RIP Damon Keith, The Once And Forever Crusader For Justice

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It is with a heavy heart I report that one of the finest, and most righteous, judges in American history has passed away. Judge Damon Jerome Keith was a giant. In a field of giants, Judge Keith stood tall as a special giant. I wish I knew a better and smarter way to put it, but I do not. Damon Keith was not just born on the Fourth of July, but literally tutored by Thurgood Marshall, and never forgot the lessons he learned.

From the Detroit News (Please, do read the whole obituary; you will be glad you did):

Long-serving federal Judge Damon Keith, who decided cases that involved some of America’s most controversial political and social issues, died early Sunday morning, family members said. He was 96.

Keith, a grandson of slaves whose judicial career spanned five decades and 10 presidents, decided cases that involved some of America’s most controversial political and social issues, from school desegregation to government surveillance of citizens.

I will come back to it in a bit, but Damon Keith was central to a lot of what this blog did when we started.

One of Keith’s rulings, in 1970, led to the busing of students in the Pontiac schools to racially desegregate the district, sparking a backlash.

Keith recalled receiving death threats, and the year after his decision, 10 Pontiac school buses were firebombed by members of the local Ku Klux Klan.

Keith also ordered the U.S. government, under President Richard Nixon, to stop wiretapping defendants without judicial approval in a case involving the anti-war group the White Panthers and the bombing of a CIA building in Ann Arbor.

Damon Keith issued a lot of decisions, up until nearly his dying day, as evidenced by his participation in a Sixth Circuit decision finding tire chalking to be a 4th Amendment violation, issued just a mere six days ago. When he was 96 years old. Damon Keith was a stand up man and judge, that never flinched up to the end. That is a hero.

A few of you have been around long enough to remember when Marcy and I used to occasionally do Book Salons while we were still at FDL. The proudest one I ever did was shortly before we left, and was hosting the Salon and discussion for “Crusader For Justice”, the incredible book by Trevor Coleman and Peter Hammer, about the life, and love of law of Damon Keith. It is an incredible book about an incredible man. Please find it and read it, you will be a better person for having done so.

As Professor Henry Louis (Skip) Gates said in his blurb for Crusader For Justice:

No one will ever forget Judge Keith’s bold declaration in Detroit Free Press v. Ashcroft: “Democracies die behind closed doors”. Nor will they forget his contributions to achieving social justice and racial justice through his decisions involving discrimination, national security, and civil liberties. Judge Keith came from humble roots in Detroit. Having suffered racial injustice first hand, he had the bravery to take the phrase “equal justice under law” literally. Life experience matters, which is why diversity on the bench cannot be forsaken. Crusader For Justice, above all else, is the story of judicial courage – the story of a man unafraid to do what he knew was right.

As I said back in 2011 in the into to that Book Salon:

Fittingly, Damon Jerome Keith was born on the Fourth of July, in 1922. But Crusader For Justice opens with Keith, a graduate of Howard University Law School, working as a janitor while studying for the bar exam. The humble willingness to work to achieve is a mirror for the subsequent journey through the childhood, family background, military service in WWII and educational progression of a social justice giant. But the true Damon Keith starts to emerge with his work with the Detroit NAACP, which he helped grow to stability and significance.

From a friendship with a young Senator from Massachusetts named John F. Kennedy through the pain of the ashes from the Detroit fires and riots of 1967 summer, Coleman and Hammer portray the growing conscience for justice and equality in Keith that leads to his appointment in late 1967 to the federal bench in the Eastern District of Michigan by Lyndon Johnson.

From there, the real heart of the judicial lion roars.

Again, this is from when we did a Book Salon for “Crusader For Justice”. I cannot tell you what a great and important book it is, about a truly great and important man.

Okay, now, just for a moment, going to get back to why Damon Keith was so important to this blog. It was not just me and Marcy. Nope. It was Mary. And it is pretty fitting that, as we approach Derby Day, we get back to Mary. She wrote a three part explainer on the “Keith Case”. The formal caption was always “United States v. United States District Court”. That IS the “Keith Case”. Because of Judge Damon Keith. Here are the pertinent, and seminal, posts from Mary back in 2010.

Part One

Part Two

Part Three

There is a lot to digest here. I understand this. But, if you do, you will be better off for having done so.

Thank you. Thanks forever to Mary. And thank you Judge Damon Jerome Keith. This nation owes you a debt of gratitude.

The Assange Indictment and The Rule of Specialty

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Alright, as most of you have discovered, Julian Assange had his asylum status revoked by Ecuador, and officers of the Met (and presumably Scotland Yard too) were allowed into the Ecuadoran Embassy in London to effectuate arrest of Assange. Don’t be fooled by the breathless cable news coverage, the primary arrest warrant was the UK one from Assange’s 2012 jumping of bail conditions, not the extradition request by the US. In short, Assange would still be in custody right now irrespective of the US extradition request.

To flesh out the rest of Assange’s status, to the extent we currently know it, I will pilfer some of the reportage of the excellent Daniel Sandford of the BBC. Assange was presented immediately to Court One at the Westminster Magistrate’s Court where it was made clear that there were two warrants he was arrested on, not just the US request. Assange pled not guilty. He was NOT ordered to present evidence on his failure to surrender (which is appropriate if he declines). The judge presiding, Michael Snow nevertheless, and quite properly, found Assange guilty of the bail offense. Assange will appear in the higher level Southwark Crown Court for sentencing on the bail offense at a future date not yet specified. He will be back in the Westminster Magistrate’s Court, as of now by video link from his detention facility, on May 2nd regarding the extradition matter.

With that background out of the way, let’s look at the more significant US extradition case. First off, here is the EDVA indictment that was unsealed this morning. As you can see, it is for a single count of computer hacking conspiracy. I think most people expected all kinds of different counts, up to and including espionage crimes. Those were not included, nor were the issues from the Vault 7 case, that easily could have been indicted on outside of any real First Amendment issues.

So, while the indictment could have encompassed far many more charges and issues, it does not and is just this one count.

Why is that important?

Because legal commentators like Jeff Toobin on CNN are having a field day noting that there may be more charges forthcoming. And Shimon Prokupecz of CNN reports DOJ is indeed going to seek “additional charges” against Assange. And why is that important? Because of the Rule of Specialty.

I noted this from almost the first second on Twitter, but few other than Ken White (aka Popehat) seem to have caught on to how this doctrine will come into play in the case of Assange. It is a real issue, though we do not know how it will play out at this early stage of the extradition process.

The Doctrine of Specialty is a principle of International law that is included in most extradition treaties, whereby a person who is extradited to a country to stand trial for certain criminal offenses may be tried only for those offenses and not for any other pre-extradition offenses. Long ago and far away I argued this successfully, but that was in relation to the treaty between the US and Mexico. The Assange case obviously involves a different treaty, the US/UK Extradition treaty of 2003.

So, what does the United States of America and the United Kingdom of Great Britain and Northern Ireland Treaty of 2003 provide? Well, that is contained in Article 18, which reads as follows:

Rule of Specialty

1. A person extradited under this Treaty may not be detained, tried, or punished in the Requesting State except for:
(a) any offense for which extradition was granted, or a differently denominated offense based on the same facts as the offense on which extradition was granted, provided such offense is extraditable, or is a lesser included offense;
(b) any offense committed after the extradition of the person; or
(c) any offense for which the executive authority of the Requested State waives the rule of specialty and thereby consents to the person’s detention, trial, or punishment. For the purpose ofthis subparagraph:
(i) the executive authority of the Requested State may require the submission of the documentation called for in Article 8; and
(ii) the person extradited may be detained by the Requesting State for 90 days, or for such longer period of time as the Requested State may authorize, while the request for consent is being processed.

2. A person extradited under this Treaty may not be the subject of onward extradition or surrender for any offense committed prior to extradition to the Requesting State unless the Requested State consents.
3. Paragraphs 1 and 2 of this Article shall not prevent the detention, trial, or punishment of an extradited person, or the extradition of the person to a third State, if the person:
(a) leaves the territory ofthe Requesting State after extradition and voluntarily returns to it; or
(b) does not leave the territory ofthe Requesting State within 20 days of the day on which that person is free to leave.
4. I f the person sought waives extradition pursuant to Article 17, the specialty provisions in this Article shall not apply.

It is early, but Assange has specifically NOT waived extradition, and I do not expect that will change. In fact, he would be nuts to waive it. But look out for the US requesting the UK to waive the issue pursuant to Article 18(1)(c). I have no idea how the UK would treat such a request (nor whether it may have already been made). But give the UK credit, they take extradition conditions seriously and will not extradite where the death penalty is in play.

The death penalty could be an issue were Assange to be subsequently charged under 18 USC §794 (Espionage Act), which reads:

(a) Whoever, with intent or reason to believe that it is to be used to the injury of the United States or to the advantage of a foreign nation, communicates, delivers, or transmits, or attempts to communicate, deliver, or transmit, to any foreign government, or to any faction or party or military or naval force within a foreign country, whether recognized or unrecognized by the United States, or to any representative, officer, agent, employee, subject, or citizen thereof, either directly or indirectly, any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense, shall be punished by death or by imprisonment for any term of years or for life, except that the sentence of death shall not be imposed unless the jury or, if there is no jury, the court, further finds that the offense resulted in the identification by a foreign power (as defined in section 101(a) of the Foreign Intelligence Surveillance Act of 1978) of an individual acting as an agent of the United States and consequently in the death of that individual, or directly concerned nuclear weaponry, military spacecraft or satellites, early warning systems, or other means of defense or retaliation against large-scale attack; war plans; communications intelligence or cryptographic information; or any other major weapons system or major element of defense strategy.

Now, frankly, I think the US, through the DOJ, would have no problem whatsoever stipulating that the death penalty is off the table for Assange. It is almost a given.

The real question is what becomes of the Assange case in light of the Rule of Specialty. Suppose any superseding indictment does not go into charges outside of the “computer offenses” specified in the current indictment, but seeks to add additional computer offenses in an attempt to increase the sentencing range? Does that violate the spirit of the Rule of Specialty?

There is a lot we simply do not know yet. But this doctrine, and how the US proceeds in light of it, needs to be watched closely as the Assange extradition matter proceeds, both in the UK, and once he is remanded to US custody.

The SCO Statement and Why Cohen Should Not Testify Feb. 7

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Marcy wrote a great post this morning titled “Peter Carr Speaks“. I agree with almost all of it, if not all of it, but feel compelled to add a couple of things.

As to what the motivation of Carr and Mueller was, it is, at this date, unclear, despite the high handed and dismissive sudden reactive reportage of Devlin Barrett, Zapotsky and Demerjian at WaPo and Ken Dilanian of NBC/MSNBC. They have shown even less sources and credibility than Buzzfeed that they now conveniently and eagerly dismiss. Maybe the Mueller statement is a tad more nuanced and unknown than that.

As to what the target of the Mueller/Carr statement was, when Marcy says:

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

Yes, this looks almost certain from where I stand. Wasn’t the only aim of Carr’s arrow on behalf of Mueller, but was a rather large one.

Secondly, and since many media outlets and commenters are clacking about how the proof of Trump directly telling Cohen to lie is the end all and be all as to necessity for discussion, that is just wrong.

The record before the Buzzfeed article already established, through signed and accepted court filings, that Cohen indeed lied to Congress with the express intent of supporting the lies Trump was fostering.

That is not in dispute at this point. As to whether Trump personally ordered Cohen to do so, face to face, (and there is still a decent shot of that being true, but we do not know), that is not the end of the discussion legally.

First off, if those around Trump, (think lawyers and family, if not Trump himself), discussed and encouraged Cohen to lie to Congress, that is a huge problem for Trump. Let me remind people of one of the most basic definitional provisions in the criminal code, 18 USC §2:

(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.

(b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.

So,  all of the nonsense by Rudy Guliliani is simply nonsense. That is without even considering conspiracy law and implications thereof.

So, sure, the SCO hit on Buzzfeed hurt the narrative in the press. Did it really hurt the narrative legally? No, not so much.

Lastly, I would like to address the upcoming House Oversight Committee hearing Cohen is scheduled for on February 7. He was voluntarily appearing after restrictions Cummings and the Committee agreed to, purportedly, with Mueller. The ground has changed. Frankly,  I think the hearing this quickly was ill considered and premature grandstanding to start with, but now strikes me as nuts given the changed circumstances after the Buzzfeed piece, SCO brushback and Trump’s direct threats to Cohen’s extended family.

Given the aggressive nature of Trump’s followers, there is a credible threat to Cohen and his family. But, more than that, there is a threat to his credibility and usability as a witness in the future. The ranking member on the House Oversight Committee is the odious Jim Jordan. His other GOP minority members will undoubtedly fall in line to attack Cohen, especially after the vague pushback comment of Carr/Mueller last night. It is set up now as a clown show.

The hearing should either be affirmatively postponed by Cummings or withdrawn from by Cohen personally. There is nowhere near enough good that can come from Cohen’s appearance, and a lot to lose for both him and Mueller given the shitshow that the GOP members will bring to the affair. Cancel that February 7 hearing and testimony. Just do not do it.

[For the record, I originally lodged this as a comment on Marcy’s post, but for unrelated reasons, thought the points about criminal liability and conspiracy needed to be included in a separate post, and did not wish to step on hers at the time.]

The Ghosts Of Christmas Eves Past

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Here we are, heading into Christmas. Everybody, is slowing down and heading into the holidays. We all are. Things often get a tad scarce this time of year, but we would like to say Hi, Happy Holidays, Merry Christmas, Happy Hanukkah, Mele Kalikimaka and any other greeting applicable. Thank you for being here with us.

It has been a couple of years…I think…since I have done the remembrance section at this time of year. Many of you are old-timers going back to when we were at TNH, even before the FDL years, but so many are new and really do not know the history. We have been at this a good long while now. The years float by, but the people are what sticks.

In that regard, I want to return to thanking those that contributed much, but are now gone. If you are new here, you never would have known the names of Mary, Bob Schacht, Mad Dog, Free Patriot, Skdadl and a host of others that were not only our blog friends, but that we often met and knew in real life too.

They are gone, but not forgotten heading into this Christmas Eve. But this always, at least for me, I think Marcy too, comes back into focus on this date because of our friend and beloved colleague, Mary Perdue. Mary passed away on Christmas Eve 2011. She, like all the others, was the best of what this blog had, and has, to offer. So, in memory of all who are gone, but not forgotten, here is the original in memorium for Mary.

You all, each and every one, rock. Thank you for being here and supporting us. Happy Holidays everyone:

…………..

The internet is a strange and wonderful thing. Just about everyone and everything in the world is on it, even though it is nothing but data in the form of binary computer code traversing by random electrons. Yet thought is crystalized, and friendships born and nurtured, through commonality of interest and purpose. And so it is here at Emptywheel, where many of us have been together since the days at The Next Hurrah, through years at Firedoglake, and now at our new home. Just because it germinates via the net does nothing to detract from the sense of community, friendship and admiration for each other gained over time.

With profound sadness, I report we have lost a true friend, and one of our longest tenured contributors, Mary. Mary Beth Perdue left us on Christmas Eve, December 24, 2011.

Mary Beth Perdue, 52, of Robards, KY, formally of Newburgh, passed away at her home.

She graduated Order of Coif from University of Kentucky Law School and from University of Evansville with an accounting degree. She was a member of the Indiana Bar Association. She was in house counsel at Mid-Central Land Services, Inc. and served as an attorney for firms in Indiana and Kentucky. She owned and operated the Horse and Hound (a pet supply store) in Newburgh. Mary was a lover of all animals with a special place in her heart for horses, dogs and cats. She was involved in numerous equestrian sports and organizations.

Here at Emptywheel, she was just Mary; and she was so much more than a simple obituary can convey. She was funny, kind, and, most of all, razor sharp in analysis of extremely complex issues surrounding torture, indefinite detention, international human rights, illegal wiretapping and executive branch overreach. Mary had a steel trap index in her mind for even obscure torture and rendition cases and facts. To the day she died, Mary was one of the very few people commenting in America that remembered, and would never miss a chance to point out, how the children and extended families of Khalid Sheikh Mohammed and Aafia Siddiqui were used and/or disappeared by the US as pawns in our immoral torture in the name of the so called “war on terror”. Mary’s dissection of Jack Goldsmith terrorist detention policy, complete with with a comparison to the Ox Bow Incident, was a thing of passion and beauty.

One of Mary’s favorite, and most important, hobby horses was the seminal case of Ex Parte Milligan, on which she beat the drum loudly long before the critical 2008 decision in Boumediene v. Bush and the 2009 release of the torture memos. She was, as usual, right. Here she is taking John Yoo apart at the seams over his intellectual duplicity regarding Ex Parte Milligan. And then there was Mary’s three part opus on the history and meaning of Ex Parte Milligan (Parts One, Two and Three), which is one of the best primers anywhere on the case that has finally come back into renewed significance in the critical issues of the war on terror. Mary played a part in keeping that significance alive, and in the discussion mix, until it took hold again.

Mary did not talk much about her real life family and work, and as another still practicing attorney, I can fully understand the maintenance of that separation. It is quite likely, like me, that her friends and family had little idea of the true depth and importance of her knowledge and dedication to the interests she expressed here, both in front page posts authored, and in her consistent critical contribution in the discussion comments. But, make no mistake, Mary was not just an invaluable contributor, and affected not just me and Marcy, but key players in the larger discussion. I know for a fact, because I talk to the different people and discussed it with them; Mary’s posts and comments were seen and known by actors from the ACLU, to EFF, to other think tanks and attorneys in the field. She left a mark.

As I said at the start of this post, the internet is a curious, if compelling and wonderful place; in all the furiously teeming milieu of people and issues, it is easy for one voice to not be missed for a brief time. All of us take time away every now and then, and Mary was no exception; often being scarce for a period due to pressing duties with work and her beloved horses and land.

I had not talked to Mary since a few days before Christmas. With the rush of the holidays, and a busy work schedule for me in January I have been a tad scarce myself and I had not particularly noticed Mary’s absence. A little over a week ago, I emailed her some irresistibly cute pictures of the one of a kind racehorse Rachel Alexandra and her new foal. Mary loved Rachel Alexandra. Realizing she had not responded to that catnip, I checked yesterday and found the terrible news. There are a lot of things Mary might be too busy with real life to respond to, but not that. And so life became a little less full and enjoyable. Mary’s family has indicated:

In lieu of flowers, memorial contributions may be made to a local humane society or other animal rescue.

And that would indeed be Mary, and fit her, to a tee. Here is a secure link to do so for the national Humane Society; but by all means, if so inclined, give to your local chapter and let them know it is for Mary.

Emptywheel will not be the same without Mary Beth Perdue, but her work and memory will live in our hearts, minds and archives as a testament to who and what she was and stood for. We shall close with the picture Mary never got the opportunity to see, but would have been the epitome of the horses, animals and children which she truly loved, Rachel Alexandra and foal.

Vaya con dios Mary, you will be missed.

….

Cheers to all, and to all a good night and wonderful Christmas Day.

Judge Sullivan Was Prepared For Potential Flynn Perjury and Fraud On The Court

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Okay, that was quite a morning at the E. Barrett Prettyman Courthouse in DC in regard to the Flynn plea and sentencing. In the windup this morning, well before the proceeding began, I cautioned that Flynn and his attorney Rob Kelner would have to back off the right wing Fox News Trumpian nonsense they stupidly included in their sentencing memo. See this report from Marcy on the sentencing memo, and this one as to how the FBI 302’s the Flynn team stupidly demanded be made public ate them alive. And, they really did.

There is already simply a ton of discussion on the Flynn proceeding today, I will leave that to others. But there was one little nugget I say from, I think, Glenn Kirshner, as almost a throwaway comment, on MSNBC that Judge Sullivan insisted Mike Flynn be sworn in before proceeding today. I was not really ready to write about this until confirming it from others in the courtroom this morning. I have now received that corroboration from multiple sources. In fact, Judge Sullivan directly said he was doing so because “he was doing basically an extension of the plea colloquy”. Wow!!

This is fairly notable. Defendants can get sworn in for their plea allocution, but not their sentencing. Judge Emmet Sullivan was laying in the weeds for Flynn from moment one. To be specific, here is what I said in a tweet well before the sentencing began regarding Flynn and Kelner having included the right wing nonsense about Flynn being innocent and tricked by the FBI in their sentencing memo:

“Keep in mind that this argument, if pursued to success, then makes his plea allocution effectively a fraud on the court.”

Well, apparently Judge Sullivan was on to the problem that such a direct repudiation by Flynn of his underlying guilt, and the previously sworn voluntariness of his plea, would pose if he was stupid enough to continue down that path. Sullivan was ready, because continuing down that path would have directly undermined everything Flynn swore to in his plea allocution on December 1, 2017.

What Judge Sullivan effectively did was set the first real “perjury trap” to date in the greater Mueller investigation (despite the idiocy purveyed relentlessly on Fox News and by Rudy Giuliani). And it was a federal court and judge that did it, not Mueller or his deputies. Emmet Sullivan was loaded for bear today on multiple fronts, but this is one the media does not seem to have caught on to yet.

Flynn and his attorneys were ready for it after the searing followup sentencing memo filed by the government, but clearly were not ready for just how seething Judge Sullivan really was. Frankly, I think the canard, as suggested by Sullivan himself, that “further cooperation” by Flynn really will change the dynamics for sentencing at this point is absurd. That said, assuming they can keep their client from doing further stupid things in the interim, giving Emmet Sullivan 90 days to calm down is not a bad idea for the defense I guess. What a mess. I remain convinced, however, that Flynn could have walked out of court sentenced to probation today if he had not included that right wing Fox News nonsense in his sentencing memo. Oh well!

The Moment Of Truth Comes For Cohen And Flynn

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As you likely know by now, Trump fixer Michael Cohen is getting sentenced this morning. In fact, the proceeding is starting as I write this post, so I am going to get it up so that there is an appropriate place to discuss the events.

There are three sentencing memos in the Cohen matter
1) Cohen’s memo
2) The SDNY Memo
3) The Mueller SCO Memo

The sentencing guideline range is 51-63 months, but the government has already suggested a downward departure, i.e. a reduction for those that do not practice federal criminal law, to 41 months. Remember, he is being, technically, sentenced on two different pleas today, the original comprehensive plea, and the one count of lying to the Feds under 18 USC §1001. The latter is a tack on charge and is really not particularly pertinent for sentencing and, in fact, the government has recommended no additional time for that above and beyond whatever is imposed in the original SDNY case. The judge is William H. Pauley, and, for what it is worth, he is not known for overly lenient sentences, and that is likely exacerbated in this case by the fact that Cohen’s conduct impinged on government.

I will make no bets here, but at one point I thought Cohen would do a lot better at sentencing, but the SDNY sentencing memo was just brutal. Currently having a hard time seeing Cohen walking out with less than the 41 months SDNY recommended, but you never know, only Pauley gets to decide. Do note that, should Cohen wake up and fully cooperate in the future, he can still get relief in the next year under Rule 35 of the Federal Criminal Rules of Procedure. Who knows what is yet to come, but it is technically possible that his sentence is not written in stone.

One interesting question is whether Judge Pauley will remand Cohen into custody today, or allow him to go home and self report at a later date. The presumption is always remand, but Cohen’s wife Laura clearly has health issues from seeing her enter the court this morning. If I were Cohen’s lawyer, Guy Petrillo, I would ask for the courtesy on him taking her home and self reporting later. We shall see.

Also, if interested in the blow by blow in real time, follow Adam Klasfeld @KlasfeldReports on Twitter.

Will add in Some Flynn material in a bit.

Kavanaugh Confirmation Standards of Nonsense

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

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

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

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

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

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

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

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

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

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

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

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

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

Actual vetting, not that Kushner BS.

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

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

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

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

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

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

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

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

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

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

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

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

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

Three Things: Russia and China Spying, Kavanope

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[NB: Yes, it’s Rayne, not Marcy. Check the byline.]

Huge news earlier today related to spying. Really big. MASSIVE.

And a MASSIVE cover-up pawned off on the feeble-minded as a ‘complete investigation‘ into Dr. Ford’s and Deborah Ramirez’s accusations against Brett Kavanaugh.

~ 3 ~

Bloomberg published an epic piece of investigative journalism this morning about China’s spying on U.S. businesses by way of tiny chips embedded in server motherboards. The photos in the story are just as important as the must-read story itself as they crystallize a challenge for U.S. intelligence and tech communities. Like this pic:

That tiny pale obelisk to the right of the penny represents one of the malicious chips found in affected Supermicro brand motherboards shipped to the U.S. market — nearly as small as the numbers in the date on the coin. Imagine looking for something this puny before a machine is turned on and begins to launch its operating system. Imagine trying to find it when it is sandwiched inside the board itself, embedded in the fiberglass on top of which components are cemented.

The chip could undermine encryption and passwords, making any system open to those who know about its presence. According to Bloomberg reporters  Jordan Robertson and Michael Riley, the chips found their way into motherboards used by Apple and Amazon.

Information security folks are scrambling right now because this report rocks their assumptions about the supply chain and their overall infosec worldview. Quite a few doubt this Bloomberg report, their skepticism heightened by the carefully worded denials offered by affected and relevant parties Apple, Amazon, Supermicro, and China. Apple provided an itemization of what it believed Bloomberg Businessweek got wrong along with its denial.

I’ll have more on this in a future post. Yes, indeedy.

~ 2 ~

A cooperative, organized response by Britain, The Netherlands, U.S., and Canada today included the indictment of seven Russians by the U.S. for conspiracy, conspiracy to commit wire fraud, wire fraud, aggravated identity theft, and conspiracy to launder money. The Russians have been identified as members of a GRU team organized out of a facility in Moscow, working on hacking and a disinformation influence campaign focused on anti-doping entities and non-Russian Olympic athletic competitors.

Note the underlined bit in this excerpt from the indictment (pdf) — the last indictment I copied with similar wording was that of Evgeny Buryakov and his two comrades, the three spies based in New York City who worked with “Male-1”, now known to be Carter Page. Who are the known and unknown? Persons who have flipped or co-conspirators yet to be named?

The UK released a statement as did the Canadians, and Netherlands issued a joint statement with the UK about the entirety of spying for which this GRU team is believed to be responsible, including an attempt to breach the Organisation for the Prohibition of Chemical Weapons’ (OPCW) facility analyzing the Novichok nerve agent used to poison the Skripals in the UK as well as chemicals used against Syrians.

Cryptocurrency news outlets report concerns that this indictment reveals the extent of USDOJ’s ability to trace cryptocurrency.

An interesting coincidence took place overnight as well — Russian Deputy Attorney General Saak Karapetyan died last night when an unauthorized helicopter flight crashed northeast of Moscow. Karapetyan had been linked this past January to Natalia Veselnitskaya and an attempt to recruit Switzerland’s top investigator as double-agents. But Karapetyan had also been involved in Russia’s response to the poisoning of Alexander Litvinenko and the aftermath of the Skripals’ poisoning in the UK.

What remarkable timing.

One might wonder if this accident had anything to do with the unusual release of GRU personnel details by the Dutch Military Intelligence and Security Service (MIVD) and the United Kingdom’s Ministry of Justice during their joint statement today.

By comparing the released identity documents, passports, automobile registrations and the address provided when cars were rented, the identities of a total 305 GRU agents may have been identified by bellingcat and The Insider including the four out of the seven men wanted by the U.S. for the anti-doping hackingas well as attempted breach of OPCW.

The identity of the four GRU agents accused of targeting the OPCW was cinched by a taxi receipt in one agent’s pocket from a location on the road next to the GRU’s facility in Russia. Four agents also had consecutive passport numbers.

What remarkably bad opsec.

~ 1 ~

As for the impending vote on Brett Kavanaugh:

– Senator Heidi Heitkamp is voting her conscience — NO on Kavanaugh.
– Senator Joe Manchin is now the lone Dem holdout; he says he’s still listening but hasn’t seen anything incriminating from Kavanaugh’s adulthood. (Gee, I wonder why.)
– Senator Bob Menendez didn’t mince words. He said “It’s a bullshit investigation.” (He should know what a thorough investigation looks like).

And the beer-loving former Yale frat boy had an op-ed published in the Wall Street Journal which pleads with us to lose all intelligence and believe that he is really very neutral. I am not even going to link to that POS which has re-enraged women all over the country.

GTFO.

Continue calling your senators to thank them for a NO vote on Kavanaugh so that they aren’t hearing right-wing demands alone. Congressional switchboard: (202) 224-3121

~ 0 ~

This is an open thread. Sic ’em.

Photo: Pavan Trikutam via Unsplash

Three URGENT Things: POTUS’ Alert Text, Facebonked, Kavanuh-uh

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Let’s get right to it, no time for preamble (and don’t forget to check the byline above).

~ 3 ~

There will be an unblockable nationwide test of the Presidential Alert system on all cell phones today at 2:18 p.m. ET.

This infuriates me to no end, especially after Trump’s insulting bullshit at his fan club rally last night in which he denigrated assault survivor Dr. Blasey Ford. It’s as if he’s going to grab us all by the privates at the same time today without our consent.

Think about it: so much of your private personal life goes through your phone and now Trump’s FEMA has decided it will inject itself into your phone?

Lifehacker has a decent article suggesting some methods for mitigating or avoiding the text if not blocking it — you can read about it at this link.

Make sure you tell friends and family ASAP about this alert so they don’t freak out and aren’t in the middle of something important when this alert shows up.

Pity the poor residents of Hawaii, having to face this crap first thing this morning.

Time zone conversion for the alert:

Eastern: 2:18 p.m. ET
Central: 1:18 p.m. CT
Mountain: 12:18 p.m. MT
Pacific: 11:18 a.m. PT
Alaska: 10:18 a.m.
Hawaii: 08:18 a.m.

Check time conversion at this link. I’m going to shut my phone off at 2:00 p.m. ET and take an hour-long break.

~ 2 ~

The half-assed FBI investigation will likely be finished today; don’t expect to see the Swiss cheese-y results riddled with holes where testimony wasn’t collected. It’s unlikely the public will see this report.

This means McConnell will likely pursue a vote on cloture today to end debate in order for the full Senate to vote on Kavanaugh before the end of the week.

Which in turn means CALL YOUR SENATORS. Yes, even the steadfast Democrats who are unlikely to sway because their offices are being flooded with right-wing calls demanding their poor rich white frat boy judge be seated for a lifetime on the Supreme Court.

Screw that. Just MAKE THE CALLS.

Congressional switchboard: (202) 224-3121

Need a script for your call? @Celeste_pewter has them broken into four categories:

– The Democrats who have already said yes, and won’t flip no matter what.
– The red state Democrats.
– The potential GOP flips.
– The GOP senators who will vote yes, no matter what.

And a universal, all-senators script.

Pick the appropriate script and have at it. (Thanks, Celeste!)

HOOSIERS: Make a special effort to thank Joe Donnelly who came out last night as a NO on Kavanaugh. He is surely being pummeled today by Indiana’s finest red staters.

NORTH DAKOTANS: Heitkamp is down but within margin of error of her Republican opponent. Make sure you call so that she doesn’t feel pressure to backslide.

Trouble getting through switchboard or full mailbox? Try contacting your senators’ local offices. Look them up at:

Contacting Congress: https://www.contactingcongress.org
Ballotpedia: https://ballotpedia.org/Who_represents_me%3F

~ 1 ~

Facebook’s massive breach exposes what a bad, BAD idea it was to allow a Facebook login to become a universal login for other applications. Let’s not forget Facebook has also appropriated users’ phone numbers for advertising without users’ consent. It’s a security cataclysm and Facebook is once again flat-footed.

NEVER LOG INTO SITES WITH FACEBOOK USERID.

Never use the same password for more than one site.

Use a password manager.

Read up here about the problem.

What did I do? I gave up Facebook years ago when it was clear to me they were a security cesspool.

~ 0 ~

Now get going. Run!

Treat this as an open thread.

One Question: Why Kavanaugh?

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[NB: As always, check the byline.]

I don’t have anything new to add to the work Marcy has done so far in her analysis of SCOTUS nominee Brett Kavanaugh’s testimony and statements and those of Dr. Christine Blasey Ford. Nor can I add to bmaz’ criticism of the subsequent investigation.

Voluminous amounts of material have been generated by this confirmation process, including a redacted transcript of a Senate Judiciary Committee phone interview with Kavanaugh released last evening. Myriad questions have been asked about Kavanaugh’s past and his false statements. Given the confirmation process is a job interview, after all we’ve seen and heard publicly, it must be asked: Why Kavanaugh?

Why is the White House and the GOP portion of the Senate Judiciary Committee so deeply invested in Kavanaugh’s confirmation?

Why do they remain staunchly behind him when they’ve long had a list of other identified SCOTUS justice candidates?

Why were those candidates, the first 11 identified in May 2016 during the Trump campaign, inadequate such that Kavanaugh was added later in November 2017 to the candidate list?

Is the man we’ve seen and read so much about really the very best candidate this White House could produce for this lifetime appointment?

Why is a man whose behavior was so disrespectful of the Senate, of the Constitution, of the need for neutral nonpartisan mindset so important that the White House and GOP SJC are willing to burn down what little goodwill remains with centrists and with women and minorities?

Why the sustained commitment to a nominee who so easily lies under oath, in full view of the public?

Why stand so pat behind a nominee whose license to practice law could yet be suspended or worse because he has lied repeatedly under oath?

Do the White House and GOP SJC believe the average American would hire somebody who is supposed to be a careful arbiter of the law but who yells at and lies to his employers’ representatives during an interview?

Why are the White House and GOP SJC willing to risk exposing yet more unpleasantness about Kavanaugh given how much has already surfaced about his iffy finances and his lying about his behavior in high school and college?

Why are White House and GOP SJC willing to risk negatively affecting the mid-term elections with their commitment to Kavanaugh?

Why the investment in social media to prop up support behind Kavanaugh — both in the form of “revisions” to Wikipedia entries related to terms questioned during last Thursday’s hearing, and tweets from the SJC’s account?

Why was a Fox cable network interview necessary for the nominee of a nonpartisan job?

Media is marketing — why does this nominee need to be promoted with the public?

Why haven’t they teased an alternative nominee to test the public’s willingness to support them in lieu of Kavanaugh?

Given an alternative candidate of comparable educational and work history, would the average American as an employer offering a lifetime appointment really pick Kavanaugh over anyone else?

Why are the White House and the GOP SJC insisting Kavanaugh’s confirmation be rushed for what appear to the public to be wholly arbitrary reasons?

Everything about this confirmation process makes no sense; it undermines faith in the Senate Judiciary Committee and may taint the Supreme Court. We must know: Why Kavanaugh?

__________

This is an open thread.