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Three Things: Ugly Goes Clean to the Bone [UPDATE-1]

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[NB: As always, check the byline. Updates will appear at the bottom. Thanks. /~Rayne]

Friday we got badly wanted news; we wanted it badly enough we didn’t blink at its arrival in the late Friday afternoon news dump zone.

But it wasn’t enough. It was only the start, a mere teaser.

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At 3:53 p.m. last Friday, the Department of Justice tweeted the indictment news:

The internet was paying attention:

…even if Steve Bannon hadn’t been.

Rather hubristic to carry on as if he didn’t expect to be indicted, but then many of us were beginning to think it would never happen.

Bannon is supposed to surrender himself today, which may be a bit of a circus since Bannon now has a new attorney, David Schoen. Schoen was one of Trump’s impeachment attorneys in 2020.

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The well-meaning sages who insisted things were under control — it was a good sign it was taking nearly a month to indict Bannon, don’t be like deplorables, blah-blah-blah — all had their say.

But which is it?

These things just need more time because DOJ must be cautious?

Or these things just needed this one person who wasn’t approved as DC-US Attorney until October 28 and sworn in more than a week later on November 5 to do the thing — which, by the way, took one week from oath to indictment?

Because it sure looks like the entirety of the House January 6 committee’s ability to wield its inherent powers on intransigent witnesses was completely dependent on the absence/presence of a single Biden appointee which some jerk like Sen. Ted Cruz could have held up the way he is currently holding our foreign policy hostage with holds on State Department nominees.

Are we supposed to accept with a pat on our heads that our democracy yet again depended on one person’s role?

If the DC-US Attorney were to become incapacitated at any time when the January 6 committee refers a contempt charge to DOJ, are we supposed to accept the platitudes “this takes time” or “don’t be a deplorable” when nothing happens?

What kind of government continuity is this?

~ 1 ~

Which brings us to the problem of former White House Chief of Staff Mark Meadows who received communications both Thursday and Friday from the chair of the January 6 committee about his lack of response to a subpoena issued by the committee on September 23.

Using false or misleading claims, Meadows had attempted to spur the DOJ to investigate election fraud claims including a bizarre theory that unknown persons located in Italy used military technology and satellites to remotely switch votes from Trump to Biden. These claims were sent to then-Acting Attorney General Jeffrey Rosen between December and January — after the 2020 election but before the January 6 insurrection.

Meadows was supposed to appear before the committee on October 15 to answer questions about these claims and his role in pushing them toward the DOJ, a week after he was supposed to have furnished documents requested by the committee in relation to these false election fraud claims.

The committee’s chair sent a letter last Thursday to Meadow’s attorney:

And on Friday the committee emphasized it’s going to use the tools available to it to obtain compliance with the subpoena — or else.


Meadow’s attorney sent a massively ballsy op-ed to the Washington Post as a rebuttal to the committee’s subpoena:

Opinion: In abandoning executive privilege, Biden rejects 200 years of history

George J. Terwilliger III is a partner at McGuireWoods LLP in Washington and previously served as deputy attorney general.

As counsel for former White House chief of staff Mark Meadows, I was surprised and disappointed to receive a letter Thursday informing me that the Biden administration will be the first in history not to resist a congressional subpoena for testimony from a senior White House aide. …

WaPo treated this like any other conservative’s op-ed; no caveat this op-ed may be tampering with an investigation.

Rather interesting how Terwilliger was able to get a 789-word op-ed published at 3:30 p.m. on the same day the January 6 committee issued its letter. This isn’t the first time Terwilliger has opined in WaPo about someone involved in the January 6 insurrection though Terwilliger’s last op-ed was a defense of former AG Bill Barr’s interference in Roger Stone’s sentencing. Can’t have the GOP’s senior ratfucker excessively punished during an election season after all.

Former Nixon White House counsel John Dean didn’t think much of Terwilliger’s op-ed:


I think I’d put my money behind Dean as to which of these two attorneys has a better grasp on the limits of executive privilege.

But it gets worse for Meadows since the soon-to-be-released book about the January 6 insurrection by reporter Jonathan Karl revealed yet another memo outlining steps to effect the autogolpe overthrowing the election.

Meadows had forwarded by email to then-VP Mike Pence’s chief of staff Marc Short a memo prepared by attorney Jennifer Ellis outlining the steps Pence needed to take to avoid certifying the election for Biden until a new alternate slate of electors for Trump could be introduced from just enough states to flip the election to Trump.

A rather pathetic carrot offered to Pence with the stick to follow on the day of the insurrection — a threat of violence and possible assassination by mob because Pence didn’t take the memo as a White House-approved order.

Looks like the number of questions Meadows must now answer has grown even longer.

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The title of this post comes from an aphorism attributed to a favorite writer, Dorothy Parker: “Beauty is only skin deep, but ugly goes clean to the bone.” Meadows may be more physically attractive and better dressed than Bannon but they’re both deeply ugly people who represent an existential threat to American democracy.

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UPDATE-1 — 10:00 P.M. ET —

Yeesh.

For a guy who was simply asked to appear before a House committee to answer some questions about what happened leading up to and on the day of January 6, this guy sure wants his audience to believe he’s being uniquely singled out for harassment by a president who both believes in the equal but separate powers inherent to each branch of government, and who believes the DOJ should be independent of the White House. Perhaps Bannon’s projecting since he was just fine with Trump’s DOJ acting like his personal police force.

Bannon could have just shown up, told the committee on a question by question basis, “I can’t answer that because my lawyer said it’s under executive privilege as Trump has claimed,” and simply gone about his day, coming off cool and collected like someone with nothing to hide.

But no, Bannon has to make a big scene because it’s a grift for more money; you know when he said “Stand by,” he will likely elaborate soon saying, “Stand by, because I’m going to ask you for help soon,” and then he’ll point to a link for donations for his legal fund.

Wow, he doesn’t even need to claim he’s building a border wall this time.

Minority Report: Botheration Benefits Bannon

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

At the risk of annoying the rest of Team Emptywheel — especially our resident attorney and in part because I’m not a lawyer myself — let me offer a minority report and note we have a serious problem.

You’ll recall one-time Chief Strategist and Senior Counselor to then-President Trump Steve Bannon refused to answer a subpoena issued by the House January 6 committee.

You’ll also recall that the House then debated and voted on a charge of contempt of Congress.

The House then referred the charge once passed to the Department of Justice.

Many Americans are disappointed that Bannon is still out walking around as if U.S. laws don’t apply to him. It doesn’t help matters that Trump pardoned Bannon for conspiracy to commit mail fraud and money laundering, a pardon which has the appearance that it may have been intended as payback and as advance compensation for helping to organize the January 6 insurrection.

And now those Americans are even more disappointed that Bannon has now blown off Congress without any repercussions so far. It’s not obvious to the public why it takes so long to bring the scruffy bucket of excess shirtage, whiskers, and pudge to answer their representatives’ questions.

Bannon is thumbing his nose at the American people and they know it.

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Persons who’ve worked in federal law enforcement insist the Department of Justice is working on this and the rule of law simply takes time, chiding us not to be like those people, implying behavior like the “deplorables” who chant “Lock him up!”

Except the American people have seen justice work too rapidly and unfairly for those who aren’t privileged. They expect a reasonable effort to effect justice speedily; justice delayed is justice denied. The tick-tock has been annoyingly like water torture — drip, drip, drip wearing on stone:

July 1 — Six months after the insurrection the House January 6 committee was approved and formed.

September 23 — It took two and a half months to subpoena Bannon who had been an advocate if not an organizer for the rally on January 5 and 6.

October 8 — President Biden refused to exert executive privilege over documents requested from the National Archives by the committee.

October 8 — Bannon was supposed to testify October 14 but his lawyer communicated on October 8 to the committee Bannon would not comply with the subpoena because former president Trump exerted a claim of executive privilege.

October 14 — Bannon does not report to the House committee.

October 19 — The committee began the process to hold Bannon in criminal contempt on the date Bannon was supposed to testify; the committee voted unanimously on October 19 to hold Bannon in contempt.

October 21 — Congress approved the charge on October 21 so that the charge could be referred to the Department of Justice.

October 25 — President Biden again refused to exert executive privilege over documents requested from the National Archives by the committee. No privilege has been claimed by Biden with regard to Bannon.

The public has seen no concrete action by DOJ in response to the contempt charge against Congress — a charge which should result in arresting Bannon, taking him into custody, and charging him with contempt until he complies.

23 days later, what the public sees is Bannon still doing whatever he does on any average day besides shave.

And the folks who’ve worked in law enforcement continue to say this simply takes time.

~ ~ ~

Except Congress itself is irritated, if Rep. Connolly’s opinion is more widely shared among his colleagues:


Congress members have good reason to be irritated; if DOJ couldn’t see ahead from Day One of the Biden administration that some Trump administration officials, staffers, and other supporters would resist a Congressional investigation into any allegation of Trump or Trump-adjacent wrongdoing, they had to be naïve or grossly incompetent. The impeachment investigations gave ample examples of what would happen and hinted at worse.

DOJ could at least have made an effort to appear ready to deal with intransigent witnesses. It’s not as if DOJ is unaware the public is bombarded with messaging all day long and in the absence of official messages, poor messaging will embed in the public’s consciousness.

The DOJ also has no good excuse for failing to execute the contempt charge. Congressional Research Service has at least twice in the last decade examined Congress’s ability to execute subpoenas and inherent contempt — the research has been done, it’s all neatly spelled out. Vet it if necessary but it’s pretty straightforward.

The biggest single reason DOJ shouldn’t dally is that it cannot question Congress’s speech or debate. An attack on the Capitol Building while Congress was in session is the most obviously legitimate reason for the House to issue a subpoena. Congress must know as part of its necessary speech and debate what happened leading up to and during the attack in order to:

(2) identify, review, and evaluate the causes of and the lessons learned from the domestic terrorist attack on the Capitol regarding—

(A) the command, control, and communications of the United States Capitol Police, the Armed Forces, the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021;

(B) the structure, coordination, operational plans, policies, and procedures of the Federal Government, including as such relate to State and local governments and nongovernmental entities, and particularly with respect to detecting, preventing, preparing for, and responding to targeted violence and domestic terrorism;

(C) the structure, authorities, training, manpower utilization, equipment, operational planning, and use of force policies of the United States Capitol Police;

(D) the policies, protocols, processes, procedures, and systems for the sharing of intelligence and other information by Federal, State, and local agencies with the United States Capitol Police, the Sergeants at Arms of the House of Representatives and Senate, the Government of the District of Columbia, including the Metropolitan Police Department of the District of Columbia, the National Guard, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021, and the related policies, protocols, processes, procedures, and systems for monitoring, assessing, disseminating, and acting on intelligence and other information, including elevating the security posture of the United States Capitol Complex, derived from instrumentalities of government, open sources, and online platforms; and

(E) the policies, protocols, processes, procedures, and systems for interoperability between the United States Capitol Police and the National Guard, the Metropolitan Police Department of the District of Columbia, and other Federal, State, and local law enforcement agencies in the National Capital Region on or before January 6, 2021; and

(3) issue a final report to the House containing such findings, conclusions, and recommendations for corrective measures described in subsection (c) as it may deem necessary.

All of which is part of Congress’s legislative purview.

Nor should the DOJ find a way to punt to the judiciary since the court has already repeatedly agreed that under Article I, Section 8, Clause 18, Congress’s implied powers of investigation are essential to its ability to legislate — and subpoenas are part of that power to investigate.

As for the excuse given by Bannon for not complying with the subpoena: executive privilege belongs to the office, not the person. The current executive has so far declined to exert privilege over anything Bannon provided to Trump during the eight months Bannon was a federal employee and adviser to Trump. There’s no executive privilege over any acts Bannon exerted as a private individual on behalf of candidate Trump’s campaign; Bannon can avail himself of his Fifth Amendment rights when questioned by the January 6 committee as he and his attorney feel appropriate.

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The charge is dirt simple and obvious: Bannon didn’t comply with the subpoena, violating 2 USC 192 – Refusal of witness to testify or produce papers, and 2 USC 194 – Certification of failure to testify or produce; grand jury action. He’s not the executive, nor is Trump the executive, and the current executive has made no claim, making Bannon’s claim of executive privilege at Trump’s request invalid.

The January 6 committee is investigating a domestic terrorist attack upon the United States Capitol Complex, interfering with government operations. Though fewer deaths resulted, it’s a crime on par with 9/11 in that terrorists attacked the United States with intent to disrupt our government — or worse, since it was an attack directly on the people’s representatives with the intent to overthrow the government (through an autogolpe).

Should we really expect the public not to get antsy about the apparent lack of action given the seriousness of the crime and the persistent inability of the House to consistently obtain compliance from witnesses under both the 116th and 117th Congress?

Should we really expect the public not to be itchy when the current Attorney General admits to having been insulated by “the monastery of the judiciary” for years (an approximate paraphrase of an analogy Garland made during during an October 4 interview with Jane Mayer of The New Yorker)?

Should we really expect a majority of the American people not to be concerned about the length of time it takes to arrest and detain a white male investment banker and media executive who was Trump’s adviser, when they elected this administration to both undo the damage of the Trump years AND restore faith in their government?

Three Things: Mit Handelsblatther

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Let’s get some more pressing business out of the way and then we’ll get down to this alleged subpoena.

~ 3 ~

Calls — make them. We should all simply get used to making calls or sending faxes to our members Congress and other government officials on a regular basis. Our democracy has now shown us the error of believing in the vote alone; voting is the very minimum democracy requires. We simply have to do more.

Today we need to do more to protect Net Neutrality. We have less than two weeks to make an impression on the Federal Communications Commission, leaving them with no doubt the public wants Net Neutrality.

Contact the FCC — need a script? See @Celeste_pewter.

Contact your Senators — need a script for that too? Here you go.
The odds may not be in our favor given the intransigence of FCC chair Ajit Pai and two of the commissioners, but we can’t curl up and give in.

~ 2 ~

NBC’s Today Show won morning ratings after firing accused sexual harasser and abuser Matt Lauer this past week. Good fucking riddance to bad baggage.

Ah, but NBC only terminated him because Lauer represented a threat to the corporation’s bottom line. They really don’t give a flying fig about women, proved with their donations.

No corporation that gives a campaign donation to pedophile and political hack Roy Moore really cares about women. NBC and its parent corporation Comcast care far more about ending Net Neutrality and being on the prospective GOP senator’s good side. What flexible ethics — get rid of an abuser because he violates policy then donate money to another abuser.

Polling shows the race between pedophile Roy Moore and Democratic Party candidate Doug Jones is far too tight to feel comfortable. It’s within margin of error which is too easily gamed by voter suppression or other tactics. But I hope Jones kicks Moore’s ass on election day.

Sen. Jeff Flake kicked in a $100 donation to Jones, writing “Country above party” on the description line. It’s chump change but he’ll take some crap from the GOP over this now that the RNC has lost whatever remained of its spine and returned to financing their pedo candidate.

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Now for Handelsblathering —

The first report I read Tuesday morning was by Bloomberg, which offered very little detail about the subpoena allegedly served on Deutsche Bank. Where was the subpoena served? The article didn’t say; it only said,

Mueller issued a subpoena to Germany’s largest lender several weeks ago, forcing the bank to submit documents on its relationship with Trump and his family, according to a person briefed on the matter, who asked not to be identified because the action has not been announced.

Caveat: Bloomberg has a nasty habit of updating their articles without leaving adequate evidence of the changes made. The graf excerpted above may not be exactly the same as the one I read on Tuesday morning.

We’ll assume service was made on Deutsche Bank in Berlin. When was the subpoena served? “Several weeks ago” the article said, which is horribly non-specific. I would personally guess this was less than a month ago or the journalists would have said “more than a month” or offer some other framing to extend the time beyond a month. “Several weeks ago” might fit the period of roughly 20 weeks since Trump was asked about special prosecutor Robert Mueller looking into his family’s finance’s (July 9) — but that’s a big stretch at nearly five months.

What niggled at me was the sourcing of Bloomberg’s piece — it relied almost wholly on German financial news outlet Handelsblatt. Its editor Daniel Schaefer referred to the story as “our scoop” on Twitter. Every report after Handelsblatt’s relied on the same story — or at least it isn’t clear in much later stories whether secondary news outlets called Deutsche Bank in Berlin and confirmed there was a subpoena served on them, or if they contacted Handelsblatt to confirm what their source had told them.

The sourcing looked too damned thin.

It didn’t help matters that the article is partially behind a paywall and in English at their global site and in German at their domestic site; nor did it help that the German language article is difficult to find.

Looking at Handelsblatt’s article on the global site, the wording seems odd; it might be due to differences between German and English but this first graf doesn’t seem like it.

Deutsche Bank has been served. US investigators are demanding that it provide information on dealings linked to the Trumps, sources familiar with the matter told Handelsblatt. The subpoena is part of a probe by special counsel Robert Mueller and his team to determine whether the president’s campaign was involved in Russian efforts to influence the US election.

“…[Has] been served. When have you last seen a statement as bald as this yet as unclear? ‘Served’ what — pie? The word ‘subpoena’ appears in the third sentence, and even at that point its use is odd. “…[part] of a probe” suggests there has been more going on in Berlin than just the handing over of documents on request.

And then Trump’s lawyer Jay Sekulow came out later in the day and denied there had been any subpoena served.

Reporters contacted Handelsblatt but by then it was well after business hours in Germany.

A reader at TalkingPointsMemo speculates that Deutsche Bank may not have been able to disclose any subpoena to Trump or his lawyer if a grand jury orders them not to do so, and that Sekulow may not have been told there was a subpoena for this reason.

I don’t know; do German banks follow U.S. grand jury instructions to the letter? Maybe this one does since it has been in trouble with the U.S. for money laundering and it wants to improve its credibility while reducing its exposure.

I have a another theory, though, thanks to researching the Volkswagen dieselgate scandal. VW’s executives used some weaselly language to imply they were not involved in decision making; the language used relied on American’s limited grasp of German and the ways in German could be manipulated to misrepresent the truth.

What I want to know is whether Germans use the word “subpoena” in the same way we do, or if they rely on either an EU legal term, or a German word equivalent. In other words, if someone asked the bank if a subpoena had been served, they may say no — but if they were asked if document production had been ordered (Dokumentenproduktion, perhaps?), they might say something very different.

This entire story seems off kilter, as if it were intended for a very narrow audience. Why did the Deutsche Bank leaker talk with Handelsblatt, the fourth largest Germany daily subscription newspaper and the biggest business news paper, versus a Sun-like tabloid Bild or the weekly Der Spiegel? Why was there a specific indication that both Melania and Ivanka as well as Jared Kushner had accounts with Deutsche Bank?

Something isn’t quite right. But then nothing’s been quite right since January 21.

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That’s a wrap. Treat this like an open thread.