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In Dire Need of Creative Extremists

MLK Memorial on the national Mall
(h/t Mobilus In Mobili CC BY-SA 2.0)

While many would point to Martin Luther King’s “I Have a Dream” speech on the steps of the Lincoln Memorial  in August 1963 as his most powerful, the words from King that most move me come from a letter written four months earlier, as he sat in the Birmingham jail. It was a letter written to local pastors, who expressed support for his cause but concern for the manner in which he came to Birmingham to protest. When looking back at historical letters, there are some that are products of their time that illuminate the events of that day, but which need footnotes and commentary to explain to contemporary readers.

King’s “Letter from a Birmingham Jail” is *not* one of those letters. I wish it was, but it isn’t. It’s all too clear, and speaks all too clearly even now.

In that letter, King identified “the great stumbling block in the stride toward freedom” not as the hoodwearing Klanners or the politically powerful White Citizens Council folks, but the white moderate. These are folks who

  • are more devoted to order than justice
  • prefer a negative peace – the absence of tension – to a positive peace – the presence of justice
  • constantly say they agree with your goals but not your direct methods for achieving them
  • feel no problem in setting a timetable for someone else’s freedom
  • live by the myth of time, constantly urging patience until things are more convenient

Anyone who has watched the news at any time over the last three years knows that this great stumbling block to freedom and justice, the Moderate, is an all-too-familiar presence, appearing in various guises. For example . . .

  • police officers who, as one African-American after another is beaten, abused, and killed by one of their colleagues, silently watch the attack as it unfolds, who refuse to intervene, who write up reports to cover for this conduct, and who by their silence and their words defend and justify assault and murder done under the color of law;
  • staffers at ICE facilities who, as children are separated from their parents, as people are crammed into unlivable facilities, as basic necessities like toothbrushes and soap are withheld, clock in and clock out without saying a word;
  • personal assistants, co-workers, and superiors who watch as victim after victim were abused by powerful men like Harvey Weinstein, Roger Ailes, Charlie Rose, Matt Lauer, Jeffrey Epstein, and untold others, and who said nothing;
  • Susan Collins, hand-wringer extraordinaire, who expresses her deep concerns about this rightwing nominee or that destructive proposed policy, and nevertheless puts her concerns aside time and time and time again to confirm the nominee or enact the proposal into law;
  • media figures who practice “he said/she said journalism,” who twist themselves into pretzels in order to maintain their “access” to inside sources, and who refuse to call a lie a lie in the name of “balance”;
  • corporate bean counters, who place such things as quarterly profits and shareholder value ahead of worker safety and well-being, ahead of environmental concerns, or ahead of community partnership, saying “we can’t afford to . . .” when what they really mean is “we choose not to spend in order to . . .”;
  • lawyers who provide legal cover to those who abuse, torture, and terrorize, and the second group of lawyers who “let bygones be bygones” in order to not have to deal with the actions of the first group;
  • bishops and religious leaders who privately chastise abusive priests and pastors, but who fail to hold them publicly accountable and seek justice, out of a concern to not cause a scandal that would bring the religious organization into disrepute; and
  • leaders of sports programs who value winning so much that they are willing to look the other way when coaches, trainers, and doctors abuse athletes.

The tools of the Moderate are things like Non-Disclosure Agreements, loyalty to The Team, and the explicit and implicit power of the hierarchy. The Moderate may not be at the top of the pyramid, but as long as the Moderate can kiss up and kick down, they think they will be OK. They’ll keep their powder dry, waiting for a better time to act. But all too often, the Moderate refuses to use what they’ve been saving for that rainy day, even when they are in the middle of a Category 5 hurricane.

But there are signs of hope, and we’ve seen some of them as well over the last three years:

  • career government professionals – at the State Department like Marie Yovanovitch, at the Department of Defense like Captain Brett Crozier of the USS Theodore Roosevelt, at the Department of Health and Human Services like Dr. Richard Bright, at the Department of Justice like Brandon Van Graak, and others like them – who refused to worry about personal consequences to themselves and fudge the data, ignore the facts, shade the advice,  or stand silently by while others do so;
  • passers-by to acts of injustice, who not only document what is being done but who take action to hold perpetrators to account (NY dog walkers, represent!);
  • young voices like Greta Thunberg who refuse to go along to get along, who ask the tough questions of those in power, and who question the answers that mock the truth, and old voices like Elizabeth Warren who do the same; and
  • voices of political relative newcomers like Katie Porter, AOC, Stacy Abrams, who do not let their low spot on the political totem pole (or lack of a spot at all) keep them from speaking out for justice.

This past week, longtime AIDS activist Larry Kramer passed away. He founded the Gay Men’s Health Crisis to care for gays stricken with AIDS, while the government turned its eyes away from the problem. Later on, he founded ACT-UP, when he saw GMHC had become too domesticated and unwilling to rock the boat when the boat desperately needed rocking. He called out the gay community and he called out government officials, even those who were trying to help like Anthony Fauci, for not doing anywhere close to what was needed.

And in many respects, it worked. Maybe not as fast as it should have, or as well as Kramer would have liked, but it made a difference. From Kramer’s NY Times obituary:

The infectious-disease expert Dr. Anthony S. Fauci, longtime director of the National Institute of Allergy and Infectious Diseases, was one who got the message — after Mr. Kramer wrote an open letter published in The San Francisco Examiner in 1988 calling him a killer and “an incompetent idiot.”

“Once you got past the rhetoric,” Dr. Fauci said in an interview for this obituary, “you found that Larry Kramer made a lot of sense, and that he had a heart of gold.”

Mr. Kramer, he said, had helped him to see how the federal bureaucracy was indeed slowing the search for effective treatments. He credited Mr. Kramer with playing an “essential” role in the development of elaborate drug regimens that could prolong the lives of those infected with H.I.V., and in prompting the Food and Drug Administration to streamline its assessment and approval of certain new drugs.

In recent years Mr. Kramer developed a grudging friendship with Dr. Fauci, particularly after Mr. Kramer developed liver disease and underwent the transplant in 2001; Dr. Fauci helped get him into a lifesaving experimental drug trial afterward.

Their bond grew stronger this year, when Dr. Fauci became the public face of the White House task force on the coronavirus epidemic, opening him to criticism in some quarters.“We are friends again,” Mr. Kramer said in an email to the reporter John Leland of The New York Times for an article published at the end of March. “I’m feeling sorry for how he’s being treated. I emailed him this, but his one line answer was, ‘Hunker down.’”

Which brings me back to King’s letter and the title of this post:

. . . though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Was not Amos an extremist for justice: “Let justice roll down like waters and righteousness like an ever flowing stream.” Was not Paul an extremist for the Christian gospel: “I bear in my body the marks of the Lord Jesus.” Was not Martin Luther an extremist: “Here I stand; I cannot do otherwise, so help me God.” And John Bunyan: “I will stay in jail to the end of my days before I make a butchery of my conscience.” And Abraham Lincoln: “This nation cannot survive half slave and half free.” And Thomas Jefferson: “We hold these truths to be self evident, that all men are created equal . . .” So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary’s hill three men were crucified. We must never forget that all three were crucified for the same crime–the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists.

We’ve got plenty of extremists like Stephen Miller and the cop who knelt on George Floyd’s neck until he died. We’re in dire need of more creative extremists.

Which leaves me with one question: how will you be a creative extremist today?

Chuck Grassley and His Two Republican Friends

After spending several days hemming and hawing about it, Chuck Grassley has sent a letter to President Trump, asking that he “provide more detailed reasoning for the removal of Inspector General Atkinson no later than April 13, 2020.”

The letter cites the basis for which Congress can make such demands: Inspector Generals work for both Congress and the Executive.

Further, the IC IG and indeed all inspectors general (IG) are designed to fulfill a dual role, reporting to both the President and Congress, to secure efficient, robust, and independent agency oversight. To ensure inspectors general are fully capable of performing their critical duties, and in recognition of their importance both to efficient administration and to the legislative function, Congress set clear, statutory notice requirements for their potential removal.

And it lays out how Trump’s move — not just putting Michael Atkinson on 30-day administrative leave (something Obama did , but also naming Thomas Monheim as Atkinson’s replacement immediately, something without precedent that Adam Schiff also raised concerns about.

Further, according to public reports, Mr. Atkinson already was placed on administrative leave, effectively removing him from his position prior to the completion of the statutorily required notice period.

[snip]

Please also provide your views on how the appointment of an acting official prior to the end of the 30 day notice period comports with statutory requirements.

The letter is precisely the kind of Congressional pushback on a removal that laws governing the appointments of Inspectors General envision. This is not just a show; Grassley has a long history of caring deeply about this stuff (and twice defended Schiff’s efforts to keep the identity of the Ukraine whistleblower secret).

The problem with his letter is this:

Just two of the Senators who co-signed this letter, Susan Collins and Mitt Romney, are Republicans (Gary Peters, ranking member on Homeland Security and Governmental Affairs Committee, also signed). Grassley unsurprisingly didn’t get the hackish Ron Johnson, who as the Chair of HGSAC should make a pretense of giving a damn about oversight, to sign on. He didn’t get the Senator with the biggest role in overseeing the ICIG, Senate Intelligence Chair Richard Burr, to sign on (though Mark Warner is Ranking Member on the committee). And he didn’t get any of the other Senators — like Lisa Murkowski or Lamar Alexander — who purportedly considered voting for impeachment to sign on.

And that means, without enough Republicans to be able to threaten that a majority of the Senate would back an effort to enforce this request, Trump can and might well just blow this request off.

Three Things: Day After Night Before Day of Disaster [UPDATE-2]

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

What a flaming mess.

Bet you can’t really tell which mess I’m referring to — the Iowa caucuses, the State of the Union Address, or the rolling not-trial of Donald J. Trump.

But there they are, the three things this post will address.

~ 3 ~

What can I say that you don’t already know about Iowa?

You already know right-wing assholes began a negative influence operation before the caucuses began, spreading from the Epoch Times to Judicial Watch, Charlie Kirk to the Trump boys, amplified by Hannity and Twitter accounts.

And you already know that for some stupid reason badly-designed, poorly-tested mobile technology was pushed into production after too little time in beta. Just too many variables not reduced in advance of the crunch-time roll-out.

The fallout was and is messy, made worse by a commercial media model based on hyper-competitionwho ever gets and publishes the story first wins is completely diametric to democracy’s need for accurate reporting for an informed electorate.

The caucus app developer, Shadow Inc. — yeah, you’d think this would be an over-the-top name for a software business which keeps its ownership opaque — has apologized today, explaining,


Let’s assume IDP = Iowa Democratic Party. This was not the DNC’s work, which more right-wing trolls tried to claim last night along with blaming former Clinton campaign manager Robby Mook for the app failure although Mook is NOT a software developer.

A lot of character assassination by the right-wing over the last 24 hours bears a strong resemblance to the character assassination of former ambassador Marie Yovanovitch. Trump-friendly mouthpiece makes egregious false accusation, picked up by Trump-friendly media, repeated by Trump’s family members, propelled even further by Trumpists and trollbots. What a coincidence.

Of course everybody has completely forgotten it took the Republicans more than two weeks — from January 3 to January 21 — to sort out who won their caucuses in 2012. How convenient the right-wing horde has something else they can bloviate about instead of their own failings. How convenient they were able to set up and complain about “rigged elections” laying the ground for their approach to November’s general election.

Once again we hear complaints about how grossly unfair Iowa caucuses are — they prevent disabled and working people from participation, and the state is the first to select winning primary candidates although it’s a small (31st in population) and non-diverse (90.7% white), unrepresentative of the rest of this country.

There’s also head scratching about apparent low turn-out. Can’t imagine why voters (who may have accessibility issues, lack transportation, work afternoons/evenings, can’t afford or find childcare) won’t turn out to caucus and sort through a large field of candidates even though they may already lean toward voting Democratic no matter which candidate wins the primary.

One piece worth reading and pondering, published in the aftermath of this year’s Iowa caucus, is this three-year-old article by David Auerbach, Confirmation Bias: Did big data sink the Clinton campaign? Auerbach thinks the Ada data analysis program was screwed up and both the Clinton campaign and DNC were prone to confirmation bias, failing to suspect the app could be bad.

But what if like Iowa’s IDP-organized caucuses relying on a mobile app which had not been adequately stress tested the big data program was simply too new and untried for its intended purposes?

One thing also bothered me re-reading Auerbach’s piece, given that he also wrote an essay in 2012, The Stupidity of Computers. Are folks designing and implementing these apps for politics failing because they’re like other software-based platforms? Have they “created their own set of inferred metadata, the categories propagate, and so more of the world is shoehorned into an ontology reflecting ad hoc biases and received ideas,” to the point where threats and risks outside of their imagination easily destroy their aims?

Is it at all possible that the same kind of lack of foresight and imagination that led to last night’s failure cascade also underpinned a big data analysis program which couldn’t see new foreign-born influences manipulating output?

Do read Auerbach, but with your eyes wide open; even Auerbach didn’t anticipate his own credibility being undermined by right-wing provocateurs. Yet another lesson about the impact of technology on human relations.

And yet another lesson about the difference between the chronically underfunded Democratic Party and the wealthy fascistic GOP. How much did the collapse of Obama for America after the 2008 election combined with Tim Kaine’s tepid DNC leadership contribute to the conditions which set up Iowa’s application meltdown — the absence of an adequately-funded national party-wide technology platform?

~ 2 ~

House impeachment managers made closing arguments in the Senate’s not-a-trial yesterday. Rep. Adam Schiff’s speech will be remembered well into the future for its excellence as American oratory.

The Senate debated the charges today. Michigan’s Sen. Gary Peters may have redeemed himself:

West Virginia’s Sen. Joe Manchin was his craven self again, introducing the alternative of censure rather than conviction.

No. Hell no. Manchin isn’t up for re-election this year; he has no good excuse for offering the possibility Trump could crow about a bipartisan acquittal if any Democrat votes for something other than conviction and removal.

Further, Manchin’s sucking up to Trump won’t do a thing for his state. If he thinks this will sway the MAGA base in any way he’s unmoored from data showing Trumpists will not be moved. They believe what Fox News’ talking heads like Sean Hannity and Tucker Carlson tell them and that’s enough.

Nor will GOP senators vote for censure. They’re simply too bought, owned, corrupt, and spineless.

And of course both senators Lisa Murkowski and Susan Collins have played their roles as drama queens, vacillating on whether to vote for or against acquittal. Murkowski blamed partisanship while making the partisan decision to vote with her party for acquittal.

Collins was bought. For the right price — $150,000 laundered through a front corporation in Hawaii — she will play stupid and give women a bad name in general.


Do get a load of the name of the front corporation. Sure. Like women suddenly forgot that Collins approved Justice Kavanaugh’s nomination to the Supreme Court.

Tomorrow’s vote will be unpleasant — brace yourselves.

~ 1 ~

In about an hour the tangerine hellbeast will shake off his sundowning and step up to the podium in the House to deliver what should be his last State of the Union message.

I refuse to watch that lying malignant narcissist. I’ll check for observations by people watchers like Dr. Jack Brown who will monitor Trump’s body language and Tom Joseph who follows Trump’s mental and physical decline.

I will not enjoy being reminded the dementia-addled wretch has the nuclear codes. Nor will I enjoy knowing Trump may use the podium of the people’s house not to communicate the progress made in governance but to campaign for his re-election.

What are the odds he has the moxie to ask another nation-state for help in his re-election right under our noses tonight?

~ 0 ~

This is an open thread. Begin kvetching below.

~ | ~ | ~

UPDATE-1 — 05-FEB-2020 12:45 P.M. —

Yeah, yeah, yeah…Jesus Christ, Jonathan Turley, let it go.

Since last night Turley’s posted ten tweets and an op-ed in The Hill bitching about the Speaker of the House not behaving like a compliant little Handmaid. He makes me wonder if he doesn’t have enough work and he’s bucking for a new paying gig.

By all means ignore the pussygrabber-in-chief’s multitude of disgusting behaviors, wretched political acts, and his slide into dementia, focusing instead on an effective female leader who doesn’t lick your reality TV narcissist’s toes.

Speaking of paying gigs, it occurred to me well after Turley appeared in December as an expert witness in front of the House Intelligence Committee that we don’t know if HIC asked Turley if he was a fact witness.

In his written statement Turley never mentions he wrote an article for The Hill, Could Robert Mueller actually be investigating Ukrainian collusion?

Nor did he mention the same piece was published the very same day in Kyivpost.

Also not mentioned is that this piece ran on February 21, 2019 — the date is roughly one week after Rudy Giuliani met with then-prosecutor general Yuriy Lutsenko in Warsaw, Poland, and almost one month to the day before John Solomon conducted a character-assassinating interview with Lutsenko for Hill.TV.

Turley’s piece furthers the idea that Ukraine was involved in collusion rather than Russia.

… But what is remarkable is how all investigative roads seem to lead to Kiev, not Moscow, in terms of key figures. It raises the question of whether Russian hacking efforts in the American election in 2016 were little more than what they seem as a clumsy leak and trolling operation. …

How did Turley end up fitting so neatly into the timeline?

UPDATE-2 — 05-FEB-2020 1:00 P.M. —

Though I linked to it in my previous update, I should probably share this here more overtly. This is very troubling; this man has the nuclear football within reach.


Today GOP Senators will likely acquit this person who can barely get through a speech and certainly not without lying repeatedly.

As mentioned before, this is an open thread. I’ll put up another post shortly dedicated to the vote today in the Senate.

Pat Cipollone Believes the Golden Rule Is for Chumps

The question and answer phrase of the Senate trial is far more interesting than the presentation of the cases. Both parties are obviously feeding their own side questions to rebut the other, or posing questions they think will make the other stumble (Chief Justice John Roberts has reportedly censored only one kind of question: any question that probes for the whistleblower’s name).

Later last night, the questioning became interesting for the whip count. There were a couple of questions posed by large numbers of Senators on record supporting Trump, including vulnerable swing state Senators like Martha McSally, Thom Tillis, and Cory Gardner, and it was interesting to see who else jumped on questions that obviously served only to suck up to Trump.

Over the course of several questions, there was a discussion on whether Roberts could rule on the appropriateness of witnesses or Executive Privilege. Pat Philbin argued that he could not, on EP (contrary to the rules), in response to which Schiff came back and said he could. Schiff argued that the Democrats would accept Roberts’ views without challenge. Jay Sekulow piped in to say Republicans would not. I keep thinking about how Roberts will be ruling on some of these issues on other appeals, and I think Schiff is playing to him on some questions as much as to the Senate.

Questions being asked by leaners (people like Lisa Murkowski and Susan Collins, who have asked a number together, though it seems like Mitt Romney went from leaning to supporting questions) are of particular interest. At one point, Collins asked why the House didn’t include bribery in its articles. Hakeem Jeffries gave an answer that Collins visibly responded to by saying, “he didn’t answer my question,” but Schiff came in shortly after and did answer it, pointing out that all the elements of bribery are included in the abuse of power article. Collins also asked the President’s lawyers what Trump had done on corruption in Ukraine prior to last year, which Philbin didn’t answer and then, when the question was re-asked by Democrats, said he couldn’t answer because it’s not in the record (though he has relied on non-public information elsewhere).

Then there are the alarming answers. Alan Dershowitz was asked, after he argued that if the President thought something that benefitted him personally was good for the country, whether that extended to nuking democratic states because he believed his reelection was good for the country and he agreed in theory.

Pat Philbin answered a question about whether it was okay to accept dirt to win an election. He said it was.

I was most interested, however, in a response Sekulow gave to a question offered by Marco Rubio and others, people who presumably were just feeding softballs to strengthen the President’s argument. They referenced a claimed principle espoused by Dersh and Sekulow, wherein you should always imagine how it would feel if the other party were impeaching a president of your party on the same fact set, which was originally a way to excuse Dersh’s flip-flop on abuse of power and impeachment. Rubio and others asked where the limiting factors on this would be — basically an invitation to repeat what Trump’s lawyers have said in the past, that you shouldn’t impeach within a year of an election or some such thing. Except Sekulow would not offer general principles. Instead of referencing the election — the right answer to the softball question — he focused on the claimed uniqueness of this impeachment (which is bullshit in any case). In other words, given an opportunity to answer a question about principles that would adhere beyond this impeachment, Sekulow answered that his Golden Rule only applies ot this impeachment.

The Press Gets Utterly Snookered on the White House Rebranding of the Same Old Unrelenting Obstruction of Congressional Prerogatives

Yesterday, the White House sent a letter to Nancy Pelosi and just some of the Committee Chairs conducting parts of an impeachment inquiry into the President, purporting to refuse to participate in that impeachment inquiry. Since then, there has been a lot of shocked coverage about how intemperate the letter is, with particular focus on the fact that White House Counsel, Pat Cipollone, used to be considered a serious lawyer. There has been some attempt to analyze the letter as if it is a legal document and not instead the President’s rants packaged up in Times Roman and signed by one of his employees. A number of outlets have thrown entire reporting teams to do insipid horse race coverage of the letter, as if this is one giant game, maybe with nifty commercials on during halftime.

None I’ve seen have described the letter as what it is: an attempt to rebrand the same old outright obstruction that the White House has pursued since January.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry. In the hearing, DOJ literally argued that the Supreme Court’s 8-0 US v. Nixon was wrongly decided.

Howell picked up on that point by pressing DOJ to say whether then-U.S. District Court Chief Judge John Sirica was wrong in 1974 to let Congress access a detailed “road map” of the Watergate grand jury materials as it considered President Richard Nixon’s impeachment.

Shapiro argued that if the same Watergate road map arose today, there’d be a “different result” because the law has changed since 1974. She said the judge wouldn’t be able to do the same thing absent changes to the grand jury rules and statutes.

Howell sounded skeptical. “Wow. OK,” she replied.

DOJ also argued that Congress would have to pass a law to enshrine the principle that this binding Supreme Court precedent already made the law of the land.

In the HJC branch of the impeachment inquiry, the few credible claims made in yesterday’s letter — such as that Congress is conducting the inquiry in secret without the ability to cross-examine witnesses or have Executive Branch lawyers present — are proven utterly false. And with the claims made in yesterday’s hearing, the Executive demonstrated that they will obstruct even measured requests and negotiations for testimony.

The Trump White House obstructed normal Congressional oversight by absolutely refusing to cooperate.

The Trump White House obstructed an impeachment inquiry focused on requests and voluntary participation.

The Trump White House obstructed an impeachment inquiry where subpoenas were filed.

The Trump White House obstructed an impeachment inquiry relying on whistleblowers who aren’t parties to the White House omertà.

The Trump White House obstructed what numerous judges have made clear are reasonable requests from a co-equal branch of government.

Nothing in the White House’s conduct changed yesterday. Not a single thing. And any journalist who treats this as a new development should trade in her notebooks or maybe move to covering football where such reporting is appropriate.

It is, however, a rebranding of the same old unrelenting obstruction, an effort to relaunch the same policy of unremitting obstruction under an even more intransigent and extreme marketing pitch.

And that — the need to rebrand the same old obstruction — might be worthy topic of news coverage. Why the White House feels the need to scream louder and pound the table more aggressively is a subject for reporting. But to cover it, you’d go to people like Mitt Romney and Susan Collins, who already seem to be preparing to explain votes against the President. You even go to people like Lindsey Graham, who is doing ridiculous things to sustain Rudy Giuliani’s hoaxes in the Senate Judiciary Committee — but who has condemned the principle of making the country dramatically less safe for whimsical personal benefit in Syria. Or you go to Richard Burr, who quietly released a report making it clear Russia took affirmative efforts to elect Trump in 2016.

This week, Trump looked at the first few Republicans getting weak in the knees and his response was to double down on the same old policies, while rolling out a campaign trying to persuade those weak-kneed members of Congress who are contemplating the import of our Constitution not to do so.

The President’s former lawyer testified earlier this year, under oath, that this has always been a branding opportunity to Donald Trump.

Donald Trump is a man who ran for office to make his brand great, not to make our country great. He had no desire or intention to lead this nation – only to market himself and to build his wealth and power. Mr. Trump would often say, this campaign was going to be the “greatest infomercial in political history.”

His latest attempt to cajole Republican loyalty is no different. It’s just a rebranding of the same intransigence. Treating it as anything but a rebranding is organized forgetting of what has taken place for the last nine months, and journalists should know better.

Kavanaugh Confirmation Standards of Nonsense

Okay, in case you have not already guessed, Marcy is away, mostly, for a couple of days. Even a prolific presence like her is entitled to that. So, you get me for today. Sorry!

Now, because I have been a little involved in trying to figure what is the “real standard of proof” for people in the shoes of, say, Susan Collins and Jeff Flake, I have been a tad predisposed this morning. But let us for now go back to Blasey Ford, Kavanaugh, Collins, Flake, Grassley and the “standard of proof”.

An executive branch nomination is NOT a criminal trial. Any talk about “presumed innocent” and “beyond a reasonable doubt” is asinine and duplicitous. There is no set standard for a nomination consideration, much less one for the Supreme Court. Senators, especially those on the screening Senate Judiciary Committee, get to make their own individual assessments. In a perverse kind of way, it is like impeachment’s “high crimes and misdemeanors”, it is easy for people to argue, but the net result is that it is whatever strikes Congress as being applicable.

Frankly, I think the argument over what Susan Collins’ standard was is kind of silly and diversionary. Collins stated on the record:

“This is not a criminal trial, and I do not believe that claims such as these need to be proved beyond a reasonable doubt. Nevertheless, fairness would dictate that the claims at least should meet a threshold of more likely than not as our standard.”

This is bullshit. As David Graham, again, pointed out:

Citing the lack of corroboration of Ford’s account as well as lacunas in Ford’s own recollection, Collins said she did not believe the “more likely than not” standard had been met.

Although she did not use the phrase, the standard that Collins offers appears to be the same as “the preponderance of the evidence,” which is the burden of proof required in civil trials—as opposed to the beyond-a-reasonable-doubt standard in criminal cases. This is also the standard that many colleges now use in evaluating sexual-violence claims under Title IX. Obama-era guidance required schools to use a preponderance-of-evidence standard, though the Trump Education Department has granted schools greater leeway, instructing that “findings of fact and conclusions should be reached by applying either a preponderance of the evidence standard or a clear and convincing evidence standard.”

So, what is the relevant standard? As propounded earlier, there is no set one in these circumstances. It certainly is not “beyond a reasonable doubt” as is in criminal trials. Anybody using that language, including most of the geriatric white geezers in the SJC, is lying.

“Clear and convincing evidence”? Nope, there is no precedent for that either. Preponderance of the evidence/more likely than not? Again, there is scant authority to establish that as a relevant standard. Bottom line is Susan Collins manufactured her own “standard” and then cynically applied it, all without any legitimate basis. And, maybe, that is the kind of intellectual malleability these SJC determinations engender, but, if so, people like Collins, and the journalists that cover her charade, should acknowledge it.

So, what is the real “standard”? Again, there is none I can find. But if the course and scope of “background investigations” conducted by the FBI at the behalf of an Article II Executive Branch request is any indication, it is far different than being duplicitously portrayed by both the White House and Senate Judiciary Republicans.

Here is a specialist in clearance and background investigation issues, Brad Moss:

Um, not totally true. It happens for high level national security operatives working for the NSC and related White House components. Those individuals have to hold TS/SCI access and often times can be subject to invasive polygraph screenings.

Actual vetting, not that Kushner BS.

Here is another, Kel McClanahan, of National Security Counselors:

The White House can’t order @FBI to just rummage through a random person’s life. They can definitely AUTHORIZE FBI to rummage through a person’s life who has agreed to be subjected to a background investigation.

If this is true, it was McGahn & not Trump who was playing games…

Yes. Exactly. And, as a Senator who was one of the maybe 115 American citizens able to actually read the “FBI Investigation” work product, for Susan Collins and Jeff Flake to blithely sign off on the limited, restricted and choked off nonsense, is beyond craven. It is straight up duplicitous. And the New York Times article is kind compared to the chicanery that was clearly afoot from Don McGahn, a close friend and Federalist Society gang member for decades with Brett Kavanaugh.

In short, it is NOT about the relative “standard of proof” used by Susan Collins. She used “more likely than not” standard (effectively a preponderance of evidence standard). When she said that was the standard, she was lying. It never has been, and never will be. That was manufactured bullshit.

People have also argued that the standard should have been “reasonable accusation” or “credible accusation”. And those are even lesser than than the preponderance/more likely than not” standard Collins artificially, self servingly and cynically utilized.

Is clearance on a Background Investigation warranted? Does anybody, including the high holy Brett Kavanaugh, have any god given right to have a clean BI and be elevated to the Supreme Court? Of course not (See Title 32 of the CFR), that is gibberish propounded by old white conservative and misogynistic demagogues, like Grassley, Hatch, Cornyn and Graham in the Senate Judiciary Committee. And it is pure rubbish.

And, so too is the manufactured “standard” Susan Collins magically announced in her drama queen dog and pony show yesterday that seemed to narcissistically go on forever.

The bottom line is that whether under Collins’ manufactured and elevated standard, or even lesser ones such as reasonable or credible allegations, Brett Kavanaugh was not fit for passage and subsequent confirmation.

As Mark J. Stern detailed in Slate, Susan Collins’ manifesto announced with all the drama of a royal wedding, was in incredible bad faith. Her “standard” was nonsense and nowhere close to any applicable standard. It was a joke.

But, even more so, under ANY standard Susan Collins could have cited, her “finding” thereunder was garbage. Even in criminal sex cases, not just occasionally, but often, finders of fact (usually juries), decisions come down to weighing the relative credibility of an accuser versus the accused. And, given the relentless series of outright lies Brett Kavanaugh stated under oath, there is no way that a sentient human could see his testimony as more credible than the measured, and admitting as to gaps, honesty of Dr. Christine Blasey Ford. And, again, credibility of witnesses is what criminal trials, much less less than even civil litigation burdens, as here, are decided by every day.

This is because there are usually zero other witnesses to such kidnapping, molestation and attempted rape cases as Dr. Christine Blasey Ford credibly alleged, but also because time and reticence of victims is often a factor. And, yet, cases are filed and determinations made on just such “he said/she said” allegations every day. The implication by Susan Collins, Chuck Grassley, the other wrinkled old entitled white men like Hatch in the SJC, not to mention their cynically hired criminal prosecutor, Rachel Mitchell, are complete baloney.

Somebody go ask Rachel Mitchell, and the sad old men that hired her before they fired her, how many times she has operated off of an accuser’s words. The answer will be a lie, because it happens all the time. And, yeah, that is enough to generate a full and meaningful “background investigation” despite the bullshit being proffered by the White House, Don McGahn and the SJC.

Eleven (or Thirteen) Senators Are Cool with Using Section 702 to Spy on Americans

The Senate Intelligence Committee report on its version of Section 702 “reform” is out. It makes it clear that my concerns raised here and here are merited.

In this post, I’ll examine what the report — particularly taken in conjunction with the Wyden-Paul reform — reveals about the use of Section 702 for domestic spying.

The first clue is Senator Wyden’s effort to prohibit collection of domestic communications — the issue about which he and Director of National Intelligence Dan Coats have been fighting about since June.

By a vote of four ayes to eleven noes, the Committee rejected an amendment by Senator Wyden that would have prohibited acquisition under Section 702 of communications known to be entirely domestic under authority to target certain persons outside of the United States. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—aye; Senator Wyden—aye; Senator Heinrich— aye; Senator King—no; Senator Manchin—no; and Senator Harris—aye.

It tells us that the government collects entirely domestic communications, a practice that Wyden tried to prohibit in his own bill, which added this language to Section 702.

(F) may not acquire communications known to be entirely domestic;

This would effectively close the 2014 exception, which permitted the NSA to continue to collect on a facility even after it had identified that Americans also used it. As I have explained is used to collect Tor (and probably VPN) traffic to obtain foreigners’ data. I suspect that detail is what Wyden had in mind when, in his comments in the report, he said the report itself “omit[s] key information about the scope of authorities granted the government” (though there are likely other things this report hides).

I have concerns about this report. By omitting key information about the scope of authorities granted the government, the Committee is itself contributing to the continuing corrosive problem of secret law

As the bill report lays out, Senators Burr, Risch, Rubio, Collins, Blunt, Lankford, Cotton, Cornyn, Warner, King, and Manchin are all cool using a foreign surveillance program to spy on their constituents, especially given that Burr has hidden precisely the impact of that spying in this report.

Any bets on whether they might have voted differently if we all got to know what kind of spying on us this bill authorized.

That, of course, is only eleven senators who are cool with treating their constituents (or at least those using location obscuring techniques) like foreigners.

But I’m throwing Feinstein and Harris in with that group, because they voted against a Wyden amendment that would have limited how the government could use 702 collected data in investigations.

By a vote of two ayes to thirteen noes, the Committee rejected an amendment by Senator Wyden that would have imposed further restrictions on use of Section 702-derived information in investigations and legal proceedings. The votes in person or by proxy were as follows: Chairman Burr—no; Senator Risch—no; Senator Rubio—no; Senator Collins—no; Senator Blunt—no; Senator Lankford—no; Senator Cotton—no; Senator Cornyn—no; Vice Chairman Warner—no; Senator Feinstein—no; Senator Wyden— aye; Senator Heinrich—aye; Senator King—no; Senator Manchin— no; and Senator Harris—no.

While we don’t have the language of this amendment, I assume it does what this language in Wyden’s bill does, which is to limit the use of Section 702 data for purposes laid out in the known certificates (foreign government including nation-state hacking, counterproliferation, and counterterrorism — though this language makes me wonder if there’s a Critical Infrastructure certificate or whether it only depends on the permission to do so in the FBI minimization procedures, and the force protection language reminds me of the concerns raised by a recent HRW FOIA permitting the use of 12333 language to do so).

(B) in a proceeding or investigation in which the information is directly related to and necessary to address a specific threat of—

(i) terrorism (as defined in clauses (i) through (iii) of section 2332(g)(5)(B) of title 18, United States Code);

(ii) espionage (as used in chapter 37 of title 18, United States Code);

(iii) proliferation or use of a weapon of mass destruction (as defined in section 2332a(c) of title 18, United States Code);

(iv) a cybersecurity threat from a foreign country;

(v) incapacitation or destruction of critical infrastructure (as defined in section 1016(e) of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (42 U.S.C. 5195c(e))); or

(vi) a threat to the armed forces of the United States or an ally of the United States or to other personnel of the United States Government or a government of an ally of the United States.

Compare this list with the one included in the bill, which codifies the use of 702 data for issues that,

“Affects, involves, or is related to” the national security of the United States (which will include proceedings used to flip informants on top of whatever terrorism, proliferation, or espionage and hacking crimes that would more directly fall under national security) or involves,

  • Death
  • Kidnapping
  • Serious bodily injury
  • Specified offense against a minor
  • Incapacitation or destruction of critical infrastructure (critical infrastructure can include even campgrounds!)
  • Cybersecurity, including violations of CFAA
  • Transnational crime, including transnational narcotics trafficking
  • Human trafficking (which, especially dissociated from transnational crime, is often used as a ploy to prosecute prostitution; the government also includes assisting undocumented migration to be human trafficking)

[snip]

Importantly, the bill does not permit judicial review on whether the determination that something “affects, involves, or is related to” national security. Meaning Attorney General Jeff Sessions could decide tomorrow that it can collect the Tor traffic of BLM or BDS activists, and no judge can rule that’s an inappropriate use of a foreign intelligence program.

The bill report’s description of this section makes it clear that — in spite of its use of the word “restriction,” — this is really about providing affirmative “permission.”

Section 6 provides restrictions on the Federal Bureau of Investigation’s (FBI’s) use of Section 702-derived information, so that the FBI can use the information as evidence only in court proceedings [my emphasis]

That is, Wyden would restrict the use of 702 data to purposes the FISC has affirmatively approved, rather than the list of 702 purposes expanded to include the most problematic uses of Tor: all hacking, dark markets, and child porn.

So while Feinstein and Harris voted against the use of 702 to collect known domestic communications, they’re still okay using domestic Tor commuincations they say they don’t want to let NSA collect to prosecute Americans (which is actually not surprising given their past actions on sex workers).

Again, they’re counting on the fact that the bill report is written such that their constituents won’t know that this is going on. Unless they read me.

Look, I get the need to collect on Tor traffic to go after its worst uses. But if you’re going to do that, stop pretending this is a foreign surveillance bill, and instead either call it a secret court bill (one that effectively evades warrant requirements for all Tor wiretapping in this country), or admit you’re doing that collection and put review of it back into criminal courts where it belongs.

Three Things: In the Debris Field After Health Care ‘Freedom’ Act

I still don’t have enough caffeine in my system and it’s nearly noon here. An entire pot of java may do the trick. As I rouse and read the hot takes after the failure of H.R. 1628 last night, a few thoughts stick with me.

~ 3 ~

All the think pieces — most written by white men lauding John McCain’s maverick move by departing from the party line — are evidence ‘the show’ worked.
McCain called it that when asked before the vote last night which way he was going. “Watch the show,” he said.

Meanwhile, the two women senators who have been firm all along they couldn’t vote for a bill causing damage to their constituents receive far fewer plaudits from the same mostly-white-male pundit class. Murkowski had been threatened by the Interior Secretary at Trump’s request. I haven’t heard for certain, but I’ll bet Collins received threats as well, probably from Trump-supporting constituents.

McCain won’t get those kinds of threats. He made his point last night about the power he wields within GOP Senate caucus as the final A/B switch on legislation. But the GOP Senate already knew this.

What McCain did was give the GOP a face-saving way to vote for a piece of shit they didn’t want to pass, without the repercussions Collins and Murkowski (and at varying times, Heller and Capito) have faced for rejecting a POS bill.

This is why they waited until the last goddamned minute to draft a meager eight-pages, slapping in some egregious stuff to ensure Collins and Murkowski couldn’t vote, adding the 20% annual premium increase as a coup de grace.

Because McCain would do the maverick kabuki for them, slap on his mask and robes, make big gestures and kill the bill for them.

And it worked not only because all the white male pundit class got suckered by their usual privileged blindness, but the white male Tweeter-in-Chief bought it, hook, line, sinker. He blamed all the Democrats and three GOP senators. All the other senators are off the hook.

Bonus: McCain’s legacy is salvaged with the patriarchal punditry.

Great ‘show’, maverick.

~ 2 ~

Scaramucci is nothing more than a highly-animated automaton on a stage; nothing he says is real. Why? Because the real communications are being run out of house by Steve Bannon, and likely in violation of federal law.

What is it and to whom is Bannon really communicating for the White House?
This operation may be in violation of the Antideficiency Act, but is it also in violation of the Presidential Records Act? What about any other regulations regarding FOIA?

Don’t believe me about Scaramucci’s role? Take a look at your news feed and point to any announcement about his firing or resignation. You know damned well had a communications director acted like he has under any other previous administration he’d have been walked out the White House’s fence.

p.s. Some say Scaramucci’s lowering discourse. Come the fuck on. He talks the way all of Wall Street’s white males do. The misogynist crack about Sarah Huckabee Sanders’ appearance? Par for the course.

~ 1 ~

Recommended lunch hour read for you: a book review by Andrew Bacevich in London Review of Books on The General v. the President: MacArthur and Truman at the Brink of Nuclear War by H.W. Brands. Bacevich’s background here.

Putting this book on my shopping list after this review, given how much power Trump has given and is likely to give to the military, breaking with civilian control.

~ 0 ~

That’s it for now. I’m stewing on something else but it’ll be dedicated and not an open thread like this one. Hasta pasta.

Democrats Should Propose Susan Collins Serve as Acting Chair for Russian Hack Investigation

As I’ve been saying, the Intelligence Committees are the sensible place for any investigation into the Russian hack, but the current investigation is hampered because both Chairs — Devin Nunes in the House and Richard Burr in the Senate — have conflicts that prevent them from being independent.

The WaPo has an absolutely masterful article exposing their conflicts.

Better still, it shows that Benghazi truther Mike Pompeo has already abused his position as CIA Director in the pursuit of politics.

The part that has gotten the most notice is WaPo’s report that — after Reince Priebus failed to get FBI to issue a rebuttal to this NYT article — which claims “Phone records and intercepted calls show that members of Donald J. Trump’s 2016 presidential campaign and other Trump associates had repeated contacts with senior Russian intelligence officials in the year before the election” — he then arranged calls with the press and Nunes and Burr, so they could rebut the claims. As the WaPo reports, the calls were not persuasive enough to get WaPo to report on them.

The officials broadly dismissed Trump associates’ contacts with Russia as infrequent and inconsequential. But the officials would not answer substantive questions about the issue, and their comments were not published by The Post and do not appear to have been reported elsewhere.

Nunes’ comments actually were picked up by WSJ (which has discouraged reporters from doing hard reporting on this issue). Burr’s were not. Here’s how Burr — who normally leaks far less than other Gang of Four members, and who was a national security advisor for Trump during the campaign — defended his comments.

Burr acknowledged that he “had conversations about” Russia-related news reports with the White House and engaged with news organizations to dispute articles by the New York Times and CNN that alleged “repeated” or “constant” contact between Trump campaign members and Russian intelligence operatives.

“I’ve had those conversations,” Burr said, adding that he regarded the contacts as appropriate provided that “I felt I had something to share that didn’t breach my responsibilities to the committee in an ongoing investigation.”

More delectably, the WaPo obliquely reveals that an intelligence official was involved in the calls, and then makes it very clear that Pompeo was the guy. As WaPo points out, this not only makes Pompeo a raging hypocrite, given the way he politicized Benghazi, but it also suggests Pompeo inquired into the FBI’s counterintelligence investigation for the purpose of leaking details of it to the press.

CIA Director Mike Pompeo is the senior-most intelligence official in the administration, with former senator Dan Coats (R-Ind.) still awaiting confirmation as director of national intelligence.

As a Republican member of Congress, Pompeo was among the most fiercely partisan figures in the House investigation of Benghazi, which centered on accusations that the Obama administration had twisted intelligence about the attacks for political purposes.

It is not unusual for CIA leaders to have contact with news organizations, particularly about global issues such as terrorism or to contest news accounts of CIA operations. But involving the agency on alleged Trump campaign ties to Russia could be problematic.

The CIA is not in charge of the investigation. Given the history of domestic espionage abuses in the United States, CIA officials are typically averse to being drawn into matters that involve U.S. citizens or might make the agency vulnerable to charges that it is politicizing intelligence.

This is actually fairly breathtaking. It’s one thing to inquire into a past event, because the inquiry can’t change it. But this is an ongoing counterintelligence investigation! Russians are dying left and right, and at least one of them looks like he was a likely source for the Trump dossier. Two Russians have already been charged with treason and a Ukranian may well be as well. There are reasons you keep counterintelligence investigations secret.

But the CIA Director is more interested in helping Trump out politically.

It turns out that Senate Intelligence Vice Chair Mark Warner, who thus far has defended Burr’s role in this investigation, is not all that happy about this. Here’s what he had to say in response to WaPo’s disclosures.

Mark Warner, the ranking Democrat on the Senate Intelligence Committee, said he called CIA Director Mike Pompeo and Burr to express his “grave concerns about what this means for the independence” of the investigation.

“I am consulting with members of the Intelligence Committee to determine an appropriate course of action so we can ensure that the American people get the thorough, impartial investigation that they deserve, free from White House interference,” Warner said in a statement Friday night.

So here’s my suggestion: tell Mitch McConnell and Richard Burr that Susan Collins should serve as acting Chair for this investigation, and if they don’t agree the Democrats will demand an independent inquiry.

Collins is a perfect choice even beyond her comments from the other day, which among other things entertained the possibility of subpoenaing Trump’s tax returns. She has voted against Trump more than any other Senator (which is not much, but still). As Chair of Homeland Security, she conducted a number of credible investigations, working closely with Joe Lieberman.

So she surely could credibly lead this report.

To be clear: I’m suggesting this as a negotiating strategy. This hasn’t been done before and I suspect it wouldn’t be done here. But it is clear that Collins is independent and qualified to lead this investigation. The alternatives all involve more potential exposure for Trump.

Democrats should propose this — so McConnell and Burr can shoot it down, making it clear that Republicans want people who’ve already compromised their independence to lead this investigation.

Update: Here’s Collins’ comment on the new disclosures.

The Senate Intelligence Committee has the expertise, the cleared staff, and the bipartisan determination to follow the evidence wherever it leads in this investigation into malicious Russian activities. For the public to have confidence in our findings, it is important that the Committee work in a completely bipartisan fashion and that we avoid any actions that might be perceived as compromising the integrity of our work. It is also important that the Committee ultimately issue a public report on our findings.

Susan Collins Implies She Could Be a Swing Vote in SSCI’s Investigation of the Russian Hack

The other day, I explained why we should remain skeptical of the congressional investigations into the Russian hack. Most importantly, I questioned Richard Burr’s seriousness. The investigation should be done by the House and/or Senate Intelligence Committee, and both Chairs of those committees have had Trump appointments in the last year.

That said, this Maine Public Radio interview with Susan Collins may provide reason for hope (see after 10 minutes and 39 minutes).

In it, she reiterated promises — made in the agreement on the inquiry — that the committee would do open hearings and release a public report.

I will encourage that there’ll be some public hearings as well as the closed hearings that we’re doing now and that we issue a report.

She also noted that she and others intend to call Mike Flynn to testify (though she didn’t say whether the interview would be open or not). Note, National Security Advisors cannot be subpoenaed (which is one basis why Devin Nunes said they couldn’t call Flynn).

I am going to request, many members are, that we call Steve Flynn–Mike Flynn, the former National Security Advisor to testify before us.

In addition, after 30 minutes, in response to a caller insisting that the inquiry be public, Collins noted that Republicans have just a one vote majority on the committee (though she didn’t point out that she could be the swing voter).

She was asked if she would subpoena Trump’s tax returns, and on that she said it would depend on Burr and Mark Warner. We shall see whether Warner has the chops to force that issue.

On both torture and drone memos, Collins has been willing to serve as a swing voter on SSCI before. If she does so here, it could make a difference.