Team Trump had Russian contacts after the election as well. Some of these were probably technical violations of the Logan Act, which forbids private citizens from interfering with US foreign policy. But no one has ever been prosecuted under the Logan Act, and a soon-to-be-inaugurated team is not, after all, the same as just any private citizen.
Trump officials may take it as further vindication that there were no official channels of communication established during the campaign, and that after Trump won the Russians scrambled to establish communications, official or unofficial.
There appears to have been extensive outreach on the Russian side by wide range of unofficial intermediaries, making an attempt to reset relations, but not much actual success. The details are too dull and confusing to follow.
More significant are outreach attempts by Michael Flynn. Flynn tried, unsuccessfully, to get Russia to block a UN resolution condemning settlement building by Israel. More significantly, Flynn successfully persuaded the Russians not to retaliate for Obama's sanctions against Russia for election interference. It was Flynn's lying about these conversations that led to his ultimate guilty pleas.
Decisions on prosecution or not
No US person was found to be involved in the Troll Farm, other than Richard Pinedo, who participated in setting up fake accounts, though not knowing that any Russians were involved.
As for the hacks and releases, most of the section is blacked out as affecting an ongoing matter. However, there is one footnote saying that Special Counsel's Office decided that sharing and dissemination of the hacked e-mails does not meet the legal standard of trafficking in stolen property. That is presumably why Roger Stone's outreach to and attempts to influence Wikileaks are not being charged as crimes. (Things blacked out as affecting an ongoing investigation usually refer to Roger Stone).
Special Counsel did not find anything that could be charged as conspiracy with the Russians. This is the section of the Report that William Barr quoted at most length.
Special Counsel did charge Manafort and Gates with being unregistered foreign agents (lobbyists) for pre-campaign activities. A lot of their activities during the campaign sound mighty suspicious, not apparently not enough for the Special Counsel. The Report also comments that Michael Flynn was an unregistered Turkish agent, but that is outside the scope of their investigation. The Report says there is not sufficient evidence that Papadopoulos, Manafort or Page acted as foreign agents during the campaign, with a section blacked out for reasons of personal privacy. Color me skeptical. The Report notes that the FISA court found probably cause that Page might be a foreign agent, but that the standard for probable cause is lower, not only because it does not require beyond reasonable doubt, but because criminal prosecution is limited to admissible evidence and a FISA warrant is not.
The report also explores whether accepting information about Hillary from a foreign government violates campaign finance laws against foreign interference, particularly in the context of the Trump Tower meeting. The ban on foreign interference is not limited to money donations but includes any "thing of value." So is an offer to provide "official documents and information" a "think of value"? Special Counsel apparently did not find a direct precedent. "Things of value" definitely include membership lists and mailing lists, and apparently include campaign literature. Opposition research, however, has never been addressed, so the Special Counsel's Office declined to push the envelope and prosecute. Also, the campaign finance violation must be done "knowingly and willfully." Ignorance of the law is not normally a defense, even for crimes that must be done "knowingly and willfully." Special Counsel cites at least some precedent that it is a defense in this case. (I would have to do independent research to decide whether I agree). Assuming ignorance of the law to be a defense, it could readily be available to Junior and Jared. The Report acknowledges that Manafort was an experienced campaign operator, but they can't actually prove that he knew his conduct was illegal. (NOTE: Difficulty proving that someone knew the law is the main reason that ignorance of the law is not normally considered a defense). Finally, the "thing of value" must be worth over $2,000 to be a misdemeanor and over $25,000 to be a felony. How do you put a price on the promised (but not delivered) information?
The report then addresses how this standard applies to another matter, blacked out as affecting an ongoing matter. Presumably that refers to Roger Stone's attempts to coordinate with Wikileaks which is, after all, run by an Australian. Unless it is also included in the blacked-out section, the Report does not appear to address the unsuccessful attempts to obtain Hillary Clinton's deleted e-mails.
The Report did find that members of the campaign committed crimes either in lying to investigators, lying to a grand jury, or otherwise interfering with the investigation.
George Papadopoulos lied about the timing of his contacts with Professor Mifsud and Russian nationals (he claimed they were before he joined the campaign), about the extent of those contacts, and the importance of the people he spoke to.
Michael Flynn lied about the nature of his communications with the Russian Ambassador.
Michael Cohen lied about a project to build a Trump Tower in Moscow, both saying that the project ended in January, 2016 (when the campaign got seriously going), and about the extent of Trump's involvement.
Jeff Sessions did not answer accurately about speaking to Russian Ambassador Sergei Kislyak. However Special Counsel found that those communications were little more than routine exchanges of pleasantries, so that Sessions might have forgotten, or not understood the question to mean such routine exchanges.
Two sections are blacked out, one as involving an ongoing matter (presumably Roger Stone) and one as involving grand jury testimony (probably Paul Manafort).
All I can say at this point is that so much lying looks suspicious. It may have been done simply to avoid embarrassment. But it makes the parties, especially Papadopoulos and Manafort, look guilty as sin.
Total report on possible conspiracy: 199 pages. Next comes the section on obstruction of justice that Trump has found most embarrassing.
Saturday, April 27, 2019
The Mueller Report and Russian Contacts
And now to the real core of the Mueller Report, contacts between Team Trump and Team Russia, both before and after the election, (pages 66-173). Unlike the shocking account Team Trump's quest for Hillary Clinton's e-mails, the Mueller Report does not reveal any previously unknown contacts, although it does give new details about already-known contacts.
The contacts are frequent enough to look very bad for Team Trump. And, it must be added, these are not cases of everybody does it. It is normal for a presidential campaign to have meetings with foreign representatives to discuss plans for future policy. It is not normal for contacts with a hostile power to be of anywhere near the volume as the Trump Campaign had.
Nonetheless the Special Counsel did not find a criminal conspiracy. Neither did it affirmatively find that all contacts were innocent. One might divide the various contacts into different categories -- affirmatively determined to be innocent, innocent on the Trump side but not the Russian side, and offer to conspire by Russians that was affirmatively rejected, scandalous but not criminal, undetermined, or suspicious but not enough to bring criminal charges. There may be other categories as well.
Let us have a look.
Trump Tower Moscow:
The Trump Organization apparently sought to build a Trump Tower in Moscow as early as 2013, although the attempt never went anywhere. The was well before Trump declared he was running and is significant mostly in that Donald Junior represented the Trump Organization and his Russian counterparts were Aras Agalarov, the oligarch who purportedly first offered dirt for the Trump Tower meeting, and his son Emin, the pop singer whose agent set up the meeting. Ike Kaveladze, also present at the Trump Tower meeting was also involved. Clearly Junior was enticed into that meeting by the role of people he knew and had worked with.
A second attempt began in September, 2015 (about the time Trump first announced his candidacy), this time with Michael Cohen and Felix Sater doing the negotiating. The project appears to have been purely a matter of Trump licensing his name to the project in return for a share of the gross income, but not doing any actual construction or incurring any significant risk.
When they reached agreement on November 30, 2015, Sater sent Cohen an e-mail saying that he would "engineer" Trump's election as President, "get all of Putins (sic) team to buy in on this," and "manage this process." Whether this was an offer of illicit assistance or simply the bizarre claim that Putin's endorsement would swing the election to Trump (!) is not clear. Cohen said that no one on the Trump side ever addressed how Trump Tower Moscow would affect the election, although Trump did expect his run for President would be great advertising (probably further evidence he did not expect to win). Team Trump believed that the approval of the Russian government, going all the way up to Putin, would be required for so large a project and sought it. According to Cohen's possibly self-serving account, he took care to keep the commercial and political aspects separate. The Russians apparently sought a visit by Trump, but no such visit ever occurred. At least some of the persons involved were under sanctions, and/or wanted to discuss a "Ukrainian peace plan" that would favor Russia.
On the whole, though, these seem to have been business rather than political contacts. Cohen got in trouble, not for any of these contacts, but for lying about them under oath. Trump, too, lied during the campaign in denying that he had any Russian business ties.
With any other candidate, I would be confident that his Russian business ties did not inform his pro-Russian policy. With Trump, you have to wonder. Still, pursuing a pro-Russian policy while having strong business ties to Russia is not a crime, nor is lying to the American people about it. It is (as Rand Paul or some other Republican commented) an excellent reason not to vote for Trump. Conclusion: This was scandalous but not criminal. Probably not grounds for impeachment, but more than grounds for a primary challenge.
George Papadopoulos:
This is one of the less innocent contacts. Special Counsel's prior indictment of Papadopoulos revealed the general outline of what happened; the Mueller Report fills in a few details, most of which we need not follow. Papadopoulos got a job as foreign policy adviser to the Trump Campaign in March, 2016 after he left the Ben Carson campaign which was obviously failing and the Trump Campaign was desperate for a warm body with any foreign policy knowledge whatever. Papadopoulos went to London to seek contacts as some sort of foreign policy center there, and met up with Joseph Mifsud, a Maltese professor with numerous Russian contacts, most of them blacked out, but apparently including members of both the Troll Farm and Russian Military Intelligence. Mifsud showed no interest in Papadopoulos until he found out Papadopoulos was part of the Trump campaign, at which point he tried to get Papadopoulos to set up a meeting with the Trump Campaign and Russia. The Trump Campaign rejected the overtures. When Papadopoulos suggested a meeting in person at a March 31, 2016 meeting, Trump apparently expressed interest.
Regardless, no such meeting ever took place. We do not know what the Russians intended to do at the meeting, probably seek a favorable settlement in Ukraine and the lifting of sanctions. None of this is inherently sinister. Attempting to set up a meeting between the Trump Campaign and the Russian government is not a crime after all, and the Trump Campaign consistently rebuffed the offer.
What is more disturbing is what happened on April 26, 2016. This occurred after Papadopoulos had returned to London and Mifsud had visited Moscow and then went back to London. They met in person and Mifsud told Papadopoulos that he had learned while in Moscow that the Russians had "dirt" on Hillary Clinton in the form of "thousands of emails." Nothing in the report suggests that Mifsud told Papadopoulos about the hacks. Papadopoulos may have thought the e-mails were the 33,000 deleted e-mails. Or he may have thought they were e-mails openly exchanged with the Russian government during her tenure as Secretary of State.
The obvious question is whether Papadopoulos ever informed anyone in the Trump Campaign of this development, and there is no evidence that he did. He continued to e-mail the Trump Campaign, attempting without success to set up a meeting.* None of these messages mention Russian "dirt" on Hillary, and only one appears to request a telephone conversation. (The Report does not say one way or the other whether the telephone conversation took place). All members of the Trump Campaign deny that Papadopoulos ever told them about Russian dirt.
Papadopoulos definitely told two people outside of the Trump Campaign about the dirt. One was the Greek foreign minister (no date given). The other was the Australian Ambassador to London, who the Report is strangely coy about naming. Ten days after the meeting, Papadopoulos drunkenly informed the Ambassador that he expected the Russian government to anonymously release damaging information on Hillary.** The Report says that Papadopoulos "wavered" on whether Campaign Co-Chair Sam Clovis was upset to hear that Papadopoulos thought "they have her emails." (This would seem to imply they were thinking about the missing ones). The report does not give the origin of this vague rumor, possibly one of Papadopoulos' contradictory accounts.
It does seem decidedly odd that Papadopoulos would tell the Greek foreign minister and Australian ambassador this secret but not the Trump Campaign. However "it seems odd" is not evidence. All we have is that Papadoulos attempted to set up a meeting between the Trump Campaign and the Russians and was rebuffed, that he knew the Russians had some sort of e-mails on Hillary Clinton and intended to release them, that he told two foreign diplomats, but that there is no evidence that he told the Trump Campaign, even though it seems odd. He also recognized that this incident was disturbing enough that he saw fit to lie to the FBI about that and was indicted for doing so.
As I understand it, it is not a crime to be offered illegal information from the Russians and not report it to the authorities. This episode appears to fit in the category of not illegal but scandalous for Papadopoulos. We don't know if the Campaign was aware of the scandal.
Carter Page
The Mueller Report does not shed any light on Carter Page. The Report details his already known background working in Russia, acquaintance with Russian spies, and their attempt to recruit him in 2013, which never reached the level of any crime on his part. Page was recruited as a foreign policy adviser because of his experience in Russia. The Report focuses on Page's visit to Moscow to give a commencement address at the New Economic School. Page apparently encouraged Trump to go but was rebuffed and told that he (Page) would be acting on his own and not as a campaign official. Russian Deputy Prime Minister also attended the commencement and publicly shook hands with Page and spoke to him.
The Special Counsel was not able to determine what else Page did while in Moscow. He sent back e-mails, one of which said he spoke to "a few Russian legislators and members of the Presidential Administration" and "a diverse array of other sources close to the Presidential Administration." A section is then blacked out and the Report says:
In any event, there is just not enough information here to find a scandal. This one fits in the unknown and undetermined category.
Dmitri Simes and the Center for the National Interest
OK, this is one I didn't know about. (Have I missed something, or is this new?) The Center for National Interest is apparently a reputable foreign affairs think tank, though one with Russian contacts, whose chairman Dimitry Simes is Russian-born, although he has lived in the US since 1970. Jeff Sessions was on the board of directors, although the position was largely honorary. CNI gave the Trump Campaign some foreign policy advice and invited him to give a foreign policy speech at the Mayflower Hotel. Russian Ambassador Sergei Kislyak attended the event and spoke briefly to Jeff Sessions and Jared Kushner. Simes met with Trump Campaign officials on other occasions and gave them advice, particularly to avoid secret meetings with Russians. All of this appears to have been well within the norm for any campaign and not in any way improper. Classify this under affirmatively determined to be innocent.
The Trump Tower Meeting
This meeting has been dissected in minute detail in the public eye. Still the investigation does break some new ground here. One thing I did not realize was how extensive Junior's association was with Aras and Emin Agalarov (the ones who set up the meeting) and Ike Kavaladze (one person who attended). No doubt this made it hard for him to imagine that these old friends were doing anything improper. Rick Gates said that Junior announced to a meeting of himself, Eric, Ivanka, Jared Kushner, Hope Hicks, Manafort and Gates that he expected negative information on "the Clinton Foundation" from Kyrgyzstan (the Agalarovs were from Azerbaijan). Manafort, a professional among amateurs, warned that the information was unlikely to be vital and to be careful. This is the first indication I have seen about what Junior expected, and it was not hacked e-mails. Whether he thought the documents were stolen is unclear. All participants deny informing the old man. (My own guess is that Manafort saw how dangerous this was and warned them not to). The outcome is well-known. The Russians did not have any dirt on Hillary, just on people associated with Bill Browder, the driving force behind the Magnitsky Sanctions. The worst they could say about Hillary was that she might have received donations from Browder's business partners. Junior and Jared quickly became impatient when they realized they were not getting dirt on Hillary.
The Special Counsel apparently decided against prosecuting Junior on the grounds that he didn't know better. Ignorance of the law is not usually an excuse, but it seems to have been accepted in this case. I look forward to seeing why Paul Manafort, who most certainly did know better, was not prosecuted for this meeting. It was quite arguably criminal and at a minimum scandalous. But nothing further appears to have come from it.
The Republican National Convention
This has drawn some attention and suspicion because the Republican platform was changed to take out calls for sending lethal weapons to Ukraine to fight the Russians. Could this be the work of Manafort, who worked for the pro-Russian party in Ukraine, or some sort of quid pro quo? However, the change appears to have taken place within the normal drafting process, and to have been taken out as contrary to Trump's views. Ambassador Kislyak attended and chatted with Sessions, and followed up with Sessions after the convention. However, those appear to have been the sort of normal foreign policy discussions campaigns routinely have with foreign representatives. This one should be classified as affirmatively determined to be innocent.
Paul Manafort
If any sort of conspiracy was going on, Paul Manafort was the most likely suspect and, indeed, although Special Counsel did not charge him for any activities during the campaign, neither did they clear him. Special Counsel's main source of information in Manafort was is his deputy, Rick Gates, who has been a cooperating witness. This is one of the sections that reveals previously undisclosed information.
Part of it is familiar. Manafort was a lobbyist and adviser for the pro-Russian party in Ukraine and its leader, Viktor Yanukovych. He has been charged with being an unregistered lobbyist for the Ukrainian government. When the pro-Russian party was removed from power in Ukraine, Manfort's income dried up and his financial position became precarious. Manafort also did business with the Russian oligarch Oleg Derispaska, which ended up going badly and leading to litigation. Manafort was deep in debt to Deripaska at the time he went to work for the Trump campaign, with no means of paying, yet he offered his services for free. This rather strongly suggests that Manafort intended to monetize his access, and also that he had motives for rogue actions. Throughout the campaign Manafort was in contact with his translator, Konstantin Kilimnik, formerly a translator for Russian Military Intelligence. Through Kilimnik, Manafort communicated with his old Ukrainian patrons and also with Deripaska. The FBI believes that Kilimnik has ongoing ties to Russian intelligence, and Gates stated that he suspected the same.
It had already come out both that Kilimnik met with Manafort on August 2, 2016 to present a strongly pro-Russian "Ukrainian peace plan" to Manafort, and that that Manafort gave Kilimnik campaign polling data at the time. There were at least hints that there had been a transfer the spring as well. The Mueller Report reveals that there was much more than that. Manafort and Gates were in regular contact with Kilimnik and sent a steady stream of polling data from the campaign that continued even after Manafort left the campaign. Gates sent encrypted his messages and then deleted them. Manafort also sent frequent messages seeking to settle the debt and even offering Deripaska regular briefings. Manafort and Kilimnik met twice, on May 7, 2016 and on August 2, 2016, to discuss the state of the campaign and the Ukrainian peace plan. The "peace plan" would have created an "independent" state in eastern Ukraine with Yanukovych as its leader, fairly clearly as a Russian puppet.
Gates did not know why Kilimnik and his sponsors wanted campaign polling data, nor was the Special Counsel able to determine where the data went or what was done with it. (So much for Mueller knows everything). Gates speculated that Kilimnik's sponsors wanted the data to know whether Trump was worth investing in. Special Counsel found no evidence that the polling data was used to fine-tune Russian messaging. Certainly it appears that Kilimnik and his backers expected Manafort to use his influence with Trump to get him to sign onto the "peace plan."
Manafort continued to be in contact with the campaign and to give advice after resigning as campaign manager. He declined a job in the Trump Administration, intending instead to make money off his contacts. He also continued to be in contact with Kilimnik after Trump was inaugurated and to discuss the "peace plan," although there is no evidence that he ever brought it to the President's attention.
It is not at all clear to me why Special Counsel did not charge Manafort with being an unregistered foreign agent while serving with the campaign. And, just for the record, it is legal for private citizens to be foreign agents so long as they properly register and report their activities but (understandably) illegal for government employees. It is not illegal for a member of a political campaign to be a foreign agent, but it is considerably more serious than for a completely private citizen.
So, it would appear that there are three possible explanations for Manafort's activities. One is that he was a rogue actor, trading campaign data and promises to advocate for a pro-Russian "peace plan" for relief from his debts to Deripaska. Given what we know about Manafort's character and finances, this is certainly possible. In that case, Trump would be innocent of Manafort's schemes, but would show appalling judgment in hiring such a man. And he should be outraged by Manafort's disloyalty.
Another possibility is that Manafort secretly met with Trump, with no one else present and got permission to turn polling data over to the Russians to use in exchange for support for their "peace plan." This would be the smoking gun so many Trump foes are looking for, but there is no evidence of it, and it seems unlikely.
Finally, it is possible that Trump was rather loudly signalling his willingness to do such things, so Manafort took him up on it.
Manafort was either stealing data from his boss or conspiring with him and the Russians to skew the election. Either one sounds like a crime; the only reason Manafort is not being charged is that there is no real proof which is the case. This one fits in the category of reeks to high heaven, but just not enough to bring criminal charges.
Hiring such a man as Manafort may not be an impeachable offense, but it is more than grounds for a primary challenge.
__________________________________________________
*Paul Manafort, of all people, appears to have been the one who made the firm decision that the answer was no.
**After the Russians did, in fact, release such information, the Ambassador informed the FBI of this conversation and the investigation began.
The contacts are frequent enough to look very bad for Team Trump. And, it must be added, these are not cases of everybody does it. It is normal for a presidential campaign to have meetings with foreign representatives to discuss plans for future policy. It is not normal for contacts with a hostile power to be of anywhere near the volume as the Trump Campaign had.
Nonetheless the Special Counsel did not find a criminal conspiracy. Neither did it affirmatively find that all contacts were innocent. One might divide the various contacts into different categories -- affirmatively determined to be innocent, innocent on the Trump side but not the Russian side, and offer to conspire by Russians that was affirmatively rejected, scandalous but not criminal, undetermined, or suspicious but not enough to bring criminal charges. There may be other categories as well.
Let us have a look.
Trump Tower Moscow:
The Trump Organization apparently sought to build a Trump Tower in Moscow as early as 2013, although the attempt never went anywhere. The was well before Trump declared he was running and is significant mostly in that Donald Junior represented the Trump Organization and his Russian counterparts were Aras Agalarov, the oligarch who purportedly first offered dirt for the Trump Tower meeting, and his son Emin, the pop singer whose agent set up the meeting. Ike Kaveladze, also present at the Trump Tower meeting was also involved. Clearly Junior was enticed into that meeting by the role of people he knew and had worked with.
A second attempt began in September, 2015 (about the time Trump first announced his candidacy), this time with Michael Cohen and Felix Sater doing the negotiating. The project appears to have been purely a matter of Trump licensing his name to the project in return for a share of the gross income, but not doing any actual construction or incurring any significant risk.
When they reached agreement on November 30, 2015, Sater sent Cohen an e-mail saying that he would "engineer" Trump's election as President, "get all of Putins (sic) team to buy in on this," and "manage this process." Whether this was an offer of illicit assistance or simply the bizarre claim that Putin's endorsement would swing the election to Trump (!) is not clear. Cohen said that no one on the Trump side ever addressed how Trump Tower Moscow would affect the election, although Trump did expect his run for President would be great advertising (probably further evidence he did not expect to win). Team Trump believed that the approval of the Russian government, going all the way up to Putin, would be required for so large a project and sought it. According to Cohen's possibly self-serving account, he took care to keep the commercial and political aspects separate. The Russians apparently sought a visit by Trump, but no such visit ever occurred. At least some of the persons involved were under sanctions, and/or wanted to discuss a "Ukrainian peace plan" that would favor Russia.
On the whole, though, these seem to have been business rather than political contacts. Cohen got in trouble, not for any of these contacts, but for lying about them under oath. Trump, too, lied during the campaign in denying that he had any Russian business ties.
With any other candidate, I would be confident that his Russian business ties did not inform his pro-Russian policy. With Trump, you have to wonder. Still, pursuing a pro-Russian policy while having strong business ties to Russia is not a crime, nor is lying to the American people about it. It is (as Rand Paul or some other Republican commented) an excellent reason not to vote for Trump. Conclusion: This was scandalous but not criminal. Probably not grounds for impeachment, but more than grounds for a primary challenge.
George Papadopoulos:
This is one of the less innocent contacts. Special Counsel's prior indictment of Papadopoulos revealed the general outline of what happened; the Mueller Report fills in a few details, most of which we need not follow. Papadopoulos got a job as foreign policy adviser to the Trump Campaign in March, 2016 after he left the Ben Carson campaign which was obviously failing and the Trump Campaign was desperate for a warm body with any foreign policy knowledge whatever. Papadopoulos went to London to seek contacts as some sort of foreign policy center there, and met up with Joseph Mifsud, a Maltese professor with numerous Russian contacts, most of them blacked out, but apparently including members of both the Troll Farm and Russian Military Intelligence. Mifsud showed no interest in Papadopoulos until he found out Papadopoulos was part of the Trump campaign, at which point he tried to get Papadopoulos to set up a meeting with the Trump Campaign and Russia. The Trump Campaign rejected the overtures. When Papadopoulos suggested a meeting in person at a March 31, 2016 meeting, Trump apparently expressed interest.
Regardless, no such meeting ever took place. We do not know what the Russians intended to do at the meeting, probably seek a favorable settlement in Ukraine and the lifting of sanctions. None of this is inherently sinister. Attempting to set up a meeting between the Trump Campaign and the Russian government is not a crime after all, and the Trump Campaign consistently rebuffed the offer.
What is more disturbing is what happened on April 26, 2016. This occurred after Papadopoulos had returned to London and Mifsud had visited Moscow and then went back to London. They met in person and Mifsud told Papadopoulos that he had learned while in Moscow that the Russians had "dirt" on Hillary Clinton in the form of "thousands of emails." Nothing in the report suggests that Mifsud told Papadopoulos about the hacks. Papadopoulos may have thought the e-mails were the 33,000 deleted e-mails. Or he may have thought they were e-mails openly exchanged with the Russian government during her tenure as Secretary of State.
The obvious question is whether Papadopoulos ever informed anyone in the Trump Campaign of this development, and there is no evidence that he did. He continued to e-mail the Trump Campaign, attempting without success to set up a meeting.* None of these messages mention Russian "dirt" on Hillary, and only one appears to request a telephone conversation. (The Report does not say one way or the other whether the telephone conversation took place). All members of the Trump Campaign deny that Papadopoulos ever told them about Russian dirt.
Papadopoulos definitely told two people outside of the Trump Campaign about the dirt. One was the Greek foreign minister (no date given). The other was the Australian Ambassador to London, who the Report is strangely coy about naming. Ten days after the meeting, Papadopoulos drunkenly informed the Ambassador that he expected the Russian government to anonymously release damaging information on Hillary.** The Report says that Papadopoulos "wavered" on whether Campaign Co-Chair Sam Clovis was upset to hear that Papadopoulos thought "they have her emails." (This would seem to imply they were thinking about the missing ones). The report does not give the origin of this vague rumor, possibly one of Papadopoulos' contradictory accounts.
It does seem decidedly odd that Papadopoulos would tell the Greek foreign minister and Australian ambassador this secret but not the Trump Campaign. However "it seems odd" is not evidence. All we have is that Papadoulos attempted to set up a meeting between the Trump Campaign and the Russians and was rebuffed, that he knew the Russians had some sort of e-mails on Hillary Clinton and intended to release them, that he told two foreign diplomats, but that there is no evidence that he told the Trump Campaign, even though it seems odd. He also recognized that this incident was disturbing enough that he saw fit to lie to the FBI about that and was indicted for doing so.
As I understand it, it is not a crime to be offered illegal information from the Russians and not report it to the authorities. This episode appears to fit in the category of not illegal but scandalous for Papadopoulos. We don't know if the Campaign was aware of the scandal.
Carter Page
The Mueller Report does not shed any light on Carter Page. The Report details his already known background working in Russia, acquaintance with Russian spies, and their attempt to recruit him in 2013, which never reached the level of any crime on his part. Page was recruited as a foreign policy adviser because of his experience in Russia. The Report focuses on Page's visit to Moscow to give a commencement address at the New Economic School. Page apparently encouraged Trump to go but was rebuffed and told that he (Page) would be acting on his own and not as a campaign official. Russian Deputy Prime Minister also attended the commencement and publicly shook hands with Page and spoke to him.
The Special Counsel was not able to determine what else Page did while in Moscow. He sent back e-mails, one of which said he spoke to "a few Russian legislators and members of the Presidential Administration" and "a diverse array of other sources close to the Presidential Administration." A section is then blacked out and the Report says:
The Office was unable to obtain additional evidence or testimony about who Page may have met or communicated with in Moscow; thus, Pages activities in Russia -- as described in his emails with the Campaign --- were not fully explained.The Yahoo News report alleging that Page met with Igor Sechin and Igor Divyekin cost Page his job with the campaign. It would appear, however, that my supposition that there was some additional evidence that Page met with these two officials but not of what they discussed is incorrect. The Special Counsel does not know what happened, other that that Page apparently talked to a variety of Russian officials. That raises some very interesting questions about what was on the two blacked-out pages of the application for a FISA warrant. The application has reports from the Steele Dossier, then two blacked-out pages, and then Page's denial. The House and Senate Intelligence Committees presumably know what is on those redacted pages. So, presumably, does the Special Counsel's Office. Yet the only verification the Special Counsel can give is in Page's e-mail, which is extremely vague, and which the FBI had no business having when it applied for the warrant. The only way the FBI could have those e-mails would be if it was somehow spying on Page (or the campaign) even before the FISA warrant. If true, that would be the real scandal, and it is strange that the Republicans are not raising it.
In any event, there is just not enough information here to find a scandal. This one fits in the unknown and undetermined category.
Dmitri Simes and the Center for the National Interest
OK, this is one I didn't know about. (Have I missed something, or is this new?) The Center for National Interest is apparently a reputable foreign affairs think tank, though one with Russian contacts, whose chairman Dimitry Simes is Russian-born, although he has lived in the US since 1970. Jeff Sessions was on the board of directors, although the position was largely honorary. CNI gave the Trump Campaign some foreign policy advice and invited him to give a foreign policy speech at the Mayflower Hotel. Russian Ambassador Sergei Kislyak attended the event and spoke briefly to Jeff Sessions and Jared Kushner. Simes met with Trump Campaign officials on other occasions and gave them advice, particularly to avoid secret meetings with Russians. All of this appears to have been well within the norm for any campaign and not in any way improper. Classify this under affirmatively determined to be innocent.
The Trump Tower Meeting
This meeting has been dissected in minute detail in the public eye. Still the investigation does break some new ground here. One thing I did not realize was how extensive Junior's association was with Aras and Emin Agalarov (the ones who set up the meeting) and Ike Kavaladze (one person who attended). No doubt this made it hard for him to imagine that these old friends were doing anything improper. Rick Gates said that Junior announced to a meeting of himself, Eric, Ivanka, Jared Kushner, Hope Hicks, Manafort and Gates that he expected negative information on "the Clinton Foundation" from Kyrgyzstan (the Agalarovs were from Azerbaijan). Manafort, a professional among amateurs, warned that the information was unlikely to be vital and to be careful. This is the first indication I have seen about what Junior expected, and it was not hacked e-mails. Whether he thought the documents were stolen is unclear. All participants deny informing the old man. (My own guess is that Manafort saw how dangerous this was and warned them not to). The outcome is well-known. The Russians did not have any dirt on Hillary, just on people associated with Bill Browder, the driving force behind the Magnitsky Sanctions. The worst they could say about Hillary was that she might have received donations from Browder's business partners. Junior and Jared quickly became impatient when they realized they were not getting dirt on Hillary.
The Special Counsel apparently decided against prosecuting Junior on the grounds that he didn't know better. Ignorance of the law is not usually an excuse, but it seems to have been accepted in this case. I look forward to seeing why Paul Manafort, who most certainly did know better, was not prosecuted for this meeting. It was quite arguably criminal and at a minimum scandalous. But nothing further appears to have come from it.
The Republican National Convention
This has drawn some attention and suspicion because the Republican platform was changed to take out calls for sending lethal weapons to Ukraine to fight the Russians. Could this be the work of Manafort, who worked for the pro-Russian party in Ukraine, or some sort of quid pro quo? However, the change appears to have taken place within the normal drafting process, and to have been taken out as contrary to Trump's views. Ambassador Kislyak attended and chatted with Sessions, and followed up with Sessions after the convention. However, those appear to have been the sort of normal foreign policy discussions campaigns routinely have with foreign representatives. This one should be classified as affirmatively determined to be innocent.
Paul Manafort
If any sort of conspiracy was going on, Paul Manafort was the most likely suspect and, indeed, although Special Counsel did not charge him for any activities during the campaign, neither did they clear him. Special Counsel's main source of information in Manafort was is his deputy, Rick Gates, who has been a cooperating witness. This is one of the sections that reveals previously undisclosed information.
Part of it is familiar. Manafort was a lobbyist and adviser for the pro-Russian party in Ukraine and its leader, Viktor Yanukovych. He has been charged with being an unregistered lobbyist for the Ukrainian government. When the pro-Russian party was removed from power in Ukraine, Manfort's income dried up and his financial position became precarious. Manafort also did business with the Russian oligarch Oleg Derispaska, which ended up going badly and leading to litigation. Manafort was deep in debt to Deripaska at the time he went to work for the Trump campaign, with no means of paying, yet he offered his services for free. This rather strongly suggests that Manafort intended to monetize his access, and also that he had motives for rogue actions. Throughout the campaign Manafort was in contact with his translator, Konstantin Kilimnik, formerly a translator for Russian Military Intelligence. Through Kilimnik, Manafort communicated with his old Ukrainian patrons and also with Deripaska. The FBI believes that Kilimnik has ongoing ties to Russian intelligence, and Gates stated that he suspected the same.
It had already come out both that Kilimnik met with Manafort on August 2, 2016 to present a strongly pro-Russian "Ukrainian peace plan" to Manafort, and that that Manafort gave Kilimnik campaign polling data at the time. There were at least hints that there had been a transfer the spring as well. The Mueller Report reveals that there was much more than that. Manafort and Gates were in regular contact with Kilimnik and sent a steady stream of polling data from the campaign that continued even after Manafort left the campaign. Gates sent encrypted his messages and then deleted them. Manafort also sent frequent messages seeking to settle the debt and even offering Deripaska regular briefings. Manafort and Kilimnik met twice, on May 7, 2016 and on August 2, 2016, to discuss the state of the campaign and the Ukrainian peace plan. The "peace plan" would have created an "independent" state in eastern Ukraine with Yanukovych as its leader, fairly clearly as a Russian puppet.
Gates did not know why Kilimnik and his sponsors wanted campaign polling data, nor was the Special Counsel able to determine where the data went or what was done with it. (So much for Mueller knows everything). Gates speculated that Kilimnik's sponsors wanted the data to know whether Trump was worth investing in. Special Counsel found no evidence that the polling data was used to fine-tune Russian messaging. Certainly it appears that Kilimnik and his backers expected Manafort to use his influence with Trump to get him to sign onto the "peace plan."
Manafort continued to be in contact with the campaign and to give advice after resigning as campaign manager. He declined a job in the Trump Administration, intending instead to make money off his contacts. He also continued to be in contact with Kilimnik after Trump was inaugurated and to discuss the "peace plan," although there is no evidence that he ever brought it to the President's attention.
It is not at all clear to me why Special Counsel did not charge Manafort with being an unregistered foreign agent while serving with the campaign. And, just for the record, it is legal for private citizens to be foreign agents so long as they properly register and report their activities but (understandably) illegal for government employees. It is not illegal for a member of a political campaign to be a foreign agent, but it is considerably more serious than for a completely private citizen.
So, it would appear that there are three possible explanations for Manafort's activities. One is that he was a rogue actor, trading campaign data and promises to advocate for a pro-Russian "peace plan" for relief from his debts to Deripaska. Given what we know about Manafort's character and finances, this is certainly possible. In that case, Trump would be innocent of Manafort's schemes, but would show appalling judgment in hiring such a man. And he should be outraged by Manafort's disloyalty.
Another possibility is that Manafort secretly met with Trump, with no one else present and got permission to turn polling data over to the Russians to use in exchange for support for their "peace plan." This would be the smoking gun so many Trump foes are looking for, but there is no evidence of it, and it seems unlikely.
Finally, it is possible that Trump was rather loudly signalling his willingness to do such things, so Manafort took him up on it.
Manafort was either stealing data from his boss or conspiring with him and the Russians to skew the election. Either one sounds like a crime; the only reason Manafort is not being charged is that there is no real proof which is the case. This one fits in the category of reeks to high heaven, but just not enough to bring criminal charges.
Hiring such a man as Manafort may not be an impeachable offense, but it is more than grounds for a primary challenge.
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*Paul Manafort, of all people, appears to have been the one who made the firm decision that the answer was no.
**After the Russians did, in fact, release such information, the Ambassador informed the FBI of this conversation and the investigation began.
Monday, April 22, 2019
Mueller Report and the Hacks
The Mueller Report on the Troll Farm told us little that we did not know, and much that was blacked out. Much of the report on the hacks is also blacked out. Some of it involves an ongoing investigation and will presumably come out later. Other parts involve very legitimately classified investigation techniques and will properly stay hidden. It describes some details of that hack that we already knew from the indictment, some additional details about how the information was given to Wikileaks, and some really shocking material on how the Trump Campaign reacted to all that that should have been set forth in the Executive Summary. Reading only the Executive Summary, you would miss some very important information.
The Report describes the hack of the Democratic National Committee (DNC), the Democratic Congressional Central Committee (DCCC) and some members of the Clinton campaign, including campaign manager John Podesta. These accounts do not add much to what we knew from the previous indictments, and have sections blacked out as revealing investigative techniques. It also references hacks on state boards of elections, Secretaries of State, and tech companies that supplied election software.* This section is quite technical. The initial breach appears to have happened on April 12, 2016. Russian Military Intelligence began planning release of the hacked materials a mere week later, on April 19, 2016 and started setting up the website DCLeaks. The first release to DCLeaks was in "June, 2016." The Report does not say whether this was before or after the hacks were announced on June 14, 2016. The hackers gave some reporters "early access" to some leaked materials, but all the dates given by the Report were after June 14. On June 15, 2016, Russian Military Intelligence created the "Guccifer" persona online, claiming to be a loan Romanian hacker and proving its bona fides by releasing hacked documents. It did not take long to determine that Guccifer was a Russian front.**
All of this was revealed in a previous indictment, except for the hacks on state election infrastructure. The Report does shed some new light on the transfer of materials to Wikileaks. The prior indictment already revealed that Wikileaks asked "Guccifer" for the information, explaining that Wikileaks could deploy it more effectively, and that "Guccifer" electronically transferred the hacked information. The Report adds that DCLeaks also contacted Wikileaks on the same day that the hack was revealed to propose they coordinate.*** The Report adds late communications as well, and says it appears that the Podesta e-mails were transferred to Wikileaks on September 19, 2016, although the investigators were unable to determine how. It also makes clear that Assange was lying when he implied that Wikileaks got its information from murdered DNC staffer Seth Rich. In fact, Wikileaks continued to receive hacked materials well after Rich was murdered.
Many observers noticed at the time of the earlier indictment that it specifically commented that the Russians first targeted Hillary Clinton's personal office on July 27, 2016, which was the same day Trump invited the Russians to reveal Hillary's missing 33,000 State Department e-mails. The indictment never so much as suggested that the events were connected. The Report is bolder, noting that the attempts to hack Clinton's personal office began five hours after Trump's remarks. The attempt was not successful. The report also discusses the Trump Campaign's communications with Wikileaks, but most of that is blacked out as affecting an ongoing matter. That ongoing matter is almost certainly the Roger Stone prosecution. One part that does get through is that Trump discussed planning his campaign strategy around Wikileaks releases, and another that the releases of the Podesta e-mails appear to have been timed to distract from the Access Hollywood tape, although it does appear to refute Jerome Corsi's claims that he knew about the Access Hollywood tape in advance and persuaded Wikileaks to time its release.
The Report also reveals that Donald Trump, Jr. was in contact with Wikileaks, that it steered him to valuable links, and that it gave him the password to an anti-Trump site that was about to launch. I believe this had been previously reported.
But the most alarming part of this section is about the Trump Campaign's attempts to get Hillary Clinton's 30,000 missing e-mails. (I don't understand why that is treated as part of the section on the Russian hacks rather that the Trump Campaign's Russian contacts). The Report assures us that there was no sign of coordination between the Trump Campaign and Russia, but this section (pages 61-65) shows that the outreach was not entirely on the Russian side.
It was common knowledge well before the hacks were known that Hillary Clinton had sent State Department e-mails on a private server, making them vulnerable to hack by hostile powers, and also that she deleted some 33,000 of them as "personal."**** Team Trump appears to have been firmly convinced both that Russia did hack the server, and that the missing emails contained something very incriminating. Various members therefore set out to retrieve the missing e-mails, without scruple as to the source.
On July 27, 2016, Trump notoriously, and in a public speech, asked the Russians for Hillary Clinton's missing e-mails. The Russians did not have the e-mails, but apparently took the request seriously and attempted to hack Hillary's personal office, perhaps in a vain search for the missing e-mails.
The Wall Street Journal had previously revealed that Peter Smith, a Republican donor who was not part of the campaign but had ties to the campaign, attempted to find the missing e-mails on the "dark web," with no concern whether he was obtaining them from Russian cut-outs. The account also made clear that Smith's contact with the Trump Campaign was Michael Flynn. Flynn apparently shed a good deal more light on what happened. Trump apparently made this demand repeatedly of Flynn, so Flynn was acting directly at Trump's behest. Besides Peter Smith, Flynn apparently delegated the job to Barbara Ledeen, a Senate staffer and wife of the pro-Fascist historian and notorious warmonger Michael Ledeen. Barbara Ledeen advocated both searching open sources and contacting (unnamed) intelligence agencies. She believed that if the "providence" (provenance) of even one recovered e-mail was "a foreign service," it would be catastrophic for the Clinton campaign. I think this means that if Hillary communicated with a foreign government and then deleted the e-mail it would look like something sinister. (To the best of my knowledge, although some recovered e-mails were business, they were only with US colleagues).
Peter Smith and Barbara Ledeen appear to have cruised the "dark web" searching for the missing e-mails, bringing many promises of success and false rumors, but getting nowhere because the missing e-mails were not, in fact, there. Whether the two of them were con artists or were duped by con artists (or both, of course), is not clear. What is most significant is that their work was condoned and indirectly ordered by Trump himself, acting through Flynn. (No wonder Flynn's sentencing judge accused him of selling out his country!)
Smith cannot be criminally charged because he is dead. Mueller appears to have decided not to bring charged against Barbara Ledeen, although the reasons for the decision are not given.
Is this a crime? I am not a criminal lawyer, and it has been a while since I took even an elementary criminal law class, but this looks a lot like an inchoate crime, a crime that was prepared but not completed. There are three types of inchoate crime -- solicitation, conspiracy, and attempt. Attempt requires only one person. Solicitation requires at least out reach to a second person. And conspiracy requires an agreement to commit a crime between at least two people. Some sort of action in furtherance of the crime is required, but the crime is need not be completed. Less action in furtherance is required for a conspiracy than a lone-wolf attempt.
To put this in more concrete terms, consider an unsuccessful plan to rob the Corner Convenience Store. Suppose A asks to borrow B's gun to rob the Corner Convenience Store. B agrees to lend the gun and drive the get-away car. They drive down together and A takes the gun and goes in. He then looks around, sees the security guard and the surveillance camera and decides this might not be such a good idea and goes back without any attempt to rob. This would be sufficient to rate as a conspiracy, although proving it could be quite difficult. If A takes his own gun and goes to the Corner Convenience Store to rob it but then changes his mind, that would probably not be sufficient to charge attempt. If A pulls the gun, demands that the clerk empty the cash register, and then panics and runs when the clerk sets off an alarm, that would be an attempt.
The point here is that we don't want to criminalize evil thoughts, or even big talk, but neither do we want to require a crime to be completed before we can do anything. Hence the need for actions in furtherance. But we do consider more than one person combining to commit a crime to be particularly dangerous (what if what one person sees as so much hot air the other take seriously?).
So here we have two people cruising the dark web, looking to buy stolen e-mails from persons unknown but definitely not honest. How is that not at least a criminal attempt. And since they were acting at the behest of another party, how is this not a conspiracy? An unsuccessful conspiracy is still a conspiracy, after all.
I will say here that Benjamin Wittes of Lawfare, who is certainly more knowledgeable than I am, disagrees, "It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers." In other words, Wittes sees this as less equivalent to Smith and Ledeen going to steal the cash from the drawer at the Corner Convenience Store than to Smith and Ledeen going to the Corner Convenience Store to steal the Maltese Falcon. No matter how often the cased the joint, poked around and tried to find the hiding place, they would never find the Maltese Falcon because it wasn't there. Is it a criminal conspiracy to try to steal the Maltese Falcon from the Corner Convenience Store? I must admit to not knowing. But it does seem to me that if some con man at the Corner Convenience Store thinks that a fool and his money are soon parted, claims that the Maltese Falcon is there, and offers to steal it and sell it to you, some sort of crime is being committed.
I will also say that Watergate analogies apply here, although in reverse. In the case of Watergate, there is no doubt that the Nixon Campaign really did commit a crime. It broke into the Democratic National Headquarters, wiretapped a phone, and attempted to steal documents. Nixon did not order this crime and had no advance knowledge of it. Here, on the other hand, the Trump Campaign had no role whatever in the crime (i.e., the hacking). However, Trump himself ordered his subordinates to profit from the crime. It just so happened that the crime Trump attempted to profit from did not occur. Again Wittes:
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*The Report also gives some idea of the scale of the hack, compromising some 29 DCCC computers and over 30 DNC computers. Asking why the DNC did not turn its server over to the FBI is effectively asking why it did not gut its operations.
**Both the indictment and the report authenticate this by showing that the Russian hackers did google searches on various English words and phrases which they then used in Guccifer. I still don't quite understand the significance of this.
***Julian Assange of Wikileaks had decided to back the Republican candidate well before anyone knew that Trump would be the Republican candidate. Assange believes that if a Republican won, the Democrats would reign him in, but that no one would reign in a Democrat.
****About half those deleted e-mails were eventually recovered by the FBI. Hillary deleted by subject heading, rather than by content, and it turned out that a few of the deleted e-mails were official. Nothing very sensational appeared in any of them, though.
The Report describes the hack of the Democratic National Committee (DNC), the Democratic Congressional Central Committee (DCCC) and some members of the Clinton campaign, including campaign manager John Podesta. These accounts do not add much to what we knew from the previous indictments, and have sections blacked out as revealing investigative techniques. It also references hacks on state boards of elections, Secretaries of State, and tech companies that supplied election software.* This section is quite technical. The initial breach appears to have happened on April 12, 2016. Russian Military Intelligence began planning release of the hacked materials a mere week later, on April 19, 2016 and started setting up the website DCLeaks. The first release to DCLeaks was in "June, 2016." The Report does not say whether this was before or after the hacks were announced on June 14, 2016. The hackers gave some reporters "early access" to some leaked materials, but all the dates given by the Report were after June 14. On June 15, 2016, Russian Military Intelligence created the "Guccifer" persona online, claiming to be a loan Romanian hacker and proving its bona fides by releasing hacked documents. It did not take long to determine that Guccifer was a Russian front.**
All of this was revealed in a previous indictment, except for the hacks on state election infrastructure. The Report does shed some new light on the transfer of materials to Wikileaks. The prior indictment already revealed that Wikileaks asked "Guccifer" for the information, explaining that Wikileaks could deploy it more effectively, and that "Guccifer" electronically transferred the hacked information. The Report adds that DCLeaks also contacted Wikileaks on the same day that the hack was revealed to propose they coordinate.*** The Report adds late communications as well, and says it appears that the Podesta e-mails were transferred to Wikileaks on September 19, 2016, although the investigators were unable to determine how. It also makes clear that Assange was lying when he implied that Wikileaks got its information from murdered DNC staffer Seth Rich. In fact, Wikileaks continued to receive hacked materials well after Rich was murdered.
Many observers noticed at the time of the earlier indictment that it specifically commented that the Russians first targeted Hillary Clinton's personal office on July 27, 2016, which was the same day Trump invited the Russians to reveal Hillary's missing 33,000 State Department e-mails. The indictment never so much as suggested that the events were connected. The Report is bolder, noting that the attempts to hack Clinton's personal office began five hours after Trump's remarks. The attempt was not successful. The report also discusses the Trump Campaign's communications with Wikileaks, but most of that is blacked out as affecting an ongoing matter. That ongoing matter is almost certainly the Roger Stone prosecution. One part that does get through is that Trump discussed planning his campaign strategy around Wikileaks releases, and another that the releases of the Podesta e-mails appear to have been timed to distract from the Access Hollywood tape, although it does appear to refute Jerome Corsi's claims that he knew about the Access Hollywood tape in advance and persuaded Wikileaks to time its release.
The Report also reveals that Donald Trump, Jr. was in contact with Wikileaks, that it steered him to valuable links, and that it gave him the password to an anti-Trump site that was about to launch. I believe this had been previously reported.
It was common knowledge well before the hacks were known that Hillary Clinton had sent State Department e-mails on a private server, making them vulnerable to hack by hostile powers, and also that she deleted some 33,000 of them as "personal."**** Team Trump appears to have been firmly convinced both that Russia did hack the server, and that the missing emails contained something very incriminating. Various members therefore set out to retrieve the missing e-mails, without scruple as to the source.
On July 27, 2016, Trump notoriously, and in a public speech, asked the Russians for Hillary Clinton's missing e-mails. The Russians did not have the e-mails, but apparently took the request seriously and attempted to hack Hillary's personal office, perhaps in a vain search for the missing e-mails.
The Wall Street Journal had previously revealed that Peter Smith, a Republican donor who was not part of the campaign but had ties to the campaign, attempted to find the missing e-mails on the "dark web," with no concern whether he was obtaining them from Russian cut-outs. The account also made clear that Smith's contact with the Trump Campaign was Michael Flynn. Flynn apparently shed a good deal more light on what happened. Trump apparently made this demand repeatedly of Flynn, so Flynn was acting directly at Trump's behest. Besides Peter Smith, Flynn apparently delegated the job to Barbara Ledeen, a Senate staffer and wife of the pro-Fascist historian and notorious warmonger Michael Ledeen. Barbara Ledeen advocated both searching open sources and contacting (unnamed) intelligence agencies. She believed that if the "providence" (provenance) of even one recovered e-mail was "a foreign service," it would be catastrophic for the Clinton campaign. I think this means that if Hillary communicated with a foreign government and then deleted the e-mail it would look like something sinister. (To the best of my knowledge, although some recovered e-mails were business, they were only with US colleagues).
Peter Smith and Barbara Ledeen appear to have cruised the "dark web" searching for the missing e-mails, bringing many promises of success and false rumors, but getting nowhere because the missing e-mails were not, in fact, there. Whether the two of them were con artists or were duped by con artists (or both, of course), is not clear. What is most significant is that their work was condoned and indirectly ordered by Trump himself, acting through Flynn. (No wonder Flynn's sentencing judge accused him of selling out his country!)
Smith cannot be criminally charged because he is dead. Mueller appears to have decided not to bring charged against Barbara Ledeen, although the reasons for the decision are not given.
Is this a crime? I am not a criminal lawyer, and it has been a while since I took even an elementary criminal law class, but this looks a lot like an inchoate crime, a crime that was prepared but not completed. There are three types of inchoate crime -- solicitation, conspiracy, and attempt. Attempt requires only one person. Solicitation requires at least out reach to a second person. And conspiracy requires an agreement to commit a crime between at least two people. Some sort of action in furtherance of the crime is required, but the crime is need not be completed. Less action in furtherance is required for a conspiracy than a lone-wolf attempt.
To put this in more concrete terms, consider an unsuccessful plan to rob the Corner Convenience Store. Suppose A asks to borrow B's gun to rob the Corner Convenience Store. B agrees to lend the gun and drive the get-away car. They drive down together and A takes the gun and goes in. He then looks around, sees the security guard and the surveillance camera and decides this might not be such a good idea and goes back without any attempt to rob. This would be sufficient to rate as a conspiracy, although proving it could be quite difficult. If A takes his own gun and goes to the Corner Convenience Store to rob it but then changes his mind, that would probably not be sufficient to charge attempt. If A pulls the gun, demands that the clerk empty the cash register, and then panics and runs when the clerk sets off an alarm, that would be an attempt.
The point here is that we don't want to criminalize evil thoughts, or even big talk, but neither do we want to require a crime to be completed before we can do anything. Hence the need for actions in furtherance. But we do consider more than one person combining to commit a crime to be particularly dangerous (what if what one person sees as so much hot air the other take seriously?).
So here we have two people cruising the dark web, looking to buy stolen e-mails from persons unknown but definitely not honest. How is that not at least a criminal attempt. And since they were acting at the behest of another party, how is this not a conspiracy? An unsuccessful conspiracy is still a conspiracy, after all.
I will say here that Benjamin Wittes of Lawfare, who is certainly more knowledgeable than I am, disagrees, "It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers." In other words, Wittes sees this as less equivalent to Smith and Ledeen going to steal the cash from the drawer at the Corner Convenience Store than to Smith and Ledeen going to the Corner Convenience Store to steal the Maltese Falcon. No matter how often the cased the joint, poked around and tried to find the hiding place, they would never find the Maltese Falcon because it wasn't there. Is it a criminal conspiracy to try to steal the Maltese Falcon from the Corner Convenience Store? I must admit to not knowing. But it does seem to me that if some con man at the Corner Convenience Store thinks that a fool and his money are soon parted, claims that the Maltese Falcon is there, and offers to steal it and sell it to you, some sort of crime is being committed.
I will also say that Watergate analogies apply here, although in reverse. In the case of Watergate, there is no doubt that the Nixon Campaign really did commit a crime. It broke into the Democratic National Headquarters, wiretapped a phone, and attempted to steal documents. Nixon did not order this crime and had no advance knowledge of it. Here, on the other hand, the Trump Campaign had no role whatever in the crime (i.e., the hacking). However, Trump himself ordered his subordinates to profit from the crime. It just so happened that the crime Trump attempted to profit from did not occur. Again Wittes:
The idea that the missing 30,000 emails had been retrieved was never more than conjecture, after all. The idea that they would be easily retrievable from the “dark web” was a kind of fantasy. In other words, even as a real hacking operation was going on, Trump personally, his campaign, and his campaign followers were actively attempting to collude with a fake hacking operation that wasn't going on.So, plenty of criminal intent there, but not a successfully executed crime, or apparently even enough to charge an inchoate crime. Is criminal intent and failed attempt at a criminal conspiracy in impeachable offense? I don't know, but it's more than enough for a primary challenge.
It is not illegal to imagine stolen emails and try to retrieve them from imagined hackers. But it’s morally little different from being spoon-fed information by Russian intelligence. The Trump campaign was seeking exactly the spoon-feeding it was accused of taking; it just couldn’t manage to find the right spoon, and it kept missing when it tried to put any spoons in its mouth.
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*The Report also gives some idea of the scale of the hack, compromising some 29 DCCC computers and over 30 DNC computers. Asking why the DNC did not turn its server over to the FBI is effectively asking why it did not gut its operations.
**Both the indictment and the report authenticate this by showing that the Russian hackers did google searches on various English words and phrases which they then used in Guccifer. I still don't quite understand the significance of this.
***Julian Assange of Wikileaks had decided to back the Republican candidate well before anyone knew that Trump would be the Republican candidate. Assange believes that if a Republican won, the Democrats would reign him in, but that no one would reign in a Democrat.
****About half those deleted e-mails were eventually recovered by the FBI. Hillary deleted by subject heading, rather than by content, and it turned out that a few of the deleted e-mails were official. Nothing very sensational appeared in any of them, though.
Sunday, April 21, 2019
Mueller Report and the Troll Farm
OK, I have started the Mueller Report. It begins by setting forth the Special Counsel's mandate -- to investigate links between the Trump Campaign and Russia, incidental matters and "any other matters within the scope of 28 CFR, Section 600.4(a)," the obstruction statute. There were also specific individuals the Special Counsel was authorized to investigate -- Paul Manafort, Carter Page, George Papadopoulos and also two other individuals, names blacked out, who the Special Counsel presumably did not find anything on. It goes on to say that the investigation involved 19 lawyers (14 from the Department of Justice and five borrowed from the private sector), three paralegals and nine administrative staff, together with 40 part-time associates including FBI agents, intelligence analysts, forensic accountants, and others. The investigation issued some 2800 grand jury subpoenas, 500 warrants, 230 communications orders, 50 pen registers, 13 requests for foreign governments, and 500 witness interviews, including almost 80 before a grand jury.
This is significant, not just because of the scope of the investigation, but as showing how much information comes from a grand jury, since William Barr has declined to release grand jury information. (In fairness to Barr, not much appears to be redacted on those grounds). Besides referring unrelated criminal matters to other federal counsel, the Special Counsel also referred counter intelligence matters to the FBI. Only criminal matters are included in the report. This is significant because the standard of proof in a criminal matter is much higher than in counterintelligence, and because admissibility standards are much broader in counterintelligence than in criminal.
Next comes a section on the Troll Farm, which is most disappointing because most of it is blacked out as interfering with an ongoing investigation. That means that we may learn more later. But as of now the final report tells us a lot less about the Troll Farm than the prior indictment did. It does say that neither the Trump Campaign nor any other US person was criminally implicated in the Troll Farm.* It does say that members of the Trump campaign and some supporters, as well as some left-wing groups like Black Lives Matter were duped by the trolls. It also gives some inconsistent pictures of the scale of the operation. For instance, the trolls appear to have purchased a mere 5,600 Facebook ads, for just $100,000. But they made tens of thousands of posts and acquired hundreds of thousands of followers. And they reached at least 29 million and up to 126 million people. Likewise, Twitter identified only 3,814 accounts, but by Russian botnets, but with 175,993 tweets reaching some 1.4 million people. Still not that many out of a population of 300 million.
Many of the things the trolls "duped" people into doing were entirely appropriate things they would have done anyhow, such as organizing campaign rallies. The Special Counsel has identified "dozens" of such rallies, none attracting more than a few hundred to attend. The trolls provided publicity, money, and organization, but (of course) never participated in person in organizing events, giving various excuses why they could not attend. Perhaps activists organizing political events should develop protocols for investigating organizers and financers who they meet only online to ensure that they are legitimate. Liberal activists have been working on such things for some time in case they meet with someone from James O'Keefe's Project Veritas. Perhaps conservative activists who are honest and patriotic should do the same. But what about right-wing activists who are not honest or patriotic and are quite willing to accept Russian money and publicity? I feel uneasy about making such requirements mandatory.
Finally, the report says that the Trump Campaign linked or retweeted many posts by Russian trolls, all without realizing the origins of the posts. There was absolutely no legal culpability involved. What the Special Counsel does not address -- and would probably not be proper to address, but the rest of us cannot so easily avoid -- is whether there was moral culpability. In other words, were the campaign's posts and retweets the sort of innocent errors that anyone might make in the overheated atmosphere that any campaign is, when members are focused on winning and in an elevated state of hostility to their opponents, willing to believe the worst? Or was the Trump campaign re-posting mad conspiracy theories outside the bounds of normal electoral politics?
During the 2008 election, John McCain, confronted with a crowd calling Obama a terrorist, corrected them, saying that he was a normal politician and that the candidates had normal policy disputes. To McCain, a proper leader's job is to tamp down, rather than inflame, the baser passions of the mob. Trump quite famously thrived on inflaming the mob's rage. He promoted conspiracy theories that any normal political leader would have rejected. So we really do need to know what sort of Russian troll posts the Trump Campaign were repeating.
Or, put differently, what does it mean to say that the Trump campaign were innocently duped into repeating Russian troll posts? Were they so innocently deceived that it is unfair even to refer to them as dupes? Or were they culpably negligent in what they fell for?
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*There does appear to be one US person who pleaded guilty to assisting in identity theft and setting up fraudulent accounts, though with no idea his activities involved either Russia or the Trump Campaign.
This is significant, not just because of the scope of the investigation, but as showing how much information comes from a grand jury, since William Barr has declined to release grand jury information. (In fairness to Barr, not much appears to be redacted on those grounds). Besides referring unrelated criminal matters to other federal counsel, the Special Counsel also referred counter intelligence matters to the FBI. Only criminal matters are included in the report. This is significant because the standard of proof in a criminal matter is much higher than in counterintelligence, and because admissibility standards are much broader in counterintelligence than in criminal.
Next comes a section on the Troll Farm, which is most disappointing because most of it is blacked out as interfering with an ongoing investigation. That means that we may learn more later. But as of now the final report tells us a lot less about the Troll Farm than the prior indictment did. It does say that neither the Trump Campaign nor any other US person was criminally implicated in the Troll Farm.* It does say that members of the Trump campaign and some supporters, as well as some left-wing groups like Black Lives Matter were duped by the trolls. It also gives some inconsistent pictures of the scale of the operation. For instance, the trolls appear to have purchased a mere 5,600 Facebook ads, for just $100,000. But they made tens of thousands of posts and acquired hundreds of thousands of followers. And they reached at least 29 million and up to 126 million people. Likewise, Twitter identified only 3,814 accounts, but by Russian botnets, but with 175,993 tweets reaching some 1.4 million people. Still not that many out of a population of 300 million.
Many of the things the trolls "duped" people into doing were entirely appropriate things they would have done anyhow, such as organizing campaign rallies. The Special Counsel has identified "dozens" of such rallies, none attracting more than a few hundred to attend. The trolls provided publicity, money, and organization, but (of course) never participated in person in organizing events, giving various excuses why they could not attend. Perhaps activists organizing political events should develop protocols for investigating organizers and financers who they meet only online to ensure that they are legitimate. Liberal activists have been working on such things for some time in case they meet with someone from James O'Keefe's Project Veritas. Perhaps conservative activists who are honest and patriotic should do the same. But what about right-wing activists who are not honest or patriotic and are quite willing to accept Russian money and publicity? I feel uneasy about making such requirements mandatory.
Finally, the report says that the Trump Campaign linked or retweeted many posts by Russian trolls, all without realizing the origins of the posts. There was absolutely no legal culpability involved. What the Special Counsel does not address -- and would probably not be proper to address, but the rest of us cannot so easily avoid -- is whether there was moral culpability. In other words, were the campaign's posts and retweets the sort of innocent errors that anyone might make in the overheated atmosphere that any campaign is, when members are focused on winning and in an elevated state of hostility to their opponents, willing to believe the worst? Or was the Trump campaign re-posting mad conspiracy theories outside the bounds of normal electoral politics?
During the 2008 election, John McCain, confronted with a crowd calling Obama a terrorist, corrected them, saying that he was a normal politician and that the candidates had normal policy disputes. To McCain, a proper leader's job is to tamp down, rather than inflame, the baser passions of the mob. Trump quite famously thrived on inflaming the mob's rage. He promoted conspiracy theories that any normal political leader would have rejected. So we really do need to know what sort of Russian troll posts the Trump Campaign were repeating.
Or, put differently, what does it mean to say that the Trump campaign were innocently duped into repeating Russian troll posts? Were they so innocently deceived that it is unfair even to refer to them as dupes? Or were they culpably negligent in what they fell for?
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*There does appear to be one US person who pleaded guilty to assisting in identity theft and setting up fraudulent accounts, though with no idea his activities involved either Russia or the Trump Campaign.
Saturday, April 20, 2019
Mueller Report Executive Summary
So, with that out of the way, what does the Mueller Report say? I have not yet read it myself, only the executive summary. Or rather, the two executive summaries, one of possible collusion and one of possible obstruction. And I must say, the most striking thing about the two reports is that they don't say a lot that hasn't already been reported in public sources. Journalists have been doing a good job.
The report begins by describing the Russian Troll Farm. On this the Mueller indictment really is the main public source of information, although there has been some journalistic reporting (including in the Russian press!) on the Troll Farm. Next, the Executive Summary sets forth the hack-and-leak information. Again, Mueller's indictment on the subject has revealed a great deal the public did not know before, but the Executive Summary says nothing that was not known even as the campaign was ongoing.
The list of contacts between Russian and the Trump campaign does not reveal any that were not previously known, if only through Mueller indictments. It mentions:
The report begins by describing the Russian Troll Farm. On this the Mueller indictment really is the main public source of information, although there has been some journalistic reporting (including in the Russian press!) on the Troll Farm. Next, the Executive Summary sets forth the hack-and-leak information. Again, Mueller's indictment on the subject has revealed a great deal the public did not know before, but the Executive Summary says nothing that was not known even as the campaign was ongoing.
The list of contacts between Russian and the Trump campaign does not reveal any that were not previously known, if only through Mueller indictments. It mentions:
- Negotiations to build a Trump Tower in Moscow
- Papadopoulos' meetings with Russian cut-outs offering damaging information on Hillary Clinton and unsuccessful attempts to set up a meeting with the Russians and the campaign. This looks like one of the most damaging contacts, but also the only one that appears to have been expressly rejected.
- The Trump Tower meeting, which went nowhere.
- Carter Page's visit to Moscow to deliver a graduation address (no mention of any secret meetings).
- Paul Manafort's meetings with Konstantin Kilimnick "who the FBI assesses to have ties to Russian Intelligence." They discussed a "Ukrainian Peace Plan" that would allow Russia control of eastern Ukraine, and discussed Trump's strategy for winning in the Midwest. Manafort had shared polling data with Kilimnick months before the meeting and continued to share such data "for some period of time after their August meeting."
- A meeting after the election between Kirill Dmitriev and Erik Prince and an unnamed friend of Jared Kushner in the Seychelles, also including a Ukrainian plan.
- Michael Flynn's calls to persuade the Russians not to retaliate for sanctions.
Of all of these, the Manafort meeting sounds by far the most alarming. It looks like either smoking gun collusion or document theft, depending on whether Manfort's actions were authorized or unauthorized.
The report did not find grounds to charge any campaign member with either being an unregistered Russian agent or campaign finance violations. (Accepting foreign assistance in a campaign is illegal). The report also mentions that Jeff Sessions' meetings with Russian Ambassador Sergei Kislyak (the meetings that forced Sessions to recuse) were innocent exchanges of greetings. That does not surprise me. If the Russians were engaged in a criminal conspiracy with the Trump campaign, it seems most unlikely that so public and closely surveilled a figure as the Russian Ambassador would take part. Besides, Sessions was never amount the members of the Trump campaign who had sinister ties to Russia.
Part I ends by saying that there are deleted messages and witnesses who invoked the Fifth Amendment, so there may be more information out there that could change their minds. I think this refers specifically to Manafort and is transfer of campaign data.
As for Part II, most of the obstruction took place in plain sight or has been reported to the press, so the Executive Summary adds very little that we did not already know. It certainly shows Trump behaving very badly, being more concerned about stopping the investigation or making clear that he was not a target than in whether Russia had meddled. Both Flynn and Comey were fired in a vain attempt to stop the investigation. Trump made repeated attempts to have Sessions fired for recusing, to fire the Special Counsel, or to have Sessions give assurances that the investigation was "very unfair" to the President, who had done nothing wrong, and that investigation should be limited to future Russian meddling. Trump also tried to persuade Flynn, Manafort, Cohen and Stone not to testify against him.
Probably the most shocking new ground broken here was that Trump called the appointment of Special Counsel, "the end of his presidency." So the obvious question is why. Why was he so alarmed and why did he go to such lengths to stop the investigation if there really was no "there" there?
I think the answer can only be that Trump has no concept of a neutral investigation, of one whose purpose is to find out what actually happened. To his mindset, the only purpose of an investigation can be to ruin the target. Hence his conviction that the investigation of Hillary Clinton was rigged because it did not end in an indictment. It explains why he is now arguing that the fact that this investigation did not end in indictments proves that it should never have been launched. And it gives us some idea what to expect when he calls for an investigation of the investigators.
This is an alarming view of our President, to put it mildly. It may not be grounds for an impeachment, but it is more than grounds for a primary challenge.
Further Comments
Here is the reason I don't favor impeachment.
What is an impeachable offense? I would say, an impeachable offense is whatever public opinion says is impeachable. So what is public opinion? Well, I would say considerably more than majority opinion, or even a super-majority opinion. This is not to say that the President has to get down to a zero percent approval rating to be impeachable, but something like a super-super-majority, including much of his own party, is needed to impeach a President. Something like Nixon's 24% approval, with only 50% of Republicans approving is what we need. As things stand now, I am confident that Donald Trump could shoot someone in the middle of Fifth Avenue and Republicans would rally behind him. And they would see impeachment efforts as purely partisan.
And that is what I fear most. Not just that impeachment will fail. Not just that it will unite the Republicans behind Trump. But that Republicans will see it as purely partisan and will retaliate by impeaching the next Democrat elected President. And that impeachment will become a routine tactic of partisan politics. I would rather see impeachment never used than always used.
So what does that leave? I would say, there is plenty in the report to make electoral hay. To judge by Trump tweeting, he appears to agree.
And I would say to take a page from Karl Rove's play book. Rove's advice was always to hit your opponents where the are strongest. He said it was useless to hit where they were weakest because the public already knows about a candidate's weakness and has factored them in. In the case of Trump, his biggest weakness was his ethics. It seems a safe assumption that nobody voted for Trump because they were vowed by his ethics.*
So what is Trump's strongest point? Believe it or not, it is that his followers saw him as a strong and competent leader, and probably that many saw his lack of ethics as an expression of strength. And the Mueller Report portrays Trump as a weak, incompetent leader whose subordinates routinely disregard his orders, manipulate him, and undermine him. This article perceptively refers to Trump as "a leader who detests weakness -- but doesn't necessarily mind an amoral reputation." And such his his appeal -- amoral, but strong, particularly appealing to people who equate strength with amorality and see moral constraints as weakness. Play on all the portrayals of Trump as a weak leader.
And attack his reputation for competence. Yes, you and I know he was never competent to begin with, but his supporters don't know that. Don't portray him as an unethical businessman. His followers are fine with his lack of ethics so long as his unethical behavior is deployed on their behalf. Show all the times he backed down when faced with a real challenge. And above all, set out to prove that he isn't as rich as he claims to be.** That drives him nuts. And it contributes to showing him as a weak man who can't handle the slightest adversity.
This article also puts it well:
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*Although some misguided souls did vote for him in the belief that at least he was not as crooked as Hillary.
**This is assuming, of course, that Trump doesn't make a serious attempt to strip 20 million people of their health insurance again, in which case the campaign ads write themselves.
And that is what I fear most. Not just that impeachment will fail. Not just that it will unite the Republicans behind Trump. But that Republicans will see it as purely partisan and will retaliate by impeaching the next Democrat elected President. And that impeachment will become a routine tactic of partisan politics. I would rather see impeachment never used than always used.
So what does that leave? I would say, there is plenty in the report to make electoral hay. To judge by Trump tweeting, he appears to agree.
And I would say to take a page from Karl Rove's play book. Rove's advice was always to hit your opponents where the are strongest. He said it was useless to hit where they were weakest because the public already knows about a candidate's weakness and has factored them in. In the case of Trump, his biggest weakness was his ethics. It seems a safe assumption that nobody voted for Trump because they were vowed by his ethics.*
So what is Trump's strongest point? Believe it or not, it is that his followers saw him as a strong and competent leader, and probably that many saw his lack of ethics as an expression of strength. And the Mueller Report portrays Trump as a weak, incompetent leader whose subordinates routinely disregard his orders, manipulate him, and undermine him. This article perceptively refers to Trump as "a leader who detests weakness -- but doesn't necessarily mind an amoral reputation." And such his his appeal -- amoral, but strong, particularly appealing to people who equate strength with amorality and see moral constraints as weakness. Play on all the portrayals of Trump as a weak leader.
This article also puts it well:
As Mueller’s report demonstrates, the willingness of his subordinates to be insubordinate has generally served Trump well, because his own judgement is often so shockingly bad that almost anyone else’s judgment (including that of some very shady characters) would be better. That willingness to ignore or contradict the president seems to have averted some criminal acts that might have endangered his presidency. And it has likely saved us from other dark fates.That may not be sufficient grounds for impeachment. But it is more than sufficient grounds for a primary challenge.
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*Although some misguided souls did vote for him in the belief that at least he was not as crooked as Hillary.
**This is assuming, of course, that Trump doesn't make a serious attempt to strip 20 million people of their health insurance again, in which case the campaign ads write themselves.
Friday, April 19, 2019
Advice to Democrats on How to Troll
Come on folks, this isn't hard. Republicans understand the value of staying on message and hammering the same point over and over again. We need to do the same.
Some wise soul commented that the Mueller Report was apt to be perfect for democrats -- bad enough to be highly embarrassing, but not bad enough to compel impeachment. And so it is. You should be shouting from the rooftops, repeating all the juiciest, most awkward-but-not-quite-criminal portions of the report and solemnly intoning, "This may not be grounds for impeachment, but it is more than grounds for a primary challenge."
Some wise person commented that the Mueller report was likely to be ideal for Democrats -- not enough to force impeachment, but plenty to embarrass and force Republicans to defend the indefensible. Or not defend it, which can be equally useful to us.
Think about it, folks. How did Trump win in 2016? And don't say with the help of the Russians. What more than anything else did the Russians (and Wikileaks) do to swing the election for Trump? They kept the Democrats divided. They kept us relitigating the primary. They kept Bernie Sanders followers all riled up, convinced that Clinton had stolen the primary and ready to defect to the Green Party rather than vote for Hillary.
We need to do the same.
When Mitt Romney -- or any other Republican, for that matter -- criticizes Trump's conduct, praise him/her to the skies and urge him/her to mount a primary challenge. Yes, granted, the Republican will almost certainly back down, intimidated by fear of his/her own primary challenge or, worse, Trump not appointing any more judges. But it turns Trump's venom on his fellow Republicans.
So long as Republicans see an impeachment challenge in the works they will all unite to defend their leader from the Democrat and argue with at least some plausibility that anything not rising to the level of an actual, indictable crime, does not rise to the level of an impeachable offense.
But is you keep talk of a primary challenge circulating, Republicans will be forced to explain why Trump's conduct is not only not impeachable, but not even primary-able. Say it often enough and the talking heads will see no choice but to ask Republicans whether they think Trump's conduct is worth a primary challenge. Watch them squirm trying to answer!
It should be entertaining.
Some wise soul commented that the Mueller Report was apt to be perfect for democrats -- bad enough to be highly embarrassing, but not bad enough to compel impeachment. And so it is. You should be shouting from the rooftops, repeating all the juiciest, most awkward-but-not-quite-criminal portions of the report and solemnly intoning, "This may not be grounds for impeachment, but it is more than grounds for a primary challenge."
Some wise person commented that the Mueller report was likely to be ideal for Democrats -- not enough to force impeachment, but plenty to embarrass and force Republicans to defend the indefensible. Or not defend it, which can be equally useful to us.
Think about it, folks. How did Trump win in 2016? And don't say with the help of the Russians. What more than anything else did the Russians (and Wikileaks) do to swing the election for Trump? They kept the Democrats divided. They kept us relitigating the primary. They kept Bernie Sanders followers all riled up, convinced that Clinton had stolen the primary and ready to defect to the Green Party rather than vote for Hillary.
We need to do the same.
When Mitt Romney -- or any other Republican, for that matter -- criticizes Trump's conduct, praise him/her to the skies and urge him/her to mount a primary challenge. Yes, granted, the Republican will almost certainly back down, intimidated by fear of his/her own primary challenge or, worse, Trump not appointing any more judges. But it turns Trump's venom on his fellow Republicans.
So long as Republicans see an impeachment challenge in the works they will all unite to defend their leader from the Democrat and argue with at least some plausibility that anything not rising to the level of an actual, indictable crime, does not rise to the level of an impeachable offense.
But is you keep talk of a primary challenge circulating, Republicans will be forced to explain why Trump's conduct is not only not impeachable, but not even primary-able. Say it often enough and the talking heads will see no choice but to ask Republicans whether they think Trump's conduct is worth a primary challenge. Watch them squirm trying to answer!
It should be entertaining.
Wednesday, April 3, 2019
Brexit: A Case Study in Ignoring Reality
If you really want to see the dangers of choosing policy makers for their ignorance of policy and dismissing facts and evidence as mere elitism, the best place to look isn't the Trump Administration at all.
Try the Brexit.
The British Parliament is apparently engaged in an experiment to see if unwelcome realities can be eliminated by majority vote.
It's unreal. Parliament has been presented with a menu of options on how to handle Brexit, ranging from a do-over for the referendum to just crashing out. Every single one of them has been rejected. Eye roll!
Look, guys, maybe it would have been a good idea to decide on one of these plans, one that could get an actual majority vote before starting the two-year clock ticking, rather than attempt to decide this with the clock set to run in a matter of weeks (or less). And if there are absolutely no acceptable options -- well maybe it is better to think about that before you get into such a situation in the first place.
And some people are asking why, given May's utter failure, she hasn't been replaced as Prime Minister. The answer seems bleeding obvious to me. No one else wants to get stuck with the job and blamed for whatever unacceptable outcome the country gets stuck with. Duh!
So, my fellow Americans, you are witnessing a real-time example of what happens when you make ignorance your prime qualification for office and think reality can be abolished by majority vote. And reality is set to strike in less than ten days unless someone can think up something very fast.
So seriously, folks, is this what you want for our country? Because Trump's handlers just might not be able to restrain him forever.
Try the Brexit.
The British Parliament is apparently engaged in an experiment to see if unwelcome realities can be eliminated by majority vote.
It's unreal. Parliament has been presented with a menu of options on how to handle Brexit, ranging from a do-over for the referendum to just crashing out. Every single one of them has been rejected. Eye roll!
Look, guys, maybe it would have been a good idea to decide on one of these plans, one that could get an actual majority vote before starting the two-year clock ticking, rather than attempt to decide this with the clock set to run in a matter of weeks (or less). And if there are absolutely no acceptable options -- well maybe it is better to think about that before you get into such a situation in the first place.
And some people are asking why, given May's utter failure, she hasn't been replaced as Prime Minister. The answer seems bleeding obvious to me. No one else wants to get stuck with the job and blamed for whatever unacceptable outcome the country gets stuck with. Duh!
So, my fellow Americans, you are witnessing a real-time example of what happens when you make ignorance your prime qualification for office and think reality can be abolished by majority vote. And reality is set to strike in less than ten days unless someone can think up something very fast.
So seriously, folks, is this what you want for our country? Because Trump's handlers just might not be able to restrain him forever.
One Further Though on Trump
No President has ever gone so far as Donald Trump in failing to distinguish appearance from reality. To all appearances, Trump is governed by what he sees on Fox News and doesn't accept anything as real until he sees it on TV.
He puts me in mind of a Doonesbury cartoon savaging Jerry Brown as void of all substance. Alas, I do not know how to post it, but the dialog is as follows:
Reporter: Governor Brown, why will you only announce a "context" for your candidacy?
Brown: This is an era of limitations. I don't think people want formal declarations anymore.
Reporter: Will that apply to your program as well?
Brown: In the electronic global village, programs are unimportant. They're just words. Appearances are the new reality
Reporter: Then it's true your idea of a social worker is a T.V. repairman.
Brown: I don't think that question rises to the level of whatever network you front for.
Reporter: Governor, if we turned off the cameras would you still exist?
Brown: I don't want to speculate on that.Donald Trump, by contrast, has no need to speculate. He appears fully convinced that if the cameras were turned off, he would no longer exist. He behaves accordingly. It is, perhaps, the best explanation for his behavior.
Why Trump Hasn't Done Any Serious Damage
He has absolutely no idea what he is doing, which gives him all sorts of nutty ideas that could cause serious damage if implemented. The most recent one was a proposal to close the Mexican border, presumably to all travel and trade. People around him appear to have convinced him just how serious this would be and he is now backing down. Examples of loony things he wants to do proliferate -- start a war with North Korea, make North Korea's Kim Jong-Un our best friend, release highly classified materials from the Page warrant, and now (possibly) fire the entire Federal Reserve Board and replace them with hacks.
But if Trump's damn fool ignorance and extremely short attention span make him inclined to tweet out the nuttiest things as our latest policy, it makes him easy to thwart. Not knowing how things actually work in the real world leads to crazy ideas, and also to not knowing how to implement them. Part of the Trumpster's frustration with the Deep State is probably the realization that the President does not, in fact, rule by decree, that getting stuff done requires knowledge of the bureaucracy and how to work it, and that Trump has neither the aptitude nor the patience for it.
On the rare occasions Trump has actually managed to do the crazy things he is proposing, the have rather rapidly run into reality and gotten the worst of it. Pushing for the repeal of Obamacare made clear the the Republicans had no alternate plan and would have dismantled the system millions now rely on for health insurance and put nothing in its place. The family separation policy for asylum seekers led to public outrage and forced Trump to back down. And above all, his decision to shut down the federal government proved that government shutdowns are not just a way of being emphatic, but cause actual damage to ordinary people. Trump appears not to have understood that. Significantly, the shutdown is the only thing Trump has done so far that has actually hurt his followers, and the only thing that appears to have dented his popularity with them.
To me, the most important reason not to vote for Trump was that he seemed like the sort of person who in time of crisis you would want to handcuff, gag, and lock in the closet until it blew over. Well, Trump's crew has (famously) not managed to gag him so far, but they have effectively handcuffed him -- so far.
And maybe permanently. It's just that now Trump has seriously gone off the deep end. He has cut off aid to Honduras, Guatemala and El Salvador and appears actually to mean it. He is also pushing for an end to Obamacare, still having failed to learn that creating great health care means more than just saying that you will create great health care. Granted, he has also threatened to close the border with Mexico and been talked down, so maybe cooler heads will prevail.
Tuesday, April 2, 2019
Devin Nunes' Libel Suit is Even Nuttier Than it Sounds
For one thing, even if Nunes can prove libel, Twitter will not be liable under the Communications Decency Act, which hold that an internet forum that merely provides a place to publish is not liable for the content that is published there. In other words, Nunes has no claim against Twitter, only against the posters there. And his libel claim fails on multiple counts.
One is that under longstanding Supreme Court case of New York Times v. Sullivan, for a public figure to win a libel suit, he or she has to prove "actual malice," defined as knowing the statement was false or seriously doubting its truth. It is true that Clarence Thomas as recently expressed an interest in overturning this rule, so Nunes may be hoping that this will be the test case that overturns it. However, even if Nunes gets New York Times overturned, he will face other problems.
Furthermore, to be libel, a statement has to allege "fact." This means, it must be something meant to be taken more-or-less literally. The complaint consists largely of quotes from hostile Twitter accounts, many outrageous, some obscene, but very few anything that could be taken literally or even close to it.
Nunes also claims for emotional distress. But that claim has been foreclosed by the case of Hustler v. Falwell (and yes, that really is Jerry Falwell versus the porn mag). In that case Hustler ran an obscene story about Jerry Falwell in a drunken incestuous tryst with his mother in an outhouse. It was not considered defamatory because it was clearly not meant to be believed. The Supreme Court held that if Falwell couldn't claim for defamation, he couldn't claim for emotional distress, either.
In this case, everyone who has ever looked at Twitter knows that it is a sewer. Nunes appears to think that he has been personally singled out, but in fact he has been treated no worse than anyone else on Twitter. If one takes this suit seriously, it is an attempt to outlaw Twitter. (Maybe a good idea, but that is a different matter).
But it isn't just Twitter that Nunes wants to outlaw. He also makes a claim for "defamation per se." Roughly speaking, some things are considered so defamatory as to be defamatory by law (unless true). There are traditionally five allegations that are considered defamatory per se: (1) commission of a crime of moral turpitude (OK); (2) affliction with a loathsome communicable disease that would tend to exclude the plaintiff from society; (3) unfitness for some office or employment for profit or want of integrity in the discharge of the duties of such office or employment; (4) some falsehood that prejudices the plaintiffs profession or trade; or (5) the unchastity of a woman (sometimes changed in these modern times to an allegation of serious sexual misconduct). Clearly the distinction between numbers 3 and 4 is rather unclear and they are often lumped together. But Nunes claims in this category are just plain nuts:
The statements impute to Nunes an unfitness to perform the duties of an office or employment for profit, or the want of integrity in the discharge of the duties of such office or employment. Finally, Defendants’ false statements also prejudice Nunes in his profession or trade as a United States Congressman.He also complains that these Twitter attacks were a conspiracy to make him lose the election, and that as a result he did, indeed, win by a narrower margin than in the past.
Of course, anyone challenging an incumbent routinely impugns the incumbent's fitness to hold office or integrity in discharging those duties. Yes, granted, it is hypothetically possible to run for office solely by boasting about one's own credentials and/or challenging the incumbent on the issues. Maybe it would be better to run for office that way. But here in the real world, we all know things don't work that way.
And the whole point of seeking office is the prejudice the incumbent's profession or trade as an elected official. To say nothing of the idea that running for office is a "conspiracy" or that costing the incumbent votes is an actionable item of damages.
If we take Nunes at his word, he wants to outlaw election campaigns!
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