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The Minh Quang Pham Precedent to the Julian Assange Extradition

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WikiLeaks supporters say that extradition of Julian Assange to the United States threatens journalism. That is true.

They also say that his extradition would be unprecedented. I believe that’s true too, with respect to the Espionage Act.

But it’s not entirely without precedent. I believe the case of Minh Quang Pham, who was extradited to the US in 2015 for activities related to AQAP — the most substantive of which involve providing his graphic design expertise for two releases of AQAP’s magazine, Inspire — provides a precedent that might crystalize some of the legal issues at play.

The Minh Quang Pham case

Minh Quang Pham was born in 1983 in Vietnam. He and his parents emigrated to the UK in 1989 and got asylum. In 1995, he got UK citizenship. He partied a lot, at a young age, until his conversion to Islam in 2004, after which he was drawn to further Islamic study and ultimately to Anwar al-Awlaki’s propaganda. Pham was married in 2010 but then, at the end of that year, traveled to Yemen. After some delays, he connected with AQAP and swore bayat in early 2011. While he claimed not to engage in serious training, testimony from high level AQAP/al-Shabaab operative Ahmed Warsame, who — after a two month interrogation by non-law enforcement personnel on a ship — got witness protection for himself and his family in exchange for cooperation, described seeing Pham holding a gun, forming one basis for his firearms and terrorist training charges (though the government also relied on a photo taken with Pham’s own camera).

On my arrival, Amin had a Kalashnikov with him and a pouch of ammunition. I am not certain if he had purchased the gun himself but he did say he had been trained by Abu Anais TAIS on how to use it, I can say from my knowledge of firearms that this weapon was capable of automatic and single fire.

Warsame’s role as informant not only raised questions about the proportionality of US treatment (he was a leader of al-Shabaab, and yet may get witness protection), but also whether his 2-month floating interrogation met European human rights standards for interrogation.

Pham reportedly sucked at anything military, and by all descriptions, the bulk of what Pham did in Yemen involved helping Samir Khan produce Inspire. After some time and a falling out with Khan — and after telling Anwar al-Awlaki he would accept a mission to bomb Heathrow — he returned to the UK. He was interrogated in Bahrain and at the airport on return, and again on arrival back home, then lived in London for six months before his arrest. At first, then-Home Secretary Theresa May tried to strip him of his UK citizenship in a secret proceeding so he could be deported (and possibly drone killed like other UK immigrants), but since — as a refugee — he no longer had Vietnamese citizenship, her first attempt failed.

The moment it became clear the British effort to strip him of citizenship would fail, the US indicted Pham in SDNY on Material Support (covering the graphic design work), training with a foreign terrorist organization, and carrying a firearm. Even before he ultimately did get stripped of his citizenship, he was flown to the US, in February 2015. The FBI questioned him, with no lawyer, during four days of interviews that were not recorded (in spite of a recently instituted FBI requirement that all custodial interviews be recorded). On day four, he admitted that Anwar al-Awlaki had ordered him to conduct an attack on Heathrow (which made the 302), but claimed he had made it clear he only did so as an excuse to be able to leave and return to the UK (a claim that didn’t make the 302; here’s Pham’s own statement which claims he didn’t want to carry out an attack). While Pham willingly pled guilty to the training and arms charges, at sentencing, the government and defense disputed whether Pham really planned to conduct a terrorist attack in the UK, or whether he had — as he claimed — renounced AQAP and resumed normal life with his wife. He failed to convince the judge and got a 40 year sentence.

The question of whether Pham really did plan to attack Heathrow may all be aired publicly given that — after Pham tried to get a recent SCOTUS case on weapon possession enhancements applied to his case — the government has stated that it wants to try Pham on the original charges along with one for the terrorist attack they claim Pham planned based on subsequently collected evidence.

The parallels between the Assange and Pham cases

Let me be clear: I’m not saying that Assange is a terrorist (though if the US government tries him, they will write at length describing about the damage he did, and it’ll amount to more than Pham did). I’m arguing, however, that the US has already gotten extradition of someone who, at the time of his extradition, claimed to have injured the US primarily through his media skills (and claimed to have subsequently recanted his commitment to AQAP).

Consider the similarities:

  • Both legal accusations involve suspect informants (Ahmad Warsame in Pham’s case, and Siggi and Sabu in Assange’s)
  • Both Pham and Assange were charged for speech — publishing Inspire and publishing the names of US and Coalition informants — that is more explicitly prohibited in the UK than the US
  • Both got charged with a substantive crime — terrorism training and possession of a gun in the case of Pham, and hacking in the case of Assange — in addition to speech-based crimes, charges that would (and did, in Pham’s case) greatly enhance any sentence on the speech-related charges
  • Pham got sentenced and Assange faces a sentence and imprisonment in SuperMax in the US that is far more draconian than a sentence for the same crimes would be in the UK, which is probably a big part of the shared Anglo-American interest in extraditing them from the UK
  • Whatever you think about the irregularity and undue secrecy of the Assange extradition, Pham’s extradition was far worse, particularly considering the way Theresa May was treating his UK citizenship

Unlike the Pham charges — all premised on Pham’s willing ties to a Foreign Terrorist Organization, AQAP — the US government has not included allegations that it believes Julian Assange conspired with Russia, though prosecutors involved in his case trying unsuccessfully to coerce Jeremy Hammond’s testimony reportedly told Hammond they believe him to be a Russian spy, and multiple other reports describe that the government changed its understanding of WikiLeaks as it investigated the 2016 election interference (and, probably, the Vault 7 release). Even if it’s true and even if they plan to air the basis for their belief, that’s a claimed intelligence tie, not a terrorism one.

This distinction is important. Holder v. Humanitarian Law clearly criminalizes First Amendment protected activity if done in service of a designated Foreign Terrorist Organization, so Pham’s graphic design by itself made him fair game for charges under US precedent.

The government may be moving to make a similar exception for foreign intelligence assets. As the Congressional Research Service notes, if the government believes Assange to be a Foreign Agent of Russia, it may mean the Attorney General (Jeff Sessions for the original charge, and Bill Barr for all the indictments) deemed guidelines prohibiting the arrest of members of the media not to apply.

The news media policy also provides that it does not apply when there are reasonable grounds to believe that a person is a foreign power, agent of a foreign power, or is aiding, abetting, or conspiring in illegal activities with a foreign power or its agent. The U.S. Intelligence Community’s assessment that Russian state-controlled actors coordinated with Wikileaks in 2016 may have implicated this exclusion and other portions of the news media policy, although that conduct occurred years after the events for which Assange was indicted. The fact that Ecuador conferred diplomatic status on Assange, and that this diplomatic status was in place at the time DOJ filed its criminal complaint, may also have been relevant. Finally, even if the Attorney General concluded that the news media policy applied to Assange, the Attorney General may have decided that intervening events since the end of the Obama Administration shifted the balance of interests to favor prosecution. Whether the Attorney General or DOJ will publicly describe the impact of the news media policy is unclear.

There’s a filing from the prosecutor in the case, Gordon Kromberg, that seems to address the First Amendment in more aggressive terms than Mike Pompeo’s previous statement on the topic.But it may rely, as the terrorism precedent does, on a national security exception (one even more dangerous given the absence of any State Department FTO list, but that hardly makes a difference for a foreigner like Pham).

Ultimately, though, the Assange extradition, like the Pham prosecution, is an instance where the UK is willing to let the US serve as its willing life imprisoner to take immigrants to the UK off its hands. Assange’s extradition builds off past practice, and Pham’s case is a directly relevant precedent.

The human rights case for Julian Assange comes at an awkward time

While human rights lawyers fought hard, at times under a strict gag, on Pham’s immigration case, Assange’s extradition has focused more public attention to UK’s willingness to serve up people to America’s draconian judicial system.

Last Thursday, Paul Arnell wrote a thoughtful piece about the challenge Assange will face to beat this extradition request, concluding that Assange’s extradition might (or might have, in different times) demonstrate that UK extradition law has traded subverted cooperation to a defendant’s protection too far.

We need to reappraise the balance between the conflicting functions of UK extradition law.

Among the UK’s most powerful weapons are its adherence to the rule of law, democracy and human rights. Assange’s extradition arguably challenges those fundamental principles. His case could well add to the evidence that the co-operative versus protective pendulum has swung too far.

He describes how legal challenges probably won’t work, but an appeal to human rights might.

British extradition law presumptively favours rendition. Extradition treaties are concluded to address transnational criminality. They provide that transfer will occur unless certain requirements are met. The co-operative purpose of extradition more often than not trumps the protection of the requested person.

The protective purpose of extradition is served by grounds that bar a request if they are satisfied. Those particularly applicable in Assange’s case are double criminality, human rights and oppression.

There are several offenses within the Official Secrets Acts 1911/1989 and the Computer Misuse Act 1990 that seemingly correspond to those in the US request. However, human rights arguments offer Assange hope.

Three are relevant: to be free from inhuman and degrading punishment, fair trial rights and freedom of expression. Previous decisions have held that life-terms in supermaximum-security prisons do not contravene the “punishment” provision, while the right to freedom of expression as a bar to extradition is untested.

Assange’s best prospect is possibly the oppression bar. Under it, a request can be refused on grounds of mental or physical health and the passage of time. To be satisfied, however, grievous ill health or an extraordinary delay are required.

It’s a good point, and maybe should have been raised after some of the terrorism extraditions, like Pham’s. But it may be outdated.

As I noted, Arnell’s column, titled, “Assange’s extradition would undermine the rule of law,” came out on Thursday. Throughout the same week that he made those very thoughtful points, of course, the UK publicly disavowed the rule of law generally and international law specifically in Boris Johnson’s latest effort to find a way to implement Brexit with no limits on how the UK deals with Northern Ireland.

The highlight – something so extraordinary and constitutionally spectacular that its implications are still sinking in – was a cabinet minister telling the House of Commons that the government of the United Kingdom was deliberately intending to break the law.

This was not a slip of the tongue.

Nor was it a rattle of a sabre, some insincere appeal to some political or media constituency.

No: law-breaking was now a considered government policy.

[snip]

[T]he government published a Bill which explicitly provides for a power for ministers to make regulations that would breach international and domestic law.

[snip]

Draft legislation also does not appear from nowhere, and a published Bill is itself the result of a detailed and lengthy internal process, before it is ever presented to Parliament.

This proposal has been a long time in the making.

We all only got to know about it this week.

[snip]

No other country will take the United Kingdom seriously in any international agreements again.

No other country will care if the United Kingdom ever avers that international laws are breached.

One of the new disclosures in a bunch of Roger Stone warrants released earlier this year is that, in one of the first Dms between the persona Guccifer 2.0, the WikiLeaks Twitter account explained, “we’ve been busy celebrating Brexit.” That same Brexit makes any bid for a human rights argument agains extradition outdated.

Even after Learning the FBI Was Investigating, Trump Berated Flynn for Not Being Obsequious Enough to Putin

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The Independent has a story that is being taken as news: That Trump berated then National Security Advisor Mike Flynn in from of Theresa May for not telling him that Vladimir Putin had called.

Theresa May’s former Chief of Staff, Nick Timothy, described Trump shouting in the middle of a formal luncheon.

Mr Timothy spoke about a “fairly extraordinary” lunch during which Mr Trump shouted at his then-national security advisor Michael Flynn.

“Somebody just mentioned in passing that Vladimir Putin had asked for a call with him, and right in front us he absolutely shouted down Mike Flynn,” he said.

“Like really shouted. This was at a formal dinner with butlers and fancy crockery – and he was properly shouting at him down the table.”

Mr Timothy said the president yelled: “If Putin wants a call with me you just put him through.”

It’s not actually a new story. Trump told a version of the story himself in real time, to Jim Comey, at the same dinner where he asked for loyalty from the FBI Director. According to Jim Comey’s memo memorializing the January 27 dinner, Trump raised the incident in an attempt to convince Comey that he, Trump, believed Flynn had poor judgment.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

But the differences in the story — with Timothy emphasizing that Trump was pissed for not putting Trump on the phone with Putin immediately, as compared to Trump’s claim that he was pissed because Flynn scheduled the return call six whole days later — are notable (if subtle), particularly when read in context.

We’ve known for some time that Sergey Kislyak first started tying to schedule a call between Trump and Putin during his December 29, 2016 call with Flynn, when Flynn asked Russia to keep any retaliation against US sanctions measured; the meeting itself was even mentioned in the original David Ignatius column that revealed the call. But we now have some of the transcripts of those calls. Those transcripts show how Kislyak pitched the meeting — and the January 21 date — even before Flynn raised the sanctions (Kislyak was also pushing for public US participation in a Turkish-Russian “peace” initiative on Syria to be held the first week of the Administration, something else included in KT McFarland’s cover story for the call).

KISLYAK: I mean heads up, we wanted you to know this. And the third final uh, point, General, is uh, I am entrust to convey through you to Seer- uh to President Elect, proposal from the Kremlin. Maybe to organize a conversation over the secure video line that starting on the twentieth would be available to Mr. Trump. And it’s there, certainly, uh – uh, between the White House and the Kremlin. And our proposal is to have the conversation on the twenty.first between our Presidents. And the idea of Mr. Putin is first of all to congratulate uh, your President Elect or the President, at the time, and maybe to discuss small number~ briefly, of issues that are on our agenda. So his proposal is on the twenty-first of January.

FLYNN: Okay. Ummm

[Timestamp: 05:20]

KISLYAK: Is by security video. Secure video line.

Then, on December 31, after Kislyak told Flynn that Putin had considered Flynn’s request not to escalate before deciding not to even respond, Flynn offered up that “the boss is aware” of the request for a January 21 secure call. Flynn acknowledged Kislyak was trying to schedule it for the day after the inauguration, but did not commit to that date.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that

KISL YAK: I will

FLYNN: And we can set that up Fairly quickly and well have at I don’t want to go through, I don’t want to go through a big, uh, uh, gyration of, you know, what is on the agenda. I think the agenda just needs to be a couple of simple things uh, and let the two talk about, let the two communicate if, if we end up having it on the 21st, if not

KISL YAK:

Absolutely, FLYNN: the 21st, then what we, we, uh, may end up, you know, sometime very close after just because other, other scheduled events, if that makes sense. Okay. [my emphasis]

Then, the day before inauguration, Kislyak left a message reiterating Russia’s request to speak “after the inauguration,” and reminding Flynn of their conversation — a conversation that had been revealed by David Ignatius, leading Flynn to start lying publicly about the request he had made on it.

KISLYAK: Good morning, General. This [sic] Sergey Kislyak, Russian ambassador. I, uh, apologize that I disturb you but I wanted to check whether you have, um, uh, answer to the idea of our two presidents speaking, uh, re-… uh, after the inauguration. You remember our conversation and we certainly would appreciate any indication as to when it is going to be possible. Uh, I would appreciate your calling back and telling me where we are. Thank you so much. All the best.

And then, according to the public story, Putin called to congratulate Trump on January 21, the call for January 28 got scheduled at some point, and on January 27, Trump had a public meltdown about how all that had gone down. In both versions of the story, Trump was pissed that Flynn hadn’t been responsive enough to Putin. In Trump’s version, however, he claimed to be unaware Putin wanted to call on January 21; Mike Flynn told Kislyak he knew of that all along (and the public record shows that Trump knew that Putin placed the call no later than a presser immediately before the lunch in question).

What happened the day before is instructive. On January 26, 2017, the day before Trump had an embarrassing meltdown because his National Security Advisor wasn’t prioritizing a call with Vladimir Putin that Trump first learned about — in the context of secret requests of Russia — weeks earlier, Trump learned that the FBI not only knew of the calls with Kislyak, but knew the substance of his calls with the Russian Ambassador. Trump learned that the FBI found those calls — in one of which Flynn affirmed that Trump knew of the call request — problematic.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

When telling the FBI Director about Flynn’s failures to set up a call with Putin on January 21 that Putin’s Ambassador had asked for in the very same call where Trump’s National Security Advisor had made an ask that undermined Obama’s punishment of Russia for tampering in American democracy, Trump described it (in the same conversation where he asked Comey for loyalty) as poor judgment.

It’s unclear why Trump did that, in a dinner meeting fairly obviously designed to undermine FBI scrutiny of why Flynn did what he did.

But if Trump believed that Flynn exercised poor judgment, it would mean he judged that Flynn should have made good on the request that Kislyak made in the same call where Trump , via Flynn, made a request. It would have meant, in context, that Trump believed Flynn should have showed more subservience to Putin.

Trump Claimed To Be Angry Flynn Didn’t Make Good on Putin’s January 21 Requested Phone Call

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As I noted, newly unsealed parts of Mike Flynn’s January 24, 2017 302 make it clear that he explained away his calls with Sergey Kislyak on December 29, 2016, in part, by claiming that Kislyak asked Flynn to set up a videoconference between Trump and Putin on January 21, 2017, the day after Trump would be inaugurated.

During the call, KISLYAK asked FLYNN to set-up a VTC between President-elect TRUMP and Russian President PUTIN on January 21st.

[snip]

The interviewing agents asked FLYNN if he recalled any []ation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about the PUTIN/TRUMP VTC…

That’s damning enough: Putin wanted to capitalize on his investment right away.

But it’s still more damning given a detail from the Comey memos. During the January 27, 2017 dinner that Trump invited Comey to that same day to demand loyalty, Trump suggested he believed Flynn was unreliable. The basis for that unreliability is that Flynn didn’t tell Trump that Putin — and not Theresa May — was the first foreign leader to give him a congratulatory call after the inauguration.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

This was, remember, the day that Don McGahn and Sally Yates had their second conversation about the FBI investigation into Flynn for lying about his December 29, 2016 conversation with Kislyak. I’ve had mixed opinions about this passage, originally thinking it was an attempt to distance himself from Flynn, but later noting that it fit the (largely chronologically undated) observations by Trump aides that Trump really was fed up by Flynn by the time he was forced to resign.

Here’s the thing, though. At least according to the White House record of Trump’s toast to May, the claim is a lie. That’s because Trump never claimed that May was the first to call Trump after his inauguration. Rather, he applauded her because she was the first to visit Trump after inauguration.

Thank you very much. I am honored to have Prime Minister Theresa May here for our first official visit from a foreign leader. This is our first visit, so — great honor.

It is true that May called Trump sometime on January 21.

It’s also true that in the first question after their comments on January 27, Trump was asked about the phone call with Putin the following day (and he feigned uncertainty whether it would happen).

STEVE HOLLAND, REUTERS: Thank you. You’re going to be speaking tomorrow with the Russian president. What message would you like to convey to him? How close are you to lifting some of the sanctions imposed on Russia over its Ukraine incursion? What would you expect in return?

And Prime Minister May, do you foresee any changes in British attitudes towards sanctions on Russia?

TRUMP: Well, I hear a call was set up, Steve, and we’ll see what happens. As far as the sanctions, very early to be talking about that. But we look to have a great relationship with all countries, ideally. That won’t necessarily happen, unfortunately probably won’t happen with many countries.

But if we can have, as we do with Prime Minister May and the relationship that we’ve all developed and even in the short relationship that we just developed just by being with each other and have lunch and — we’ve really had some very interesting talks and very productive talks. But if we can have a great relationship with Russia and with China and with all countries, I’m all for that. That would be a tremendous asset.

If nothing else, it means Trump knew of the call before lunch, which was scheduled after the press conference, so could not have been surprised to learn of call timing by then.

But now consider the comment after considering that Trump had at least one conversation with Don McGahn about the substance of Flynn’s lies before this meeting, and — given McGahn’s request to have the underlying materials — may have asked to know specifically what Flynn said.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” I 55

[snip]

The next day, January 27, 2017, McGahn and Eisenberg discussed the results of Eisenberg’s initial legal research into Flynn’s conduct, and specifically whether Flynn may have violated the Espionage Act, the Logan Act, or 18 U.S.C. § 1001. 160 Based on his preliminary research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18 U.S.C. § 1001 and the Logan Act. 16 1 Eisenberg noted that the United States had never successfully prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge under the circumstances. 162

That same morning, McGahn asked Yates to return to the White House to discuss Flynn again. I63 In that second meeting, McGahn expressed doubts that the Department of Justice would bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take action that would interfere with an ongoing FBI investigation of Flynn. 164 Yates responded that Department ofJustice had notified the White House so that it could take action in response to the infonnation provided.165 McGahn ended the meeting by asking Yates for access to the underlying information the Department of Justice possessed pertaining to Flynn’s discussions with Kislyak. 166

In other words, by the time Trump claimed to the FBI Director that he didn’t know Putin called him on January 21, he already knew that the FBI had interviewed Flynn about a conversation where (he claimed) Kislyak had asked to set up a call on January 21, and he may have had more specificity about whether or not the request for a January 21 call came up.

We can’t tell, given the kind of liars we’re dealing with, what is true. These are some of the possibilities:

  • Kislyak never asked for a January 21 meeting but Flynn used the actual call on January 21 as an excuse
  • In response to Kislyak’s request, Flynn did set up the meeting, but Trump was trying to claim he didn’t listen in that day
  • Kislyak asked for a January 21 meeting and Putin did call, but Flynn somehow intercepted the call and kept it a secret from the President

Whichever it is, the centrality of setting up a January 21 call with Putin — as opposed to the January 28 call we already knew about — really raises the import of Trump’s claimed reason to be pissed at Flynn in a meeting where he was already thinking about how to end an investigation into his ties with Russia.

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. 

Open Thread: Russia, Russia, Russia! and Everything Else

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This is an open thread launched while current events still unfold. It may offer an overview for folks still acquainting themselves with the news about Rex Tillerson, Russia, and the UK.

By now you likely know Trump fired Secretary of State Rex Tillerson by tweet. Like Sally Yates on the travel ban and James Comey about his firing, Tillerson was blindsided; he found out he was terminated from a Trump tweet. Take note of Marcy’s post on Tillerson’s replacement, Mike Pompeo, and his sketchy replacement, deputy CIA director Gina Haspel.

Trump may have fired Tillerson because of this response to the poisoning in the UK of former Russian spy Sergei Skripal and his daughter this past week.

Notice the response attributes the poisoning to Russia but makes no mention of the U.S. role as a NATO member and any response required by that membership. The response doesn’t even name Skripal.

Tillerson’s statement followed UK Prime Minister Theresa May’s demand before Parliament yesterday that Russia explain the poisoning of Skripal, setting a two-day deadline.

The poison used is believed to be an extremely powerful nerve agent Novichok developed by the former USSR.

Russia’s point persons, Sergei Lavrov as Russia’s foreign minister, and Maria Zakharova, his spokesperson, as well as Russian parliament member Andrei Lugovoi have pushed back on May’s attribution and demands while demanding samples of the nerve agent found in Skripal’s poisoning.

NATO’s Article 5 obligates member nations to defend other NATO members in the attack on any NATO member:

Article 5

The Parties agree that an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and consequently they agree that, if such an armed attack occurs, each of them, in exercise of the right of individual or collective self-defence recognised by Article 51 of the Charter of the United Nations, will assist the Party or Parties so attacked by taking forthwith, individually and in concert with the other Parties, such action as it deems necessary, including the use of armed force, to restore and maintain the security of the North Atlantic area.

Any such armed attack and all measures taken as a result thereof shall immediately be reported to the Security Council. Such measures shall be terminated when the Security Council has taken the measures necessary to restore and maintain international peace and security.

On May 25 last year at a visit NATO’s new headquarters during Trump’s first trip to Europe, Trump avoided continuing U.S. commitment to Article 5. It wasn’t until five weeks later during a speech in Poland that Trump reaffirmed Article 5, saying,

… To those who would criticize our tough stance, I would point out that the United States has demonstrated — not merely with its words but with its actions — that we stand firmly behind Article 5, the mutual defense commitment …

Many articles speculate Tillerson’s firing is the culmination of more than a year of tensions between Tillerson and Trump, including at least one episode during which Tillerson is said to have called Trump a moron (a “fucking moron” according to some). However the immediacy of the termination suggests Trump wanted to remove Tillerson before he could support Theresa May once the two-day deadline has passed.

It’s worth noting that Trump has yet to enforce sanctions on Russia established by bipartisan legislation on a nearly unanimous basis.

It’s also worth noting the GOP majority of the House Permanent Subcommittee on Intelligence abruptly terminated its investigation of Trump-Russia only yesterday afternoon, without providing any notice to the Democratic minority members.

Do read Marcy’s post about Pompeo; bring anything non-Russia comments here to this thread.

Day 33: Happy Some Saint’s Day

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I know, it’s St. Patrick’s Day, not just any saint but the patron saint of Ireland. It’s certainly not St. Trump’s Day, that’s for sure.

Trump’s budget proposal is the furthest thing from saintly — cutting federal funding to the Community Development Block Grant (CDBG) is just one disgusting example. CDBG provides grants to the Meals on Wheels (MoW) program, which feeds the home-ridden elderly and disabled as well as kids in after-school programs. Office of Management and Budget Director Mick Mulvaney says MoW is “not showing any results.” No more fishes and loaves for you, sickly/old/poor people, if Congress goes along with this nonsense. I guess your desiccated, malnourished corpses are the kind of results this administration wants to see.

According to St. Patrick’s ‘Confessio‘ — an autobiography-cum-confession — he overcame kidnapping from Scotland, enslavement by the Irish, and eventually converted Irish to Catholicism. In contrast, Trump was born with a silver spoon and treated his fellow man (and some family) like crap throughout his lifetime. Definitely not saintly. And definitely not up to converting those who aren’t already his hardcore faithful adherents.

Stuff of the Irish:

Irish PM Enda Kenny visits Trump and asks for leniency for illegal Irish aliens — Let’s be frank about this issue: Trump’s probably fine with them (meaning Bannon is fine with them, too) because these aliens are probably white and Christian. Got to give it to PM Kenny, though, for this nice bit of snark:

“They say the Irish have the capacity to change everything…I just saw the president of the United States read from his script, entirely.”

Wonder if Trump was ballsy enough to go for an other conflict of interest and complain about the sea wall he wants for his Doobeg golf course resort.

British Brexit secretary David Davis says border checks between North Ireland and Ireland possible post-Brexit — He did qualify them as “light” customs checks, saying,

“There are already customs checks between Northern Ireland and the Republic of Ireland because there are excise differences, but they are done in a very light way. … There would be customs checks, [but] that does not mean we demur from our position of wanting to have a very light border, no hard border.”

But wait…what do the Irish think of this?

Sinn Féin MEP tells Theresa May Brexit border checks in Ireland can go ‘where the sun don’t shine’ — And there it is. I didn’t even paraphrase that hed, that’s exactly what The Irish Post wrote. Here’s exactly what MEP Martina Anderson said:

“Theresa, your notion of a border, hard and soft, stick it where the sun doesn’t shine ‘cos you’re not putting it in Ireland.”

Ouch. No mincing words there.

Women won largest number of seats ever in North Ireland’s assembly election — Sinn Féin leads in gender parity as women represent 41% of its Member of the Legislative Assembly. Between the surge of women in NI’s National Assembly and the increased weighting of representation by Sinn Féin in both NI and Ireland’s National Parliament, the reaction toward the UK and Brexit will be quite different from expectations nine months ago.

Banks may be moving to Dublin from London because of Brexit — This report says Ireland is surprised; I don’t know why, given the amount of business conducted in English language in Dublin as compared to any other location like Paris, Brussels, or Frankfurt. Ireland has been a tax haven and a center for both insurance and technology for a couple decades, too. Perhaps Ireland ought to be more lenient toward educated illegal aliens from the U.S. if it’s looking to staff up its financial sector quickly.

Op-ed: ‘Another day, another Brexit lie exposed’ — Theresa May has only increased Irish sympathies for Scotland with her rejection of a second independence referendum, as if all the other Brexit fail wasn’t enough. Could this animus be enough to unite Ireland, but against Britain and its “Tory public schoolboys”?

That’s a wrap on this work week and Day 33 in our countdown to Tax Day. Don’t drink green beer. Just don’t.

Day 34: Frankly, We Have a Lot Right Now

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Still shaking my head over Trump’s interview with Tucker Carlson. While asked about evidence supporting Trump’s claim that President Obama wiretapped him, Trump said, “Frankly, we have a lot right now.”

Bring it, buddy. And with less bullshit because frankly, we have a lot right now.

While you’re at it, bring your tax returns as evidence you’re not violating the Emoluments Clause or in bed with Russia.

Reminder: you’ve got 34 days until we expect to see a 2016 income tax return.

Non-Tax Return Stuff:

UK’s PM Theresa May denies Indy Ref 2.0 before Brexit — When you need a break from American leadership stupidity, just take a look at May. Here’s an unforced error of hubris and hypocrisy; telling the Scots they can’t have a vote to leave the UK after the UK had a vote to leave the EU is just asking for the Scots to hold a referendum on their own. Nicola Sturgeon has already rebutted, calling May’s block “undemocratic.”

Fed Chair Yellen said, “The data have not notably strengthened” after rate hike — Between increases in energy and health costs not offset by decreases in food and apparel costs, the consumer price index rose 2.7% over the last 12 months. Private sector compensation only rose 2.2% over the same period. Consumer spending has been lackluster and businesses are not investing. The post-crash boom is petering out and nothing this administration or Congress is doing will help. A billionaire can only buy so many condos and yachts to keep the economy afloat, and workers can’t buy much on their chicken feed minimum wage at part-time jobs while they have to budget for increasing health care expenses. (I should point out here that the CPI detailed report won’t be produced after June 2017 thanks to Trump’s diktats. How convenient.)

Trump tells Michigan auto workers he’s fighting for their jobs — Sure he is. This guy is fricking clueless about manufacturing (ex: Carrier in Indiana) including the automotive industry. Detroit’s cheese is being eaten by entirely new entrants who don’t worry about emissions standards and whose mileage concerns are of an entirely different nature. After decades of Detroit’s inadequate R&D sunk into battery-powered vehicles combined with vacillating leadership on the future of fossil-fueled combustion engines, Michigan’s auto industry is now battling for market share with companies like Tesla, while Tesla is already seeing new competition emerge like Lucid Motors. Tesla and Lucid are both located in the U.S. Meanwhile, Trump’s budget plans revealed today are a shiv in Michigan’s back; why live and work here if the lakes aren’t clean, schools are underfunded, mass transit is suppressed?

Dispatcher punished in Tamir Rice case — What a bunch of crap. The officer who had the ultimate final and mortal power in Tamir Rice’s case — shooting Rice in seconds after arrival at the playground — should have been criminally prosecuted. Meanwhile, a dispatcher who never saw the victim or the scene of the shooting was suspended.

I feel awful now, after reading so much about Trump and writing about that last piece. Treat this like an open thread though I can’t look in again until I do something positive to get the Trumpish off me.

Wednesday: This One Day

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In this roundup: British fascists rise, smart fridge serves porn, and a Zika overview.

Today’s featured short film by Crystal Moselle is about finding one’s tribe, finding one’s place, crossing the threshold to adulthood in the safety of community. Men may not feel this one as keenly as women will. Many of us are skating alone, running into obstacles set before us simply because we are. With a little support we could skate the world.

Love how Bikini Kill’s Rebel Girl plays us out at the end. That.

Brexit and broken

  • Ian Dunt: Tories have become Ukip (Politics.co.uk) — Op-ed looks at UK’s Conservative Party and its aggressive shift toward white nationalism.
  • No joke: UK’s Home Secretary sounds like a Nazi (LBC) — Seriously, read the link. Can’t tell Amber Rudd’s speech from Hitler’s Mein Kampf.
  • The Daily Mail as Tories’ key influencer (OpenDemocracy) — Anthony Barnett looks at the Mail’s succession to Murdoch’s right-wing propaganda mill. The Mail was one of the two largest traditional media influences on right-wing politicians and Brexit voters (the other being NewsCorp’s The Sun); an American parallel would be the shift in media influence on public opinion as Fox News gave way to a more rightest, Trump-friendly CNN. We don’t trust CNN any more than we do Fox, and the UK shouldn’t trust the Mail any more than it should trust The Sun.
  • Theresa May’s Tory Conference speech: fascism wearing a progressive mask (VICE) — May isn’t well known by either UK or US public; her speech this week to her own party gave us a better look at the politician, and she’s not at all pretty. May uses progressive language to make her case, but what she’s really pushing is outright fascism.
  • Unwinding a country rich in diversity (OpenDemocracy) — University of Birmingham lecturer and Oxford University research associate Nando Sigona looks at the United Kingdom as an EU citizen. How does a small but densely populated country — land mass the size of Michigan with a population equal to California and Texas combined — move away from the diversity which has made it rich for millennia? Imagine one of those U.S. states (MI/CA/TX) suddenly telling anyone not ‘native’ to that state to leave; what would it do to that state, let alone the people who must leave? It’s not tenable.
  • 80th anniversary of East London’s Battle of Cable Street (Guardian) — The British have apparently forgotten their history and are now condemned to repeat it. Who is this generation’s Oswald Mosely: Boris Johnson, Nigel Farage, Michael Gove, Theresa May? With attacks on immigrants increasing, the new blackshirts already make their presence known; they only lack a Mosely.

Still skeptical about Tories’ aggression? Just look at this tweet from Tim Colburne, former deputy chief of staff for LibDem Party’s Nick Clegg. This is not the work of a party working for business interests. We are watching a new Nazism rapidly engulfing the United Kingdom. I doubt it will remain united much longer at this pace.

Keep in mind some of the foreign workers and children the Tories (and Ukip) want identified are U.S. citizens.

Elsewhat, elsewhere

Cybernia, ho!

  • Ireland not happy about the Yahoo email scandal (ITNews-AU) — Ireland wants to know if Yahoo’s scanning emails on behalf of U.S. government compromises Irish citizens’ privacy. Germany’s Fabio de Masi, a member of the European Parliament, has also asked for more details. Yahoo’s scanning could put the brakes on a US-EU data sharing agreement.
  • Alleged terror plotter charged, had operating system in cufflink (Guardian) — Located in Cardiff, Wales, the accused also possessed a book on missile guidance and control; he was responsible for a blog with information about Isis and cyber-security guidance.
  • Smart refrigerator – now with Pornhub (The Register) — Didn’t manufacturers clue in about so-called smart refrigerators a couple years ago after they were hacked? Clearly not if it’s still possible to hijack displays on Internet of Things devices for porn.

Longread: Overview on Zika
This is a decent meta piece in Omni magazine. Article also points out simple preventive interventions to reduce Zika infections: air conditioning and window screens. Also suggests implementing these in Africa where other arbovirus diseases are endemic, like yellow fever, dengue, chikunguya as well as Zika — except AC will create a greater demand for electricity as well as manufacturing pressure for screens. Also doesn’t really deal with the fact more people are outside during daylight hours in warmer climates, and those who work outdoors (like farmers) have no choice. More comprehensive research on arboviruses is needed and work toward vaccines is probably cheaper, faster, and less taxing to the environment than scaling up electricity and manufacturing. Worth a read if flawed.

Phew. That’s enough for today. Thankfully it’s downhill from here. Catch you later!

Tuesday: Open to Debate

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This is an open thread for use during and after this evening’s vice presidential debate. Duke it out here, though comment policy is still in effect.

thetimesuk_foreignworkers_04oct2016The one thing which really got under my collar today: UK’s Prime Minister Theresa May and Home Secretary Amber Rudd, and a demand to shame companies employing foreign workers by insisting these workers must be listed.

This is beyond the pale, just short of asking for badges denoting religion. I hope the financial industry takes a stick to these fascists.

“But, but the foreigners! Taking (white’s) jobs!” one may say. Right — all those financial industry jobs in London for which the UK does not seem to be educating and training enough people.  Healthcare jobs likewise, while the NHS is under pressure to cut services and reduce spending.

The answer to the lack of job opportunities for the under-educated and under-trained isn’t limiting immigrants. It’s more investment in education and training to increase the pipeline to higher paying jobs, combined with a higher minimum wage to encourage movement to jobs requiring lower skills.

Okay, have at it.

Monday: American Mouth

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In this roundup: Volkswagen vacillations, disappointments a la Colombia, UK, Hungary (and don’t forget Poland!), anthropocene extinction, and maybe a straggling bit at the end to get this Monday on the road. Read more →

Friday: Teh Stoopid, Still Burns [UPDATE-2]

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Teh stoopid. So much, a bumper crop today. Put on your hip waders while we listen to a little ska-jazz from The Specials. [Go to bottom of post for update.]

LAST DAY OF THE MONTH
Don’t stand in front of the exit doors today at the House of Representatives. You’ve been warned.

Toobz filled with stoopid

Hélas, Nice
I’ve not forgotten Nice. I can’t go there. Picking my way through French language news to read in detail about the deaths of children and teenagers is a hard limit for me. With children’s blood on its hands from wars to drone killings, the U.S. has no moral authority here. It has doubled down on its authoritarian, racist, kill-its-way-out-of-trouble approach to foreign policy. What can I write here which isn’t utter hypocrisy?

The only observations I can make are that the attackers may be ramping up, as the numbers and methodology testify. 84 dead including 10 children and teens, 52 injured and 25 on life support, all hurt or killed by a driver who was not a known terror suspect. A civilian stopped the attacker by grabbing his hands as he aimed a gun at human targets. Que Dieu soit miséricordieux sur Nice.

Smarter, kinder finish
And now to purge the taste of stupid before I start my weekend…

That’s a wrap, have a safe and restful weekend, including all you peeps at #NN16. Back at it on Monday.

UPDATE — 2:50 p.m. EDT —

The previously-classified pages of the 9/11 report have been released, conveniently during the afternoon on a Friday smack in the middle of the summer during a general election year. Can you say ‘news dump’? Here’s a link to the document at the House Permanent Select Committee on Intelligence’s site (pdf). Knock yourselves out with this beach read. Note the bit about the alleged Saudi intelligence officers, too.

UPDATE — 5:15 p.m. EDT —

An apparent coup is underway in Turkey; it began with reports of militarized road blocks about two hours ago. Social media platforms have had spotty service though landlines appear to be working. The Erdogan government initially denied a coup was in progress; media outlets in Turkey may not be accurately reporting events. Many European news outlets are still focused on Nice, France. Airports have been closed and a curfew declared. U.S. Embassy has asked U.S. citizens to shelter in place and stay indoors.

For more information about events in Turkey, here’s a selection of active Twitter feeds:
https://twitter.com/YourAnonNews
https://twitter.com/efekerem
https://twitter.com/zeynep
https://twitter.com/WashingtonPoint
https://twitter.com/Boutaina

Recent report at Aid works about Turkey’s treatment of refugees at this link.

If you have friends and family in Turkey, recommend they use Tor browser to follow news — this link in case Tor is blocked. See also this tweet from Tor about accessing social media.