Vaughn Hillyard caught Paul Manafort in a victory lap on the floor of the RNC the other day.
Hillyard: Mr. Manafort, how is it to be back?
Manafort It’s great to be back.
And so it is that eight years after getting advance warning of the DNC release from his long time buddy Roger Stone, almost eight years after Stone emailed Manafort telling him he had a way to win the race, and just short of eight years after Manafort met with Konstantin Kilimnik in a cigar bar and discussed the outlines of a quid pro quo: campaign information for debt relief in exchange for a commitment to carve up Ukraine (Manafort insists he rejected the plan to carve up Ukraine, though the plan nevertheless remained active until at least 2018).
Aside from Hillyard and Robert Costa’s tweets marking Manafort’s arrival, his presence made barely a blip in the news coverage.
Why should it?
Among all the other criminals and insurrectionists, Manafort no longer sticks out.
And with JD Vance’s selection as VP, Manafort’s support for a pro-Russian Ukraine also looks banal, rather than alarming.
But there is likely a backstory few want to pursue.
Back in May, when Paul Manafort’s return was first reported and then denied, 24sight described how (as he had done in 2016), Paulie had been and kept working the back channel.
Manafort has quietly been passing strategic advice back to Trump through co-campaign manager Chris LaCivita and longtime Trump pollster Tony Fabrizio, the Republican sources said. Manafort has been analyzing polling results and advised on the organization of state Republican parties and selecting delegates to the Republican nominating convention — one of his specialties — according to two Republicans familiar with the dealings.
But LaCivita and other Trump campaign officials vehemently denied Manafort’s involvement.
LaCivita called questions about huddling with Manafort for Trump’s benefit “manufactured horseshit,” in a text message to 24sight News. Trump campaign spokesman Brian Hughes endorsed LaCivita’s reply, adding some context to the pushback.
“There was clearly a moment of consideration about using Manafort specifically for the convention,” Hughes said Wednesday. “But Manafort very publicly withdrew himself.”
Asked if Manafort had discussions with Fabrizio about helping steer the campaign, Hughes said he was unaware of everything that people talk about outside the campaign.
Three Republicans familiar with the dealings said that LaCivita met with Manafort in suburban Washington last fall. LaCivita denied details of the meeting to 24sight News, but declined to answer additional questions.
LaCivita was denying Manafort’s centrality as vigorously as he is now attempting to deny the (Orbán-aligned) Project 2025, as vigorously as Steve Bannon denied Manafort’s ongoing role in 2016, in spite of receiving plans on how to secure the victory, plans which led Bannon to worry about the appearance of Russian involvement in the victory.
But all these pieces go together.
That is, Trump is running not just as someone who explicitly wants to be a Dictator from Day One, someone who supports all the same policies as a Project that targets divorce and birth control along with the very idea of civil service.
He is running with Russian help on a plan to give Russia what it wants, starting, but not ending, with Ukraine on a silver platter.
Trump, and the guy Trump pardoned for lying about what happened with Russia in 2016, are simply picking up where things left off.
https://www.emptywheel.net/wp-content/uploads/2018/07/Paulie.jpg600476emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-19 07:22:422024-07-19 07:22:42Manufactured Horseshit: Paul Manafort Returns to the Scene of the Crime
“The gun culture’s winning, and if we beat ’em on that, we can beat ’em on everything,” Alex Jones said about halfway through a rant about the Sandy Hook massacre.
“You know they’re going to exploit this tragedy,” he said, before getting rich off of it.
The rant was played at the Texas trial which led to a billion dollar judgment for the conspiracy theorist’s claims that the act of school shooter Adam Lanza was staged.
Of course, as Jones subsequently conceded, disturbed loner Lanza really did shoot up an elementary school. He really did kill a bunch of children.
In America, one doesn’t need to invent Deep State plots for loners to commit seemingly pointless shootings. Sometimes all it takes is an assault rifle.
And it looks increasingly likely that’s what Thomas Crooks was: someone who wanted to shoot people, not to achieve some political murder or to help Iran avenge Qassem Soleimani’s death, but because that’s how America gives some people’s lives purpose.
According to briefings given to Congress, Crooks seemed to be casing out both Trump and Joe Biden in advance of his attack.
F.B.I. officials told members of Congress on Wednesday that the gunman who tried to kill former President Donald J. Trump used his cellphone and other devices to search for images of Mr. Trump and President Biden, along with an array of public figures.
The 20-year-old gunman, Thomas Matthew Crooks of Bethel Park, Pa., also looked up dates of Mr. Trump’s appearances and the Democratic National Convention, according to people on two conference calls held to answer lawmakers’ questions.
[snip]
F.B.I. officials, speaking on the calls, suggested that his search history indicated he was broadly interested in powerful and famous people, without any obvious ideological or partisan pattern.
Among the other prominent figures the gunman searched for using one of his phones, besides Mr. Trump and Mr. Biden, were the F.B.I. director, Christopher A. Wray; Attorney General Merrick B. Garland; and a member of the British royal family, according to two officials with knowledge of the situation, speaking on the condition of anonymity to discuss the matter publicly.
Mr. Wray, who was also on the calls, went out of his way to caution that the investigation was still in its early stages.
But the absence of “any political or ideological information” at the house Mr. Crooks shared with his mother and father was “notable” because most people who carry out acts of political violence tend to leave a discernible trail of political views, a top bureau official told lawmakers.
[Note: this story also repeats a claim that Crooks forewarned of something on Steam; that appears to be one of numerous instances of people adopting his identity after the fact.]
While accounts vary, some of his schoolmates describe that he was a loner who was bullied.
Speaking to local news outlet KDKA, some young locals who went to school with him described him as a loner, who was frequently bullied and sometimes wore “hunting outfits to school”.
Another former classmate of his, Summer Barkley, cast him differently, telling the BBC that he was “always getting good grades on tests” and was “very passionate about history”.
“Anything on government and history he seemed to know about,” she said. “But it was nothing out of the ordinary… he was always nice.”
She described him as well-liked by his teachers.
Others simply remembered him as quiet.
“He was there but I can’t think of anyone who knew him well,” one former classmate, who asked to remain nameless, told the BBC. “He’s just not a guy I really think about. But he seemed fine.”
None of this makes the shooting less important. None of this excuses the lapses in Trump’s security that allowed it to happen.
Rather, it makes it rather more ordinary — something that Americans have grown all too used to and done far too little to prevent.
Yet, even so, the shooting has still been used to heighten America’s polarization, with partisans on both sides still trying to find party as the cause of this.
It was only a matter of time before a garden variety American school shooter decided to aim at a higher profile target. And yet we’re still not taking from it the message that everyone of these random shootings are a tragedy. Corey Comperatore, the firefighter who heroically shielded his family to protect them, is the victim of this shooting, not Trump. But he’s no more important a victim than the 20 children killed in Sandy Hook. It’s not God that chose this shooting. It is not destiny.
It is, rather, something far darker about America, something that transcends party.
Update: Parkland High father Fred Guttenberg weighs in:
Update: NYT gets to the school shooter analogy too.
Investigators have uncovered what now could be seen as concerning signs: The gunman’s phone showed that he had possibly read news stories about the teenage school shooter who killed four students at Oxford High School in Michigan. Mr. Crooks received multiple packages, including several that were marked “hazardous material,” over the past several months. He looked up “major depressive disorder” on a cellphone later found at his house.
He had also searched a bipartisan roster of political figures, including Mr. Trump, President Biden and Attorney General Merrick Garland, F.B.I. officials told members of Congress. He also looked up both the dates of Mr. Trump’s July 13 rally in Butler, Pa., as well as the Democratic National Convention in Chicago.
But investigators have not found any evidence that Mr. Crooks had strong political beliefs or an ideological motivation.
Experts who study the histories of gunmen said the emerging picture of Mr. Crooks looked more like a 21st-century school shooter than a John Wilkes Booth.
https://www.emptywheel.net/wp-content/uploads/2024/07/Screenshot-2024-07-18-at-4.13.25 PM.png10301148emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-18 13:02:272024-07-20 05:42:59Will Alex Jones Accuse Donald Trump of Being a Crisis Actor?
As I noted in this post, I wrote a letter to Judge Maryellen Noreika asking her to release several documents, the more interesting of which are the forensic reports on the laptop attributed to Hunter Biden and the hard drive with John Paul Mac Isaac’s purported copy of the laptop.
Abbe Lowell had no problem with the release of the forensic reports.
Mr. Biden has no objection to the release of either item requested by the journalist—the motion for miscellaneous relief at DE 167 and/or the expert disclosure of Michael Waski at DE 120-2.
Derek Hines did. He said that because he never filed the forensic reports, they are not judicial records before Judge Noreika.
However, his disclosure was never filed with the Court because the defendant agreed that the information derived from his laptop was authentic. Therefore, the expert disclosure was not included as an exhibit for ECF 120 because the certification itself sufficiently supported the motion. Moreover, since there was no dispute about the authenticity of the information derived from the defendant’s laptop, the government did not call Mr. Waski as an expert witness at trial. Accordingly, the expert disclosure is not a judicial record and is not a record before this Court that the Court could unseal.
There are several problems with this response.
First, as I wrote in my letter, nothing in the certification mentioned the laptop or hard drive it certified.
Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3)requires inspecting the Disclosure.
There is no way the public — or Judge Noreika herself — can be certain that the “Digital Forensics Report and Extraction Report,” singular, mentioned in the certification describes the forensics of both (or either!) the laptop and the hard drive. We need to see the description of that report in the Disclosure itself.
The certification relies on the Disclosure to even identify what it is certifying.
More importantly, Hines blatantly misstates Hunter Biden’s view on the authenticity of the data on the laptop. In Abbe Lowell’s response to Hines’ motion to bypass any expert witness, he specifically debunked that claim.
Defense counsel has numerous reasons to believe the data had been altered and compromised before investigators obtained the electronic material from Apple Inc. and The Mac Shop, such that the Special Counsel’s claim that the underlying data is “authentic” (id. at 4) and accurately reflects “defendant’s Apple Macbook Pro and [] hard drive” (id. at 2) is mistaken.
Mr. Biden’s counsel told the Special Counsel on May 10, 2024 it agrees not to challenge the authenticity of the electronic data the Special Counsel intends to use with respect to it being what law enforcement received on December 9, 2019 from John Paul Mac Isaac (owner of The Mac Shop), and from Apple on August 29, 2019 and in a follow-up search on July 10, 2020. (Mot. at n.3.) However, Mr. Biden cannot agree this electronic data is “authentic” as to being his data as he used and stored it prior to Mac Issac obtaining it.
He pointedly did not agree that the data derived from the laptop (and hard drive, which I suspect has more irregularities) was “authentic” as to being his own data.
One reason I’m interested in the hard drive is because Hines himself revealed that the “backup” of it is 62% bigger than the laptop of which it purports to be a copy. Understanding why that is so might go a long way to explain anything John Paul Mac Isaac did with Hunter Biden’s data.
As I noted in my letter to Judge Noreika, Congressman Dan Bishop suggested in a deposition on the laptop last year that if the FBI, “has conducted a forensic investigation and has suppressed the results,” people shouldn’t defer to the FBI. This was an opportunity for the FBI to show it’s work.
It — or at least, David Weiss — doesn’t want to.
Update: Corrected misspelling of Hines’ last name. My apologies to him.
Update: Judge Noreika has now docketed my reply. Among other things, I noted that the creation date for the PDF of Waski’s certification post-dates the day when it was sent to Hunter Biden’s team on April 24.
The other certification is dated April 23.
Update: Judge Noreika has, unsurprisingly, granted the request to docket the Hallie Biden related filing, but denied the Disclosure on the laptop and hard drive.
ORAL ORDER re: D.I. [247], IT IS HEREBY ORDERED that the Sealed Motion (DI [167]) is hereby unsealed. The expert disclosure of Michael Waski is not part of the record of this case or in the Courts possession. IT IS HEREBY FURTHER ORDERED that the Court will not address further informal requests made by letter rather than appropriate motion. Ordered by Judge Maryellen Noreika on 7/18/2024. (as)
https://www.emptywheel.net/wp-content/uploads/2023/04/Biden-laptop-Teddy.jpeg10801727emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-17 18:12:462024-07-18 17:09:22In Bid to Withhold Laptop and Hard Drive Forensic Reports, Derek Hines Misstates Hunter Biden’s View on Authenticity of Data on Laptop
As I did in January, I’ve written a letter asking Judge Maryellen Noreika to liberate two documents, the more interesting of which are the forensic reports FBI did of the Hunter Biden laptop and the hard drive John Paul Mac Isaac made of the laptop. (Yes, I know it has my personal information.)
In a key passage explaining the significance of the two forensic reports, I noted that the extraction of the hard drive that purports to be a copy of the laptop is 62% bigger than extraction of the laptop itself.
In the motion in limine in support (“MIL”) of introducing those communications via summary report (DE 120), SCO relied on the expert certification of Michael Waski, a Senior Digital Forensic Examiner who, as a Forensic Analyst, was involved in exploiting the laptop in 2019. Accompanying the MIL, SCO provided Mr. Waski’s certification, which in turn incorporates by reference his expert Disclosure. (DE 120-2) The only reasons given why SCO did not docket expert Disclosures themselves were, “because those documents are voluminous and because the defendant agrees these files are self-authenticating.” Nevertheless, Mr. Waski’s certification describes his Disclosure as, “attached hereto.”
Mr. Waski’s certification, as docketed, does not by itself certify that the laptop was among the devices extracted. While the MIL describes that Mr. Waski’s certification pertains to, “two backup files from laptop and hard drive” (DE 120 at 3), Mr. Waski’s certification itself mentions neither. Instead, it references a “Digital Forensics Report and [an] Extraction Report,” singular. Compare Robert Gearhart’s certification at DE 120-1, which lists the four iCloud backups described in the MIL, “Apple Backup 1, Apple Backup 2, Apple Backup 3, Apple Backup 4,” which in turn match the warrant. (20-mj-165 DE 3 at 2) To confirm that Mr. Waski’s certification pertains to the laptop and hard drive incorporated into the summary and described in the warrant (19-mj-309 DE 3)requires inspecting the Disclosure.
Beyond that issue of completeness, Mr. Waski’s Disclosure holds additional significant public interest: (1) it would reaffirm the integrity of these proceedings, (2) it might address concerns raised in two separate Congressional investigations incorporating Mr. Biden’s devices (3) it would provide insight into derivative hard drives that have been the subject of controversy for years.
Some background explains why. The FBI obtained the two devices referenced in the MIL from computer repairman John Paul Mac Isaac. (19-mj-309 DE 3) One device, introduced into evidence as GTX16, is a MacBook Pro. The other device, a Western Digital hard drive, purports to be a copy that Mr. Mac Isaac made of the laptop; that copy is, in turn, the source of a number of other hard drives disseminated publicly, including to Congress, since 2020.
Because the hard drive purports to be a copy of the laptop, the content on those devices should substantially match. Yet the MIL suggests it may not. According to SCO, the “backup file” of the laptop (the original source) consists of 4,198 pages (DE 120 at 5). The “backup file” of the hard drive derived from the laptop (the purported copy) consists of 6,801 pages (Id.). In other words, the extracted copy made of the laptop is 62% larger, measured in pages, than the extracted original source. SCO’s office provided no response to an inquiry regarding the significant size difference in these backup files. [my emphasis]
Judge Noreika has asked the two sides to weigh in on these requests by end of day.
ORAL ORDER re Letter ( 247 ): IT IS HEREBY ORDERED that, by the close of business today, the parties shall provide the Court with their respective positions on the request for the unsealing of the two documents referenced in the letter. ORDERED by Judge Maryellen Noreika on 7/17/2024. (mdb) (Entered: 07/17/2024)
https://www.emptywheel.net/wp-content/uploads/2023/12/Screenshot-2023-12-10-at-20.11.36.png11081204emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-17 11:32:482024-07-17 11:34:07emptywheel Writes Letters: The FBI Extraction of the Hunter Biden Hard Drive Is 62% Bigger than the Laptop
Aileen Cannon’s order throwing out the stolen documents prosecution may make some Calvinball Justice Thomas engaged in more important in days ahead.
Cannon actually didn’t give Trump his preferred outcome: a ruling that Jack Smith would have had to be senate-confirmed and also that he was funded improperly. Aside from the timing, neither is this outcome one (I imagine) that Trump would prefer over a referral of Jack Smith for investigation or a dismissal on Selective Prosecution or spoilation or some other claim that would allow Trump to claim he was victimized.
Rather, she adopted a second part of Trump’s argument, that Merrick Garland didn’t have the legal authority to appoint a Special Counsel, of any sort, whether someone from outside the Department or someone (like David Weiss) who was already part of it. She punted on most of the question on whether a Special Counsel is a superior officer requiring Senate confirmation or an inferior one not requiring it.
Cannon’s argument lifts directly from Clarence Thomas’ concurrence, which she cites three times (though that is, in my opinion, by no means her most interesting citation). Thomas argues that the four statutes that Garland cited in his appointment of Jack Smith are insufficient to authorize the appointment of a Special Counsel.
We cannot ignore the importance that the Constitution places on who creates a federal office. To guard against tyranny, the Founders required that a federal office be “established by Law.” As James Madison cautioned, “[i]f there is any point in which the separation of the Legislative and Executive powers ought to be maintained with greater caution, it is that which relates to officers and offices.” 1 Annals of Cong. 581. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to create and fill an office of his own accord.
It is difficult to see how the Special Counsel has an office “established by Law,” as required by the Constitution. When the Attorney General appointed the Special Counsel, he did not identify any statute that clearly creates such an office. See Dept. of Justice Order No. 5559–2022 (Nov. 18, 2022). Nor did he rely on a statute granting him the authority to appoint officers as he deems fit, as the heads of some other agencies have.3 See supra, at 5. Instead, the Attorney General relied upon several statutes of a general nature. See Order No. 5559–2022 (citing 28 U. S. C. §§509, 510, 515, 533).
None of the statutes cited by the Attorney General appears to create an office for the Special Counsel, and especially not with the clarity typical of past statutes used for that purpose. See, e.g., 43 Stat. 6 (“[T]he President is further authorized and directed to appoint . . . special counsel who shall have charge and control of the prosecution of such litigation”). Sections 509 and 510 are generic provisions concerning the functions of the Attorney General and his ability to delegate authority to “any other officer, employee, or agency.” Section 515 contemplates an “attorney specially appointed by the Attorney General under law,” thereby suggesting that such an attorney’s office must have already been created by some other law. (Emphasis added.) As for §533, it provides that “[t]he Attorney General may appoint officials . . . to detect and prosecute crimes against the United States.” (Emphasis added.) It is unclear whether an “official” is equivalent to an “officer” as used by the Constitution. See Lucia, 585 U. S., at 254–255 (opinion of THOMAS, J.) (considering the meaning of “officer”). Regardless, this provision would be a curious place for Congress to hide the creation of an office for a Special Counsel. It is placed in a chapter concerning the Federal Bureau of Investigation (§§531–540d), not the separate chapters concerning U. S. Attorneys (§§541–550) or the now-lapsed Independent Counsel (§§591–599).4
To be sure, the Court gave passing reference to the cited statutes as supporting the appointment of the Special Prosecutor in United States v. Nixon, 418 U. S. 683, 694 (1974), but it provided no analysis of those provisions’ text. Perhaps there is an answer for why these statutes create an office for the Special Counsel. But, before this consequential prosecution proceeds, we should at least provide a fulsome explanation of why that is so.
4Regulations remain on the books that contemplate an “outside” Special Counsel, 28 CFR §600.1 (2023), but I doubt a regulation can create a federal office without underlying statutory authority to do so.
Cannon takes Thomas’ treatment of Nixon as a “passing reference” as invitation to make truly audacious analysis of it as dicta.
D. As dictum, Nixon’s statement is unpersuasive.
Having determined that the disputed passage from Nixon is dictum, the Court considers the appropriate weight to accord it. In this circuit, Supreme Court dictum which is “well thought out, thoroughly reasoned, and carefully articulated” is due near-precedential weight. Schwab, 451 F.3d at 1325–26 (collecting cases); Peterson, 124 F.3d at 1392 n.4. Additionally, courts are bound by Supreme Court dictum where it “is of recent vintage and not enfeebled by any subsequent statement.” Id. at 1326 (quoting McCoy v. Mass. Inst. of Tech., 950 F.2d 13, 19 (1st Cir. 1991)). The Nixon dictum is neither “thoroughly reasoned” nor “of recent vintage.” Id. at 1325–26. For these reasons, the Court concludes it is not entitled to considerable weight.
She then reviews the cited statutes one by one and deems them all insufficient to authorize a Special Counsel, with special focus on 28 USC 515 and (because Garland cited it for the first time) 533.
The Court now proceeds to evaluate the four statutes cited by the Special Counsel as purported authorization for his appointment—28 U.S.C. §§ 509, 510, 515, 533. The Court concludes that none vests the Attorney General with authority to appoint a Special Counsel like Smith, who does not assist a United States Attorney but who replaces the role of United States Attorney within his jurisdiction.
[snip]
Section 515(b), read plainly, is a logistics-oriented statute that gives technical and procedural content to the position of already-“retained” “special attorneys” or “special assistants” within DOJ. It specifies that those attorneys—again already retained in the past sense—shall be “commissioned,” that is, designated, or entrusted/tasked, to assist in litigation (more on “commissioned” below). Section 515(b) then provides that those already-retained special attorneys or special assistants (if not foreign counsel) must take an oath; and then it directs the Attorney General to fix their annual salary. Nowhere in this sequence does Section 515(b) give the Attorney General independent power to appoint officers like Special Counsel Smith—or anyone else, for that matter.
Cannon twice notes her order applies only to the indictment before her (perhaps the only moment of judicial modesty in an otherwise hubristic opinion).
The instant Superseding Indictment—and the only indictment at issue in this Order—arises from the latter investigation.
[snip]
The effect of this Order is confined to this proceeding.
This is obvious — but it is also a way of saying that if the Eleventh backs this ruling, it would set up a circuit split with the DC rulings that she dismisses in cursory fashion.
Effectively, this represents one Leonard Leo darling, Cannon, dropping all her other means of stalling the prosecution for Trump, to act on seeming instructions from a more senior Leonard Leo darling.
A bunch of lawyers will dispute Cannon’s recitation of Thomas’ reading of the law. Indeed, Neal Katyal has already done so in an op-ed for the NYT.
Judge Cannon asserts that no law of Congress authorizes the special counsel. That is palpably false. The special counsel regulations were drafted under specific congressional laws authorizing them.
Since 1966, Congress has had a specific law, Section 515, giving the attorney general the power to commission attorneys “specially retained under authority of the Department of Justice” as “special assistant[s] to the attorney general or special attorney[s].” Another provision in that law said that a lawyer appointed by the attorney general under the law may “conduct any kind of legal proceeding, civil or criminal,” that other U.S. attorneys are “authorized by law to conduct.”
Yet another part of that law, Section 533, says the attorney general can appoint officials “to detect and prosecute crimes against the United States.” These sections were specifically cited when Attorney General Merrick Garland appointed Mr. Smith as a special counsel. If Congress doesn’t like these laws, it can repeal them. But until then, the law is the law.
I drafted the special counsel regulations for the Justice Department to replace the Independent Counsel Act in 1999 when I worked at the department. Janet Reno, the attorney general at the time, and I then went to Capitol Hill to brief Congress on the proposed rules over a period of weeks. We met with House and Senate leaders, along with their legal staffs, as well as the House and Senate Judiciary Committees. We walked them extensively through each provision. Not one person raised a legal concern in those meetings. Indeed, Ken Starr, who was then serving as an independent counsel, told Congress that the special counsel regulations were exactly the way to go.
This legal dispute will be aired in the Eleventh in Jack Smith’s promised appeal.
Katyal’s more salient point is in describing where this leads if Trump’s Supreme Court gets to review Special Counsel appointments at some time after the November election will determine whether the rule applies to Trump or to a normal president.
Imagine a future president suspected of serious wrongdoing. Do we really want his appointee to be the one investigating the wrongdoing? The potential for a coverup, or at least the perception of one, is immense, which would do enormous damage to the fabric of our law.
That’s the kind of explanation, after all, why Cannon would drop all her other obstruction and pursue this angle: to ensure that a second Donald Trump administration could not be threatened with even the possibility of a Special Counsel.
But I’m interested in the way Thomas ended his concurrence, to an opinion about a prosecution involving official acts of a then-president. It is not dissimilar to the way John Roberts closed his majority opinion, by claiming this was all about separation of powers.
Whether the Special Counsel’s office was “established by Law” is not a trifling technicality. If Congress has not reached a consensus that a particular office should exist, the Executive lacks the power to unilaterally create and then fill that office. Given that the Special Counsel purports to wield the Executive Branch’s power to prosecute, the consequences are weighty. Our Constitution’s separation of powers, including its separation of the powers to create and fill offices, is “the absolutely central guarantee of a just Government” and the liberty that it secures for us all. Morrison, 487 U. S., at 697 (Scalia, J., dissenting). There is no prosecution that can justify imperiling it.
In this case, there has been much discussion about ensuring that a President “is not above the law.” But, as the Court explains, the President’s immunity from prosecution for his official acts is the law. The Constitution provides for “an energetic executive,” because such an Executive is “essential to . . . the security of liberty.” Ante, at 10 (internal quotation marks omitted). Respecting the protections that the Constitution provides for the Office of the Presidency secures liberty. In that same vein, the Constitution also secures liberty by separating the powers to create and fill offices. And, there are serious questions whether the Attorney General has violated that structure by creating an office of the Special Counsel that has not been established by law. Those questions must be answered before this prosecution can proceed. We must respect the Constitution’s separation of powers in all its forms, else we risk rendering its protection of liberty a parchment guarantee.
Here, the Executive is sharply constrained, even in its prosecutorial function, by guardrails Congress has given it.
I’m not sure this is consistent with this language from Roberts’ opinion, which reads maximalist authority for presidents to conduct criminal investigations (and cites to Nixon, with its assertion of great deference on Article II issues).
The Government does not dispute that the indictment’s allegations regarding the Justice Department involve Trump’s “use of official power.” Brief for United States 46; see id., at 10–11; Tr. of Oral Arg. 125. The allegations in fact plainly implicate Trump’s “conclusive and preclusive” authority. “[I]nvestigation and prosecution of crimes is a quintessentially executive function.” Brief for United States 19 (quoting Morrison v. Olson, 487 U. S. 654, 706 (1988) (Scalia, J., dissenting)). And the Executive Branch has “exclusive authority and absolute discretion” to decide which crimes to investigate and prosecute, including with respect to allegations of election crime. Nixon, 418 U. S., at 693; see United States v. Texas, 599 U. S. 670, 678–679 (2023) (“Under Article II, the Executive Branch possesses authority to decide ‘how to prioritize and how aggressively to pursue legal actions against defendants who violate the law.’” (quoting TransUnion LLC v. Ramirez, 594 U. S. 413, 429 (2021))). The President may discuss potential investigations and prosecutions with his Attorney General and other Justice Department officials to carry out his constitutional duty to “take Care that the Laws be faithfully executed.” Art. II, §3. And the Attorney General, as head of the Justice Department, acts as the President’s “chief law enforcement officer” who “provides vital assistance to [him] in the performance of [his] constitutional duty to ‘preserve, protect, and defend the Constitution.’” Mitchell v. Forsyth, 472 U. S. 511, 520 (1985) (quoting Art. II, §1, cl. 8).
Investigative and prosecutorial decisionmaking is “the special province of the Executive Branch,” Heckler v. Chaney, 470 U. S. 821, 832 (1985), and the Constitution vests the entirety of the executive power in the President, Art. II, §1. For that reason, Trump’s threatened removal of the Acting Attorney General likewise implicates “conclusive and preclusive” Presidential authority. As we have explained, the President’s power to remove “executive officers of the United States whom he has appointed” may not be regulated by Congress or reviewed by the courts. Myers, 272 U. S., at 106, 176; see supra, at 8. The President’s “management of the Executive Branch” requires him to have “unrestricted power to remove the most important of his subordinates”—such as the Attorney General—“in their most important duties.” Fitzgerald, 457 U. S., at 750 (internal quotation marks and alteration omitted).
The indictment’s allegations that the requested investigations were “sham[s]” or proposed for an improper purpose do not divest the President of exclusive authority over the investigative and prosecutorial functions of the Justice Department and its officials. App. 186–187, Indictment ¶10(c). And the President cannot be prosecuted for conduct within his exclusive constitutional authority. Trump is therefore absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials. [my emphasis]
That is, Roberts has to read presidential authority to intervene in DOJ’s prosecutorial functions in order to sanction Trump’s plan to demand DOJ’s participation in his fraud. But then Thomas argues that the president can only do so if Congress has given him authority.
Which is it?
https://www.emptywheel.net/wp-content/uploads/2024/06/Leatherbound-Box-2.jpg10841382emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-16 07:29:212024-07-16 07:29:21Aileen Cannon Makes Clarence Thomas’ Calvinball Newly Significant
If you read the dead tree NYT this morning, you might be forgiven for thinking that Joe Biden was isolated from America’s NATO allies.
That’s because the front page put a big picture of Biden’s NATO appearance next to an article describing Biden as isolated within his own party. That story described President Biden’s press conference marking the end of the NATO summit this way:
He faced a new test on Thursday night in a news conference following the NATO summit in Washington. In an early stumble before it even got underway, Mr. Biden flubbed his introduction of President Volodymyr Zelensky of Ukraine, saying: “Ladies and gentlemen, President Putin.” He quickly caught himself.
During the news conference, he referred to “Vice President Trump” when he meant Vice President Kamala Harris, a mistake that former President Donald J. Trump immediately mocked on social media.
But Mr. Biden showed a command of the issues on foreign policy, although he spoke slowly and meandered at times. Lawmakers and aides in Congress said it was a strong enough performance to keep the dam from breaking with mass calls for Mr. Biden to step aside, but with enough missteps to prolong the anxiety on Capitol Hill.
There was no description of the summit itself at all in the article. Nor was there a story on the summit anywhere on the dead tree front page.
That “Biden isolated” story didn’t even make the top of digital front page (at least for me), which looked this way this morning:
At that point, the top news included:
A story from Peter Baker acknowledging Biden’s command of foreign policy, sandwiched between a description of his flubs and a super helpful explanation of how, “every momentary flub, every verbal miscue, even if quickly corrected, now takes on outsize importance, ricocheting across the internet in viral video clips”
One of the many stories that described Biden’s polling on Kamala Harris’ strength against Trump was “quiet” (though the ridiculous claim that this was quiet has now been relegated to a subhead)
A purported fact check of Biden’s press conference that claimed Biden’s observation, “He’s already told Putin — and I quote — do whatever the hell you want,” needed context
The fact check said nothing about Biden’s claim, in response to a question from AFP journalist Danny Kemp, that world leaders credited Biden for bringing NATO together.
I’m sure you actually could find a world leader who was unimpressed with Biden’s summit — like Viktor Orbán, who scurried from the conference to plan capitulation to Putin at Mar-a-Lago. But no one wanted to talk about that — about Biden’s efforts to stave off authoritarianism, about Biden’s efforts to reverse Putin’s invasion of Ukraine, about Biden’s efforts to save the idea of democracy, about the substance of the summit. So it didn’t merit a fact check either.
There’s a horse race to be run. And there’s absolutely no place for actual policy outcomes when there’s a horse race to be had!
When I first started writing this story, I had to look way down here at the bottom of the NYT page to find any report that was, substantially, about the NATO Summit at all.
The story has been promoted, placed in a section on Trump, not Biden, though still the fourth horizontal section on the page.
The story, from David Sanger, also focused on the press conference and noted Biden’s flubs. But it also described how Trump congratulated Putin’s genius after Russia invaded Ukraine.
[T]he session also served as a platform for him to show a command of foreign policy, including describing in detail the decisions he has made over three and a half years that have been punctuated by wars in Ukraine and Gaza.
He took credit for warning the Europeans of an impending invasion of Ukraine in late 2021 and early 2022, and for preparing NATO to provide arms and intelligence as soon as war broke out. And he used the moment to remind American voters that Mr. Trump’s first reaction to the invasion was to praise President Vladimir V. Putin.
“Here’s what he said,” Mr. Biden added, his voice dripping with sarcasm: “‘It was genius. It was wonderful.’”
The biting comparison, with its suggestion that Mr. Trump admires only brute force and is in Mr. Putin’s pocket, was the kind of attack on his opponent that Mr. Biden’s supporters were hoping for in the debate between the two men two weeks ago but never heard.
Further down in that story, starting at ¶18 of a 23¶¶ story, Sanger described the news of the summit: that NATO was going to try to disrupt the relationship between China and Russia.
But it was on the question of Russia’s rapidly expanding relationship with China — and its alignment with North Korea and Iran, two other arms suppliers to Russia — that Mr. Biden broke the most new ground.
Until the news conference, he had never conceded that the United States was seeking to disrupt the relationship between the two countries, just as President Richard M. Nixon and his secretary of state, Henry Kissinger, did a half-century ago, by surprising the world with a diplomatic opening to Beijing.
He declined to discuss details of the strategy in public, but went on to say that “you’ll see that some of our European friends are going to be curtailing their investment in Russia — I mean, excuse me, in China, as long as China continues to have this indirect help to Russia.”
That was a significant reversal. Two years ago, Mr. Biden expressed doubts that the two countries, with their centuries of enmity and border disputes, could ever get along.
By the time the NATO leaders gathered this week for the 75th anniversary of the alliance, however, they were denouncing China as “a decisive enabler of Russia’s war against Ukraine” and hinting that European nations might restrict their economic interchanges with Beijing.
China “cannot enable the largest war in Europe in recent history without this negatively impacting its interests and reputation,” the summit’s declaration says, wording that was pressed by Mr. Biden’s aides.
So to find actual news of Biden’s NATO summit, you needed to scroll down the NYT to find the Sanger article, then scroll down in that article to find the news: that NATO is attempting to disrupt a growing alliance of authoritarian countries challenging democracy.
I’m genuinely not sure how NYT (and other outlets, who offered similar coverage) understand the world, wherein the fate of Joe Biden on a minute-to-minute basis can be divorced from the fate of democracy, globally. You have to have democracy before you can have horse races.
Yes, in an op-ed yesterday, NYT included Trump’s disdain for democracy and fondness for “strongmen” among the reasons he’s unfit to lead.
Mr. Trump has demonstrated contempt for these American ideals. He admires autocrats, from Viktor Orban to Vladimir Putin to Kim Jong-un. He believes in the strongman model of power — a leader who makes things happen by demanding it, compelling agreement through force of will or personality. In reality, a strongman rules through fear and the unprincipled use of political might for self-serving ends, imposing poorly conceived policies that smother innovation, entrepreneurship, ideas and hope.
But NYT did not mention that Trump not only admires these thugs, he is allied with them against democracy.
Yes, it matters that Democrats beat Trump in November. It matters that Democrats have a candidate with the stamina to do that.
But the bigger picture matters, too. And Biden’s success at marshalling democratic powers in alliance is one of the reasons he believes he has demonstrated his fitness to remain President.
His efforts to defend democracy are not news, apparently.
https://www.emptywheel.net/wp-content/uploads/2024/07/Screenshot-2024-07-12-at-09.45.13.jpg14042288emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-12 07:55:402024-07-12 07:55:40What If You Had a Military Summit Defending the Future of Democracy and No One Gave a Damn?
Predictably, the NYT treated President Biden’s speech to kick off NATO’s 75th Anniversary as if Biden merely invented the date and the event and maybe even NATO itself to cover up a shoddy debate performance. In addition to the subhead that nonsensically complained there was, “no mention of President Biden’s political peril,” in his speech, in this 25-paragraph story, NYT made this a story about Biden’s campaign by:
¶1: Asserting Biden was trying to bolster the alliance and his campaign.
¶2: Describing Biden’s “strong voice, with few errors.”
¶4: Claiming the delivery of Biden’s speech “may have mattered as much as his words.”
¶5: Falsely claiming that the “faltering” of Biden’s campaign “created a test for the alliance that it did not anticipate.”
¶6: Adopting the passive voice to project its obsession with Biden’s delivery onto NATO’s leaders: “Mr. Biden made no mention of his political troubles, but he could not have escaped the fact that every word was being scrutinized for signs of faltering.”
¶7: Declaring that, “By all measures, he passed the test,” but then caveating that judgement by explaining what teleprompters are.
¶8: Quoting Biden’s comments to George Stephanopoulos about his role in leading NATO.
¶9: Mentioning Biden’s attempt to draw a contrast with Trump and derisively adding, “the man he swears he can still beat in November.”
¶10: Describing Biden’s goal for the contrast.
¶13: Explaining that, “Mr. Biden’s own aides concede that no matter how well the president performs [at NATO] he cannot make Americans unsee his debate performance.”
¶14: Falsely claiming that “confidence in its core member” was in doubt only because of Biden’s debate performance, and not Trump generally.
Compare that wildly partisan approach with the WaPo, which said only, “the summit is a moment of intense scrutiny as he faces pressure over his readiness to serve another four years,” in ¶12 out of 43 paragraphs (though WaPo has since added a story comparable to NYT’s, complete with claims of “defian[ce]”).
To sustain this fairytale — that the NATO summit exists merely as a measure of Biden’s ability to recover from his debate — David Sanger and Lara Jakes lie.
As noted, in ¶5, they claim that no one was worried about whether NATO could sustain its support for Ukraine until Biden’s campaign “faltered.”
The faltering of Mr. Biden’s campaign has also created a test for the alliance that it did not anticipate: whether it can credibly maintain the momentum it has built in supporting Ukraine and serving as a bulwark against further aggression when confidence in its most important player has never been more fragile. [my emphasis]
That is a lie. And one way we can be sure it is a lie — and that David Sanger knows it is a lie — is because a guy name David Sanger wrote this article, in February, which the NYT printed on A1 of the newspaper.
The February article not only describes that even before Trump suggested he would let Putin invade NATO countries, European leaders were already discussing what would happen if Trump withdrew from NATO. And that article explicitly contrasts Trump’s threats to abandon the alliance with Biden’s vocal support of it.
Long before Donald J. Trump threatened over the weekend that he was willing to let Russia “do whatever the hell they want” against NATO allies that do not contribute sufficiently to collective defense, European leaders were quietly discussing how they might prepare for a world in which America removes itself as the centerpiece of the 75-year-old alliance.
Even allowing for the usual bombast of one of his campaign rallies, where he made his declaration on Saturday, Mr. Trump may now force Europe’s debate into a far more public phase.
So far the discussion in the European media has focused on whether the former president, if returned to office, would pull the United States out of NATO.
But the larger implication of his statement is that he might invite President Vladimir V. Putin of Russia to pick off a NATO nation, as a warning and a lesson to the 30 or so others about heeding Mr. Trump’s demands.
His statement stunned many in Europe, especially after three years in which President Biden, attempting to restore the confidence in the alliance lost during Mr. Trump’s four years in office, has repeatedly said that the United States would “defend every inch of NATO territory.” [my emphasis]
Now, five months after setting up that stark contrast, David Sanger suggests that when Biden made the contrast himself in his NATO speech, it was just politics.
They were largely complimentary as Mr. Biden talked about America’s and the West’s “sacred obligation” to come to the aid of free nations and democracies under attack. He was clearly drawing a contrast with former President Donald J. Trump, the man he swears he can still beat in November. To drive home the difference between Mr. Trump’s Republican Party and the party of decades past, Mr. Biden quoted former President Ronald Reagan: “If you are threatened, we are threatened. If you’re not at peace, we cannot be at peace.”
Mr. Biden’s goal was clear: to establish Mr. Trump, with his “America First” approach and threats to withdraw the United States from the alliance, as a threat not only to NATO nations but also to his own country.
Even as Trump — in the debate that NYT deems such a disaster for Biden — described speaking to Putin about his invasion of Ukraine in advance ..,
When Putin saw that, he said, you know what? I think we’re going to go in and maybe take my – this was his dream. I talked to him about it, his dream.
David Sanger now ignores his past reporting about the very real threat that Trump posed and still poses to NATO and American security, and rewrites that into a fairytale about Biden’s age.
This election was always going to be at least close. As Sanger himself reported months ago, European allies have been anticipating the significance of a second Trump term for months.
Yet now, because the NYT is so determined to make Biden’s electoral chances the cause for everything, Trump’s own preferences get a pass and are now caused by Biden’s plight.
The cause for NATO’s concerns is Trump. Not Biden’s campaign. And once upon a time, NYT reported it that way.
https://www.emptywheel.net/wp-content/uploads/2024/07/Screenshot-2024-07-10-at-11.29.51.png12581310emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-10 09:50:542024-07-10 10:16:19The Lie David Sanger Told to Sustain NYT’s Non-Stop Campaign against Joe Biden
Before I make fun of the frenzied mob calling themselves DC journalists, let me point to two of the more responsible reports on Joe Biden’s aging.
One, a WaPo piece with five bylines, describes that in recent months, the President has increasingly exhibited signs of aging — but never so bad as in the debate.
President Biden, who at 81 is the oldest person ever to hold the office, has displayed signs of accelerated aging in recent months, said numerous aides, foreign officials, members of Congress, donors and others who have interacted with Biden over the last 3½ years, noting that he moves more slowly, speaks more softly and has moments when he loses his train of thought more often than even just a year ago.
None of those who spoke to The Washington Post said they had seen Biden appear as lost and confused as he did at the presidential debate against Donald Trump on June 27, where his halting performance sent panic through the Democratic Party. They largely did not question his mental acuity, and several senior White House aides who interact with Biden regularly said that he continues to ask probing, detailed questions about complicated policy matters and can recall facts from previous briefings in minute detail.
It actually draws on fairly neutral sources (diplomatic reporter John Hudson is on the byline) — world leaders and their aides who interacted with him at the G-7, who have no partisan stake but do have a very great stake in the outcome of the election — to substantiate a decline even in the weeks between the G-7 and the debate.
During the Group of Seven nations summit in Italy last month, several European leaders came away stunned at how much older the president seemed from when they had last interacted with him only a year, or in some cases, mere months earlier, several officials familiar with their reactions said. “People were worried about it,” said one person familiar with leaders’ reactions.
[snip]
[D]uring the Group of Seven nations summit in Italy last month, a number of European leaders were struck by Biden’s appearance and demeanor, according to four people who spoke directly with multiple leaders. The general impression among leaders, the people said, was that while Biden appeared capable of carrying out his duties today, they were concerned about how he would be able to serve another four-year term.
[snip]
One person familiar with the conversations among leaders said Italian Prime Minister Giorgia Meloni observed that Biden was “mentally on top of his game” but physically weak, leaving her worried. The person said those concerns became more pronounced after the debate. A spokesman for the Italian Embassy did not provide a comment.
“What has changed the discourse here in Europe is not the G-7. It’s the debate,” the person said.
Note: I seem to be the only one who remembers that this timeline includes, in addition to the pressure and travel associated with the G-7 and the expanded campaign schedule, the prosecution of his son that would never have happened were he not Joe Biden’s son. I seem to be the only one considering how stress exacerbated an aging process already in process.
In any case, this is a story about Biden’s aging accelerating, whether from the stress of your candidacy leading to the felony prosecution of your kid or not.
The same is true of another credible story getting a lot of attention. It’s another multi-byline story (none from NYT’s big names) that includes on the record quotes. But most people have focused on this quote: Perhaps the most senior person, someone with years of direct access, stating that Biden cannot pull off this race.
One senior White House official, however, who has worked with Mr. Biden during his presidency, vice presidency and 2020 campaign, said in an interview on Saturday morning that Mr. Biden should not seek re-election.
After watching Mr. Biden in private, in public and while traveling with him, the official said they no longer believed the president had what it took to campaign in a vigorous way and defeat Donald J. Trump. The official, who insisted on anonymity in order to continue serving, said Mr. Biden had steadily showed more signs of his age in recent months, including speaking more slowly, haltingly and quietly, as well as appearing more fatigued in private.
Here again, though, the story is about a decline in recent months. The story is about stamina and speech, not some undiagnosed source of dementia (or perhaps a disease that people assume leads to dementia symptoms, but doesn’t necessarily).
With that as background, I want to lay out a number of problems with the story the members of the frenzied mob — people rushing to press with stories that are far less responsible than these two (see this must-read post from Jennifer Schulze on some of the worst examples) — are telling:
Even in the face of non-stop coverage about Biden’s age, a core group of particularly nasty types are claiming there was some kind of conspiracy of silence about it, and only they were heroically chasing the topic. That’s objectively false.
To get to that conspiracy, the same types are suggesting that while they never had evidence Biden was this bad in January, that must be because close allies were just covering it up. This more robust reporting of a recent decline at least undermines their claims of having provided the only evidence of a prior decline.
Many participants in this frenzy don’t seem to understand that there are two questions at issue: Whether Biden has the stamina to win the race, whether his fatigue and speech issues put him at a severe disadvantage to Trump or other possible Democratic contenders, and whether he has the stamina to remain President.
Many members of the mob have given little more than fantasy consideration of how Biden would be replaced. That’s unsurprising, given that they gave no more than fantasy consideration of why other solid contenders weren’t challenging Biden and Harris in the primary earlier in the year, when questions about Biden’s age first got louder.
Very few of the mob seem to care whether Biden is doing the job of being President well. Indeed, this is a key source of tension between the mob and Biden. When asked about his age in January and February, he gave two answers: He believed he stood the best chance of beating Trump, a belief significantly undermined by his debate performance and ongoing stamina issues. And, he pointed to his success at being President as proof he could do the job. That was objectively true. Since the mob are little interested in the job of President — or policy generally — they simply ignored his factually correct rebuttal that he was doing a historically good job of being President.
The mob’s complete disinterest in measuring which former President, Joe Biden or Donald Trump, would do better as President makes their wails much easier to dismiss.
So do some of their past errors.
In his interview with George Stephanopoulos, Joe Biden pointed to past predictions of electoral failure.
PRESIDENT JOE BIDEN: That’s not unusual in some states. I carried an awful lotta Democrats last time I ran in 2020. Look, I remember them tellin’ me the same thing in 2020. “I can’t win. The polls show I can’t win.” Remember 2024– 2020, the red wave was coming.
Before the vote, I said, “That’s not gonna happen. We’re gonna win.” We did better in an off-year than almost any incumbent President ever has done. They said in 2023, (STATIC) all the tough (UNINTEL) we’re not gonna win. I went into all those areas and all those– all those districts, and we won.
Biden is right that many of the loudest members of the mob calling for him to drop have been just as loudly wrong in the recent past.
Biden also dismissed a challenge from Mark Warner by noting that Warner had tried to run before.
GEORGE STEPHANOPOULOS: Well, if– I mean, on a more practical level, The Washington Post just reported in the last hour that Senator Mark Warner is– is assembling a group of Senators together to try and convince you to stand down, because they don’t think you can win.
PRESIDENT JOE BIDEN: Well, Mark is a good man. We’ve never had (UNINTEL). He also tried to get the nomination too. Mark’s not– Mark and I have a different perspective. I respect him.
Many many journalists attempted to debunk this claim, apparently unaware that Warner considered running in the 2008 election until I (if you believe Matt Bai, and you should not) singlehandedly chased him out of the race.
Biden’s has a point that the mob has proven badly wrong in the past.
But they’re not wrong that he may not have the stamina to both run for and be President.
https://www.emptywheel.net/wp-content/uploads/2024/06/Biden-Debate.jpg9801120emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-07 11:56:502024-07-07 12:12:30The Self-Satisfied and Often Wrong Media Frenzy
The French legislative election is on Sunday. As the clock turns over to early Saturday morning, we entered Silence électoral, or the blackout period, when media coverage and campaigning stops ahead of Election Day. (I, being an American resident in France posting to a website in America, can do whatever.) The French themselves are trying to not pay too much attention, as there some kind of very important soccer game they won as I was writing this, and they qualified for another, even more important soccer game. Outside the window of my hotel in Lille is screaming and fireworks. There’s a lot of shouting and horns blaring well after bedtime.
Anything is preferable to thinking about Macron’s Great Foirage. (Though the Euros aren’t just anything! They are important! Please don’t burn down my house!)
As we approach the second turn of the snap legislative election in France on Sunday, it’s hard to say how it’s going. There is, at this moment, no obvious outcome. It’s nerve wracking. Not even hopeless, which makes it even more nerve wracking. The parties, Left, Right, and Center, are playing their hands close to their chest.
NFP activists doing voter education in Lille shortly before the second turn of the French election.
The rate of procuration, the French term for a proxy vote, is at an all time high as people going on vacation make sure someone left behind can cast their vote. (Do not get in the way of French Vacation, that way lies the guillotine.) The voter participation in the first round was the highest seen in France in decades, and this Sunday might well beat it.
French people all over, including the overseas territories and residing in foreign countries, are getting in on the action, but the action is tense. There’s no sense, like some have in America, that all the parties are the same, or that they’ll all end up doing the same things, so why bother? No, the contesting parties in this election don’t have a lot in common.
These legislative elections which will decide the composition of the French Parliament until the next election, or Macron temper tantrum, whichever comes first. (He can just throw another tantrum in a year, and there’s word on the street that he might. God that man is an exhausting mess.)
How to Hack an Election
One of the more inspiring things to come out of this season of insane election drama has been how a massive portion of France have come together to hack the vote, after this unexpected (and unforced) political crisis. In a two round run-off system there’s soft assumption that the first round is there to clear out the field, and narrow it to two candidates. But if a trailing candidate gets 12.5% of the registered voters in their voting area, they qualify in the next round. If the third candidate stays in, they can split the vote, and let the fascist candidate in, even if most people in that constituency don’t want the local Rassemblement National asshole representing them in Parliament.
The two round instant run-off isn’t isn’t terrible normally. (Though it’s no ranked-choice voting!) It’s a system that clears out candidates, if you assume lowish voter turnout. If voter turn out is high, the second round is just as, maybe more, chaotic as the first. Over the last week, all the parties opposing the Rassemblement National have started making tactical decisions about the second round. In districts where Macron’s centrists are in the best position to beat the RN, the Left candidate dropped out of the race to prevent vote splitting. In places where, say, the Socialist or the Green has the best match up against the local fascist, the centrist left the race. (Well, mostly. A few of Marcon’s people are truly gits… “Connard!” as they would say here.)
The parties organized this deal and talked to each other to sort it out within days after the first turn. They fanned people out to make sure everyone knew what to do, voters had proxies, everyone who needed help got it. But despite the second round having an unusual number of candidates, most have dropped out in favor of beating back the fascists. People who couldn’t stand each other came together and talked strategy.
As an American, I found this very weird. But definitely good weird.
The campaigning itself, well, I found more familiar to my American sensibilities.
France’s Toxic Grampa
Jean-Luc Mélenchon during his last try at the French Presidency in 2017.
The best way to win an election is picking your opponent, but so much of the media has done the Rassemblement National’s work for them by picking Jean Luc Mélenchon to be the fascists’ presumptive opponent. And that’s a problem, because Socialist Grampa and Hot Mess Mélenchon is not only detested by most French, he’s not actually the Left, at least not anymore. He is decidedly out of the game and the only people who don’t know that are Mélenchon himself, a few fanboys, and journalists on a deadline with a shitty rolodex. When they talk about the political Left, the media always name checks Mélenchon. When the Right wants a boogyman, they drop Mélenchon’s name and grin. He grabs the mic at any opportunity, totally unchastised by his own three presidential electoral defeats over the last 12 years. But he’s the famous guy. It’s as if we kept talking about Ralph Nader for more than a decade after the 2000 election.
Mélenchon has won a few elections in his career, holding positions and two different French electoral bodies and the EU. But he’s lost a lot of elections, even more than those three presidential runs. He has a history of saying truly stupid things. He’s a bother, he’s a liability, and maybe even a bit of a narcissist. He’s the classic French version of the boomer grampa politician that doesn’t know when it’s just time to get out of the damn way. (For clarification I am not speaking of any American boomer politician in general, I’m speaking about literally all of them.)
The man has become toxic, and appears too wrapped up in being the Great Left Hope to know to actually get out of the way of the people who can stop the march of the National Rally. But he’s getting told and he is starting to listen. I’m still guessing there’s a tiny dog involved.
Today, Mélenchon holds no position in the Nouveau Front Populaire, the current left coalition contesting this election. He doesn’t even hold a position in the La France Insoumise party he founded, except for “Founder.” Mélenchon’s main job, as far as I can find, is a position at a think tank called Institut La Boétie which he co-runs with a French MP named Clémence Guetté, where I presume he makes the money he needs to feed his tiny dog. He is not the left. He is not Nouveau Front Populaire, he is not the former NUPES coalition.
He’s just a dude with a very long wikipedia page.
The Left is More Competent Than Their Messaging, Again
Marine Tondelier and other members of the New Popular Front. They’re probably build consensus right now, something no journalist has ever experienced.
But the Nouveau Front Populaire (NFP) hasn’t done itself any favors with the media either. Their leadership status on Facebook is “It’s Complicated.” The press don’t like that, and the electorate doesn’t understand it. They have three main people they trot out to rally the faithful, talk to the media, and debate the fascists. They are Manuel Bompard, current leader of La France Insoumise (Mélenchon’s old party), Marine Tondelier, of the Greens, and Olivier Faure of the Socialists Party. (My fellow Americans do not be weirded out by the “Socialists Party.” It’s not what you think of as Socialism. It’s indistinguishable from the Democrats, right down to the tinge of neoliberal economic theory and penchant for self-sabotage.)
Marine Tondelier was not well known as the boys until recently. But she is a goddamn boss in a green jacket. (The green jacket is a Whole Thing, people look for the green jacket to come talk to her, and she’s by all accounts a great and inspiring speaker. Certainly great enough to scare the fascists, who do not like her ONE BIT.) She walked out of the tortured left negotiations before the first round and announced a coalition, come hell or high water. It’s not at all clear there was one when she went and told the press, but there was by the time she finished talking.
As a French woman and a Green MP, Marine Tondelier must certainly be used to being disappointed, but making shit happen anyway. But in this case the boys.. well, they shut up. They fell in line and got to work. And there as a lot of work to do, especially by this week.
There was also this week supposed to be a debate with MidJourney Fuhrer Jordan Bardella, and Tondelier agreed to debate him. He threw a temper tantrum and declared Mélenchon was the leader of the NFP (he is not) and he would only debate Mélenchon, (who did not agree) and not the girl in a green jacket, who is scary. The left held their ground; it was Tondelier or no one.
It was no one; the RN walked away, reasonably concluding that she would wipe the floor with Failed Boyband Front Man Bardella.
Mélenchon, presumably aware that his little dog’s life was on the line, stayed silent and had to forgo the limelight. He amazingly said no, pleading that the NFP had decided and there was nothing he could do, before glancing at a picture of the little pooch and wiping a single tear away.
(Don’t @ me.)
When the King is a Coward, but His Loyal Courtier is Not.
I want to take a moment away from making fun of everyone in French politics to give props to current Renaissance Party Prime Minister, and dead man walking, Gabriel Attal. The night of the first turn of the election, the night that Le Pen’s fascists won Macron’s stupid and self destructive snap election, PM Attal walked to a podium in front of the office of the Prime Minister. He did not plead or scold. He accepted what had happened, but then said that all effort had to be put on stopping the National Rally.
“The Far Right is climbing the steps to power. What we must do is clear: stopping the National Rally from achieving an absolute majority in the second round… I would call on France.. not one vote should go to the National Rally.” It was after that moment the center mostly got on board with working with the left to keep the RN out of power. My dude here may very well have saved the republic — time will tell.
He is the youngest PM of the Fifth Republic, and the first openly gay person to hold the post. It seems, perhaps as a gay man, that he knew the stakes much better than his boss. He did not wait for any blessing, and none was coming. He just went out, said what had to be said, and invited the Left to help him defeat the Fascists before it was too late.
That night he proved he was too good for Macron’s cabinet.
President Emmanual Macron was not seen that night, and has said nothing since. There is definitely feeling in the air that he might prefer Le Pen and her Nazi fuck boy to the Left, or Mélenchon, if he also still thinks that Mélenchon is the entire left. Because why would Macron bother to understand his people? It’s their duty to understand him, and they’ve been doing a terrible job of it.
There’s no way to be sure what Macron thinks, because he decided to sulk instead of lead. It’s why I’ve barely been able to discuss him this whole time. He vanished and took no calls. He abandoned the party he created in their true hour of need.
Turns out he went off to a spare house he has in a fancy seaside town called Le Touquet.
It’s good to be the king.
Cette image du Président souriant, tellement cool, tellement rock, alors qu’il a provoqué des élections qui risquent de pousser le pays dans les bras du RN (ou l’instabilité parlementaire) est une catastrophe.
Macron off to visit his beach house.
Photo credit: Le Parisien
Tomorrow France will battle it out between a regressive isolationist Right that is violently afraid of everything, and a Left that might actually (fingers crossed) be shaking off some of their necrotic and problematic forebearers to deal with some of the very real problems France is facing. And they are real problems. Immigrants and poor people need services. The bureaucracy is failing to the point of being a human rights abuse. Someone has to balance the books after Macron’s disastrous budget decisions. Climate adaptation isn’t moving fast enough, and French farmers are often in conflict with both the adaption process and the abuses of big agribusinesses. France has struggled with the cost of living, even if less than most of its peer nations. More and more cities are falling into housing crises. Much reasonable fear and demand for proactive and competent government gets channeled into destructive othering, by the like of the Far Right, but also through the entire political spectrum. But France has everything it needs to fix itself, it is a rich and well-built country. It could even do right by its former colonies, if it wanted to.
It can choose a healthy and sustainable life for its native children and its talented and lovely immigrants both. It just has to choose.
I’m going to give the last word to a thousand academics, historians, activists and general smarty pants French people who are begging the French people to do the right thing at the Guardian:
In his latest effort to use the House Judiciary Committee as a goon squad to intimidate Donald Trump’s enemies, Jim Jordan actually developed proof that John Ratcliffe — and not the 51 former spooks he was after — inappropriately politicized intelligence to manufacture debate props.
And then Jordan did it himself.
I have the perfectly curated Xitter account to learn when Jim Jordan has released his latest installment of weaponization against democracy.
Last week, he issued his latest attempt to make a scandal out of the true free speech of the 51 former spooks who wrote a letter saying that the release of a Hunter Biden laptop days before the election “had all the classic earmarks of a Russian information operation.” My replies were overrun with trolls chanting incoherent claims.
Of course the trolls in my Xitter feed didn’t know the most basic details of the letter or known facts about the copy of a hard drive referred to as a Hunter Biden laptop:
The former spooks didn’t say this was disinformation, no matter how many times Jordan or Glenn Greenwald lie and say they did. In fact, they specifically caveated that they didn’t know if the emails were genuine and did not have evidence of Russian involvement.
Nothing revealed about the laptop or the hard drives purportedly based on the laptop rules out Russian involvement. That’s true, in part, because the FBI never bothered to test the laptop to see if anything had been added, never indexed it, and when introduced at trial, the summary witness specifically said she had not looked for signs of tampering. Plus, there were enough Russian drug and sex workers in close proximity to earlier Hunter Biden laptop compromises to allow for a role, particularly in packaging up the device.
As the Democratic rebuttal notes, the 51 spook letter couldn’t have caused the social media companies to throttle the original New York Post story without a time machine, as Twitter and Facebook had stopped throttling the story several days before the letter was published. Linear time. It’s like magic to these trolls.
Even though Jordan’s latest report substantiates absolutely no misconduct, the trolls nevertheless yapped and yapped about it. Jordan showed:
While Mike Morrell did target the letter to the last debate (the same one where Trump invited Tony Bobulinski to make claims that have not held up), the other participants were not doing this for the Biden campaign; they were doing it to speak out against Russian interference in the 2020 election
The former spooks couldn’t have leaked classified information because none of them were read into pertinent information regarding the Russian spies cultivating Rudy Giuliani
The former spooks got preclearance to publish the letter via the normal process
After preclearance, the letter was forwarded for Gina Haspel’s attention, but neither she nor anyone else thought it was more important than vaccinating the CIA workforce
Some of the people involved were private citizens with contracts that did not strip them of their free speech
In other words, the 51 spooks followed the rules, and Jordan was stuck trying to turn it into a scandal.
The Jordan report was only 31 pages and, like a college freshman composition paper, blew entire pages with big screen caps repeating the complaints of two random spooks complaining about “random signatures” on the letter and some discussion of Mark Polymeropoulos getting something excluded from a follow-up.
Polymeropoulos’ attorney, Mark Zaid, explained that CIA redacted two lines, which had nothing to do with Hunter Biden, from the Polymeropoulos follow-up — but that was precisely how preclearance is supposed to work.
Mr. Polymeropolous submitted to the PCRB a two page talking points memo about the subject matter. Obviously, he knew that there was going to be media attention concerning the issue and he wanted to be properly prepared to address the topic if asked. He followed the standard procedure for review of information intended to be made public. No different than any other individual who has a prepublication review requirement. As part of its review, which was handled in the normal timely fashion for such a short document, CIA redacted two lines of information as being classified. Those two lines had nothing to do with the Hunter Biden laptop specifically and concerned Mr. Polymeropolous’ background experience with Russia and a comment concerning that country’s activities generally. Of course, that information was properly protected by Mr. Polymeropolous and never used. To say that this constituted an attempt to use classified information is farcical and reflects a complete lack of understanding how the prepublication review process works. The system operated exactly how it was supposed to and is being distorted for political purposes.
To think that I would, in front of generals and others, say suckers and losers – we have 19 people that said it was never said by me. It was made up by him, just like Russia, Russia, Russia was made up, just like the 51 intelligence agents are made up, just like the new thing with the 16 economists are talking.
It’s the same thing. Fifty-one intelligence agents said that the laptop was Russia disinformation. It wasn’t. That came from his son Hunter. It wasn’t Russia disinformation. He made up the suckers and losers, so he should apologize to me right now.
[snip]
I’ve dealt with politicians all my life. I’ve been on this side of the equation for the last eight years. I’ve never seen anybody lie like this guy. He lies – I’ve never seen it. He could look you in the face. So – and about so many other things, too.
And we mentioned the laptop, We mentioned “Russia, Russia, Russia,” “Ukraine, Ukraine, Ukraine.” And everything he does is a lie. It’s misinformation and disinformation. The “losers and suckers” story that he made up is a total lie on the military. It’s a disgrace.
This was Trump’s prepackaged answer to attempt to projection his own lying onto Biden. It was barely more vigorous than Biden’s rebuttals.
As flimsy as it was, though, Trump’s use of the 51-spook letter was part of a larger effort, one designed to bully those who speak up against Russian disinformation, disinformation generally, or in favor of rule of law. As John Brennan described, it created a furor about the letter that distracted from Russian intervention, which in turn serves to divide the country.
I think the firestorm, the furor has been created responding to the letter as opposed to the letter itself, as I responded to one of the Congressmen earlier. So it’s unfortunate that this is taking up all your time, it’s taking up my time, and it is, again, further dividing the country.
And, by design, it has chilled speech that talks about Russian interference.
One after another of the spooks interviewed confessed they or others would be chilled by the precedent of Jordan investigating private citizens for their free speech. Kristin Wood described how Mike Flynn put out all their names on a Telegram chat, leading to stalking and death threats.
Several ways. First of all, I’ve received death threats. I’ve received vicious calls, texts, emails from all sorts of random people. Mike Flynn — General Flynn posted on Telegram all of our names and said, you know, let them know how we feel. It unleashed this viciousness that had several other folks calling the police, calling the Threat Management Unit at CIA, to let them know what was happening.
And so for the first time ever, I looked at getting a gun and getting a concealed carry permit because it’s not just that people have been mean or say horrific things, but we’ve seen them take action. And so that feeling of vulnerability for speaking, exercising a First Amendment right, and for saying what I thought was as obvious as there’s air in — there’s air. Let’s just let the FBI do their work.
It has a profound effect on health as well. I’ve been to the emergency room for stress because of all of this. And so when you ask would I do this again, I would insist on a little more precision of language. But it has the effect of censoring people who have more than a thousand years of experience in this topic. And I would think the focus would be on stopping Russia and not on what feels like persecution.
Several of the spooks admitted the mob treatment would lead them to decline further involvement in anything political. Most described that it would chill others.
At that level, the spooks are just like the disinformation experts Jordan also targeted, those who tracked efforts to muddy reason and truth. Their lives have been upended because they attempted to track Russian disinformation that served Republican interests, and the personal and financial cost is shutting down those efforts during an election year.
But then something funny happened.
House Republicans kept pushing the spooks, arguing — notwithstanding the public reporting on Rudy Giuliani’s efforts to solicit dirt from known Russian agent Andrii Derkach — that the spooks should have known, somehow, that the hard drive called a Hunter Biden laptop wasn’t Russian disinformation (which, as noted, the spooks didn’t claim).
Republicans — often Jordan himself — kept asking whether the spooks knew that John Ratcliffe had claimed the laptop was not disinformation (which, again, was not what the letter claimed).
Chairman Jordan. Were you aware of Mr. Ratcliffe’s statement on the morning of the 19th, prior to the letter being sent, where he said in an interview on FOX News that morning that this is not part of the Russian disinformation campaign?
And that led multiple witnesses to explain why Ratcliffe simply wasn’t credible. Wood described that a proper counterintelligence investigation takes longer than would have transpired (no one knew how long the FBI had had the laptop).
Ms. Wood. So, I think what I would say in response to that is that the letter — the purpose of the letter was to say, Let’s not rush to judgment. Everyone, regardless of who they are as Americans, deserves due process. Let’s let the FBI do their work. And when DNI Ratcliffe said that — so as you have seen from all of these investigations, right, they take a very long time to do, to do the considered judgment of 17 or 18 intelligence agencies, and to come up with that to do the exhaustive search of asking new sources, of pulling in every bit of signals intelligence, there’s just no way that’s possible to have been done in the timeframe in which that statement was made. So our whole point was to say, Be careful here. Let us — we don’t know if this is all real. We don’t know if all the emails are real, and we don’t know if this is tied to the Russians. Let’s let the process work
James Clapper described that, not only didn’t he consider Ratcliffe a reliable source, but that he made the statement before any investigation of the laptop.
Mr. Clapper. Well, if the Department of Justice or the FBI or some other legitimate credible source of — who had done a credible forensic analysis — certainly I would accept that. That’s why I suggested that would be a good — would have been a good fix — a good addition to the letter had we said that.
Mr. Gaetz. Are you aware of Director Ratcliffe, the DNI at the time, contradicting the thrust of this letter you signed?
Mr. Clapper. Well, okay. He said that statement before, I think, an investigation had begun of the laptop. So I don’t know where he’s coming from making a statement like that.
In response to a follow-up question from the Minority, Clapper alsoagreed that Ratcliffe himself was making public statements in anticipation of the debate.
Q It’s an article reporting on Ratcliffe’s remarks, and it’s dated October 19th, 2020, 1:49 p.m. And we’re just introducing it for the fact of the date. The New York Post story in question was released on October 14th, correct?
A Yes.
Q So that would have been 5 days before Ratcliffe made his remarks?
A Right.
Q And I think you said earlier he couldn’t have even begun an investigation in that time period. Is that correct?
A Correct.
Q And can you explain what you mean by that?
A Well, I don’t know how — what his basis for making that statement is when the laptop itself hasn’t been investigated. The DNI, Office of the Director National Intelligence, has no organic forensic analysis capability at all. So they’re dependent on other components of the intelligence community, in this case the FBI, to render such a judgment, which hadn’t been rendered. So I don’t know how he could make that statement.
Q Okay. And even assuming that Ratcliffe — sorry. Withdraw that. And he made these remarks on October 19th, which was the day before the second debate, correct? The second Presidential debate was the 20th.
A Uh-huh.
Q So isn’t it possible that Ratcliffe also made his remarks in the hope that they would impact the debate?
A Well, one could conclude that, yes.
John Brennan was even more disdainful of Ratcliffe’s actions. He described that Ratcliffe’s release of his briefing notes, for the first 2020 debate, made it clear that Ratcliffe was involved in politics.
Chairman Jordan. Director, were you aware of what Director of National Intelligence John Ratcliffe said on the morning of October 19th regarding this Biden laptop story, where he said that it wasn’t a Russian disinformation operation?
Mr. Brennan. I don’t know if I was aware of it at the time, but I would have dismissed it anyway.
Chairman Jordan. Why would you have dismissed it?
Mr. Brennan. Because I don’t think John Ratcliffe was an independent, objective leader of the intelligence community at the time.
Chairman Jordan. So you would dismiss the statement from the Director of National Intelligence — the Acting — the Director of National Intelligence at the time, in the administration, getting intelligence in real-time, you would just dismiss that out of hand?
Mr. Brennan. Not out of hand, but I think it was — a week or two prior to that, there was a selective release of information that included my briefing notes to President Obama in the White House Situation Room that was misrepresenting, in fact, the facts, where it was pushed out in redacted version. And I did think that was a very, very unfortunate, unprofessional, unethical engagement on the part of the Director of National Intelligence in a Presidential election.
Mr. Gaetz. So your dismissing Mr. Ratcliffe was somehow payback for the fact that you thought that your briefing to President Obama had been mischaracterized?
Mr. Brennan. No, that’s not what I said.
Mr. Gaetz. Okay. Well, I’m trying to understand how this event that seems to have aggrieved you regarding the briefing to President Obama impacted your view of the Ratcliffe assessment.
Mr. Brennan. It didn’t aggrieve me. It just indicated to me that John Ratcliffe was not going to be an independent, nonpartisan, apolitical actor.
Brennan is referring to the notes he got about materials found among hacked documents in Russia, which Republicans and John Durham spun up, first of all, as true (rather than suspected Russian disinformation), and then misrepresented to claim that Hillary had a plan to frame Donald Trump.
Not only did Brennan see this as an election season stunt (which I observed at the time), but he described that Ratcliffe “misrepresent[ed] the facts” about the materials.
Jim Jordan has been searching for a former spook to accuse of politicizing intelligence in 2020 for years, and he finally found one! Trump’s hand-picked Director of National Intelligence, John Ratcliffe, who was doing precisely what Jordan falsely accused the former spooks of doing, but did so while still an employee of the Intelligence Community.
Update: Corrected that the “laptop” was not just a “hard drive,” but in fact a copy of another hard drive.
https://www.emptywheel.net/wp-content/uploads/2020/05/Screen-Shot-2020-05-05-at-3.03.29-PM.png724880emptywheelhttps://www.emptywheel.net/wp-content/uploads/2016/07/Logo-Web.pngemptywheel2024-07-03 19:21:052024-07-04 10:58:14“This is a rush job, as it needs to get out as soon as possible:” Jim Jordan-Led Investigation Discredits John Ratcliffe
