean bill of health.

Again, this is a known, egregious problem with the implementation of 702.

But rather than do the obvious thing as part of what this post dubs “robust democratic deliberation,” which is to demand answers about how notice is (not) given and require DOJ to fix it as part of the bill, the bill instead simply requires DOJ to provide the information that Congress needs to do basic oversight six months after reauthorization, which effectively punts fixing the problem six years down the road.

How many Chinese-American scientists will be improperly prosecuted because FBI is technically inane in those 6 years, because a bunch of California legislators like Nancy Pelosi, Adam Schiff, and Dianne Feinstein chose to punt on basic oversight?

The most egregious example of this, however, involves the government’s obstinate refusal to explain how many US persons are affected by 702. This bill also did not incorporate an HJC proposal requiring a count of how many Americans got referred for criminal prosecution off of 702 collection.

Letting Jeff Sessions criminalize dissent

That refusal — the refusal to even legislatively require the government to report on the impact of 702 surveillance on Americans, via incidental collection and/or criminal referral — brings us to the problem with this bill that opponents are all raising, but about which Hennessey and Goldsmith are inexcusably silent: the codification of giving Jeff Sessions unreviewable authority to determine what counts as a “criminal proceeding [that] affects, involves, or is related to the national security of the United States.”

Here’s how Hennessey and Goldsmith describe the impact of this program on Americans.

As Lawfare readers know, Section 702 authorizes the intelligence community to target the communications of non-U.S. persons located outside the United States for foreign intelligence purposes. It does not permit the intelligence community to target a U.S. person anywhere in the world. But it does permit incidental collection on U.S. persons, subject to strict rules about minimization and use.

Their silence about how the bill doesn’t deal with back door searches is problematic enough.

But they predictably, but problematically, make no mention of the way the bill codifies the use of 702 in domestic law enforcement under the Tor/VPN exception.

As I have laid out, in 2014 FISC created an exception to the rule that NSA must detask from a facility as soon as they learn that Americans are also using that facility. That exception applies to Tor and (though I understand this part even less) VPN servers — basically the kinds of privacy tools that criminals, spies, journalists, and dissidents might use to hide their online activities. NSA has to sort through what they collect on the back end, but along the way, they get to decide to keep any entirely domestic traffic they find has significant foreign intelligence purpose or is evidence of a crime, among other reasons. The bill even codifies 8 enumerated crimes under which they can keep such data. Some of those crimes — child porn and murder — make sense, but others — like transnational crime (including local drug dealers selling imported drugs) and CFAA (with its well-known propensity for abuse) pose more potential for abuse.

But it’s the unreviewable authority for Jeff Sessions bit that is the real problem.

We know, for example, that painting Black Lives Matter as a national security threat is key to the Trump-Sessions effort to criminalize race. We also know that Trump has accused his opponents of treason, all for making critical comments about Trump.

This bill gives Sessions unreviewable authority to decide that a BLM protest organized using or whistleblowing relying on Tor, discovered by collection done in the name of hunting Russian spies, can be referred for prosecution. The fact that the underlying data predicating any prosecution was obtained without a warrant under 702 would — in part because this bill doesn’t add teeth to FISA notice — ensure that courts would never learn the genesis of the prosecution. Even if a court somehow managed to do so, however, it could never deem the domestic surveillance unlawful because the bill gives Jeff Sessions the unreviewable authority to treat dissent as a national security threat.

This is such an obviously bad idea, and it is being supported by people who talk incessantly about the threat that Trump and Sessions present. Yet, rather than addressing the issue head on (which I doubt Hennessey could legally do in any case), they simply remain silent about what is the biggest complaint from privacy activists, that this gives a racist, vindictive Attorney General far more authority than he should have, and does so without fixing the inadequate protections for criminal defendants along the way.

I mean, I get that surveillance boosters who recognize the threat Trump and Sessions pose want to absolve themselves for giving Trump tools that can so obviously be abused.

But this attempt does so precisely by dodging the most obvious reasons for which boosters should be held to account.

Update: Changed post to note that just Trump has accused FBI Agents of treason, not Sessions, and not (yet) journalists.

Update: Here’s the roll call of the 65-34 vote passage of the bill. Democrats who voted in favor are:

  1. Carper
  2. Casey
  3. Cortez Masto
  4. Donnelly
  5. Duckworth
  6. Feinstein
  7. Hassan
  8. Heitkamp
  9. Jones
  10. Klobuchar
  11. Manchin
  12. McCaskill
  13. Nelson
  14. Peters
  15. Reed
  16. Schumer
  17. Shaheen
  18. Stabenow
  19. Warner
  20. Whitehouse

 

The 702 Capitulations: a Real Measure of the “Deep State”

There were two details of the Section 702 reauthorization in the House that deserve more attention, as the Senate prepares for a cloture vote today at 5:30.

First, in the Rules Committee hearing for the bill, Ranking House Judiciary Committee member Jerry Nadler revealed that the FBI stopped engaging with his staffers when the two sides reached a point on negotiations over the bill beyond which they refused to budge.

Effectively, FBI just used the dual HJC/House Intelligence jurisdiction over FISA to avoid engaging in the legislative process, to avoid making any concessions to representatives supposedly overseeing this program.

As a result, the final bill included only a sham warrant requirement — one that will give criminal suspects more protection against warrantless search than it gives people against whom the FBI has no suspicion — and provided an easy way for the NSA to turn “about” collection (which has been the source of repeated NSA violations of FISA over the years) back on.

Then there was the effort Nancy Pelosi made to use the President’s reactive FISA tweet to impose a few more limits on the warrant requirement. In a filibustering speech, she suggested that Trump’s tweet claiming his had been surveilled and abused under the law (in reality, Title I warrants were used during the campaign, but Section 702 has likely been part of the investigation as well) necessitated a motion to recommit instructing HPSCI to boost the protections for Americans.

Pelosi had to have know the motion would fail (it did, with just six of the most libertarian Republicans joining Democrats in support). She counts votes better than anyone.

What the vote was really about was an effort not to fix the real problems with the bill. Nor was it a meaningful effort to add anything but illusory protections to the bill. It was an effort to make a vote in support of the bill more politically palatable. Pelosi (and Adam Schiff, who worked closely with Pelosi on this front) appears to have known that there will be political costs for supporting this bill, perhaps especially in San Francisco where one-fifth of Pelosi’s constituents are Chinese-American, one of the groups most disproportionately affected by the spying program.

She knew she was going to have to vote for the bill, political cost and all, and was trying to use Trump’s tweet to minimize the costs of doing so.

These two events, in my opinion, show how dysfunctional legislation affecting the “Deep State,” the entrenched national security bureaucracy, is. There is a clear political recognition among the Democratic leaders cooperating in passing the bill that the bill goes too far. Probably, they worry about what will happen when we learn how Jeff Sessions will use the unreviewable authority to deem either warrantless back door searches for Americans’ names or retention of Tor and VPN domestic collection a “national security” issue to target Democratic constituencies.

But that recognition was not enough to muster the political will to oppose the bill.

Heads the “Deep State” wins, tails democratic oversight fails.

The Embarrass Mitch McConnell Provision of the Intel Authorization

I’ve got a piece coming out on all the Russian-related provisions in the Intelligence Authorization bill for next year, which are for the most part really laudable policy proposals. But I wanted to look more closely at this one.

SEC. 606. REPORT ON CYBER ATTACKS BY FOREIGN GOVERNMENTS AGAINST UNITED STATES ELECTION INFRASTRUCTURE.
(a) Report Required.—Not later than 60 days after the date of the enactment of this Act, the Under Secretary of Homeland Security for Intelligence and Analysis shall submit to congressional leadership and the congressional intelligence committees a report on cyber attacks and attempted cyber attacks by foreign governments on United States election infrastructure in States and localities in connection with the 2016 presidential election in the United States and such cyber attacks or attempted cyber attacks as the Under Secretary anticipates against such infrastructure. Such report shall identify the States and localities affected and shall include cyber attacks and attempted cyber attacks against voter registration databases, voting machines, voting-related computer networks, and the networks of secretaries of State and other election officials.

(b) Form.—The report submitted under subsection (a) shall be submitted in unclassified form, but may include a classified annex.

(c) Definitions.—In this section:

(1) CONGRESSIONAL LEADERSHIP.—The term “congressional leadership” includes the following:

(A) The majority leader of the Senate.

(B) The minority leader of the Senate.

(C) The Speaker of the House of Representatives.

(D) The minority leader of the House of Representatives.

(2) STATE.—The term “State” means any State of the United States, the District of Columbia, the Commonwealth of Puerto Rico, and any territory or possession of the United States.

It requires the Department of Homeland Security to submit an unclassified report on all the hacking attempts on election infrastructure last year. It will involve declassifying information that Reality Winner is facing prison time for liberating, which seems like a concession that such information has public value. 

But I’m particularly interested in the emphasis on the distribution of this report: both to the intelligence committees and to Congressional leadership, spelled out by job title. Mitch McConnell, Chuck Schumer, Paul Ryan, and Nancy Pelosi.

That’s interesting because — as part of their investigation into last year’s hack — the Senate Intelligence Committee has already been briefed on this information. Indeed, the day after that testimony, Bloomberg reported — relying on three sources briefed on the investigation — that the hacks were much more severe than publicly known.

Russia’s cyberattack on the U.S. electoral system before Donald Trump’s election was far more widespread than has been publicly revealed, including incursions into voter databases and software systems in almost twice as many states as previously reported.

In Illinois, investigators found evidence that cyber intruders tried to delete or alter voter data. The hackers accessed software designed to be used by poll workers on Election Day, and in at least one state accessed a campaign finance database. Details of the wave of attacks, in the summer and fall of 2016, were provided by three people with direct knowledge of the U.S. investigation into the matter. In all, the Russian hackers hit systems in a total of 39 states, one of them said.

So ultimately, if this bill becomes law, it will require an unclassified report on stuff SSCI has been getting briefing on to be submitted to both SSCI and Congressional leadership.

The move comes in the wake of complaints from Democrats that Mitch McConnell refused to back a stronger statement about such attempted attacks in fall 2016. Now, I think some of the complaints about McConnell’s inaction last year are overblown, a demand that McConnell get ahead of where the Intelligence Community was willing to go publicly. And I think they largely obscure the more pressing question of what Trump advisors Devin Nunes and Richard Burr did. 

But I am cognizant of the fact that in a matter of months, we may get a better sense of the kinds of threats to our voting system that McConnell fought against publicizing.

The 28 Pages

On Sunday, President Obama said this about about Hillary’s email scandal: “There’s classified & then there’s classified.”

Perhaps that’s what has led him to decide, after 15 years, the 28 pages on the Saudis’ role in 9/11 can finally be released (or at least reviewed for declassification; given the way the 60 Minutes script ignored evidence about Bandar bin Sultan, I suspect they’ll still protect him).

The ostensible precipitating factor was a 60 Minutes show that, as I understand, didn’t expose anything we haven’t known for a decade (for comparison see this declaration Bob Graham submitted last year in a suit against the Saudis). But given the way 60 Minutes have become a house organ for the Intelligence Community, and given the way Nancy Pelosi had a statement (emphasizing her long role in Intelligence oversight, such as it exists) endorsing the disclosure all ready to go,

“As the former Ranking Democrat on the House Intelligence Committee and top the House Democrat on the Joint Congressional investigation looking into the 9/11 attacks, I agree with former Senator Bob Graham that these documents should be declassified and made public, and that the Bush Administration’s refusal to do so was a mistake,” Pelosi said in a statement. “I have always advocated for providing as much transparency as possible to the American people consistent with protecting our national security.”

I gotta believe this was all orchestrated.

After pretending the Saudis have been good faith partners for 15 years, in spite of abundant evidence evidence they have always continued to support terrorism as a tool in their bid for power, it seems, the Intelligence Committee has finally decided it was convenient to be able to discuss the Saudi role in 9/11.

Mind you, if the IC was really serious about discussing what bad partners the Saudis have always been, they should also declassify the other abundant evidence that the Saudis have been playing two sides with us.

But that would discomfort a good many Americans, I suspect.

While They’re Replacing John Boehner, the GOP Should Replace Devin Nunes, Too

In a profile in Politico, Justin Amash* makes the case that the Freedom Caucus’ rebellion against John Boehner isn’t so much about ideology, it is about process.

Republican leaders see Freedom Caucus members as a bunch of bomb-throwing ideologues with little interest in finding solutions that can pass a divided government.

But that’s a false reading of the group, Amash told his constituents. Their mission isn’t to drag Republican leadership to the right, though many of them would certainly favor more conservative outcomes. It’s simply to force them to follow the institution’s procedures, Amash argued.

That means allowing legislation and amendments to flow through committees in a deliberative way, and giving individual members a chance to offer amendments and to have their ideas voted on on the House floor. Instead of waiting until right before the latest legislative crisis erupts, then twisting members’ arms for votes, they argue, leadership must empower the rank and file on the front end and let the process work its will.

“In some cases, conservative outcomes will succeed. In other cases, liberal outcomes will succeed. And that’s OK,” said Amash, who was reelected overwhelmingly last year after the U.S. Chamber of Commerce backed his Republican primary rival. “We can have a House where different coalitions get together on different bills and pass legislation. And then we present that to the Senate and we present it to the White House.

The truth lies somewhere in-between. After all, 8 of the 21 questions the FC posed to potential Speaker candidates are ideological in nature, hitting on the following issues:

  • Obamacare
  • Budget and appropriation resolution reform
  • Ex-Im bank
  • Highway Trust Fund
  • Impeaching the IRS Commissioner
  • First Amendment Defense Act

Admittedly, even some of those — the financial ones — are procedural, but there are some key ideological litmus tests there.

Of the remaining 21 questions, 3 pertain to use of NRCC resources, 4 pertain to conference make-up, and 6 have to do with process. In other words, this block of members wants to end the systematic exclusion of their members from leadership and other positions and the systematic suppression of legislation that might win a majority vote without leadership sanction.

And while I certainly recognize that some of these process reforms — again, especially the financial ones — would likely lead to more hostage taking, I also think such reforms would also make (as one example) stupid wars and surveillance less likely, because a transpartisan majority of the House opposes many such things while GOP leadership does not (Nancy Pelosi generally opposes stupid surveillance and wars but also usually, though not always, does the bidding of the President).

The Yoder-Polis Act, an ECPA reform bill supported by 300 co-sponsors, is an example of worthy legislation that has long been held up because of leadership opposition.

While making the case for reform, though, I’d like to make the suggestion for another: to boot Devin Nunes, the current Chair of the House Intelligence Committee. According to the House Republican rules, the only positions picked by the Speaker are Select Committee Chairs, which would include Nunes and Benghazi Committee Chair Trey Gowdy (the latter of whom seems to be taken care of with Republican after Republican now admitting the committee is just a hack job, though if the FC wants to call for Richard Hanna to take over as Chair to shut down this government waste, I’d be cool with that too).

But with Boehner on his way out, it seems fair to suggest that Nunes should go too. While Nunes was actually better on Benghazi than his predecessor (raising questions about the CIA’s involvement in gun-running), he has otherwise been a typical rubber stamp for the intelligence community, rushing to pass info-sharing with Department of Energy even while commenting on their shitty security practices, and pitching partisan briefings to give the IC one more opportunity to explain why the phone dragnet was more useful than all the independent reviews say it was.

The Intelligence Community has lost credibility since 9/11, and having a series of rubber stamp oversight Chairs (excepting Silvestre Reyes, who was actually reasonably good) has only exacerbated that credibility problem. So why not call for the appointment of someone like former state judge Ted Poe, who has experience with intelligence related issues on both the Judiciary and Foreign Relations Committees, but who has also been a staunch defender of the Constitution.

Hostage taking aside, I’m sympathetic to the argument that the House should adopt more inclusive rules, in part because it would undercut the problems of a two party duopoly serving DC conventional wisdom.

But no place in Congress needs to be reformed more than our intelligence oversight. And while picking a more independent Chair won’t revamp the legal structure of intelligence oversight, it might initiate a process of bringing more rigorous oversight to our nation’s intelligence agencies.

Of course, who am I kidding?!?! It’s not even clear that the GOP will succeed in finding a palatable Speaker candidate before Boehner retires. Throwing HPSCI Chair into the mix would likely be too much to ask. Nevertheless, as we discuss change and process, HPSCI is definitely one area where we could improve process to benefit the country.


*Amash is my congressperson, but I have not spoken to him or anyone else associated with him for this post and don’t even know if he’d support this suggestion.